Preemptive Rights. (a) Subject to Section 3.9, for so long as any Investor Beneficially Owns Investor Shares representing at least five percent (5%) of the Outstanding Stock, such Investor shall have, the right to purchase, in accordance with the procedures set forth herein, its pro rata portion, calculated based on the number of Investor Shares held by such Investor as a percentage of the Outstanding Stock prior to issuance of the New Shares (such Investor’s “Pro Rata Portion”) of any New Shares that the Company may, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive Right”). (b) In the event that the Company proposes to issue and sell New Shares, the Company shall notify each of the Investors in writing with respect to the proposed New Shares to be issued (the “New Shares Notice”). Each New Shares Notice shall set forth: (i) the number of New Shares proposed to be issued by the Company and the purchase price therefor; (ii) each Investor’s Pro Rata Portion of such New Shares; and (iii) any other material term (including, if known, the expected date of consummation of the purchase and sale of the New Shares). (c) Each Investor (together with its Affiliates) shall be entitled to exercise its right to purchase New Shares by delivering an irrevocable written notice to the Company within fifteen (15) days from the date of receipt of any such New Shares Notice specifying the number of New Shares to be subscribed, which in any event can be no greater than such Investor’s Pro Rata Portion of such New Shares at the price and on the terms and conditions specified in the New Shares Notice. (d) If the Investors (together with their Affiliates) do not elect within the applicable notice period described above to exercise their Preemptive Rights with respect to any of the New Shares proposed to be sold by the Company, the Company shall have ninety (90) days after expiration of such notice period to sell such unsubscribed New Shares proposed to be sold by the Company, at a price and on terms no more favorable to the purchaser than those set forth in the New Shares Notice. If the Company does not consummate the sale of the unsubscribed New Shares in accordance with the terms of the New Shares Notice within such ninety (90)-day period, then the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies with the provisions of this Section 3.8 with respect to such New Shares. (e) Each Investor (together with its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant to the Preemptive Right upon closing of the issuance of the New Shares, and shall have no right to acquire such New Shares if the issuance thereof shall not be consummated.
Appears in 3 contracts
Samples: Stockholders Agreement, Stockholders Agreement (Deerfield Capital Corp.), Stockholders Agreement (Deerfield Capital Corp.)
Preemptive Rights. (a) Subject to Section 3.9, for so long as any Investor Beneficially Owns Investor Shares representing at least five percent (5%4.06(d) of and the Outstanding Stock, such Investor shall havelimitations set forth in Section 4.06(c) below, the right Company shall not issue or sell any Securities (collectively, “New Issue Securities”) to purchaseany Person, except in accordance with the procedures set forth hereinfollowing provisions:
(b) The Company shall give a notice to each Stockholder hereunder (the “Preemptive Notice”) stating: (i) the Company’s intention to issue the New Issue Securities; (ii) the number and description thereof or the amount of the New Issue Securities to be issued; (iii) the purchase price (calculated as of the proposed issuance date) and the other terms upon which the Company is offering the New Issue Securities.
(c) Transmittal of the Preemptive Notice to the Stockholder by the Company shall constitute an offer by the Company to sell to each Stockholder his, her or its pro rata portion, calculated based on or any lesser number specified by the number of Investor Shares held by such Investor as a percentage of the Outstanding Stock prior to issuance Stockholder, of the New Shares (Issue Securities for the price and upon the terms set forth in the Preemptive Notice. For a period of 10 Business Days after the submission of the Preemptive Notice to the Stockholder, each Stockholder shall have the option, exercisable by written notice to the Company, to accept the Company’s offer as to purchase all or any part of such InvestorStockholder’s “Pro Rata Portion”) pro rata portion or any lesser number of the New Issue Securities; provided, however, that if any New Shares that Stockholder notifies the Company may, from time that it desires to time, propose purchase less than all of the New Issues Securities available for it to sell and issue (hereinafter referred to as the “Preemptive Right”).
(b) In the event that the Company proposes to issue and sell New Sharespurchase, the Company shall notify each promptly offer to sell such excess New Issue Securities to any Stockholder exercising its right to purchase all of the Investors in writing with respect New Issue Securities available for it to the proposed purchase. If two (2) or more types of New Shares Issue Securities are to be issued (or New Issue Securities are to be issued together with other types of securities, including, without limitation, debt securities, in a single transaction or related transactions, the “rights to purchase New Shares Notice”). Each New Shares Notice shall set forth: (i) Issue Securities granted to the number Stockholders under this Section 4.06 must be exercised to purchase all types of New Shares proposed Issue Securities and such other securities in the same proportion as such New Issue Securities and other securities are to be issued by the Company and Company. If the purchase price therefor; Stockholders (iias a group) each Investor’s Pro Rata Portion of such New Shares; and (iii) any other material term (including, if known, the expected date of consummation of the purchase and sale of the New Shares).
(c) Each Investor (together with its Affiliates) shall be entitled to exercise its right agree to purchase New Shares by delivering an irrevocable written notice to less than the Company within fifteen (15) days from the date of receipt of any such New Shares Notice specifying the total number of New Shares Issue Securities proposed to be subscribedissued and sold, which in the Company shall have one hundred twenty (120) days thereafter to sell any event can or all of the remaining New Issue Securities (i.e., those not to be no greater than such Investor’s Pro Rata Portion of such New Shares at the price and on the sold to any Stockholder) to one or more other Persons, upon terms and conditions specified no less favorable to the Company, and no more favorable to such Person or Persons, than those set forth in the Preemptive Notice. In the event the Company has not sold such New Shares NoticeIssue Securities within said one hundred twenty (120) day period, the Company will not thereafter issue or sell any New Issue Securities without first offering such New Issue Securities to the Stockholders in the manner provided above.
(d) If The preemptive rights contained in this Section 8 shall not apply to:
(i) the Investors issuance by the Company of Common Stock pursuant to the Management Compensation Plan;
(together ii) the issuance of Securities in a Public Offering;
(iii) the issuance of Securities by any Subsidiary of the Company to the Company;
(iv) the issuance of Securities upon the exercise or exchange of other Securities that were issued in compliance with their Affiliatesthis Section 4.06(d) do not elect within or Securities which were issued in an issuance that is exempt from this Section 4.06; and
(v) the applicable notice period described above issuance of Securities in connection with any stock split, stock dividend, reverse split, consolidation, recapitalization of the Company or any other form of strategic transaction.
(e) Notwithstanding anything to exercise their Preemptive Rights with respect the contrary contained in this Section 4.06, the Company may, in order to any expedite the issuance of New Issue Securities hereunder, issue all or a portion of the New Shares proposed Issue Securities to be sold by one or more Persons (each, an “Initial Subscribing Stockholder”) without complying with the provisions of this Section 4.06; provided that, prior to such issuance, either (i) each Initial Subscribing Stockholder agrees to offer to sell to each Stockholder his, her or its respective pro rata portion of such New Issue Securities on the same terms and conditions as issued to the Initial Subscribing Stockholders and in a manner which provides such Stockholder with rights substantially similar to the rights outlined in Sections 4.06(a) and (b) or (ii) the Company shall offer to sell an additional amount of New Issue Securities to each Stockholder (other that Initial Subscribing Stockholders) only in an amount and manner which provides such Stockholder with rights substantially similar to the rights outlined in Sections 4.06(a) and 4.06(b). The Initial Subscribing Stockholders or the Company, the Company as applicable, shall have offer to sell such New Issue Securities to each other Stockholder within ninety (90) days after expiration of such notice period to sell such unsubscribed New Shares proposed to be sold by the Company, at a price and on terms no more favorable to the purchaser than those set forth in the New Shares Notice. If the Company does not consummate the sale closing of the unsubscribed New Shares in accordance with the terms purchase of the New Shares Notice within such ninety (90)-day period, then Issue Securities by the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies with the provisions of this Section 3.8 with respect to such New SharesInitial Subscribing Stockholders.
(ef) Each Investor (together with Any Stockholder may assign its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase rights pursuant to the Preemptive Right upon closing of the issuance of the New Sharesthis Section 4.06, in whole or in part and shall have no right from time to acquire such New Shares if the issuance thereof shall time, to an Affiliate that is not be consummateda Competitor or a Competitor Affiliate.
Appears in 3 contracts
Samples: Stockholders Agreement (Euramax International, Inc.), Stockholders Agreement (Euramax International, Inc.), Stockholders Agreement (Euramax International, Inc.)
Preemptive Rights. (a) Subject The Company hereby grants to Section 3.9each current holder of Company Securities, for so long as including Athens and its Affiliates and Subsidiaries except in connection with the issuance of any Investor Beneficially Owns Investor Shares representing at least five percent Debt Instrument, (5%the “Preemptive Participants”) of the Outstanding Stock, such Investor shall have, the right to purchase, in accordance with the procedures set forth herein, purchase its pro rata portion, calculated based on the number of Investor Shares held by such Investor as a percentage of the Outstanding Stock prior to issuance of the New Shares (such Investor’s “Pro Rata Portion”) Portion of any New Shares Securities that the Company may, from time to time, propose to sell and or issue (hereinafter or that relate to incurred indebtedness, as applicable. The number or amount of New Securities which the Preemptive Participants may purchase pursuant to this Section 4.1(a) shall be referred to as the “Preemptive Right”)Offered Securities.” The preemptive purchase right provided in this Section 4.1(a) shall apply at the time of issuance or incurrence, as applicable, of any right, warrant or option or convertible or exchangeable security and not to the conversion, exchange or exercise thereof.
(b) The Company shall give written notice of a proposed issuance, sale or incurrence described in Section 4.1(a) to the Preemptive Participants within five (5) Business Days following any meeting of the Board at which any such issuance, sale or incurrence is approved and at least fifteen (15) days prior to the proposed issuance, sale or incurrence. Such notice (the “Issuance Notice”) shall set forth the material terms and conditions of such proposed transaction, including, as applicable, the number or amount and description of the securities proposed to be issued, the proposed issuance or incurrence date and the proposed purchase price per security.
(c) At any time during the 15-day period following the receipt of an Issuance Notice, the Preemptive Participants shall have the right to elect irrevocably to purchase their Pro Rata Portion of the number or amount of the Offered Securities at the purchase price set forth in the Issuance Notice and upon the other terms and conditions specified in the Issuance Notice by delivering a written notice to the Company. Except as provided in the following sentence, such purchase shall be consummated concurrently with the consummation of the issuance, sale or incurrence described in the Issuance Notice. The closing of any purchase by any Preemptive Participants may be extended beyond the closing of the transaction described in the Issuance Notice to the extent necessary to obtain required governmental approvals and other required approvals, and the Company shall use its commercially reasonable efforts to obtain such approvals.
(d) Each Preemptive Participant exercising its right to purchase its respective portion of the Offered Securities in full (an “Exercising Holder”) shall have a right of over-allotment such that if any other securityholder fails to exercise its right hereunder to purchase its full Pro Rata Portion of New Securities (a “Non-Purchasing Holder”), such Exercising Holder may purchase all or any part of such securities by giving written notice to the Company, within the 15-day period following the receipt of an Issuance Notice, of its interest in purchasing a specified amount of New Securities as to which any Non-Purchasing Holders has failed to exercise their preemptive purchase right hereunder; provided that in the event there are two or more such Exercising Holders that choose to exercise the last-mentioned option for a total number of remaining securities in excess of the number available, the remaining securities available for purchase under this Section 4.1(d) shall be allocated among such Exercising Holders pro rata based on the number of New Securities such Exercising Holders elected to purchase pursuant to Section 4.1(c).
(e) If the Preemptive Participants or Exercising Holders fail to exercise fully their preemptive purchase right hereunder within the periods described above, the Company shall be free to complete the proposed issuance, sale or incurrence of the New Securities described in the Issuance Notice with respect to which Exercising Holders failed to exercise the option set forth in this Section 4.1 on terms no less favorable to the Company than those set forth in the Issuance Notice (except that the number or amount of securities to be issued or sold by the Company may be reduced); provided that (x) such issuance, sale or incurrence is closed within ninety (90) days after the expiration of the 15-day period described in Section 4.1(c) and (y) the price at which the New Securities are Transferred must be equal to or higher than the purchase price described in the Issuance Notice. Such periods within which such issuance, sale or incurrence must be closed shall be extended to the extent necessary to obtain required governmental approvals and other required approvals and the Company shall use its commercially reasonable efforts to obtain such approvals. In the event that the Company proposes to issue and sell has not sold such New SharesSecurities within said 90-day period, the Company shall notify each of not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without first again complying with the Investors preemptive purchase right procedures provided for in writing with respect to the proposed New Shares to be issued (the “New Shares Notice”). Each New Shares Notice shall set forth: (i) the number of New Shares proposed to be issued by the Company and the purchase price therefor; (ii) each Investor’s Pro Rata Portion of such New Shares; and (iii) any other material term (including, if known, the expected date of consummation of the purchase and sale of the New Shares)this Section 4.1.
(cf) Each Investor (together with its Affiliates) shall be entitled to exercise its right to purchase New Shares by delivering an irrevocable written notice to the Company within fifteen (15) days from the date of receipt of any such New Shares Notice specifying the number of New Shares to be subscribed, which in any event can be no greater than such Investor’s Pro Rata Portion of such New Shares at the price and on the terms and conditions specified in the New Shares Notice.
(d) If the Investors (together with their Affiliates) do not elect within the applicable notice period described above to exercise their Preemptive Rights with respect to any of the New Shares proposed to be sold by the Company, the Company shall have ninety (90) days after expiration of such notice period to sell such unsubscribed New Shares proposed to be sold by the Company, at a price and on terms no more favorable to the purchaser than those The preemptive rights set forth in this Section 4.1 may be waived upon the New Shares Notice. If the Company does not consummate the sale written approval of the unsubscribed New Shares in accordance with the terms Minority Independent Director (or a majority of the New Shares Notice within Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such ninety (90)-day periodwaiver) if such waiver is deemed by such Minority Independent Director, then the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies with the provisions of this Section 3.8 with respect to such New Shares.
(e) Each Investor (together with its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant to the Preemptive Right upon closing majority of the issuance Independent Directors, as applicable, to be in the best interest of the New Shares, and shall have no right to acquire such New Shares if the issuance thereof shall not be consummatedCompany.
Appears in 3 contracts
Samples: Stockholders Agreement, Stockholders Agreement (Greektown Superholdings, Inc.), Shareholder Agreement (Athens Acquisition LLC)
Preemptive Rights. (a) Subject to Section 3.9and without limiting the other terms of this Agreement, for so long as any Investor Beneficially Owns Investor Shares representing at least five percent (5%) of the Outstanding StockCompany grants to each Member, such Investor and each Member shall have, have the right to purchase, in accordance with the procedures set forth herein, its up to such Member’s pro rata portion, calculated portion (based on each Member’s Ownership Percentage at the number of Investor Shares held by such Investor as a percentage time of the Outstanding Stock prior to issuance of the applicable New Shares (such Investor’s “Pro Rata Portion”Interests Notice) of any New Shares that Interests which the Company may, from time to time, propose to issue and sell and issue (hereinafter referred to as the “Preemptive RightRights”).
(b) In the event that the Company proposes to issue and or sell New SharesInterests, the Company shall notify each of the Investors Member in writing with respect to the proposed New Shares Interests to be issued or sold (the “New Shares Interests Notice”). Each New Shares Interests Notice shall set forth: (i) the number and class of New Shares Interests proposed to be issued or sold by the Company and the their purchase price therefor; price, (ii) each Investorsuch Member’s Pro Rata Portion pro rata portion of such New Shares; Interests and (iii) any other material term (includingterm, including any applicable regulatory requirements and, if known, the expected date of consummation of the purchase issuance and sale of the New SharesInterests (which date, in any event shall be no earlier than thirty (30) days following the date of delivery of the New Interests Notice).
(c) Each Investor (together with its Affiliates) Member shall be entitled to exercise its right Preemptive Rights to purchase such New Shares Interests by delivering an irrevocable written notice to the Company within fifteen ten (1510) days from the date of receipt of any such New Shares Interests Notice specifying the number of New Shares Interests to be subscribed, which in any event can be no greater than such InvestorMember’s Pro Rata Portion pro rata portion of such New Shares Interests, at the price and on the terms and conditions specified in the New Shares Interests Notice.
(d) Each Member exercising its right to purchase its entire pro rata portion of New Interests being issued (each a “Subscribing Member”) shall have a right of over-allotment such that if any other Member fails to exercise its Preemptive Right to purchase its entire pro rata portion of New Interests (each, a “Non-Subscribing Member,” including any Member that fails to exercise its right to purchase its entire pro rata share of Remaining New Interests, as described below), such Subscribing Member may purchase its pro rata share, based on the relative Ownership Percentage then owned by the Subscribing Members, of those New Interests in respect to which the Non-Subscribing Members have not exercised their Preemptive Right (the “Remaining New Interests”) by giving written notice to the Company within three (3) Business Days from the date that the Company provides written notice of the amount of New Interests as to which such Non-Subscribing Members have failed to exercise their rights to purchase. The Company shall reoffer any Remaining New Interests to the Members in successive rounds (without regard to the time periods specified in the foregoing provisions) until such time as the Members have collectively agreed to purchase all of the New Interests being issued or all of the Members are Non-Subscribing Members in the last round of offers.
(e) If the Investors (together with their Affiliates) Members do not elect within the applicable notice period periods described above to exercise their Preemptive Rights with respect to any of the New Shares Interests proposed to be sold by the Company, the Company shall have ninety one hundred and twenty (90120) days after the expiration of all such notice period periods to sell or to enter into an agreement to sell such unsubscribed New Shares Interests proposed to be sold by the Company, at a price and on material terms no more favorable to the purchaser than those set forth in offered to the New Shares Notice. If the Company does not consummate the sale of the unsubscribed New Shares in accordance with the terms of the New Shares Notice within such ninety (90)-day period, then the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies with the provisions of Members pursuant to this Section 3.8 with respect to such New Shares6.04.
(ef) Each Investor (together with its Affiliates) shall No Member will be required to take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase Interests pursuant to the Preemptive Right upon closing of unless all New Interests (other than those to be taken up by the issuance of Member) are sold, whether to the New Shares, and shall have no right other Members or pursuant to acquire such New Shares if the issuance thereof shall not be consummatedSection 6.04(e) above.
Appears in 3 contracts
Samples: Limited Liability Company Agreement (Crestwood Equity Partners LP), Contribution Agreement (Consolidated Edison Inc), Contribution Agreement (Crestwood Midstream Partners LP)
Preemptive Rights. (a) Subject If the Company or any of its Subsidiaries proposes to Section 3.9issue and sell any of its equity securities or any securities containing options or rights to acquire any equity securities or any securities convertible into equity securities for value, the Company will offer in a written notice furnished in accordance with paragraph 22 to sell to each Investor Shareholder a portion of the number or amount of such securities proposed to be sold in any such transaction or series of related transactions equal to the product of the percentage each such Investor Shareholder holds of all Common Stock then held by all of the Shareholders by the number of securities proposed to be issued and sold by the Company in any such transaction or series of related transactions, all for so long the same price and upon the same economic terms and otherwise on the same terms and conditions as the securities that are being offered in such transaction or series of transactions. If any Investor Beneficially Owns Shareholder having preemptive rights under this paragraph 4 fails to accept such offer in whole or in part within the period provided below in paragraph 4(c), the Company shall offer in a written notice furnished in accordance with paragraph 22 the securities that were not so accepted to all Investor Shares representing at least five percent (5%) Shareholders who elected to accept such offer in whole or in part, in the same proportion as the respective Common Stock held by such electing Investor Shareholder bears to the aggregate Common Stock held by all Investor Shareholders who elected to accept such initial offer in whole or in part. Each electing Investor Shareholder shall have an additional period of ten days from and after the date of the Outstanding StockCompany’s re-offer within which to accept such re-offer in whole or in part. If an Investor Shareholder elects to accept such offer in whole or in part, such Investor Shareholder shall have, the right so accept by written notice to purchase, in accordance with the procedures set forth herein, its pro rata portion, calculated based on the number of Investor Shares held by such Investor as a percentage of the Outstanding Stock prior to issuance of the New Shares (such Investor’s “Pro Rata Portion”) of any New Shares that the Company maygiven within such 10-day period, from time provided that all acceptances by Carlyle’s Affiliates shall be made by Carlyle on behalf of its Affiliates. No further offer to timethe Investor Shareholders under this paragraph 4 is then required with respect to the same offering of securities, propose to sell and issue (hereinafter referred to except as the “Preemptive Right”otherwise required in paragraph 4(c).
(b) In Notwithstanding the event that the Company proposes to issue and sell New Sharesforegoing, the Company provisions of this paragraph 4 shall notify each of the Investors in writing with respect not be applicable to the proposed New Shares to be issued (the “New Shares Notice”). Each New Shares Notice shall set forth: issuance of equity securities (i) pursuant to the number of New Shares proposed to be issued by the Company and the purchase price therefor; Capital Contribution Agreement, (ii) each Investorupon the exercise of warrants or options or upon the conversion of shares of one class of capital stock into shares of another class in accordance with the provisions of the Company’s Pro Rata Portion Certificate of such New Shares; and Incorporation, or (iii) as a stock dividend or any stock split or other material term (includingsubdivision or combination of the outstanding equity securities; provided, if knownhowever, the expected date provisions of consummation this paragraph 4 shall terminate upon completion of the purchase and sale of the New Shares)a Public Offering.
(c) Each The Company will cause to be given to the Investor Shareholders a written notice delivered in accordance with paragraph 22 setting forth in reasonable detail the terms and conditions upon which they may purchase such shares or other securities, including, without limitation, the number of shares or other securities offered by the Company, the price at which such shares or other securities are being offered and the date on which the sale is to be completed (together with its Affiliates) shall be entitled the “Preemptive Notice”). After receiving a Preemptive Notice, if any of the Investor Shareholders wishes to exercise its right to purchase New Shares the preemptive rights granted by delivering an irrevocable written this paragraph 4 it must give notice to the Company in writing, within fifteen (15) 15 business days from after the date that such Preemptive Notice is deemed given pursuant to paragraph 22 (subject to extension in the event of receipt a re-offer described in paragraph 3(a) above), stating the quantity of any such New Shares Notice specifying the number of New Shares shares or other securities offered pursuant to be subscribed, which in any event can be no greater than such Investor’s Pro Rata Portion of such New Shares at the price and this paragraph 4 it agrees to purchase on the terms and conditions set forth in the Preemptive Notice (the “Preemptive Reply”), provided that all Preemptive Replies by Carlyle’s Affiliates shall be made by Carlyle on behalf of its Affiliates. The closing for the sale of the shares or other securities subject to the Preemptive Notice shall occur no earlier than 5 business days after the Preemptive Reply. If the Investor Shareholders fail to make a Preemptive Reply in accordance with this paragraph 4 within the 15-business day period specified in this paragraph 4(c) (subject to extension in the New Shares Notice.
(devent of a re-offer described in paragraph 3(a) If above), shares or other securities offered to it in accordance with this paragraph 4 may thereafter, for a period not exceeding 120 days following the Investors (together with their Affiliates) do not elect within the applicable notice period described above to exercise their Preemptive Rights with respect to any of the New Shares proposed to be sold by the Company, the Company shall have ninety (90) days after expiration of such notice period 15-business day period, be issued, sold or subjected to sell such unsubscribed New Shares proposed rights or options to be sold by the Company, any purchaser at a price not less than the price at which they were offered to such Investor Shareholders and on other terms and conditions no more favorable to the purchaser purchasers thereof than those set forth in the New Shares Notice. If the Company does not consummate the sale of the unsubscribed New Shares in accordance with the terms of the New Shares Notice within such ninety (90)-day period, then the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies with the provisions of this Section 3.8 with respect to such New Shares.
(e) Each Investor (together with its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant offered to the Preemptive Right upon closing of Investor Shareholders. Any such shares or other securities not so issued, sold or subjected to rights or options to any purchaser during such 120-day period will thereafter again be subject to the issuance of the New Shares, and shall have no right to acquire such New Shares if the issuance thereof shall not be consummatedpreemptive rights provided for in this paragraph 4.
Appears in 2 contracts
Samples: Capital Contribution Agreement (Apollo Group Inc), Shareholders’ Agreement (Apollo Group Inc)
Preemptive Rights. (a) Subject If the Company or any of its Subsidiaries proposes to Section 3.9issue and sell any of its equity securities or any securities containing options or rights to acquire any equity securities or any securities convertible into equity securities for value, the Company will offer in a written notice furnished in accordance with paragraph 21 to sell to each Investor Shareholder a portion of the number or amount of such securities proposed to be sold in any such transaction or series of related transactions equal to the product of the percentage each such Investor Shareholder holds of all Common Stock then held by all of the Shareholders by the number of securities proposed to be issued and sold by the Company in any such transaction or series of related transactions, all for so long the same price and upon the same economic terms and otherwise on the same terms and conditions as the securities that are being offered in such transaction or series of transactions. If any Investor Beneficially Owns Shareholder having preemptive rights under this paragraph 4 fails to accept such offer in whole or in part within the period provided below in paragraph 4(c), the Company shall offer in a written notice furnished in accordance with paragraph 21 the securities that were not so accepted to all Investor Shares representing at least five percent (5%) Shareholders who elected to accept such offer in whole or in part, in the same proportion as the respective Common Stock held by such electing Investor Shareholder bears to the aggregate Common Stock held by all Investor Shareholders who elected to accept such initial offer in whole or in part. Each electing Investor Shareholder shall have an additional period of ten days from and after the date of the Outstanding StockCompany’s re-offer within which to accept such re-offer in whole or in part. If an Investor Shareholder elects to accept such offer in whole or in part, such Investor Shareholder shall have, the right so accept by written notice to purchase, in accordance with the procedures set forth herein, its pro rata portion, calculated based on the number of Investor Shares held by such Investor as a percentage of the Outstanding Stock prior to issuance of the New Shares (such Investor’s “Pro Rata Portion”) of any New Shares that the Company maygiven within such 10-day period, from time provided that all acceptances by Carlyle’s Affiliates shall be made by Carlyle on behalf of its Affiliates. No further offer to timethe Investor Shareholders under this paragraph 4 is then required with respect to the same offering of securities, propose to sell and issue (hereinafter referred to except as the “Preemptive Right”otherwise required in paragraph 4(c).
(b) In Notwithstanding the event that the Company proposes to issue and sell New Sharesforegoing, the Company provisions of this paragraph 4 shall notify each of the Investors in writing with respect not be applicable to the proposed New Shares to be issued (the “New Shares Notice”). Each New Shares Notice shall set forth: issuance of equity securities (i) pursuant to the number of New Shares proposed to be issued by the Company and the purchase price therefor; Joint Venture Agreement, (ii) each Investorupon the exercise of warrants or options or upon the conversion of shares of one class of capital stock into shares of another class in accordance with the provisions of the Company’s Pro Rata Portion Certificate of such New Shares; and Incorporation, or (iii) as a stock dividend or any stock split or other material term (includingsubdivision or combination of the outstanding equity securities; provided, if knownhowever, the expected date provisions of consummation this paragraph 4 shall terminate upon completion of the purchase and sale of the New Shares)a Public Offering.
(c) Each The Company will cause to be given to the Investor Shareholders a written notice delivered in accordance with paragraph 21 setting forth in reasonable detail the terms and conditions upon which they may purchase such shares or other securities, including, without limitation, the number of shares or other securities offered by the Company, the price at which such shares or other securities are being offered and the date on which the sale is to be completed (together with its Affiliates) shall be entitled the “Preemptive Notice”). After receiving a Preemptive Notice, if any of the Investor Shareholders wishes to exercise its right to purchase New Shares the preemptive rights granted by delivering an irrevocable written this paragraph 4 it must give notice to the Company in writing, within fifteen (15) 15 business days from after the date that such Preemptive Notice is deemed given pursuant to paragraph 21 (subject to extension in the event of receipt a re-offer described in paragraph 3(a) above), stating the quantity of any such New Shares Notice specifying the number of New Shares shares or other securities offered pursuant to be subscribed, which in any event can be no greater than such Investor’s Pro Rata Portion of such New Shares at the price and this paragraph 4 it agrees to purchase on the terms and conditions set forth in the Preemptive Notice (the “Preemptive Reply”), provided that all Preemptive Replies by Carlyle’s Affiliates shall be made by Carlyle on behalf of its Affiliates. The closing for the sale of the shares or other securities subject to the Preemptive Notice shall occur no earlier than 5 business days after the Preemptive Reply. If the Investor Shareholders fail to make a Preemptive Reply in accordance with this paragraph 4 within the 15-business day period specified in this paragraph 4(c) (subject to extension in the New Shares Notice.
(devent of a re-offer described in paragraph 3(a) If above), shares or other securities offered to it in accordance with this paragraph 4 may thereafter, for a period not exceeding 120 days following the Investors (together with their Affiliates) do not elect within the applicable notice period described above to exercise their Preemptive Rights with respect to any of the New Shares proposed to be sold by the Company, the Company shall have ninety (90) days after expiration of such notice period 15-business day period, be issued, sold or subjected to sell such unsubscribed New Shares proposed rights or options to be sold by the Company, any purchaser at a price not less than the price at which they were offered to such Investor Shareholders and on other terms and conditions no more favorable to the purchaser purchasers thereof than those set forth in the New Shares Notice. If the Company does not consummate the sale of the unsubscribed New Shares in accordance with the terms of the New Shares Notice within such ninety (90)-day period, then the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies with the provisions of this Section 3.8 with respect to such New Shares.
(e) Each Investor (together with its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant offered to the Preemptive Right upon closing of Investor Shareholders. Any such shares or other securities not so issued, sold or subjected to rights or options to any purchaser during such 120-day period will thereafter again be subject to the issuance of the New Shares, and shall have no right to acquire such New Shares if the issuance thereof shall not be consummatedpreemptive rights provided for in this paragraph 4.
Appears in 2 contracts
Samples: Joint Venture Agreement (Apollo Group Inc), Shareholders' Agreement (Apollo Group Inc)
Preemptive Rights. (a) Subject to Section 3.9, for so long as any Investor Beneficially Owns Investor Shares representing at least five percent (5%) of the Outstanding Stock, such Investor shall have, the right to purchase, in accordance with the procedures set forth herein, its pro rata portion, calculated based on the number of Investor Shares held by such Investor as a percentage of the Outstanding Stock prior to issuance of the New Shares (such Investor’s “Pro Rata Portion”) of any New Shares that the Company may, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive Right”).
(b) In the event that (and on each occasion) that, after the Company proposes to issue and sell New Sharesdate hereof, the Company shall notify each decide to undertake an issuance of additional shares of Common Stock or any rights, warrants or options to purchase Common Stock or any securities convertible into Common Stock ("New Securities") which would not result in an adjustment pursuant to Section 4 of the Investors in writing with respect to Attached Warrants, other than a Permitted Issuance (as defined below), the proposed Company shall give each Purchaser written notice (an "Offer Notice") of the Company's decision, describing the type and amount of New Shares Securities to be issued (issued, the “price per share at which the New Shares Notice”)Securities are to be issued, and the general terms upon which the Company has decided to issue the New Securities. Each Purchaser shall have thirty (30) days from the date on which the Company shall give the written Offer Notice to agree to purchase such New Shares Notice shall set forth: Securities for the price per share and upon the general terms specified in the Offer Notice, and in compliance with paragraph (ic) the number of New Shares proposed this Section 5.06, by giving written notice to be issued by the Company and stating therein the purchase price therefor; (ii) each Investor’s Pro Rata Portion quantity of New Securities to be purchased by such Purchaser. If, in connection with such a proposed issuance of New Shares; and (iii) Securities, such Purchaser shall for any other material term (including, if known, the expected date of consummation of the purchase and sale of the New Shares).
(c) Each Investor (together with its Affiliates) shall be entitled reason fail or refuse to exercise its right to purchase New Shares by delivering an irrevocable give such written notice to the Company within fifteen such period of thirty (1530) days from the date days, such Purchaser shall, for all purposes of receipt of this Section 5.06, be deemed to have refused (in that particular instance only) to purchase any such New Shares Notice specifying the number of New Shares to be subscribed, which in any event can be no greater than such Investor’s Pro Rata Portion of such New Shares at the price Securities and on the terms and conditions specified to have waived (in the New Shares Notice.
(dthat particular instance only) If the Investors (together with their Affiliates) do not elect within the applicable notice period described above all rights of such Purchaser under this Section 5.06 to exercise their Preemptive Rights with respect to purchase any of the New Shares proposed to be sold by the Company, the Company shall have ninety (90) days after expiration of such notice period to sell such unsubscribed New Shares proposed to be sold by the Company, at a price and on terms no more favorable to the purchaser than those set forth in the New Shares Notice. If the Company does not consummate the sale of the unsubscribed New Shares in accordance with the terms of the New Shares Notice within such ninety (90)-day period, then the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies with the provisions of this Section 3.8 with respect to such New SharesSecurities.
(e) Each Investor (together with its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant to the Preemptive Right upon closing of the issuance of the New Shares, and shall have no right to acquire such New Shares if the issuance thereof shall not be consummated.
Appears in 2 contracts
Samples: Unit Purchase Agreement (Pegasus Investors L P), Unit Purchase Agreement (Code Alarm Inc)
Preemptive Rights. (a) Subject From the Closing Date, in the event the Company proposes to Section 3.9issue Common Shares or securities convertible into or exercisable for Common Shares or rights, options or warrants entitling the holders thereof to subscribe for so long or purchase Common Shares (collectively, the "Preemptive Securities"), other than (i) pursuant to the Equity Incentive Plan, (ii) pursuant to any merger, share exchange or acquisition pursuant to which Preemptive Securities are exchanged for, or issued upon cancellation or conversion of, securities of another entity not Affiliated with any Shareholder, or (iii) (A) upon exercise of warrants, options or other rights to acquire Preemptive Securities in each case, either included in clause (i) or (ii) above, or which were issued in an Excluded Transaction (as any Investor Beneficially Owns Investor Shares representing at least five percent defined below), or (5%B) upon issuance of the Outstanding StockNotes pursuant to the Investment Agreement (or additional Notes pursuant to the Executive Agreement or conversion of any such Notes or as payment of interest on any such Notes), then the Company shall:
(i) deliver to the Shareholders written notice setting forth in reasonable detail (1) the terms and provisions of the Preemptive Securities proposed to be issued (the "Proposed Securities"); (2) the price and other terms of the proposed sale of such Investor shall have, securities; (3) the right amount of such securities proposed to purchase, be issued; and (4) such other information as the Shareholders may reasonably request in accordance with order to evaluate the procedures set forth herein, its pro rata portion, calculated based on proposed issuance; and
(ii) offer to issue to each Shareholder a portion of the Proposed Securities equivalent to a percentage determined by dividing (x) the number of Investor Common Shares held beneficially owned by such Investor as a percentage of the Outstanding Stock Shareholder prior to such issue (assuming the issuance of all Common Shares issuable pursuant to then outstanding warrants, options (including employee stock options), convertible or exchangeable securities (including, without limitation, the New Notes, even if at such time the Notes are not convertible) and other rights to acquire Preemptive Securities from the Company), by (y) the Fully-Diluted Shares (at such Investor’s “Pro Rata Portion”) of any New Shares that the Company may, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive Right”).
(b) In the event that the Company proposes to issue and sell New Shares, the Company shall notify each For purposes of the Investors in writing with respect to the proposed New Shares to be issued (the “New Shares Notice”). Each New Shares Notice shall set forth: (i) calculating the number of New Common Shares proposed beneficially owned pursuant to be issued by the Company and the purchase price therefor; (ii) each Investor’s Pro Rata Portion of such New Shares; and (iii) any other material term (including, if knownSection 4.1(a)(ii), the expected date of consummation of Conversion Price (as defined in the purchase and sale of the New Shares).
(c) Each Investor (together with its AffiliatesNotes) shall be entitled (1) absent a Liquidity Event, the Base Conversion Price (as defined in the Notes); or (2) if a Liquidity Event has occurred, the Conversion Price determined with reference to exercise its right to purchase New Shares by delivering an irrevocable written notice Annex A to the Company within fifteen (15) days from Notes, in each case as the date of receipt of any such New Shares Notice specifying the number of New Shares to same may be subscribed, which in any event can be no greater than such Investor’s Pro Rata Portion of such New Shares at the price and on the terms and conditions specified in the New Shares Notice.
(d) If the Investors (together with their Affiliates) do not elect within the applicable notice period described above to exercise their Preemptive Rights with respect to any of the New Shares proposed to be sold by the Company, the Company shall have ninety (90) days after expiration of such notice period to sell such unsubscribed New Shares proposed to be sold by the Company, at a price and on terms no more favorable to the purchaser than those set forth in the New Shares Notice. If the Company does not consummate the sale of the unsubscribed New Shares adjusted in accordance with the terms of the New Shares Notice within such ninety (90)-day period, then the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies with the provisions of this Section 3.8 with respect to such New Shares.
(e) Each Investor (together with its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant to the Preemptive Right upon closing of the issuance of the New Shares, and shall have no right to acquire such New Shares if the issuance thereof shall not be consummated.4.2
Appears in 2 contracts
Samples: Shareholder Agreement (Morgan Stanley), Shareholder Agreement (Viatel Holding Bermuda LTD)
Preemptive Rights. (a) Subject The Company shall not issue or agree to Section 3.9issue Ordinary Shares, for so long as other Equity Securities or any Investor Beneficially Owns Investor Shares representing at least five percent (5%) other securities of the Outstanding StockCompany that are convertible into or exercisable or exchangeable for Ordinary Shares (such securities, “Preemptive Securities”), unless, in each case, the Company shall have first given written notice (the “Preemptive Notice”) to the Shareholder that shall (i) state the Company’s intention to issue the Preemptive Securities (in each case, an “Initial Issuance”), the amount to be issued, the terms of such Investor shall havePreemptive Securities, the purchase price therefor and a summary of the other material terms and conditions of the proposed Initial Issuance, and (ii) offer (a “Preemptive Offer”) to issue to the Shareholder up to the such number of Preemptive Securities as the Shareholder has the right to purchase, in accordance with the procedures acquire pursuant to Section 6(b) and as set forth hereinin the Preemptive Notice (the “Offered Securities”) on the terms and conditions (including purchase price) set forth in the Preemptive Notice, which Preemptive Offer by its terms shall remain open and irrevocable for a period of twenty (20) Business Days from the date it is delivered by the Company to the Shareholder (the “Preemptive Period”) and, to the extent the Preemptive Offer is accepted during such Preemptive Period, until the closing of the Initial Issuance contemplated by the Preemptive Offer.
(b) The Shareholder shall be entitled to participate in each Initial Issuance on a pro rata portion, calculated based on basis by purchasing a number of Offered Securities in an amount equal to the product of (i) the total number of Preemptive Securities to be issued in the Initial Issuance multiplied by (ii) a fraction in which the numerator is the number of Investor Ordinary Shares Beneficially Owned by the Shareholder (excluding any Ordinary Shares obtainable by the Shareholder on conversion of any Convertible Securities or exercise of any warrants held by the Shareholder until such Investor as a percentage Ordinary Shares are actually issued) and the denominator is the aggregate number of the Outstanding Stock Ordinary Shares outstanding, in each case immediately prior to issuance of the New Shares such Initial Issuance and on a fully diluted basis (such Investorfraction, such Shareholder’s “Pro Rata Portion”) of any New Shares that the Company may, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive Right”).
(b) In the event that the Company proposes to issue and sell New Shares, the Company shall notify each of the Investors in writing with respect to the proposed New Shares to be issued (the “New Shares Notice”). Each New Shares Notice shall set forth: (i) the number of New Shares proposed to be issued by the Company and the purchase price therefor; (ii) each Investor’s Pro Rata Portion of such New Shares; and (iii) any other material term (including, if known, the expected date of consummation of the purchase and sale of the New Shares).
(c) Each Investor (together with its Affiliates) Notice of the Shareholder’s intention to accept a Preemptive Offer, in whole or in part, shall be entitled to exercise its right to purchase New Shares evidenced by delivering an irrevocable written notice a writing signed by the Shareholder and delivered to the Company prior to the end of the Preemptive Period of such Preemptive Offer (each, a “Notice of Acceptance”), setting forth the portion of the Offered Securities that the Shareholder elects to purchase.
(d) Upon the closing of the Initial Issuance (which shall occur within fifteen twenty (1520) days Business Days after the end of the Preemptive Period, the Shareholder shall promptly purchase from the date Company, and the Company shall issue to the Shareholder, the Offered Securities covered by the Shareholder’s Notice of receipt of any such New Shares Notice specifying Acceptance delivered to the number of New Shares to be subscribedCompany by the Shareholder, which in any event can be no greater than such Investor’s Pro Rata Portion of such New Shares at the price and on the terms and conditions specified in the New Shares Notice.
(dincluding purchase price) If the Investors (together with their Affiliates) do not elect within the applicable notice period described above to exercise their Preemptive Rights with respect to any of the New Shares proposed to be sold by the Company, the Company shall have ninety (90) days after expiration of such notice period to sell such unsubscribed New Shares proposed to be sold by the Company, at a price and on terms no more favorable to the purchaser than those set forth in the New Shares NoticePreemptive Offer. If The purchase by the Shareholder of any Offered Securities is subject in all cases to the execution and delivery by the Company does not consummate and the sale Shareholder of the unsubscribed New Shares in accordance with the terms of the New Shares Notice within such ninety (90)-day period, then the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies with the provisions of this Section 3.8 with respect purchase agreement relating to such New SharesOffered Securities in customary form and reflecting the price, terms and conditions set forth in the Preemptive Offer.
(e) Each Investor (together with its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) In the event the Shareholder has elected to participate in an Initial Issuance and has timely delivered a Notice of Acceptance to the Company but any governmental approval(s) applicable to the Shareholder has prevented it from purchasing Offered Securities in the Initial Issuance, from the closing of the Initial Issuance through the three-month anniversary of the date thereof, the Shareholder shall have the right to purchase the amount of Offered Securities necessary for the Shareholder to Beneficially Own its Pro Rata Portion of the share capital of the Company on a fully diluted basis as if the Shareholder had participated in the Initial Issuance (the “Catch-Up Securities”). The Shareholder’s right to purchase Offered Securities pursuant to this Section 6(e) shall be satisfied pursuant to the following method: the Company shall reserve during the Initial Issuance and, upon the Shareholder’s receipt of the outstanding governmental approval(s), issue the Catch-Up Securities to the Shareholder on the same terms and conditions, including the same purchase price, as the Initial Issuance, provided, that, the Shareholder’s purchase price for the Catch-Up Securities shall be equal to the purchase price set forth in the Preemptive Right upon closing Offer plus interest accruing at a rate of 2.0% per annum from the date of the consummation of the Initial Issuance up to, but excluding, the date of such sale to the Shareholder. The purchase by the Shareholder of any Catch-Up Securities pursuant to this Section 6(e) is subject in all cases to the execution and delivery by the Shareholder, and the Company of a purchase agreement relating to such securities in customary form and reflecting the price (subject to adjustment as contemplated by the proviso to the foregoing sentence), terms and conditions set forth in the Preemptive Offer.
(f) The preemptive rights set forth in this Section 6 with respect to the Shareholder shall terminate at such time as the Shareholder no longer owns at least 10% of the outstanding Ordinary Shares.
(g) The provisions of this Section 6 shall not apply to issuances by the Company or any of its Subsidiaries as follows:
(i) the issuance of Ordinary Shares by the New SharesCompany pursuant to the terms of the Convertible Notes, the Exchange Warrants, the Option and shall have no right to acquire such New Shares if the Physical Delivery Forward Transaction;
(ii) the issuance thereof shall not be consummatedof New Securities as consideration in an acquisition of a business or assets of a business which has been approved pursuant to Section 3(a)(iii) to the extent required;
(iii) the issuance or grant of New Securities pursuant to any option or other equity benefit plan of the Company or any of its Subsidiaries (such plan, a “Company Equity Plan”), including the issuance of New Securities upon the conversion, exercise, vesting or exchange of a Convertible Security that was issued or granted under a Company Equity Plan; or
(iv) the issuance of New Securities under a shareholder rights plan or other “poison pill” arrangement entered into or adopted by the Company (subject to Section 3(a) and Section 3(c)).
Appears in 2 contracts
Samples: Shareholder Agreement (Zhonghuan Singapore Investment & Development Pte. Ltd.), Shareholder Agreement (Maxeon Solar Technologies, Ltd.)
Preemptive Rights. (a) Subject to Section 3.9, for For so long as any Investor Beneficially Owns the Investor Shares representing represent at least five percent (5%) % or more of the Outstanding Stock, such the Investor shall have, the right to purchase, in accordance with the procedures set forth herein, its pro rata portion, portion (calculated based solely on the number Common Stock issued or issuable to the Investor upon conversion of Investor Shares held by such Investor the Convertible Notes as a percentage of the Outstanding then-outstanding Common Stock prior to issuance of the New Shares (such Investor’s “Pro Rata Portion”Shares) of any New Shares that which the Company may, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive Right”).
(b) In the event that the Company proposes to issue and sell New Shares, the Company shall notify each of the Investors Investor in writing with respect to the proposed New Shares to be issued (the “New Shares Notice”). Each New Shares Notice shall set forth: (i) the number of New Shares proposed to be issued by the Company and the their purchase price thereforprice; (ii) each the Investor’s Pro Rata Portion pro rata portion (calculated based on the Common Stock issued or issuable to the Investor upon conversion of such the Convertible Notes as a percentage of the then-outstanding Common Stock prior to issuance of the New Shares; ) of New Shares and (iii) any other material term (includingand, if known, the expected date of consummation of the purchase and sale of the New Shares).
(c) Each The Investor (together with its Affiliates) shall be entitled to exercise its right to purchase such New Shares by delivering an irrevocable written notice to the Company within fifteen (15) 15 days from the date of receipt of any such New Shares Notice specifying the number of New Shares to be subscribed, which in any event can be no greater than such the Investor’s Pro Rata Portion pro rata portion (calculated as provided above) of such New Shares at the price and on the terms and conditions specified in the New Shares Notice.
(d) If the Investors (together with their Affiliates) do Investor does not elect within the applicable notice period described above to exercise their Preemptive Rights its preemptive rights with respect to any of the New Shares proposed to be sold by the Company, the Company shall have ninety (90) 90 days after expiration of all such notice period to sell or to enter into an agreement to sell such unsubscribed New Shares proposed to be sold by the Company, at a price and on terms no more favorable to the purchaser than those set forth in offered to the New Shares Notice. If the Company does not consummate the sale of the unsubscribed New Shares in accordance with the terms of the New Shares Notice within such ninety (90)-day period, then the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies with the provisions of this Section 3.8 with respect to such New SharesInvestor.
(e) Each The Investor (together with its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant to the Preemptive Right upon closing of the issuance of the New Shares, and shall have no right to acquire such New Shares if the issuance thereof shall not be consummated.
Appears in 2 contracts
Samples: Shareholder Agreement (Deerfield Capital Corp.), Shareholder Agreement (Deerfield Capital Corp.)
Preemptive Rights. (a) Subject Until the consummation of an Initial Public Offering, the Company hereby grants to Section 3.9, for so long as any Investor Beneficially Owns Investor Shares representing at least five percent each Member that is not a Defaulting Member (5%the “Preemptive Participants”) of the Outstanding Stock, such Investor shall have, the right to purchase, purchase (the “Equity Purchase Right”) up to its Preemptive Portion (calculated in accordance with the procedures set forth herein, its pro rata portion, calculated based on the number of Investor Shares held by such Investor as a percentage of the Outstanding Stock prior to issuance of the New Shares (such Investor’s “Pro Rata Portion”Section 11.01(c)) of any New Shares Units (other than Excluded Units) or other Interests in the Company or rights to acquire Units (including warrants, options or convertible or exchangeable securities), subject to the over-allotment rights in Section 11.01(d), that the Company may, from time to time, propose to sell and or issue (hereinafter referred to as all such securities, the “Preemptive RightUnits”). The Equity Purchase Right provided in this Section 11.01(a) shall apply at the time of issuance of any right, warrant or option or convertible or exchangeable security, and not to the conversion or exchange pursuant to its terms or exercise thereof.
(b) The Company shall give written notice (the “Issuance Notice”) of a proposed issuance or sale described in Section 11.01(a) to the Preemptive Participants at least thirty (30) days prior to the proposed issuance or sale. The Issuance Notice shall set forth the material terms and conditions of such proposed transaction, including (i) the number or amount and description of the Preemptive Units proposed to be sold or issued, (ii) the proposed sale or issuance date, (iii) the proposed purchase price per Preemptive Unit, and (iv) the other material terms and conditions of the proposed sale or issuance of the Preemptive Units.
(c) The total number of Preemptive Units that each Preemptive Participant shall be entitled to purchase shall be equal to the product of (i) the total number of Preemptive Units to be sold or issued by the Company on the proposed issuance date and (ii) such Preemptive Participant’s Percentage Interest (excluding for purposes of the calculation thereof any Units held by a Defaulting Member) as determined immediately prior to such sale or issuance (the “Preemptive Portion”). At any time during the 30-day period following the receipt of an Issuance Notice, the Preemptive Participants shall have the right to elect irrevocably to purchase up to their Preemptive Portion of the Preemptive Units at the purchase price set forth in the Issuance Notice and upon the other terms and conditions specified in the Issuance Notice by delivering a written notice to the Company. Except as provided in Section 11.01(d), such purchase shall be consummated concurrently with the consummation of the issuance or sale described in the Issuance Notice.
(d) Each Preemptive Participant exercising its right to purchase its Preemptive Portion of the Preemptive Units in full (an “Exercising Member”) shall also have a right of over-allotment such that if any other Member fails to exercise its right hereunder to purchase its full Preemptive Portion of the Preemptive Units (a “Non-Purchasing Member”), such Exercising Member may purchase all or any portion of such securities by giving written notice to the Company within ten (10) days from the date that the Company provides written notice of the amount of Preemptive Units as to which such Non-Purchasing Members have failed to exercise their Equity Purchase Rights hereunder; provided that in the event there are two or more such Exercising Members that choose to exercise such option for a total number of remaining Preemptive Units in excess of the number available, the remaining Units available for purchase under this Section 11.01(d) shall be allocated among such Exercising Members pro rata based on the number of Preemptive Units such Exercising Members elected to purchase pursuant to Section 11.01(c).
(e) If any Preemptive Participants or Exercising Members fail to exercise fully their Equity Purchase Rights within the periods described above and after expiration of the 10-day period for exercise of the over-allotment provisions pursuant to Section 11.01(d) above, the Company shall be free to complete the proposed issuance or sale of the remaining Preemptive Units described in the Issuance Notice with respect to which Exercising Members failed to exercise the option set forth in this Section 11.01, on terms no less favorable to the Company than those set forth in the Issuance Notice (except that the amount of securities to be issued or sold by the Company may be reduced); provided, that (i) such issuance or sale is closed within sixty (60) days after the expiration of the 10-day period described in Section 11.01(d) and (ii) the price at which the remaining Preemptive Units are issued must be equal to or higher than the purchase price described in the Issuance Notice. Such periods within which such issuance or sale must be closed shall be extended to the extent necessary to obtain required governmental approvals and other required approvals and the Company shall use its commercially reasonable efforts to obtain such approvals. In the event that the Company proposes to issue and sell New Shareshas not sold such remaining Preemptive Units within said 60-day period, the Company shall notify each of the Investors in writing with respect to the proposed New Shares to be issued (the “New Shares Notice”). Each New Shares Notice shall set forth: (i) the number of New Shares proposed to be issued by the Company and the purchase price therefor; (ii) each Investor’s Pro Rata Portion of such New Shares; and (iii) any other material term (including, if known, the expected date of consummation of the purchase and sale of the New Shares).
(c) Each Investor (together with its Affiliates) shall be entitled to exercise its right to purchase New Shares by delivering an irrevocable written notice to the Company within fifteen (15) days from the date of receipt of any such New Shares Notice specifying the number of New Shares to be subscribed, which in any event can be no greater than such Investor’s Pro Rata Portion of such New Shares at the price and on the terms and conditions specified in the New Shares Notice.
(d) If the Investors (together with their Affiliates) do not elect within the applicable notice period described above to exercise their Preemptive Rights with respect to any of the New Shares proposed to be sold by the Company, the Company shall have ninety (90) days after expiration of such notice period to sell such unsubscribed New Shares proposed to be sold by the Company, at a price and on terms no more favorable to the purchaser than those set forth in the New Shares Notice. If the Company does not consummate the sale of the unsubscribed New Shares in accordance with the terms of the New Shares Notice within such ninety (90)-day period, then the Company may not thereafter issue or sell any Preemptive Units, without first again offering such New Shares unless it sends a new New Shares Notice and once again complies with securities to the provisions of Members in the manner provided in this Section 3.8 with respect to such New Shares11.01.
(e) Each Investor (together with its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant to the Preemptive Right upon closing of the issuance of the New Shares, and shall have no right to acquire such New Shares if the issuance thereof shall not be consummated.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Zugel Christian), Limited Liability Company Agreement (Zugel Christian)
Preemptive Rights. (a) Subject to Notwithstanding anything contained in Section 3.93, from and after the Closing Date, for so long as the Investors meet the Minimum Ownership Threshold, if the Company makes any public or non-public offering of any New Securities, each Investor Beneficially Owns Investor Shares representing at least five percent (5%) shall be afforded the opportunity to acquire from the Company all or a portion of such Investor’s Preemptive Rights Portion of such New Securities for the Outstanding Stocksame price as that offered to the other purchasers of such New Securities; provided, that such Investor shall have, not be entitled to acquire any New Securities pursuant to this Section 4 to the right extent the issuance of such New Securities to purchase, in accordance with the procedures set forth herein, its pro rata portion, calculated based on the number of Investor Shares held by such Investor would require approval of the stockholders of the Company as a percentage result of the Outstanding Stock prior to issuance of the New Shares (any such Investor’s “Pro Rata Portion”) status, if applicable, as an Affiliate of any New Shares that the Company mayor pursuant to the rules and listing standards of the Nasdaq Stock Exchange, from time in which case the Company may consummate the proposed issuance of New Securities to time, propose other Persons prior to sell and issue obtaining approval of the stockholders of the Company (hereinafter referred subject to as compliance by the “Preemptive Right”Company with Section 4(e) below).
(b) In the event that If the Company proposes to issue offer New Securities, it shall give the Investors written notice of its intention, describing the anticipated price (or range of anticipated prices), anticipated amount of New Securities and sell other material terms and timing upon which the Company proposes to offer the same (including, in the case of a registered public offering and to the extent possible, a copy of the prospectus included in the registration statement filed with respect to such offering) at least seven (7) business days prior to such issuance (or, in the case of a registered public offering, at least seven (7) business days prior to the commencement of such registered public offering) (provided that, to the extent the terms of such offering cannot reasonably be provided seven (7) business days prior to such issuance, notice of such terms may be given as promptly as reasonably practicable but in any event prior to such issuance). The Company may provide such notice to the Investors on a confidential basis prior to public disclosure of such offering. Other than in the case of a registered public offering, the Investor Representative may notify the Company in writing at any time on or prior to the second (2nd) business day immediately preceding the date of such issuance (or, if notice of all such terms has not been given prior to the second (2nd) business day immediately preceding the date of such issuance, at any time prior to such issuance) whether any of the Investors will exercise such preemptive rights and as to the amount of New SharesSecurities the Investors desire to purchase, up to the such Investor’s Preemptive Rights Portion. In the case of a registered public offering, the Investor Representative shall notify the Company in writing at any time prior to the second (2nd) business day immediately preceding the date of commencement of such registered public offering (or, if notice of all such terms has not been given prior to the second (2nd) business day immediately preceding the date of commencement of such registered public offering, at any time prior to the date of commencement of such registered public offering) whether any of the Investors will exercise such preemptive rights and as to the amount of New Securities the Investors desire to purchase, up to such Investor’s Preemptive Rights Portion. Such notice to the Company shall notify each constitute a binding commitment by the Investors to purchase the amount of New Securities so specified at the price and other terms set forth in the Company’s notice to it. Subject to receipt of the Investors in writing requisite notice of such issuance by the Company, the failure of the Investor Representative to respond prior to the time a response is required pursuant to this Section 4(b) shall be deemed to be a waiver of the Investors’ purchase rights under this Section 4 only with respect to the proposed New Shares to be issued (offering described in the “New Shares Notice”). Each New Shares Notice shall set forth: (i) the number of New Shares proposed to be issued by the Company and the purchase price therefor; (ii) each Investor’s Pro Rata Portion of such New Shares; and (iii) any other material term (including, if known, the expected date of consummation of the purchase and sale of the New Shares)applicable notice.
(c) Each Investor shall purchase the New Securities that it has elected to purchase under this Section 4 concurrently with the related issuance of such New Securities by the Company (together with its Affiliatessubject to the receipt of any required approvals from any governmental entity to consummate such purchase by such Investor); provided, that if such related issuance is prior to the twentieth (20th) shall be entitled to exercise its right business day following the date on which such Investor has notified the Company that it has elected to purchase New Shares Securities pursuant to this Section 4, then each Investor shall purchase such New Securities within twenty (20) business days following the date of the related issuance. If the proposed issuance by delivering an irrevocable written notice the Company of securities which gave rise to the exercise by the Investor of its preemptive rights pursuant to this Section 4 shall be terminated or abandoned by the Company without the issuance of any securities, then the purchase rights of the Investors pursuant to this Section 4 shall also terminate as to such proposed issuance by the Company (but not any subsequent or future issuance), and any funds in respect thereof paid to the Company within fifteen (15) days from by the date of receipt of any such New Shares Notice specifying the number of New Shares to Investors in respect thereof shall be subscribed, which promptly refunded in any event can be no greater than such Investor’s Pro Rata Portion of such New Shares at the price and on the terms and conditions specified in the New Shares Noticefull.
(d) In the case of the offering of securities for consideration in whole or in part other than cash, including securities acquired in exchange therefor (other than securities by their terms so exchangeable), the consideration other than cash shall be deemed to be the fair value thereof as reasonably determined by the Board; provided, however, that such fair value as determined by the Board shall not exceed the aggregate market price of the securities being offered as of the date the Board authorizes the offering of such securities.
(e) In the event that the Investors are not entitled to acquire any New Securities pursuant to this Section 4 because such issuance would require the Company to obtain stockholder approval in respect of the issuance of such New Securities to the Investors as a result of any such Investor’s status, if applicable, as an Affiliate of the Company or pursuant to the rules and listing standards of the Nasdaq Stock Exchange, the Company shall, upon the Investor’s reasonable request delivered to the Company in writing within seven (7) business days following its receipt of the written notice of such issuance to the Investors pursuant to this Section 4, at the Investor’s election, (i) consider and discuss in good faith modifications proposed by the Investors to the terms and conditions of such portion of the New Securities which would otherwise be issued to the Investors such that the Company would not be required to obtain stockholder approval in respect of the issuance of such New Securities as so modified; and/or (ii) solely to the extent that stockholder approval is not required in connection with the issuance of Equity Securities to Persons other than the Investors, use reasonable best efforts to seek stockholder approval in respect of the issuance of any New Securities to the Investors.
(f) If the Investors (together with their Affiliates) do not elect within the applicable notice period described above to exercise purchase their respective Preemptive Rights with respect to any Election Share of the New Shares proposed Securities pursuant to be sold by the Companythis Section 4, the Company shall have ninety (90) days after expiration of such notice period to may sell such unsubscribed portion of the New Shares proposed to be sold by the Company, at a price and Securities on terms no and conditions that are not materially more favorable in the aggregate to the purchaser applicable purchaser(s) than those set forth in the New Shares Noticewritten notice of such offer. If such sale is not consummated within 120 days of the date upon which the written notice of such offer was given, then no issuance of such New Securities may be made thereafter by the Company does not consummate without again offering the sale of same to the unsubscribed New Shares Investors in accordance with this Section 4. The election by any Investor to not exercise its subscription rights under this Section 4 in any one instance shall not affect its right as to any subsequent proposed issuance.
(g) The Company and the terms Investors shall cooperate in good faith to facilitate the exercise of the New Shares Notice within such ninety Investors’ rights pursuant to this Section 4, including securing any required approvals or consents.
(90)-day period, then the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies with the provisions h) For purposes of this Section 3.8 with respect to such New Shares.
(e) Each Investor (together with its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant to 4, the Preemptive Right upon closing of following terms have the issuance of the New Shares, and shall have no right to acquire such New Shares if the issuance thereof shall not be consummated.following meanings:
Appears in 2 contracts
Samples: Investor Rights Agreement (Act III Holdings LLC), Investor Rights Agreement (BJs RESTAURANTS INC)
Preemptive Rights. (a) Subject In case the Company proposes to Section 3.9issue or sell any Company Securities (collectively, for so long as any the “Offered Securities”), the Company shall, no later than thirty (30) days prior to the consummation of such transaction (a “Preemptive Rights Transaction”), give written notice (the “Offer Notice”) to each Investor Beneficially Owns of such Preemptive Rights Transaction. The Offer Notice shall describe the proposed Preemptive Rights Transaction, including price and other terms and conditions, and contain an offer (the “Preemptive Rights Offer”) to sell to each such Investor Shares representing at least five percent (5%other than a Defaulting Investor) who certifies (to the reasonable satisfaction of the Outstanding Stock, Company) that such Investor shall haveis an Accredited Investor (an “Offeree”), at the right to purchase, in accordance with the procedures price set forth hereinin the Offer Notice, its all or part of such Offeree’s pro rata portion, calculated based on portion of the Offered Securities (which shall be the proportion that the number of Investor Shares held shares of Fully-Diluted Common Stock owned by such Investor as a percentage bears to the number of shares of Fully-Diluted Common Stock owned by all Investors, excluding, for the purposes of such calculation, any shares of Common Stock issuable upon exercise of any Common Stock Equivalents granted pursuant to any employee, officer, or director benefit plan or arrangement). Each such Investor desiring to accept such offer (an “Accepting Holder”) shall provide written notice of such acceptance (the “Acceptance”) within twenty (20) days after its receipt of the Outstanding Stock prior to issuance Offer Notice. If no Investor provides a valid Acceptance, then the Company may proceed with the proposed issue or sale of the New Shares (such Investor’s “Pro Rata Portion”) Offered Securities on the terms contained in the Offer Notice free of any New Shares that right on the Company may, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive Right”part of any Investor under this Section 4.01(a).
(b) In If the event Investors do not accept all of the Offered Securities pursuant to Section 4.01(a), then the Company shall, within ten (10) days after the expiration of the Acceptance Period, provide written notice (the “Second Offer”) to each Accepting Holder offering to sell the remaining Offered Securities (the “Remaining Securities”) to the Accepting Holders. Each Accepting Holder shall have the right and option for five (5) Business Days after delivery of the Second Offer (the “Second Offer Period”) to agree to purchase his, her or its pro rata portion (which shall be the proportion that the number of shares of Fully-Diluted Common Stock owned by such Accepting Holder bears to the number of shares of Fully-Diluted Common Stock owned by all Accepting Holders who desire to purchase Offered Securities in the Second Offer, excluding, for the purposes of such calculation, any shares of Common Stock issuable upon exercise of any Common Stock Equivalents granted pursuant to any employee, officer, or director benefit plan or arrangement) of the Remaining Securities at the same price and on the same terms contained in the original Offer Notice. Such acceptance shall be made by delivering written notice of such acceptance to the Company proposes prior to issue and sell New Sharesthe expiration of the Second Offer Period, which notice shall state whether the Accepting Holder desires to purchase shares in excess of its pro rata portion. If upon expiration of the Second Offer Period there are any Remaining Securities, the Company shall notify offer each Accepting Holder who indicated in its acceptance of the Investors Company’s Second Offer the desire to purchase shares in writing with respect excess of its pro rata portion of the Second Offer the right and option for one (1) Business Day after delivery of a notice thereof to agree to purchase his, her or its pro rata portion of any Remaining Securities (which shall be the proposed New Shares to be issued (the “New Shares Notice”). Each New Shares Notice shall set forth: (i) proportion that the number of New Shares proposed shares of Fully-Diluted Common Stock owned by such Accepting Holder bears to the number of shares of Fully Diluted Common Stock owned by all such Accepting Holders, excluding for the purposes of such calculation, any shares of Common Stock issuable upon exercise of any Common Stock Equivalents granted pursuant to any employee, officer or director benefit plan or arrangement) at the same price and on the same terms contained in the original Offer Notice. Such acceptance shall be issued made by delivering written notice of such acceptance to the Company and the purchase price therefor; within such one (ii1) each Investor’s Pro Rata Portion Business Day period. If upon expiration of such New Shares; and (iii) any other material term (includingperiod there are Remaining Securities, if known, then the expected date of consummation of Company may proceed with the purchase and proposed issue or sale of such Remaining Securities on the New Sharesterms contained in the Offer Notice free of any further right on the part of any Stockholder under this Section 4.01(a).
(c) Each Investor This Section 4.01 shall not apply to (together with its Affiliatesi) shall be entitled issuances or sales of Company Securities to exercise its right to purchase New Shares by delivering an irrevocable written notice to employees, officers, or directors of the Company within or any of its Subsidiaries pursuant to employee benefit or similar plans or arrangements of the Company or its Subsidiaries approved by the Board; provided that, such issuances do not exceed fifteen percent (15%) days from of the fully-diluted Common Stock of the Company as of the date of receipt such issuances (other than any additional issuances contemplated by a previously executed Restricted Stock Agreement, including re-issuances of shares forfeited or repurchased by the Company thereunder, and any additional issuances pursuant to Section 4.07 that would result in issuances in excess of such fifteen percent (15%)), unless such issuance has been approved by Investors holding in the aggregate, a majority of the then outstanding shares of Preferred Stock (or the Common Stock into which such shares have been converted), (ii) issuances or sales of Company Securities upon conversion or exercise of any Common Stock Equivalent that, when issued, was subject to or exempt from the preemptive rights under this Section 4.01, (iii) securities distributed or set aside ratably to all holders of Common Stock and Preferred Stock on a per share basis, (iv) issuances or sales of Company Securities pursuant to a registered underwritten Public Offering, (v) issuances or sales in connection with an arms-length transaction resulting in the acquisition of another corporation or entity by the Company by consolidation, merger, purchase of all or substantially all of the assets, or other reorganization in which the Company acquires, in a single transaction or series of related transactions, all or substantially all of the assets of such New Shares Notice specifying other corporation or entity or greater than fifty percent (50%) of the number voting power of New Shares such other corporation or entity or greater than fifty percent (50%) of the equity ownership of such other corporation or entity, (vi) issuances upon exercise of the Warrants, (vii) issuances upon conversion of the Preferred Stock, (viii) issuances upon conversion of the Class A Common Stock to be subscribedCommon Stock, (ix) issuances or sales to parties that are strategic partners investing in connection with a commercial relationship with the Company or its Subsidiaries or parties that are providing the Company or its Subsidiaries with loans, credit lines, guaranties of indebtedness, cash price reductions or similar transaction, under arrangements, in each case, on an arms-length basis and approved by a majority of the Board, provided that such issuance has been approved by Investors holding in the aggregate, a majority of the then outstanding shares of Preferred Stock (or the Common Stock into which such shares have been converted), or (x) issuances or sales of Preferred Stock to one or more institutional investors in an aggregate amount not to exceed 1,000,000 shares pursuant to a subscription agreement entered into within 180 days after the date hereof on terms and conditions not in any event can be no greater material respect more favorable to such institutional investor(s) than such Investor’s Pro Rata Portion of such New Shares at the price and on the terms and conditions specified in the New Shares Notice.
(d) If the Investors (together with their Affiliates) do not elect within the applicable notice period described above to exercise their Preemptive Rights with respect to any of the New Shares proposed to be sold by the Company, the Company shall have ninety (90) days after expiration of such notice period to sell such unsubscribed New Shares proposed to be sold by the Company, at a price and on terms no more favorable to the purchaser than those set forth in the New Shares NoticeSubscription Agreement (the “Follow-on Offering”). If In the event of any issuances or sales of any Company Securities as a unit with any other security of the Company does not consummate or its Subsidiaries, the sale of preemptive rights under this Section 4.01 shall be applicable to the unsubscribed New Shares in accordance with the terms of the New Shares Notice within such ninety (90)-day period, then entire unit rather than only the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies with Security included in the provisions of this Section 3.8 with respect to such New Sharesunit.
(e) Each Investor (together with its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant to the Preemptive Right upon closing of the issuance of the New Shares, and shall have no right to acquire such New Shares if the issuance thereof shall not be consummated.
Appears in 2 contracts
Samples: Stockholders' Agreement (Corsair Capital LLC), Stockholders Agreement (NewStar Financial, Inc.)
Preemptive Rights. (a) Subject to Section 3.9, for so long as any Investor Beneficially Owns Investor Shares representing at least five percent (5%) of the Outstanding Stock, such Investor shall have, the right to purchase, in accordance with the procedures set forth herein, its pro rata portion, calculated based on the number of Investor Shares held by such Investor as a percentage of the Outstanding Stock prior to issuance of the New Shares (such Investor’s “Pro Rata Portion”) of any New Shares that the Company may, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive Right”).
(b) In the event that the Company proposes to issue and sell New Sharesany Additional Securities in a Covered Transaction, the Company shall notify each of the Investors will offer in writing with respect (the “Pre-emptive Notice”) to each Investor, at least 15 Business Days prior to the proposed New Shares consummation of such transaction (“Pre-emptive Notice Time”), the right to purchase its Pro Rata share of such Additional Securities on the same terms as such Additional Securities are to be issued (the each such right a “New Shares NoticePre-emptive Right”). Each New Shares .
(b) The Pre-emptive Notice shall set forth: specify (i) the number of New Shares proposed Additional Securities to be issued or sold, (ii) the Company’s good faith estimate of the total amount of capital to be raised by the Company and pursuant to the purchase price therefor; issuance or sale of Additional Securities, (ii) each Investor’s Pro Rata Portion the price and other material terms of such New Shares; and the proposed issuance or sale, (iii) any other material term the number of such Additional Securities which such Investor is entitled to purchase (includingdetermined as provided in Section 6.3(a)), if knownand (iv) the period during which such Investor may elect to purchase such Additional Securities, which period shall extend for at least 15 days following the expected date of consummation receipt by such Investor of the Pre-emptive Notice (the “Pre-emptive Acceptance Period”). Each Investor who desires to purchase and sale Additional Securities shall notify the Company within the Preemptive Acceptance Period of the New Sharesnumber of Additional Securities such Investor wishes to purchase, which number shall not exceed its then-applicable Pro Rata share (the “Pre-emptive Acceptance Notice”).
(c) Each Investor (together with its Affiliates) . A Preemptive Acceptance Notice shall be entitled binding and irrevocable, except as set forth in Section 6.3(d). The purchase price for the Additional Securities shall be paid in cash contemporaneously with the closing of the transaction which gave rise to exercise its right to the Pre-emptive Notice and the terms of such purchase New Shares by delivering an irrevocable written notice shall otherwise be on terms and conditions not less favorable to the Company within fifteen (15) days from the date of receipt of any such New Shares Notice specifying the number of New Shares to be subscribed, which in any event can be no greater than such Investor’s Pro Rata Portion of such New Shares at the price and on the terms and conditions specified in the New Shares Notice.
(d) If the Investors (together with their Affiliates) do not elect within the applicable notice period described above to exercise their Preemptive Rights with respect to any of the New Shares proposed to be sold by the Company, the Company shall have ninety (90) days after expiration of such notice period to sell such unsubscribed New Shares proposed to be sold by the Company, at a price and on terms no more favorable to the purchaser than those set forth in the New Shares Pre-emptive Notice. If the Company does not consummate the sale of the unsubscribed New Shares in accordance with the terms of the New Shares Notice within such ninety (90)-day period, then the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies with the provisions of this Section 3.8 with respect to such New Shares.
(ec) Each The rights contained in this Section 6.3 are personal to the Investors who have such rights as of the Closing and may not be transferred or assigned or delegated to another Person, except as otherwise provided herein and each Investor (together with may assign any of its rights under this Agreement to any of its Affiliates.
(d) In the event the subject transaction of a Pre-Emptive Notice is terminated, no purchase of securities shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase occur pursuant to the Preemptive Right upon closing of the issuance of the New Sharesthis Section 6.3, and the applicable notices shall have no right to acquire such New Shares if the issuance thereof shall not be consummatedcancelled.
Appears in 2 contracts
Samples: Investor's Rights Agreement (Apax Europe VI-1 LP), Investor's Rights Agreement (SouFun Holdings LTD)
Preemptive Rights. (a) Subject to Section 3.9If, for so long as at any Investor Beneficially Owns Investor Shares representing at least five percent (5%) of the Outstanding Stock, such Investor shall have, the right to purchase, in accordance with the procedures set forth herein, its pro rata portion, calculated based on the number of Investor Shares held by such Investor as a percentage of the Outstanding Stock prior to issuance of the New Shares (such Investor’s “Pro Rata Portion”) of any New Shares that the Company may, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive Right”).
(b) In the event that the Company proposes to issue and or sell any New SharesSecurities to any Person, whether or not a Member, then, not less than fifteen (15) days nor more than one hundred twenty (120) days prior to the consummation of such transaction, the Company shall notify give notice thereof (“Preemptive Rights Notice”) to each of the Investors in writing with respect to the proposed New Shares to be issued Member who holds Interests (the individually, “New Shares NoticeParticipating Member,” and collectively, “Participating Members”). Each New Shares Preemptive Rights Notice shall set forth: shall:
VII.1.1. Specify in reasonable detail (i) the number and type of New Shares proposed to be issued by Securities which the Company proposes to issue or sell, and the purchase price therefor; (ii) each Investor’s Pro Rata Portion of such New Shares; the time within which, the price at which, and (iii) any all other material term (including, if known, the expected date of consummation of the purchase and sale of the New Shares).
(c) Each Investor (together with its Affiliates) shall be entitled to exercise its right to purchase New Shares by delivering an irrevocable written notice to the Company within fifteen (15) days from the date of receipt of any such New Shares Notice specifying the number of New Shares to be subscribed, which in any event can be no greater than such Investor’s Pro Rata Portion of such New Shares at the price and on the terms and conditions specified in the New Shares Notice.
(d) If the Investors (together with their Affiliates) do not elect within the applicable notice period described above to exercise their Preemptive Rights with respect to any of the New Shares proposed to be sold by the Companyupon which, the Company shall have ninety (90) days after expiration of such notice period proposes to sell such unsubscribed New Shares proposed to be sold by the Company, at a price and on terms no more favorable to the purchaser than those set forth in the New Shares Notice. If the Company does not consummate the sale of the unsubscribed New Shares in accordance with the terms of the New Shares Notice within such ninety (90)-day period, then the Company may not issue or sell such New Shares Securities; and,
VII.1.2. Make explicit reference to this Article VII and state that the right of each Participating Member to purchase any of such New Securities under this Article VII shall expire unless it sends exercised with twenty (20) days of the Preemptive Rights Notice.
VII.1.3. Notwithstanding anything contrary to the foregoing, XXXX has the right to assign XXXX’x preemptive rights under this Agreement, with any exercise of such assignment being evidenced by an executed assignment (of a new New Shares Notice and once again complies form attached hereto as Exhibit C) filed with the provisions Company and maintained in the company minute book. Upon XXXX’x exercise of such assignment right, the assignee and not XXXX shall be deemed the “Participating Member” pursuant to this Section 3.8 with respect Article VII.
VII.1.4. Each Participating Member shall have the right, in the nature of a preemptive right, but no obligation, to purchase up to all of its Preemptive Rights Pro Rata Amount (as defined below) of such New Shares.
Securities as described in Section 7.1 above. As used herein, the term “Preemptive Rights Pro Rata Amount,” as applied to any Participating Member on any date, shall mean a fraction (e) Each Investor (together with its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant to expressed as a percentage), the Preemptive Right upon closing numerator of which is the Interest of the issuance Company then held by such Participating Member and the denominator of which is the outstanding Interests of the Company, in each case, excluding the New Shares, and shall have no right Securities to acquire such New Shares if the issuance thereof shall not be consummatedissued.
Appears in 2 contracts
Samples: Operating Agreement, Operating Agreement
Preemptive Rights. (a) Subject to Section 3.9, for For so long as any Investor Beneficially Owns Investor Shares representing at least five percent (5%) 50% of the Outstanding Stockoriginally issued shares of Series B Stock remain outstanding, prior to the issuance or sale of any shares of Voting Securities or Derivative Securities (other than Excluded Shares) (all such Investor shall havesecurities, other than Excluded Shares, are referred to collectively herein as "Additional Securities"), the right Company shall first give to purchase, in accordance with each Holder holding shares of Series B Stock the procedures set forth herein, its pro rata portion, calculated based on the number of Investor Shares held by such Investor as a percentage of the Outstanding Stock prior to issuance of the New Shares opportunity (such Investor’s “Pro Rata Portion”) of any New Shares that the Company may, from time to time, propose to sell and issue (hereinafter opportunity being herein referred to as the “"Preemptive Right”).
") to purchase (bon the same terms as such Additional Securities are proposed to be sold) In the event that same percentage of such Additional Securities proposed to be sold by the Company proposes to issue and sell New Shares, as equals the Company shall notify each of the Investors in writing with respect percentage equal to the proposed New Shares to be issued (the “New Shares Notice”). Each New Shares Notice shall set forth: quotient of (i) the number of New Shares shares of Common Stock into which the shares held by such Holder of Series B Stock could be converted, divided by (ii) the sum of (A) all the outstanding shares of Common Stock of the Company and (B) the number of shares of Common Stock into which all the shares of Series B Stock held by all Holders could be converted.
(b) At least 15 days prior to the issuance by the Company of any Additional Securities, the Company shall give written notice thereof (the "Preemptive Notice") to each Holder. The Preemptive Notice shall specify (i) the name and address of the bona fide investor (if known) to whom the Company proposes to issue or sell Additional Securities, (ii) the total amount of capital to be raised by the Company pursuant to the issuance or sale of Additional Securities, (iii) the number of such Additional Securities proposed to be issued or sold, (iv) the price and other terms of their proposed issuance or sale, (v) the number of such Additional Securities which such Holder is entitled to purchase (determined as provided in Section 4.3(a)), and (vi) the period during which such Holder may elect to purchase such Additional Securities, which period shall extend for at least 15 days following the receipt by such Holder of the Preemptive Notice (the "Preemptive Acceptance Period"). Each Holder who desires to purchase Additional Securities shall notify the Company within the Preemptive Acceptance Period of the number of Additional Securities he wishes to purchase, as well as the number, if any, of extra Additional Securities he would be willing to purchase in the event that all of the Additional Securities subject to the Preemptive Right are not subscribed for by the Company and other Holders (the purchase price therefor; (ii) each Investor’s Pro Rata Portion of such New Shares; and (iii) any other material term (including, if known, the expected date of consummation of the purchase and sale of the New Shares"Preemptive Acceptance Notice").
(c) In the event a Holder declines to subscribe for all or any part of its pro rata portion of any Additional Securities which are subject to the Preemptive Right (the "Declining Preemptive Purchaser") during the Preemptive Acceptance Period, then the other Holders shall have the right to subscribe for all (or any declined part) of such Declining Preemptive Purchaser's pro rata portion of such Additional Securities (to be divided among the other Holders desiring to exercise such right on a ratable basis) (the "Overallotment Right"). Each Investor (together with its Affiliates) Holder's Overallotment Right, if any, shall be entitled deemed to exercise its right to purchase New Shares by delivering an irrevocable written notice to the Company within fifteen (15) days from be exercised on the date of receipt of any such New Shares the Preemptive Acceptance Notice specifying the number of New Shares to be subscribed, which in any event can be no greater than such Investor’s Pro Rata Portion of such New Shares at the price and on the terms and conditions specified in the New Shares Noticeis given.
(d) If After the Investors (together with their Affiliates) do not elect within conclusion of the applicable notice period described above to exercise their Preemptive Acceptance Period, any Additional Securities, less any Additional Securities for which Preemptive Rights with respect to any of the New Shares proposed to or Overallotment Rights are exercised, may be sold by the Company, within a period of 4 months after the Company shall have ninety (90) days after expiration of such notice period the Preemptive Acceptance Period, to sell such unsubscribed New Shares proposed to be sold by any other Person or Persons at not less than the Company, at a price and on upon other terms no more and conditions not less favorable to the purchaser Company than those set forth in the New Shares Preemptive Notice. If the Company does not consummate the sale of the unsubscribed New Shares in accordance with the terms of the New Shares Notice within such ninety (90)-day period, then the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies with the provisions of this Section 3.8 with respect to such New Shares.
(e) Each Investor (together with its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected Notwithstanding anything to purchase the contrary contained herein, if the Company issues, pursuant to a rights offering, rights to acquire shares of Common Stock or other securities to holders of Common Stock, then the Preemptive Right Holders of Series B Stock shall be entitled to receive that kind and number of rights which such Holder would have been entitled to receive if the Holder had held the Common Stock issuable upon closing conversion of its Series B Stock as of the issuance date a record is taken of the New Sharesholders of Common Stock for the purpose of receiving such distribution (or if no such record is taken, and shall have no right to acquire the earlier of the date of such New Shares if the issuance thereof shall not be consummateddeclaration, payment or other distribution).
Appears in 2 contracts
Samples: Investors' Rights Agreement (Phillips Van Heusen Corp /De/), Investors' Rights Agreement (Phillips Van Heusen Corp /De/)
Preemptive Rights. (a) 10.1 Subject to the terms and conditions specified in this Section 3.9, for so long as any Investor Beneficially Owns Investor Shares representing at least five percent (5%) of the Outstanding Stock, such Investor shall have10, the Company hereby grants to each Holder a right of first offer with respect to purchasefuture sales by the Company of its Offered Shares (as defined below).
10.2 Each time the Company proposes (i) to offer for sale any shares of, or securities convertible into or exercisable for, any shares of its Common Stock or (ii) to convert any securities held by or purchased by the Sponsor (including, without limitation, in connection with a refinancing, recapitalization or reorganization) into shares of Common Stock (the shares of Common Stock described in Sections 10.2(i) and (ii) above, the “Offered Shares”) to Sponsor, the Company shall first make an offering of a pro rata portion of such Offered Shares to each Holder in accordance with the procedures set forth hereinfollowing provisions:
(a) The Company shall deliver a notice (a “First Offer Notice”) to the Holder stating (i) its bona fide intention to offer such Offered Shares, its pro rata portion, calculated based on (ii) the number and type of Investor Offered Shares held by to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such Investor as a percentage of the Outstanding Stock prior to issuance of the New Shares (such Investor’s “Pro Rata Portion”) of any New Shares that the Company may, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive Right”)Offered Shares.
(b) In Within ten (10) business days after receipt of the event that the Company proposes to issue and sell New SharesFirst Offer Notice, the Company shall notify each of the Investors in writing with respect to the proposed New Shares to be issued (the “New Shares Notice”). Each New Shares Notice shall set forth: (i) the number of New Shares proposed to be issued by the Company and the purchase price therefor; (ii) each Investor’s Pro Rata Portion of such New Shares; and (iii) any other material term (including, if known, the expected date of consummation of the purchase and sale of the New Shares).
(c) Each Investor (together with its Affiliates) shall be entitled to exercise its right Holder may elect to purchase New Shares by delivering an irrevocable written notice to the Company within fifteen (15) days from the date of receipt of any such New Shares Notice specifying the number of New Shares to be subscribedor obtain, which in any event can be no greater than such Investor’s Pro Rata Portion of such New Shares at the price and on the terms and conditions specified in the New First Offer Notice, up to that portion of such Offered Shares which equals the proportion that (i) the total number of shares of Common Stock (other than Award Shares) issued and held by the Holder bears to (ii) the total number of shares of Common Stock outstanding (as determined on a fully-diluted basis) (such portion, the “Holder Offeree Shares”). The Company shall be entitled to sell the remaining Offered Shares to Sponsor on terms not more favorable to Sponsor than those contained in the First Offer Notice.
(c) To the extent the offer is not accepted in full following the expiration of the period provided in Section 10.2(b), the Company shall deliver a second notice (“Second Offer Notice”) to the holders of Common Stock that have accepted the Offered Shares pursuant to which each such Holder and/or Sponsor, as applicable, shall have additional preemptive rights to subscribe for the Offered Shares that were not accepted pursuant to the First Offer Notice, on a pro rata basis in accordance with the ratio of the number of shares of Common Stock (other than Award Shares) held by such accepting holder of Common Stock, to the number of shares of Common Stock held by all other accepting holders of Common Stock as of such date of determination, which secondary preemptive rights shall be exercised by delivery of written notice to the Company within ten (10) business days following the receipt of the Second Offer Notice at a price not less than that, and upon terms no more favorable than those, specified in the First Offer Notice.
(d) If The Company may, during the Investors forty-five (together with their Affiliates45) do not elect within day period following the applicable notice period described above to exercise their Preemptive Rights with respect to any expiration of the New period provided in Section 10.2(c) hereof, offer the remaining unsubscribed portion of the Holder Offeree Shares proposed to be sold by the Company, the Company shall have ninety (90) days after expiration of such notice period to sell such unsubscribed New Shares proposed to be sold by the Company, Sponsor at a price not less than that, and on upon terms no more favorable to the purchaser Sponsor than those set forth those, specified in the New Shares First Offer Notice. If the Company does not consummate the sale of the unsubscribed New Shares in accordance with the terms of the New Shares Notice within such ninety (90)-day period, then the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies with the provisions of this Section 3.8 with respect to such New Shares.
(e) Each Investor Notwithstanding the foregoing, the Company may issue and sell Offered Shares to Sponsor without first complying with the terms of Sections 10.2(a), 10.2(b) and 10.2(c), provided that within five (together with its Affiliates5) business days following such sale the purchasers of such Offered Shares shall take up and pay for any New offer to sell the portion of such Offered Shares that such Investor (together would have constituted “Holder Offeree Shares” had the Company complied with its Affiliates) has elected this Section 10.2 to purchase pursuant each Holder on terms no less favorable to the Preemptive Right upon closing of the issuance of the New SharesHolder than those applicable to Sponsor, using a process substantially similar to that set forth in Sections 10.2(a), 10.2(b) and shall have no right to acquire such New Shares if the issuance thereof shall not be consummated10.2(c).
Appears in 2 contracts
Samples: Investor Rights Agreement, Investor Rights Agreement (TAMINCO ACQUISITION Corp)
Preemptive Rights. (a) Subject to the Class A Member(s) or Class B Member(s) obligation or right to contribute additional capital as set forth in Section 3.94.1, for so long as prior to the Company issuing any Investor Beneficially Owns Investor Shares representing at least five percent Interests or options or rights to acquire Interests (5%other than (i) any equity issuance associated with an acquisition previously approved by EMG, (ii) Interests issued in connection with any split, distribution or recapitalization of the Outstanding StockCompany, (iii) Interests issued in any initial public offering registration statement filed under the Securities Act, or (iv) in connection with any capital raising or financing efforts by the Company the purpose of which is to fund any activities of the Company which were the subject of a Capital Call made pursuant to Section 4.1(d) that was not fully funded by the Members; provided, however, that any Interests to be issued in such Investor capital raising or financing efforts, and the pricing of such Interests, are equivalent to the terms of such Capital Call), whether through exchange, conversion or otherwise (the “New Interests”), to a proposed third party purchaser (the “Proposed Purchaser”), each Member who is not in default of this Agreement and which certifies to the Company’s reasonable satisfaction that it is an “accredited investor” within the meaning of Rule 501 under the Securities Act (an “Eligible Member”) shall have, have the right to purchase, purchase a portion of the New Interests in accordance with the procedures set forth herein, its pro rata portion, calculated based on the number of Investor Shares held by such Investor as a percentage of the Outstanding Stock prior to issuance of the New Shares (such Investor’s “Pro Rata Portion”) of any New Shares that the Company may, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive Right”)this Section 5.6.
(b) In the event that the Company proposes to issue and sell New Shares, the The Company shall notify give each of the Investors in writing with respect to the proposed New Shares to be issued Eligible Member prior written notice (the “New Shares First Notice”). Each ) of any proposed issuance of New Shares Notice Interests, which shall set forth: forth in reasonable detail the proposed terms and conditions thereof (ias determined by the Board in good faith) and shall offer to each Eligible Member the number opportunity to purchase its Percentage Interest (as of the date of such notice) of the New Shares Interests, on the same terms and conditions and at the same time as the New Interests are proposed to be issued by the Company and Company. If any Eligible Member desires to exercise its preemptive rights under this Section 5.6, it must deliver an irrevocable written notice within 30 days after the purchase price therefor; (ii) each InvestorEligible Member’s Pro Rata Portion of such New Shares; and (iii) any other material term (including, if known, the expected date of consummation receipt of the purchase and sale First Notice (the “Election Period”) setting forth the dollar amount of the New Shares)Interests the Eligible Member (the “Electing Member”) is electing to purchase, up to its Percentage Interest plus any additional amount of New Interests it desires to purchase in excess of its Percentage Interest (the “Over-Allotment Amount”) if other Eligible Members do not exercise their preemptive rights hereunder. The right of each Electing Member to purchase New Interests in excess of its Percentage Interest shall be based on the relative Percentage Interests of the Electing Members desiring to purchase Over-Allotment Amounts.
(c) Each Investor (together with its Affiliates) shall be entitled to exercise its right to purchase New Shares by delivering an irrevocable written notice to the Company within fifteen (15) days from the date of receipt of any such New Shares Notice specifying the number of New Shares to be subscribed, which in any event can be no greater than such Investor’s Pro Rata Portion of such New Shares at the price and on the terms and conditions specified in the New Shares Notice.
(d) If the Investors (together with their Affiliates) Eligible Members do not elect within the applicable notice period described above to exercise their Preemptive Rights with respect to any subscribe for all of the New Shares proposed to be sold by the CompanyInterests, the Company shall have ninety (90) the right, but not the obligation, to issue and sell the unsubscribed portion of the New Interests to the Proposed Purchaser at any time during the 90 days after expiration following the end of such notice period to sell such unsubscribed New Shares proposed to be sold by the CompanyElection Period, at a the same price and on terms no more favorable pursuant to the purchaser than those terms and conditions set forth in the New Shares First Notice. If 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 in connection with any preemptive rights offering. In the Company does not consummate the sale of the unsubscribed New Shares in accordance with the terms of event any Electing Member refuses to purchase the New Shares Notice within such ninety (90)-day periodInterests for which it subscribed pursuant to this Section 5.6, then in addition to any other rights the Company may not issue have at law or sell in equity, such New Shares unless it sends a new New Shares Notice Electing Member and once again complies with the provisions of this Section 3.8 with respect to such New Shares.
(e) Each Investor (together with its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant to the Preemptive Right upon closing of the issuance of the New Shares, and shall have no right to acquire such New Shares if the issuance transferee thereof shall not be consummatedconsidered an Eligible Member for any future rights granted under this Section 5.6 unless the Board expressly designates otherwise (which the Board may, in its sole discretion, do on an offer-by-offer basis or not at all) and shall be deemed a Defaulting Member under Section 4.2.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (MPLX Lp), Limited Liability Company Agreement (Markwest Energy Partners L P)
Preemptive Rights. (a) Subject to the provisions of Section 3.9, for so long as any Investor Beneficially Owns Investor Shares representing at least five percent (5%16(a) of the Outstanding Stock, such Investor shall have, the right to purchasehereof, in accordance with the procedures set forth hereinevent that, its pro rata portionprior to the occurrence of a Qualified Public Offering, calculated based on the number RHH seeks to sell shares of Investor Shares held by such Investor Capital Stock (consisting of one share of Preferred Stock and one share of Common Stock as a percentage of the Outstanding Stock prior to issuance of the New Shares (such Investor’s “Pro Rata PortionUnit”) of any New Shares that the Company mayin a private or similar non-public placement, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive Right”).
(b) In the event that the Company proposes to issue and sell New Shares, the Company shall notify each of the Investors in writing with respect to the proposed New Shares to be issued (the “New Shares Notice”). Each New Shares Notice shall set forth: (i) the number of New Shares proposed to be issued by the Company and the purchase price therefor; (ii) each Investor’s Pro Rata Portion of such New Shares; and (iii) any other material term (including, if known, the expected date of consummation of the purchase and sale of the New Shares).
(c) Each Investor (together with its Affiliates) Shareholder shall be entitled to exercise its right to purchase New Shares by delivering an irrevocable written notice acquire, at the proposed offering price of such Units, that number of Units equal to the Company within aggregate number of Units proposed to be so offered multiplied by a fraction, the numerator of which shall be the number of shares of Capital Stock (both Common and Preferred) owned by each respective Shareholder and, without duplication, their Permitted Transferees and the denominator of which shall be the aggregate number of shares of Capital Stock (both Common and Preferred) owned by all Shareholders and, without duplication, their Permitted Transferees. In connection with any proposed issuance of such Units, RHH will give prior notice as soon as possible, but in any event at least fifteen (15) days from the date prior written notice, of receipt of any its intention to effect such New Shares Notice issuance to each Shareholder, specifying in such notice the number of New Shares Units to be subscribedsold, and the proposed offering price per Unit. Each Shareholder shall have the right, exercisable within ten (10) days after receipt of such notice, to elect to purchase up to the maximum number of Units to which such Shareholder is entitled to acquire hereunder with such purchase being effected by such Shareholder’s payment to RHH, on or before the 20th day after such notice, by wire transfer of immediately available funds, an amount equal to the number of Units to be purchased by such Shareholder, multiplied by the offering price per Unit, against delivery of certificates evidencing the number of shares of Preferred Stock and Common Stock so acquired, which will be issued in any event can be no greater than such Investor’s Pro Rata Portion the name of such New Shares at Shareholder. To the price and on the terms and conditions specified in the New Shares Notice.
(d) If the Investors (together with their Affiliates) do not elect within the applicable notice period described above to exercise their Preemptive Rights with respect to extent any of the New Shares Units proposed to be sold in such private placement shall not have been subscribed to by the Companyan existing Shareholder, the Company RHH shall have ninety (90) days after expiration of such notice period be free thereafter to sell such unsubscribed New Shares proposed to be sold Units by the Companyway of a private placement, or similar offering, at a an offering price and on terms no more favorable to the purchaser per Unit not less than those that set forth in the New Shares Notice. If the Company does not consummate the sale of the unsubscribed New Shares in accordance with the terms of the New Shares Notice within such ninety (90)-day period, then the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies with the provisions of this Section 3.8 with respect to such New Shares.
(e) Each Investor (together with its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant notice to the Preemptive Right upon closing Shareholders. Until the occurrence of a Qualified Public Offering, or until the issuance redemption of the New Sharesall shares of Preferred Stock, and RHH shall have no right to acquire such New Shares if the issuance thereof shall not be consummatedonly issue shares of its Capital Stock in Units.
Appears in 2 contracts
Samples: Shareholders Agreement (FreightCar America, Inc.), Shareholders Agreement (FCA Acquisition Corp.)
Preemptive Rights. (a) Subject If following the Offering Termination Date, the Company intends to Section 3.9issue any additional Units (collectively, for so long as any Investor Beneficially Owns Investor Shares representing at least five percent “Additional Units”), then prior to the issuance thereof (5%) of the Outstanding Stock“Proposed Offeree(s)”), such Investor each then-current Member shall have, have the right to purchase, purchase in accordance with the procedures set forth herein, its pro rata portion, calculated based on the number of Investor Shares held by such Investor as a percentage of the Outstanding Stock prior to issuance of the New Shares (such Investor’s “Pro Rata Portion”) of any New Shares that the Company may, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive Right”), on the same terms and at the same purchase price of such Additional Units offered to the Proposed Offeree(s), that pro rata portion of the Additional Units as is equal to each such Member’s then-current Percentage Interest.
(b) In the event that the Company proposes to issue and sell New Sharesconnection with any Preemptive Right, the Company shall notify each of the Investors in writing with respect to the proposed New Shares to be issued shall, by written notice (the “New Shares Preemptive Notice”). Each New Shares , provide an offer to sell to each then-current Member, such Member’s Percentage Interest of any proposed issuance of Additional Units in accordance with Section 2.10(a), which Preemptive Notice shall set forth: (i) include the number of New Shares proposed to be issued by the Company and the applicable purchase price therefor; per Additional Unit, aggregate amount of Additional Units offered, amount of Additional Units offered to Member based on the Percentage Interests of the Members, name of the Proposed Offeree(s), proposed closing date, place and time for the issuance thereof (iiwhich shall be no less than seven (7) each Investor’s Pro Rata Portion days from the date of such New Shares; notice) and (iii) any other material term (including, if known, the expected date of consummation terms and conditions of the purchase and sale of the New Shares).
offer. Within five (c) Each Investor (together with its Affiliates) shall be entitled to exercise its right to purchase New Shares by delivering an irrevocable written notice to the Company within fifteen (155) days from the date of receipt of the Preemptive Notice, any Member wishing to exercise its Preemptive Right shall deliver notice to the Company setting forth the Additional Units which such New Shares Notice specifying the number of New Shares Member commits to purchase (which Additional Units may be subscribed, which in all or any event can be no greater than such Investor’s Pro Rata Portion portion of such New Shares at Additional Units offered to such Member in the price Preemptive Notice). Each Member so exercising its rights under this Section 2.10 shall be entitled and obligated to purchase that Additional Units specified in the Member’s notice on the terms and conditions specified in the New Shares Notice.
(d) If the Investors (together with their Affiliates) do not elect within the applicable notice period described above to exercise their Preemptive Rights with respect to any of the New Shares proposed to be sold by the Company, the Company shall have ninety (90) days after expiration of such notice period to sell such unsubscribed New Shares proposed to be sold by the Company, at a price and on terms no more favorable to the purchaser than those set forth in the New Shares Preemptive Notice. If Any Additional Units not accepted for purchase by the Company Members pursuant to this Section 2.10 shall be offered to the Proposed Offeree(s) on the same terms and price per Additional Unit as set forth in the Preemptive Notice; provided, however, if such Proposed Offeree(s) does not (or do not) consummate the sale purchase of such Additional Unit within thirty (30) days following delivery of the unsubscribed New Shares in accordance with Preemptive Notice, any subsequent proposed issuance of Additional Units shall once again be subject to the terms of the New Shares Notice within such ninety (90)-day period, then the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies with the provisions of this Section 3.8 with respect to such New Shares2.10.
(e) Each Investor (together with its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant to the Preemptive Right upon closing of the issuance of the New Shares, and shall have no right to acquire such New Shares if the issuance thereof shall not be consummated.
Appears in 2 contracts
Samples: Limited Liability Company Agreement, Limited Liability Company Agreement
Preemptive Rights. Subject to the terms and conditions of this Section 10.12 and applicable securities laws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to each Major Investor. A Major Investor shall be entitled to apportion the right of first offer hereby granted to it among itself and its Affiliates in such proportions as it deems appropriate.
(a) Subject The Company shall give notice (the “Offer Notice”) to Section 3.9each such Major Investor, for so long as any Investor Beneficially Owns Investor Shares representing at least five percent stating (5%i) of the Outstanding Stockits bona fide intention to offer such New Securities, such Investor shall have, the right to purchase, in accordance with the procedures set forth herein, its pro rata portion, calculated based on (ii) the number of Investor Shares held by such Investor as New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities, including a percentage summary of the Outstanding Stock prior to issuance rights and privileges of the such New Shares (such Investor’s “Pro Rata Portion”) of any New Shares that the Company may, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive Right”)Securities.
(b) In the event that the Company proposes to issue and sell New Shares, the Company shall notify each of the Investors in writing with respect to the proposed New Shares to be issued (the “New Shares Notice”). Each New Shares Notice shall set forth: (i) the number of New Shares proposed to be issued by the Company and the purchase price therefor; (ii) each Investor’s Pro Rata Portion of such New Shares; and (iii) any other material term (including, if known, the expected date of consummation of the purchase and sale of the New Shares).
(c) Each Investor (together with its Affiliates) shall be entitled to exercise its right to purchase New Shares by delivering an irrevocable written notice By notification to the Company within fifteen twenty (1520) days from after the date Offer Notice is given (provided, that with the consent of receipt of any the Requisite Preferred Holders, the Company may reduce such New Shares Notice specifying the number of New Shares period to be subscribedrespond to no less than five (5) days), which in any event can be no greater than each such Investor’s Pro Rata Portion of such New Shares Major Investor may elect to purchase or otherwise acquire, at the price and on the terms and conditions specified in the Offer Notice, up to that portion of such New Shares Notice.
Securities which equals the proportion that the Preferred Units (das adjusted by the applicable Adjustment Ratio) then held by such Major Investor bears to the total number of Units (as adjusted by the applicable Adjustment Ratio) then outstanding (excluding all authorized unissued Incentive Units). If the right to purchase the New Securities has been exercised by the Major Investors (together with their Affiliates) do not elect within the applicable notice period described above to exercise their Preemptive Rights with respect to any some but not all of the New Shares proposed Securities by the end of the twenty (20) day period specified above (or such shorter period (to be sold no less than five (5) days) as approved by the Requisite Preferred Holders), then the Company shall send written notice (the “Secondary Offer Notice”) to those Major Investors who fully exercised their preemptive rights within the initial notice period. During the ten (10) day period commencing after the Company has given such notice (provided, that with the consent of the Requisite Preferred Holders, the Company may reduce such period to respond to no less than five (5) days), each such Major Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the Company number of units specified above, up to that portion of the New Securities for which Major Investors were entitled to subscribe but were not subscribed for which is equal to the proportion that the Preferred Units (as adjusted by the applicable Adjustment Ratio) then held by such Fully Exercising Investor bears to the Preferred Units (as adjusted by the applicable Adjustment Ratio) and Common Units then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 10.12(b) shall have occur within the later of ninety (90) days after of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 10.12(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 10.12(b), the Company may, during the ninety (90) day period following the expiration of the periods provided in Section 10.12(b), offer and sell the remaining unsubscribed portion of such notice period New Securities to sell such unsubscribed New Shares proposed to be sold by the Company, any Person or Persons at a price not less than, and on upon terms no more favorable to the purchaser than offeree than, those set forth specified in the New Shares Offer Notice. If the Company does not consummate enter into an agreement for the sale of the unsubscribed New Shares Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Major Investors in accordance with this Section 10.12.
(d) Notwithstanding any provision hereof to the terms contrary, in lieu of the New Shares Notice within such ninety (90)-day period, then the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies complying with the provisions of this Section 3.8 with respect 10.12, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price, and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date notice is given to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage-ownership position, calculated as set forth in Section 10.12(b) before giving effect to the issuance of such New SharesSecurities.
(e) Each Investor The covenants set forth in Sections 10.03, 10.04, 10.06, 10.09 and 10.12 shall terminate and be of no further force or effect (together with its Affiliatesi) shall take up and pay for any New Shares that such Investor immediately before the consummation of an IPO, (together with its Affiliatesii) has elected to purchase pursuant when the Company first becomes subject to the Preemptive Right upon closing periodic reporting requirements of Section 12(g) or 15(d) of the issuance Exchange Act, or (iii) upon a Change of Control, dissolution or liquidation of the New SharesCompany, and shall have no right to acquire such New Shares if the issuance thereof shall not be consummatedwhichever event occurs first.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Apogee Therapeutics, Inc.), Limited Liability Company Agreement (Apogee Therapeutics, LLC)
Preemptive Rights. (a) Subject The Company shall not issue, sell or exchange, agree to Section 3.9issue, sell or exchange, or reserve or set aside for so long issuance, sale or exchange, any Preemptive Securities (as any Investor Beneficially Owns Investor Shares representing at least five percent (5%defined below) of the Outstanding Stock, such Investor shall have, the right Company to purchaseany Person unless, in accordance with the procedures set forth herein, its pro rata portion, calculated based on the number of Investor Shares held by such Investor as a percentage of the Outstanding Stock prior to issuance of the New Shares (such Investor’s “Pro Rata Portion”) of any New Shares that the Company may, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive Right”).
(b) In the event that the Company proposes to issue and sell New Shares, the Company shall notify each of the Investors in writing with respect to the proposed New Shares to be issued (the “New Shares Notice”). Each New Shares Notice shall set forth: (i) the number of New Shares proposed to be issued by the Company and the purchase price therefor; (ii) each Investor’s Pro Rata Portion of such New Shares; and (iii) any other material term (including, if known, the expected date of consummation of the purchase and sale of the New Shares).
(c) Each Investor (together with its Affiliates) shall be entitled to exercise its right to purchase New Shares by delivering an irrevocable written notice to the Company within fifteen (15) days from the date of receipt of any such New Shares Notice specifying the number of New Shares to be subscribed, which in any event can be no greater than such Investor’s Pro Rata Portion of such New Shares at the price and on the terms and conditions specified in the New Shares Notice.
(d) If the Investors (together with their Affiliates) do not elect within the applicable notice period described above to exercise their Preemptive Rights with respect to any of the New Shares proposed to be sold by the Companycase, the Company shall have ninety (90) days after expiration of such notice period first offered to sell to each Common Holder and the holders of any Class F-2 Preferred Stock (each a “Preemptive Holder”) such unsubscribed New Shares proposed to be sold by Preemptive Holder’s Preemptive Share of the CompanyPreemptive Securities, at a price and on such other terms no more favorable as shall have been specified by the Company in writing delivered to each such Preemptive Holder (the “Preemptive Offer”), which Preemptive Offer shall by its terms remain open and irrevocable for a period of at least ten calendar days from the date it is delivered by the Company (the “Preemptive Offer Period”). Each Preemptive Holder may elect to purchase all or any portion of such Preemptive Holder’s Preemptive Share of the Preemptive Securities as specified in the Preemptive Offer at the price and upon the terms specified therein by delivering written notice of such election to the purchaser than those Company as soon as practical but in any event within the Preemptive Offer Period; provided that if the Company is issuing Preemptive Securities together as a unit with any other Securities, then any Preemptive Holder who elects to purchase the Preemptive Securities pursuant to this Section 10.3 must purchase the same proportionate mix of all of such securities. Notwithstanding anything to the contrary set forth in the New Shares Notice. If Charter or these Bylaws, a Preemptive Holder may assign all or any portion of its right to acquire Preemptive Securities to its direct or indirect equityholders, and upon any such assignment, each such equityholder shall be deemed a Preemptive Holder for the Company does not consummate the sale of the unsubscribed New Shares in accordance with the terms of the New Shares Notice within such ninety (90)-day period, then the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies with the provisions purposes of this Section 3.8 with respect to such New Shares10.3.
(e) Each Investor (together with its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant to the Preemptive Right upon closing of the issuance of the New Shares, and shall have no right to acquire such New Shares if the issuance thereof shall not be consummated.
Appears in 2 contracts
Samples: Securities Purchase and Exchange Agreement, Securities Purchase and Exchange Agreement (Gmac Inc.)
Preemptive Rights. (a) Subject to the terms and conditions specified in this Section 3.9, for so long as any Investor Beneficially Owns Investor Shares representing at least five percent (5%) of the Outstanding Stock, such Investor shall have2.1, the Company hereby grants to each Investor a right to purchaseparticipate in future issuances by the Company of its Shares (as hereinafter defined). Each time the Company proposes to offer or sell any shares of, or securities convertible into or exercisable for any shares of, any class of its capital stock (“Shares”), the Company shall first make an offering of such Shares to each Investor in accordance with the procedures set forth hereinfollowing provisions:
(a) The Company shall deliver a notice by certified mail (a “Notice”) to each Investor stating (i) its bona fide intention to offer such Shares, its pro rata portion, calculated based on (ii) the number of Investor such Shares held by to be offered or sold, and (iii) the price and terms, if any, upon which it proposes to offer or sell such Investor as a percentage of the Outstanding Stock prior to issuance of the New Shares (such Investor’s “Pro Rata Portion”) of any New Shares that the Company may, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive Right”)Shares.
(b) In the event that the Company proposes to issue and sell New Shares, the Company shall notify each Within twenty (20) calendar days after delivery of the Investors in writing with respect to the proposed New Shares to be issued (the “New Shares Notice”). Each New Shares Notice shall set forth: (i) the number of New Shares proposed to be issued by the Company and the purchase price therefor; (ii) , each Investor’s Pro Rata Portion of such New Shares; and (iii) any other material term (including, if known, the expected date of consummation of the purchase and sale of the New Shares).
(c) Each Investor (together with its Affiliates) shall be entitled to exercise its right may elect to purchase New Shares by delivering an irrevocable written notice to the Company within fifteen (15) days from the date of receipt of any such New Shares Notice specifying the number of New Shares to be subscribedor obtain, which in any event can be no greater than such Investor’s Pro Rata Portion of such New Shares at the price and on the terms and conditions specified in the New Notice, up to that portion of such Shares Noticewhich equals the proportion that the sum of the number of shares of Common Stock issued upon exercise of the Warrants plus the number of shares of Common Stock issuable upon exercise of the Warrants (collectively, the “Underlying Common Stock”), in each case, then held by such Investor bears to the total number of shares of Common Stock then outstanding (assuming full conversion and exercise of all Warrants).
(dc) If The Company may, during the Investors sixty (together with their Affiliates60) do not elect within day period following the applicable notice expiration of the period described above to exercise their Preemptive Rights with respect provided in Section 2.1(b) hereof, offer the remaining unsubscribed portion of the Shares to any of the New Shares proposed to be sold by the Company, the Company shall have ninety (90) days after expiration of such notice period to sell such unsubscribed New Shares proposed to be sold by the Company, Person or Persons at a price not less than, and on upon terms no more favorable to the purchaser offeree than those set forth specified in the New Shares Notice. If the Company does not consummate enter into an agreement for the sale of the unsubscribed New Shares within such period, or if such agreement is not consummated within ninety (90) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be sold unless first reoffered to each Investor in accordance with herewith.
(d) The preemptive rights in this Section 2.1 shall not be applicable (i) to the terms of the New Shares Notice within such ninety (90)-day period, then issuance or sale by the Company may not issue of any of its capital stock pursuant to any employee benefit plan (including any option plan, restricted stock plan, stock purchase plan or sell such New Shares unless it sends similar plans or arrangements), (ii) to or after consummation of any underwritten public offering or any other public offering by the Company in which shares are offered at market price, (iii) to the issuance of securities pursuant to the conversion or exercise of convertible or exercisable securities, (iv) to the issuance of securities in connection with a new New Shares Notice and once again complies bona fide business acquisition of or by the Company, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, (v) to the issuance of securities to financial institutions or lessors in connection with the provisions of this Section 3.8 commercial credit arrangements, equipment financings, or similar transactions, which issuances are primarily for other than equity financing purposes, or (vi) to any issuance in connection with respect to such New Sharesa stock split, reverse stock split, reclassification, recapitalization, consolidation, merger or similar event.
(e) Each The rights under this Section 2.1 may be assigned by any Investor (together with its Affiliatesor assignee thereof) shall take up and pay for any New Shares that such to an Investor (together with its Affiliates) has elected to purchase pursuant to the Preemptive Right upon closing of the issuance of the New Shares, and shall have no right to acquire such New Shares if the issuance thereof shall not be consummatedAssignee.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (St Cloud Capital Partners Lp), Investors’ Rights Agreement (Prolong International Corp)
Preemptive Rights. (a) Subject to Section 3.9, for so long as any Investor Beneficially Owns Investor Shares representing at least five percent (5%) of the Outstanding StockDenominator Shares, such Investor shall have, the right to purchase, in accordance with the procedures set forth herein, its pro rata portion, calculated based on the number of Investor Shares held by such Investor as a percentage of the Outstanding Stock Denominator Shares prior to issuance of the New Shares (such Investor’s “Pro Rata Portion”) of any New Shares that the Company may, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive Right”).
(b) In the event that the Company proposes to issue and sell New Shares, the Company shall notify each of the Investors in writing with respect to the proposed New Shares to be issued (the “New Shares Notice”). Each New Shares Notice shall set forth: (i) the number of New Shares proposed to be issued by the Company and the purchase price therefor; (ii) each Investor’s Pro Rata Portion of such New Shares; and (iii) any other material term (including, if known, the expected date of consummation of the purchase and sale of the New Shares).
(c) Each Investor (together with its Affiliates) shall be entitled to exercise its right to purchase New Shares by delivering an irrevocable written notice to the Company within fifteen (15) days from the date of receipt of any such New Shares Notice specifying the number of New Shares to be subscribed, which in any event can be no greater than such Investor’s Pro Rata Portion of such New Shares at the price and on the terms and conditions specified in the New Shares Notice.
(d) If the Investors (together with their Affiliates) do not elect within the applicable notice period described above to exercise their Preemptive Rights with respect to any of the New Shares proposed to be sold by the Company, the Company shall have ninety (90) days after expiration of such notice period to sell such unsubscribed New Shares proposed to be sold by the Company, at a price and on terms no more favorable to the purchaser than those set forth in the New Shares Notice. If the Company does not consummate the sale of the unsubscribed New Shares in accordance with the terms of the New Shares Notice within such ninety (90)-day period, then the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies with the provisions of this Section 3.8 with respect to such New Shares.
(e) Each Investor (together with its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant to the Preemptive Right upon closing of the issuance of the New Shares, and shall have no right to acquire such New Shares if the issuance thereof shall not be consummated.
Appears in 2 contracts
Samples: Stockholders Agreement (CIFC Corp.), Asset Purchase Agreement (CIFC Corp.)
Preemptive Rights. (a) Subject to Section 3.9, for For so long as any Investor Beneficially Owns Investor Shares representing the Investment Percentage is at least five percent 33%, except as otherwise provided in Section 3.02(c), each time the Company proposes to issue any Company Securities (5%collectively, “New Issue Securities”) of the Outstanding Stock, such Investor shall haveto any Person, the right Company shall first offer the New Issue Securities to purchase, the Investor Parties in accordance with the procedures set forth herein, its pro rata portion, calculated based on following provisions:
(a) The Company shall give a notice to the number of Investor Shares held by such Investor as a percentage of the Outstanding Stock prior to issuance of the New Shares Parties (such Investor’s “Pro Rata Portion”) of any New Shares that the Company may, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive RightNotice”)) stating (i) its intention to issue the New Issue Securities; (ii) the amount and description of such New Issue Securities to be issued; and (iii) the expected purchase price (calculated as of the proposed issuance date) and the other terms upon which the Company is offering the New Issue Securities.
(b) In Transmittal of the event that the Company proposes Preemptive Notice to issue and sell New Shares, each Investor Party by the Company shall notify each constitute an offer by the Company to sell to such Investor Party its Pro Rata Portion of the Investors New Issue Securities for the price and upon the terms set forth in writing the Preemptive Notice. For a period of 10 Business Days after the submission of the Preemptive Notice to an Investor Party, such Investor Party shall have the option, exercisable by written notice to the Company, to accept the Company’s offer as to all or any part of such Investor Party’s Pro Rata Portion. If the Investor Parties in the aggregate exercise their right to purchase under this Section 3.02 with respect to less than their Pro Rata Portion of the proposed New Shares to be issued (the “New Shares Notice”). Each New Shares Notice shall set forth: (i) the number of New Shares Issue Securities proposed to be issued by the Company and the purchase price therefor; (ii) each Investor’s Pro Rata Portion of such New Shares; and (iii) any other material term (including, if known, the expected date of consummation of the purchase and sale of the New Shares).
(c) Each Investor (together with its Affiliates) shall be entitled to exercise its right to purchase New Shares by delivering an irrevocable written notice to the Company within fifteen (15) days from the date of receipt of any such New Shares Notice specifying the number of New Shares to be subscribed, which in any event can be no greater than such Investor’s Pro Rata Portion of such New Shares at the price and on the terms and conditions specified in the New Shares Notice.
(d) If the Investors (together with their Affiliates) do not elect within the applicable notice period described above to exercise their Preemptive Rights with respect to any of the New Shares proposed to be sold by the Companysold, the Company shall have ninety (90) 90 days after expiration of such notice period thereafter to sell such unsubscribed any or all of the remaining New Shares proposed Issue Securities (i.e., those not to be sold by to an Investor Party), upon terms and conditions no less favorable to the Company, at a price and on terms no more favorable to the purchaser purchasers of such New Issue Securities, than those set forth in the New Shares Preemptive Notice. If In the event the Company does has not consummate sold such New Issue Securities within such 90-day period, the Company shall not thereafter issue or sell any New Issue Securities without first offering such New Issue Securities to Investor in the manner provided in this Section 3.02. The purchase of New Issue Securities by the Investor Parties pursuant to this Section 3.02 shall be consummated simultaneously with the closing of the sale of the unsubscribed New Shares Issue Securities set forth in the Preemptive Notice, but in no event prior to 15 Business Days after the submission of the Preemptive Notice to each Investor Party.
(c) The preemptive rights contained in this Section 3.02 shall not apply to (i) the issuance of Common Stock issuable upon the conversion or exchange of Company Securities outstanding as of the date hereof or issued after the date hereof in accordance with the terms of the New Shares Notice within such ninety (90)-day period, then the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies with the provisions of this Section 3.8 with respect to such New Shares.
3.02; (eii) Each Investor (together with its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant to the Preemptive Right upon closing of the issuance of Company Securities in connection with any bona fide acquisition of another Person (whether by merger, acquisition of the New Sharescapital stock of such Person, and shall have no right acquisition of all or substantially all of the assets of such Person, or other reorganization), to acquire the sellers in such New Shares if transaction as consideration for such acquisition; or (iii) the issuance thereof shall not be consummatedof shares of Common Stock or options and the Common Stock issued pursuant to such options after the date hereof to employees, officers or directors of the Company or any of its Subsidiaries pursuant to stock purchase or stock option plans or other arrangements that are approved by the Board.
Appears in 2 contracts
Samples: Shareholder Agreement (MRC Global Inc.), Purchase Agreement (MRC Global Inc.)
Preemptive Rights. (a) Subject to Section 3.9, for so So long as any Investor Beneficially Owns Investor Shares representing at least five percent (5%) Xxxxxxx and its controlled Affiliates beneficially own in excess of 20% of the Outstanding Stockshares of New Common Stock then outstanding, and subject to the terms and conditions of Section 11(b), the Company shall not issue additional Equity Securities (an “Issuance”) unless, prior to such Investor shall haveIssuance, the Company notifies Xxxxxxx in writing of the proposed Issuance and grants to Xxxxxxx, or at Xxxxxxx’x election, one or more of its Affiliates, the right (the “Right”) to purchasesubscribe for and purchase in whole or in part, in accordance with at the procedures same price and upon the same terms and conditions as set forth hereinin the notice of such Issuance, a portion of such additional Equity Securities proposed to be issued in the Issuance such that immediately after giving effect to the Issuance and the exercise of the Right (including, for purposes of this calculation, the issuance of shares of New Common Stock upon conversion, exchange or exercise of any Equity Security issued in the Issuance and subject to the Right), the shares of New Common Stock that Xxxxxxx and its pro rata portion, calculated based on Affiliates beneficially own (rounded to the number of Investor Shares held by such Investor as a nearest whole share) shall represent the same percentage of the Outstanding aggregate number of shares of New Common Stock outstanding as was beneficially owned by Xxxxxxx and its Affiliates immediately prior to issuance the Issuance. In the event Equity Securities are issued as part of a unit with other securities, the New Shares (Right will apply to such Investor’s “Pro Rata Portion”) unit and not separately to any component of any New Shares that the Company may, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive Right”)such unit.
(b) In The Right may be exercised by Xxxxxxx, or, at Xxxxxxx’x election, one or more of its Affiliates, as the event case may be, provided that the Company proposes to issue and sell New Shares, Person exercising the Company shall notify each of the Investors in writing with respect to the proposed New Shares to be issued (the “New Shares Notice”). Each New Shares Notice shall set forth: Right must (i) be an Accredited Investor and (ii) deliver written notice to the number Company of New Shares proposed to be issued such exercise of the Right which is received by the Company and within twenty (20) business days after the purchase price therefor; (ii) each Investor’s Pro Rata Portion date on which Xxxxxxx receives notice from the Company of such New Shares; and (iii) any other material term (including, if known, the expected date of consummation proposed Issuance. The closing of the purchase and sale pursuant to the exercise of the New Shares)Right shall occur on the date scheduled by the Company for the Issuance, which may not be earlier than ten (10) business days and no later than sixty (60) business days after the Company receives notice of the exercise of the Right.
(c) Each Investor (together with its Affiliates) Nothing in this Section 11 shall be entitled deemed to exercise its right to purchase New Shares by delivering an irrevocable written notice to prevent any Person from purchasing for cash or the Company within fifteen (15) days from the date of receipt of issuing any such New Shares Notice specifying the number of New Shares to be subscribed, which in any event can be no greater than such Investor’s Pro Rata Portion of such New Shares at the price and on the terms and conditions specified in the New Shares Notice.
(d) If the Investors (together with their Affiliates) do not elect within the applicable notice period described above to exercise their Preemptive Rights with respect to any of the New Shares proposed to be sold by the Company, the Company shall have ninety (90) days after expiration of such notice period to sell such unsubscribed New Shares proposed to be sold by the Company, at a price and on terms no more favorable to the purchaser than those set forth in the New Shares Notice. If the Company does not consummate the sale of the unsubscribed New Shares in accordance with the terms of the New Shares Notice within such ninety (90)-day period, then the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies additional Equity Securities without first complying with the provisions of this Section 3.8 11; provided that, (i) the Board has determined in good faith that (a) the Company needs a prompt cash investment, (b) no alternative financing on terms no less favorable to the Company in the aggregate than such purchase is available on a no less timely basis, and (c) the delay caused by compliance with respect the provisions of this Section 11 in connection with such investment would be reasonably likely to materially adversely affect the Company; (ii) the Company gives prompt notice to Xxxxxxx of such New Shares.
investment as soon as practicable, and in any event at least five (e5) Each Investor business days prior to the consummation of such investment; and (together with iii) the purchasing holder or the Company enables Xxxxxxx to exercise its rights to purchase its pro rata share as promptly as practicable following the initial prompt cash investment. For purposes of this Section 11(c), the term “pro rata share” shall be based on Xxxxxxx’x and its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant ’ beneficial ownership of outstanding Equity Securities relative to the Preemptive Right upon closing total number of outstanding Equity Securities, in each case prior to the issuance by the Company of Equity Securities in the New Shares, and shall have no right to acquire such New Shares if the issuance thereof shall not be consummatedtransaction contemplated by this Section 11(c).
Appears in 2 contracts
Samples: Standstill Agreement (Supermedia Inc.), Standby Purchase Agreement (Idearc Inc.)
Preemptive Rights. (a) Subject to Section 3.9, for so For as long as any the OEP Stockholders have a right to designate two (2) or more Investor Beneficially Owns Investor Shares representing at least five percent (5%) of the Outstanding StockDesignees under Section 2.1(a)(ii), such Investor each OEP Stockholder shall have, have the right to purchase, in accordance with the procedures set forth herein, its pro rata portion, calculated based on the number of Investor Shares held by such Investor as a percentage of the Outstanding Stock total issued and outstanding voting Shares owned by such OEP Stockholder immediately prior to issuance of the New Shares (such Investor’s “Pro Rata Portion”) of any New Shares that the Company may, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive Right”).
(b) In the event that the Company proposes to issue and sell New Shares, the Company shall notify each of the Investors OEP Stockholders in writing with respect to the proposed New Shares to be issued (the “New Shares Notice”). Each New Shares Notice shall set forth: (i) the number of New Shares proposed to be issued by the Company and the purchase price therefor; (ii) each InvestorOEP Stockholder’s Pro Rata Portion of such New Shares; and (iii) any other material term (including, if known, the expected date of consummation of the purchase and sale of the New Shares).
(c) Each Investor (together with its Affiliates) The OEP Stockholders shall be entitled to exercise its their right to purchase New Shares by delivering an irrevocable written notice to the Company within fifteen twenty (1520) days from the date of receipt of any such New Shares Notice specifying the number of New Shares to be subscribed, which in any event can be no greater than such Investoreach OEP Stockholder’s Pro Rata Portion of such New Shares at the price and on the terms and conditions specified in the New Shares Notice.
(d) If the Investors (together with their Affiliates) do any OEP Stockholder does not elect within the applicable notice period described above to exercise their its Preemptive Rights with respect to any of the New Shares proposed to be sold by the Company, the Company shall have ninety one hundred twenty (90120) days after expiration of such notice period to sell such unsubscribed New Shares proposed to be sold by the Company, at a price and on terms no more favorable to the purchaser than those set forth in the New Shares Notice. If the Company does not consummate the sale of the unsubscribed New Shares in accordance with the terms of the New Shares Notice within such ninety one hundred twenty (90)-day 120)-day period, then the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies with the provisions of this Section 3.8 5.1 with respect to such New Shares. A failure by any OEP Stockholder to exercise its Preemptive Rights with respect to any of the New Shares shall not waive such OEP Stockholder’s Preemptive Rights with respect to future issuances of the New Shares.
(e) Each Investor (together with its Affiliates) OEP Stockholder shall take up and pay for any New Shares that such Investor (together with its Affiliates) OEP Stockholder has elected to purchase pursuant to the Preemptive Right upon closing of the issuance of the New Shares, and shall have no right to acquire such New Shares if the issuance thereof shall is not be consummated.
Appears in 2 contracts
Samples: Principal Stockholders Agreement (Sonus Networks, Inc.), Merger Agreement (Sonus Networks Inc)
Preemptive Rights. (a) Subject to Section 3.96(b) below, for so long as if the Partnership or any Investor Beneficially Owns Investor Shares representing at least five percent (5%) of the Outstanding Stock, such Investor shall haveits Subsidiaries proposes to issue any Equity Security, the right Partnership will (or will cause such Subsidiary to) offer to purchase, in accordance with the procedures set forth herein, its sell to each Partner holding Common Units a number of such securities (“Offered Units”) as is equal to such Partner’s pro rata portionshare, calculated based on the number ratio of Investor Shares held by such Investor as a percentage of the Outstanding Stock prior to issuance of the New Shares (such Investor’s “Pro Rata Portion”) of any New Shares that the Company may, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive Right”).
(b) In the event that the Company proposes to issue and sell New Shares, the Company shall notify each of the Investors in writing with respect to the proposed New Shares to be issued (the “New Shares Notice”). Each New Shares Notice shall set forth: (i) the number of New Shares proposed to be issued Common Units owned by the Company and the purchase price therefor; such Partner divided by (ii) each Investorthe total number of Common Units outstanding at such time; provided that for the purpose of calculating Offered Units with respect to any Management Partner, the “Partner Interests owned by such Partner” shall mean such Partner’s Pro Rata Portion Vested Incentive Units held by such Partner at the time of such New Sharescalculation. The Partnership shall give each Partner at least thirty (30) days prior written notice of any proposed issuance, which notice shall disclose in reasonable detail the proposed terms and conditions of such issuance (the “Issuance Notice”); provided the issue price for any Class A Common Units issued as provided in this Section 6 prior to the first anniversary of the date of this Agreement will the same as the price per Unit at which Class A Common Units are being issued pursuant to the Investor Securities Purchase Agreement on the date of this Agreement (i.e., $1.00 per Class A Common Unit). Each Partner will be entitled to purchase such securities at the same price and (iii) any other material term on the same terms (including, if knownmore than one type of security is issued, the expected date same proportionate mix of consummation such securities) as the securities are issued by delivery of the purchase and sale of the New Shares).
(c) Each Investor (together with its Affiliates) shall be entitled to exercise its right to purchase New Shares by delivering an irrevocable written notice (the “Election Notice”) to the Company Partnership of such election within fifteen thirty (1530) days from the date of after receipt of the Issuance Notice (the “Preemptive Period”). If any Partner has elected to purchase any Offered Units, the sale of such New Shares Notice specifying the number of New Shares to units shall be subscribed, which consummated as soon as practical (but in any event can be no greater than such Investor’s Pro Rata Portion within twenty (20) days, unless the Company abandons or withdraws its offering of such New Shares at the price and on Offered Units) after the terms and conditions specified in delivery of the New Shares Notice.
(d) If Election Notice to the Investors (together with their Affiliates) Partnership. To the extent the Partners do not elect within the applicable notice period described above to exercise their Preemptive Rights with respect to any to, or are not entitled to, purchase all of the New Shares proposed to be sold by Offered Units, then the Company, Partnership or such Subsidiary may issue the Company shall have ninety (90) days after expiration of such notice period to sell such unsubscribed New Shares proposed to be sold by the Company, remaining Offered Units at a price and on terms no more favorable to the purchaser than those set forth transferee(s) thereof specified in the New Shares NoticeIssuance Notice during the 120-day period following the Preemptive Period. If Notwithstanding anything in this Section 6 to the Company does contrary, the Partnership shall not consummate be deemed to have breached this Section 6 if, within 30 days following the sale issuance of the unsubscribed New Shares any Equity Securities in accordance with the terms of the New Shares Notice within such ninety (90)-day period, then the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies with the provisions contravention of this Section 3.8 6, the Partnership or the Subsidiary in question (as applicable) offers to sell the same type of such Equity Securities or the holder of such Equity Securities offers to sell all or the applicable portion of such additional Equity Securities in each case to each Partner so that, taking into account such previously issued securities and any such additional securities, each Partner will have had the right to purchase or subscribe for securities in a manner consistent with respect the allocation provided in the initial sentence of this Section 6(a); provided that no merger or consolidation or sale of all or substantially all of the assets of, transfer of Equity Securities or issuance or sale of additional Equity Securities of the Partnership or any Subsidiary may be approved or effected or any distribution under the Partnership Agreement may be approved or occur prior to the consummation of such New Sharessubsequent offer.
(eb) Each Investor The rights contained in this Section 6 shall not apply to (together with i) the issuance of Common Units (including any Convertible Security) as a dividend or upon any subdivision or Unit split of outstanding Common Units; (ii) the issuance of Equity Securities upon conversion of any Convertible Securities issued in compliance herewith; (iii) the issuance of Equity Securities to officers, directors, managers employees or consultants of the Partnership, its Subsidiaries or Grande Manager or, for so long as the ABB Advisory Agreement is in effect, of ABB or its Affiliates, approved by, or pursuant to arrangements approved by, the General Partners or the Grande Manager Board, (iv) shall take up and pay the issuance of Common Units pursuant to any underwritten public offering, (v) the issuance of any Common Unit (including any Convertible Security) as consideration for the acquisition of any New Shares that such Investor Person or business or unit or division thereof or any other asset or other property to be used in the operations of the Partnership or any of its Subsidiaries, (together with its Affiliatesvi) has elected to purchase any issuance of Class A Common Units pursuant to the Preemptive Right upon closing Recapitalization Agreement, or (vii) any issuance of Equity Securities of a Subsidiary of the issuance Partnership to the Partnership or to any other Subsidiary of the New Shares, and shall have no right to acquire such New Shares if the issuance thereof shall not be consummatedPartnership.
Appears in 2 contracts
Samples: Partnership Agreement (Grande Communications Holdings, Inc.), Recapitalization Agreement (Grande Communications Holdings, Inc.)
Preemptive Rights. (a) Subject to Section 3.9, for For so long as any Investor Beneficially Owns Investor Shares representing the IEP Group owns at least 10% of the outstanding Common Stock, if the Company proposes to issue Equity Securities of any kind, other than in an Excluded Issuance, then the Company shall:
(i) give written notice to the IEP Group no less than five percent (5%) Business Days prior to the closing of such issuance or, if the Company reasonably expects such issuance to be completed in less than five (5) Business Days, such shorter period (which shall be as given as promptly as commercially practicable but in any event not less than three (3) Business Days prior to such closing), setting forth in reasonable detail (A) the designation and all of the Outstanding material terms and provisions of the securities proposed to be issued (the “Proposed Securities”), including, to the extent applicable, the voting powers, preferences and relative participating, optional or other special rights, and the qualifications, limitations or restrictions thereof and interest rate and maturity, (B) the price and other terms of the proposed sale of such securities and (C) the amount of such securities proposed to be issued; provided that, following the delivery of such notice, the Company shall deliver to the IEP Group any such information the IEP Group may reasonably request in order to evaluate the proposed issuance, except that, in connection with a public offering, the Company shall not be required to deliver any information that has not been or will not be provided or otherwise made available to the proposed purchasers of the Proposed Securities; and
(ii) offer to issue and sell to the IEP Group, on such terms as the Proposed Securities are issued and upon full payment by the IEP Group, a portion of the Proposed Securities equal to the IEP Group’s pro rata beneficial ownership of the Common Stock (together with any other Voting Stock owned by the IEP Group) at such time as compared to the total number of shares of Common Stock and Voting Stock, such Investor shall haveconsidered together, the right to purchase, in accordance with the procedures set forth herein, its pro rata portion, calculated based on the number of Investor Shares held by such Investor as a percentage of the Outstanding Stock outstanding immediately prior to the issuance of the New Shares Proposed Securities (such Investor’s the “Pro Rata Portion”), provided, that in satisfaction of its obligations under this Section 3.06(a)(ii), the Company shall deliver (A) if any Voting Stock is proposed to be issued, a number of shares of Class A Common Stock or Voting Stock such that the IEP Group acquires an amount of Class A Common Stock or Voting Stock that would preserve (but not increase), following the issuance of the Proposed Securities, the IEP Group’s beneficial ownership of a percentage of the Class A Common Stock and Voting Stock determined by dividing: (x) the number of shares of Class A Common Stock and Voting Stock beneficially owned by the IEP Group prior to the issuance of the Proposed Securities by (y) the total number of shares of Class A Common Stock and Voting Stock, considered together, outstanding prior to the issuance of the Proposed Securities plus (B) a number of shares of Class B Common Stock (or other Equity Securities that are not Voting Stock, if the Proposed Securities are not Voting Stock, as applicable) equal to the difference between (1) the Pro Rata Portion of the Proposed Securities, in aggregate and (2) the amount of Class A Common Stock or other Voting Stock delivered pursuant to clause (A) of any New Shares that the Company may, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive Right”this Section 3.06(a)(ii).
(b) In The IEP Group will have the event that option, exercisable by irrevocable written notice to the Company proposes Company, to issue accept the Company’s offer and sell New Shares, the Company shall notify each commit to purchase any or all of the Investors in writing Equity Securities offered to be sold, which notice must be given on or prior to the Business Day immediately prior to the date of the closing of the issuance of such Equity Securities (or, if notice of all such terms has not been given prior to the Business Day immediately prior to the such closing date, at any time prior to such closing date) (the failure of the IEP Group to respond within such time period shall be deemed a waiver of its rights under this Section 3.06 with respect to the proposed New Shares to be issued (the “New Shares Notice”applicable issuance of Equity Securities). Each New Shares Notice Such notice to the Company shall constitute a binding commitment by the IEP Group to purchase the amount of Equity Securities so specified at the price and other terms set forth: forth in the Company’s notice to the IEP Group. The closing of the exercise of such subscription right shall take place simultaneously with the closing of the sale of the Proposed Securities giving rise to such subscription right; provided, however, that the closing of any purchase by the IEP Group may be extended beyond the closing of the sale of the Proposed Securities giving rise to such preemptive right to the extent necessary to (i) obtain required approvals from any Governmental Authority or (ii) permit the number IEP Group to receive proceeds from calling capital pursuant to commitments made by its (or its Affiliates’) limited partners (but in such event, such extension shall not be longer than 10 Business Days). Upon the expiration of New Shares proposed the offering period described above, the Company will be free to be issued sell such Proposed Securities that the IEP Group has not elected to purchase during the 120 days following such expiration on terms and conditions no more favorable to the purchasers thereof than those offered to the IEP Group in the notice delivered in accordance with this Section 3.06. Any Proposed Securities offered or sold by the Company and after such 120-day period must be reoffered to issue or sell to the purchase price therefor; (ii) each Investor’s Pro Rata Portion of such New Shares; and (iii) any other material term (including, if known, the expected date of consummation of the purchase and sale of the New Shares)IEP Group pursuant to this Section 3.06.
(c) Each Investor (together with its Affiliates) shall be entitled The election by the IEP Group not to exercise its right to purchase New Shares by delivering an irrevocable written notice to the Company within fifteen (15) days from the date of receipt of any such New Shares Notice specifying the number of New Shares to be subscribed, which subscription rights under this Section 3.06 in any event can be no greater than such Investor’s Pro Rata Portion of such New Shares at the price and on the terms and conditions specified in the New Shares Noticeone instance shall not affect its right as to any subsequent proposed issuance.
(d) If the Investors (together with their Affiliates) do not elect within the applicable notice period described above to exercise their Preemptive Rights with respect to any of the New Shares proposed to be sold issuance by the Company, Company of securities which gave rise to the exercise by the IEP Group of its preemptive rights pursuant to this Section 3.06 shall be terminated or abandoned by the Company shall have ninety (90) days after expiration without the issuance of such notice period to sell such unsubscribed New Shares proposed to be sold by the Company, at a price and on terms no more favorable to the purchaser than those set forth in the New Shares Notice. If the Company does not consummate the sale of the unsubscribed New Shares in accordance with the terms of the New Shares Notice within such ninety (90)-day periodany securities, then the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies with purchase rights of the provisions of IEP Group pursuant to this Section 3.8 with respect 3.06 shall also terminate as to such New Sharesproposed issuance by the Company (but not any subsequent or future issuance), and any funds in respect thereof paid to the Company by the IEP Group in respect thereof shall be refunded in full.
(e) Each Investor In the case of an issuance subject to this Section 3.06 for consideration in whole or in part other than cash, including securities acquired in exchange therefor (together with its Affiliates) other than securities by their terms so exchangeable), the consideration other than cash shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected be deemed to purchase pursuant to be the Preemptive Right upon closing of fair market value thereof as reasonably determined in good faith by the issuance of the New Shares, and shall have no right to acquire such New Shares if the issuance thereof shall not be consummatedBoard.
Appears in 2 contracts
Samples: Shareholders Agreement (Icahn Enterprises Holdings L.P.), Membership Interest Purchase Agreement (Tenneco Inc)
Preemptive Rights. (a) Subject After the Equalization Date, prior to the Company issuing any Interests or options or rights to acquire Interests (other than (i) any equity issuance associated with an acquisition previously approved by NGPMR, (ii) Interests issued in connection with any split, distribution or recapitalization of the Company, (iii) Interests issued in any initial public offering registration statement filed under the Securities Act, or (iv) in connection with any capital raising or financing efforts by the Company the purpose of which is to fund any activities of the Company which were the subject of a Capital Call made pursuant to Section 3.94.1(c) that was not fully funded by the Members; provided, for so long as however, that any Investor Beneficially Owns Investor Shares representing at least five percent Interests to be issued in such capital raising or financing efforts, and the pricing of such Interests, are equivalent to the terms of such Capital Call), whether through exchange, conversion or otherwise (5%the “New Interests”), to a proposed third party purchaser (the “Proposed Purchaser”), each Member who is not in default of this Agreement and which certifies to the Company’s reasonable satisfaction that it is an “accredited investor” within the meaning of Rule 501 under the Securities Act (an “Eligible Member”) of the Outstanding Stock, such Investor shall have, have the right to purchase, purchase a portion of the New Interests in accordance with the procedures set forth herein, its pro rata portion, calculated based on the number of Investor Shares held by such Investor as a percentage of the Outstanding Stock prior to issuance of the New Shares (such Investor’s “Pro Rata Portion”) of any New Shares that the Company may, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive Right”)this Section 5.7.
(b) In the event that the Company proposes to issue and sell New Shares, the The Company shall notify give each of the Investors in writing with respect to the proposed New Shares to be issued Eligible Member prior written notice (the “New Shares First Notice”). Each ) of any proposed issuance of New Shares Notice Interests, which shall set forth: forth in reasonable detail the proposed terms and conditions thereof (ias determined by the Board in good faith) and shall offer to each Eligible Member the number opportunity to purchase its Percentage Interest (as of the date of such notice) of the New Shares Interests, on the same terms and conditions and at the same time as the New Interests are proposed to be issued by the Company and Company. If any Eligible Member desires to exercise its preemptive rights under this Section 5.7, it must deliver an irrevocable written notice within 30 days after the purchase price therefor; (ii) each InvestorEligible Member’s Pro Rata Portion of such New Shares; and (iii) any other material term (including, if known, the expected date of consummation receipt of the purchase and sale First Notice (the “Election Period”) setting forth the dollar amount of the New Shares)Interests the Eligible Member (the “Electing Member”) is electing to purchase, up to its Percentage Interest plus any additional amount of New Interests it desires to purchase in excess of its Percentage Interest (the “Over-Allotment Amount”) if other Eligible Members do not exercise their preemptive rights hereunder. The right of each Electing Member to purchase New Interests in excess of its Percentage Interest shall be based on the relative Percentage Interests of the Electing Members desiring to purchase Over-Allotment Amounts.
(c) Each Investor (together with its Affiliates) shall be entitled to exercise its right to purchase New Shares by delivering an irrevocable written notice to the Company within fifteen (15) days from the date of receipt of any such New Shares Notice specifying the number of New Shares to be subscribed, which in any event can be no greater than such Investor’s Pro Rata Portion of such New Shares at the price and on the terms and conditions specified in the New Shares Notice.
(d) If the Investors (together with their Affiliates) Eligible Members do not elect within the applicable notice period described above to exercise their Preemptive Rights with respect to any subscribe for all of the New Shares proposed to be sold by the CompanyInterests, the Company shall have ninety (90) the right, but not the obligation, to issue and sell the unsubscribed portion of the New Interests to the Proposed Purchaser at any time during the 90 days after expiration following the end of such notice period to sell such unsubscribed New Shares proposed to be sold by the CompanyElection Period, at a the same price and on terms no more favorable pursuant to the purchaser than those terms and conditions set forth in the New Shares First Notice. If 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 in connection with any preemptive rights offering. In the Company does not consummate the sale of the unsubscribed New Shares in accordance with the terms of event any Electing Member refuses to purchase the New Shares Notice within such ninety (90)-day periodInterests for which it subscribed pursuant to this Section 5.7, then in addition to any other rights the Company may not issue have at law or sell in equity, such New Shares unless it sends a new New Shares Notice Electing Member and once again complies with the provisions of this Section 3.8 with respect to such New Shares.
(e) Each Investor (together with its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant to the Preemptive Right upon closing of the issuance of the New Shares, and shall have no right to acquire such New Shares if the issuance transferee thereof shall not be consummatedconsidered an Eligible Member for any future rights granted under this Section 5.7 unless the Board expressly designates otherwise (which the Board may, in its sole discretion, do on an offer-by-offer basis or not at all) and shall be deemed a Defaulting Member under Section 4.2.
Appears in 2 contracts
Samples: Contribution Agreement (Markwest Energy Partners L P), Limited Liability Company Agreement (Markwest Energy Partners L P)
Preemptive Rights. (a) Subject a. Until immediately prior to Section 3.9, for so long as any Investor Beneficially Owns Investor Shares representing at least five percent (5%) the consummation of an IPO of the Outstanding Stocksecurities of the Company or an Exit Event, such Investor in the event that the Company proposes to issue or sell any New Securities, the Company shall have, first offer to each of the Equityholders the right to purchase, in accordance with the procedures set forth herein, its pro rata portion, calculated based on the purchase such number of Investor Shares held by such Investor as New Securities reflecting a percentage of the Outstanding Stock prior to issuance Equityholder’s Pro-Rata Equity right of the New Shares (such Investor’s “Pro Rata Portion”) of any New Shares that the Company may, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive Right”)Securities.
(b) b. In the event that the Company proposes to issue and sell New SharesSecurities, the Company it shall notify give each of the Investors in writing with respect to the proposed New Shares to be issued Equityholders a written notice (the a “New Shares Rights Notice”). Each ) of its intention, describing the type of New Shares Notice shall set forth: (i) Securities, the price, the general terms upon which the Company proposes to issue such New Securities, and the number of New Shares proposed Securities that each Equityholder has the right to be issued by the Company and purchase hereunder. Pursuant to the purchase price therefor; mechanics identified in Article 18c) below, each Equityholder shall have fourteen (ii14) each Investorcalendar days from its receipt of a Rights Notice to agree to purchase all or any part of such Equityholder’s Pro Rata Portion Equity right of such New Shares; Securities for the price and (iii) any other material term (includingupon the general terms specified in the applicable Rights Notice, if known, the expected date of consummation of the purchase and sale of the New Shares).
(c) Each Investor (together with its Affiliates) shall be entitled to exercise its right to purchase New Shares by delivering an irrevocable giving written notice to the Company within fifteen (15) days from setting forth the date of receipt of any such New Shares Notice specifying the number quantity of New Shares Securities to be subscribed, which in any event can be no greater than such Investor’s Pro Rata Portion of such New Shares at the price and on the terms and conditions specified in the New Shares Noticepurchased.
(d) If c. In the Investors (together with their Affiliates) do not elect event that any Equityholder fails to exercise in full its respective preemptive right within the applicable notice 14-day period described above to exercise their Preemptive Rights with respect to any of the New Shares proposed to be sold by the Companyspecified above, the Company shall have ninety (90) calendar days after the expiration of such notice 14-day period to enter into an agreement with a third party to sell such unsubscribed the New Shares proposed to be sold by Securities in respect of which the Companyapplicable Equityholders’ pre-emptive right set forth in this Article 18 is not exercised, at a price and on upon general terms no more favorable to the purchaser purchasers thereof than those set forth specified in the New Shares applicable Rights Notice. If In the event that the Company does has not consummate the sale of the unsubscribed entered into an agreement to sell such New Shares in accordance with the terms of the New Shares Notice Securities within such ninety (90)-day 90) -day period, then the Company may shall not thereafter issue or sell any New Securities without first again offering such New Shares unless it sends a new New Shares Notice and once again complies with the provisions of this Section 3.8 with respect Securities to such New Shares.
(e) Each Investor (together with its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant to the Preemptive Right upon closing each of the issuance of Equityholders in the New Shares, and shall have no right to acquire such New Shares if the issuance thereof shall not be consummatedmanner provided in this Article 18.
Appears in 2 contracts
Samples: Equity Joint Venture Agreement (InMode Ltd.), Equity Joint Venture Agreement (InMode Ltd.)
Preemptive Rights. (a) Subject to Section 3.9, for so long as any Investor Beneficially Owns Investor Shares representing at least five percent (5%) of the Outstanding Stock, such Investor shall have, the right to purchase, in accordance with the procedures set forth herein, its pro rata portion, calculated based on the number of Investor Shares held by such Investor as a percentage of the Outstanding Stock prior to issuance of the New Shares (such Investor’s “Pro Rata Portion”) of any New Shares that the Company may, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive Right”).
(b) In the event that the Company proposes to issue and sell New Shares, the Company shall notify each of the Investors in writing with respect to the proposed New Shares to be issued (the “New Shares Notice”). Each New Shares Notice shall set forth: (i) Until the number QIPO, the provisions of New Shares proposed this Article 14 shall apply:
(1) Any Additional Securities (as defined in Article 9 above) to be issued by the Company (the “Offered Securities”) shall first be offered by the Board of Directors by written notice to each Major Holder and Founder, for as long as such Founder holds shares in the purchase price therefor; Company (for purposes of this Article 14, the “Offerees”). The number of Offered Securities offered to each Offeree shall be the result of the multiplication of the Offered Securities by a fraction: (i) the numerator of which shall be the total number of outstanding Ordinary Shares of the Company (on an as-converted basis) held by such Offeree as determined prior to the offer made pursuant to this Article ***, and (ii) each Investor’s Pro Rata Portion the denominator of such New Shares; and (iii) any other material term (including, if known, which is the expected date total number of consummation outstanding Ordinary Shares of the purchase and sale of Company (on an as-converted basis), as determined prior to the New Shares)offer made pursuant to this Article 14.
(c2) Each Investor The Company shall provide each Offeree with a Notice (together with its Affiliatesthe “Notice of Offer”) shall be entitled to exercise its right to purchase New Shares by delivering an irrevocable written notice to the Company within fifteen (15) days from the date of receipt of any such New Shares Notice specifying the number of New Shares Offered Securities he is entitled to purchase and which shall state the terms of the proposed issuance, and any such Offeree may accept such offer, as to all or any part of the Offered Securities so offered to him, by giving the Company written notice of acceptance within twenty (20) days after being served with such Notice of Offer; provided, however, that the Founders may only exercise such right for their own benefit through their available funds, provided that if the purchase by such Offeree is being effected prior to, or concurrently with such issuance of Offered Securities (rather than subsequent thereto) then such Offeree shall be subscribed, which in any event can be no greater than such Investor’s Pro Rata Portion obligated to consummate the purchase of such New Shares at Offered Securities only if the price and on Company consummates the sale of the balance of the Offered Securities pursuant to the terms described in such Notice of Offer
(3) Any and conditions specified all preemption rights set forth in this Article 14, may be exercised by a Permitted Transferee of a Major Holder instead of by such Major Holder if such Major Holder so notifies the New Shares NoticeCompany in writing.
(dj) If Any Offered Securities not subscribed for by the Investors (together with their Affiliates) do not elect within Offered as aforesaid, shall be under the applicable notice period described above to exercise their Preemptive Rights with respect to any control of the New Shares proposed Board of Directors and may be issued without regard to this Article 14, except to the extent that said Offered Securities may not be sold by the Company, the Company shall have ninety (90) days after expiration of such notice period to sell such unsubscribed New Shares proposed to be sold by the Company, at a price and allotted on terms no more favorable to the purchaser than those set forth in offered pursuant to this Article 14. In the New Shares Notice. If event the Company does Offered Securities are not consummate acquired by the sale expiration of 120 days from the date of expiration of the unsubscribed New Shares twenty (20) day period referred to in accordance with the terms of the New Shares Notice within such ninety (90)-day periodArticle 14(a)(2), then the Company they may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies be issued except by compliance with the provisions of this Section 3.8 with respect to such New SharesArticle 14.
(e) Each Investor (together with its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant to the Preemptive Right upon closing of the issuance of the New Shares, and shall have no right to acquire such New Shares if the issuance thereof shall not be consummated.
Appears in 2 contracts
Samples: Preferred Share Purchase Agreement (Negevtech Ltd.), Preferred Share Purchase Agreement (Negevtech Ltd.)
Preemptive Rights. Except for Excluded Issuances, if the Company (a) Subject to Section 3.9, for so long as or any Investor Beneficially Owns Investor Shares representing at least five percent (5%) subsidiary of the Outstanding Stock, such Investor shall have, the right to purchase, in accordance with the procedures set forth herein, its pro rata portion, calculated based on the number of Investor Shares held by such Investor as a percentage of the Outstanding Stock prior to issuance of the New Shares (such Investor’s “Pro Rata Portion”Company) of any New Shares that the Company may, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive Right”).
(b) In the event that the Company proposes wishes to issue and sell (i) any shares of capital stock or any security convertible into or exchangeable for capital stock to any Person or Persons (collectively, the “Subject Purchasers”) or (ii) any debt security to the GEI Parties (each, a “New SharesSecurity” and together, the “New Securities”) prior to the consummation of a Public Offering Event, then the Company shall notify each of also offer such New Securities to the Investors in writing GEI Parties (with respect to any offer pursuant clause (ii) above, other than to any GEI Party previously offered such New Security), the proposed New Shares to be issued Roll-Over Investors and the Mezzanine Investors (a “Stockholder”) by sending written notice (the “New Shares Issuance Notice”). Each New Shares Notice shall set forth: ) to such Persons at least fifteen (i15) days prior to the number of New Shares proposed to be issued by the Company and the purchase price therefor; (ii) each Investor’s Pro Rata Portion of such New Shares; and (iii) any other material term (including, if known, the expected date of consummation of the purchase issuance and sale of the New Shares).
Securities. The New Issuance Notice shall state (ca) Each Investor (together with its Affiliates) shall be entitled to exercise its right to purchase New Shares by delivering an irrevocable written notice to the Company within fifteen (15) days from the date of receipt of any such New Shares Notice specifying the number of shares, notes or other securities, as applicable, of New Shares Securities proposed to be subscribed, which in any event can be no greater than such Investor’s Pro Rata Portion issued and sold and the terms of such New Shares at Securities, (b) the proposed purchase price per share, note or other security, as applicable, of the New Securities that the Company is willing to accept (the “Proposed Price”) and on the terms and conditions specified in of the purchase of such New Securities, (c) the proposed date on which the New Shares Notice.
Securities will be sold (the “New Issuance Closing Date”), and (d) If the Investors (together with their Affiliates) do not elect within the applicable notice period described above to exercise their Preemptive Rights each Stockholder’s Proportionate Percentage. For purposes hereof, each Stockholder’s “Proportionate Percentage” means, with respect to any Stockholder, the percentage of the New Shares proposed Securities allocated to such Stockholder to be sold by the Company, the Company shall have ninety (90) days after expiration of such notice period to sell such unsubscribed New Shares proposed to be sold by the Company, at a price and on terms no more favorable to the purchaser than those set forth in the New Shares Notice. If the Company does not consummate the sale of the unsubscribed New Shares in accordance with the terms of the New Shares Notice within such ninety (90)-day period, then the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies with the provisions of this Section 3.8 with respect to such New Shares.
(e) Each Investor (together with its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant to the Preemptive Right upon closing of the issuance of the New Shares, and shall have no right to acquire such New Shares if the issuance thereof shall not be consummated.determined as follows:
Appears in 2 contracts
Samples: Stockholders Agreement (Container Store Group, Inc.), Stockholders Agreement (Container Store Group, Inc.)
Preemptive Rights. (ai) Subject to Section 3.9, for so long as any Investor Beneficially Owns Investor Shares representing at least five percent (5%) of In the Outstanding Stock, such Investor shall have, the right to purchaseevent that, in accordance with the procedures terms set forth hereinin this Agreement, its pro rata portion, calculated based on the number of Investor Shares held by such Investor as a percentage Board determines to cause the Company to issue equity interests in the Company or other securities or interests exercisable for or convertible into equity securities of the Outstanding Stock Company (“New Shares”), in each case other than with respect to (A) the issuance of New Shares in connection with the granting or exercise of employee share options or other share incentives pursuant to the Company’s share incentive plans and employment arrangements as in effect from time to time or the issuance of New Shares pursuant to the Company’s employee share purchase plan as in effect from time to time and (B) the issuance of New Shares pursuant to or in consideration for the acquisition of another Person, business or assets by the Company or any of its Subsidiaries, whether by purchase of share, merger, consolidation, purchase of all or substantially all of the assets of such Person or otherwise, the Board shall cause the Company to provide written notice (a “Preemptive Rights Notice”) thereof to each Investor at least twenty (20) days prior to the estimated date of such issuance. The Preemptive Rights Notice shall set forth a summary of the material terms of such New Shares, including the estimated amount of New Shares to be issued, the estimated purchase price therefor and the estimated date of issuance of such New Shares. Each Investor shall have the right (a “Preemptive Right”) to purchase a portion of the New Shares (such Investor’s “Pro Rata Portion”) of any New Shares that the Company may, from time equal to time, propose up to sell and issue (hereinafter referred to as the “Preemptive Right”).
(b) In the event that the Company proposes to issue and sell New Shares, the Company shall notify each of the Investors in writing with respect to the proposed New Shares to be issued (the “New Shares Notice”). Each New Shares Notice shall set forth: (i) the number of New Shares proposed to be issued multiplied by the Company and the purchase price therefor; (ii) each Investor’s Pro Rata Portion percentage of equity ownership of such New Shares; and (iii) any other material term (including, if known, the expected date of consummation of the purchase and sale of the New Shares).
(c) Each Investor (together with its Affiliates) shall be entitled to exercise its right to purchase New Shares by delivering an irrevocable written notice to in the Company within fifteen (15) days from as of the date of receipt delivery of any such New Shares Notice specifying the number of New Shares to be subscribed, which in any event can be no greater than such Investor’s Pro Rata Portion of such New Shares at the price and on the terms and conditions specified in the New Shares Preemptive Rights Notice.
(dii) If the Investors (together with their Affiliates) do not elect within the applicable notice period described above Each Investor that desires to exercise their its Preemptive Rights with hereunder must exercise such Preemptive Right within twenty (20) days after receipt of the Preemptive Rights Notice from the Company, and any failure to exercise such Preemptive Right within such time period shall be deemed a waiver of the Preemptive Right in respect to any of the New Shares proposed referred to be sold by the Company, the Company shall have ninety (90) days after expiration of such notice period to sell such unsubscribed New Shares proposed to be sold by the Company, at a price and on terms no more favorable to the purchaser than those set forth in the New Shares related Preemptive Rights Notice. If the Company does not consummate the sale of the unsubscribed New Shares in accordance with the terms of the New Shares Notice within such ninety (90)-day period, then the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies with the provisions of this Section 3.8 with respect to such New Shares.
(eiii) Each The election by an Investor (together with its Affiliatesnot to exercise such Investor’s Preemptive Rights under this Section 3(d) in any one instance shall take up and pay for not affect such Investor’s right as to any New Shares subsequent proposed issuance subject to this Section 3(d), provided that such Investor (together with its Affiliates) has elected continues to purchase pursuant to be an Investor as of the date of delivery of the Preemptive Right upon closing Notice in respect of the issuance of the New Shares, and shall have no right to acquire any such New Shares if the issuance thereof shall not be consummatedsubsequent proposed issuance.
Appears in 2 contracts
Samples: Shareholders Agreement (Third Point Reinsurance Ltd.), Shareholder Agreement (Third Point Reinsurance Ltd.)
Preemptive Rights. (a) Subject to Section 3.9clause (f) below, for so long as any Investor Beneficially Owns Investor Shares representing at least five percent (5%) the officers of the Outstanding StockCompany shall not solicit capital contributions or issue any Interests (or Units) in the Company therefor unless it first delivers to each Initial Member (each such Initial Member being referred to in this Section 2.8 as a “Buyer”) a written notice (the “Notice of Proposed Issuance”) specifying the type and amount of such capital contributions and Interests (or Units) that Company then intends to issue therefor (the “Offered Interests”), such Investor all of the material terms, including the price (cash or non-cash) upon which Company proposes to issue the Offered Interests and stating that the Buyers shall have, have the right to purchase, purchase the Offered Interests in the manner specified in this Section 2.8 for the same price per share and in accordance with the procedures set forth hereinsame terms and conditions specified in such Notice of Proposed Issuance, its pro rata portionprovided, calculated based on that if such price consists of non-cash consideration, a Buyer may purchase the number Offered Interest with the same type and amount of Investor Shares held by non-cash consideration described in such Investor as a percentage Notice of Proposed Issuance or, may instead (at the Outstanding Stock prior to issuance election of such Buyer), pay for such Offered Interests with the New Shares (cash equivalent of such Investor’s “Pro Rata Portion”) of any New Shares that the Company may, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive Right”)price.
(b) In During the event that *** Business Day period commencing on the date Company proposes delivers to issue and sell New Shares, the Company shall notify each all of the Investors in writing with respect to Buyers the proposed New Shares to be issued Notice of Proposed Issuance (the “New Shares Notice*** Period”), the Buyers shall have the option to purchase up to all of the Offered Interests at the same price and upon the same terms and conditions specified in the Notice of Proposed Issuance. Each New Shares Notice shall set forth: (i) Buyer electing to purchase Offered Interests must give written notice of its election to Company prior to the number of New Shares proposed to be issued by the Company and the purchase price therefor; (ii) each Investor’s Pro Rata Portion of such New Shares; and (iii) any other material term (including, if known, the expected date of consummation expiration of the purchase and sale of the New Shares)*** Period.
(c) Each Investor (together with its Affiliates) Buyer shall be entitled to exercise its have the right to purchase New Shares up to that percentage of the Offered Interests equal to the Percentage Interest in the Company then held by delivering an irrevocable such Buyer. The amount of such Offered Interests that each Buyer is entitled to purchase under this Section 2.8 shall be referred to as its “Proportionate Share.”
(d) In the event that any Buyer elects not to purchase its full Proportionate Share of the Offered Interests pursuant to Sections 2.8 (a), (b) and (c) above, the Company shall deliver to all of the other Buyers a written notice (the “Oversubscription Notice”) specifying the total number of Offered Interests not so purchased (the “Remaining Offered Interests”) within *** Business Days following the expiration of the *** Period set forth in Section 2.8(b) above. Each such Buyer shall have a right of oversubscription to purchase up to the Company within fifteen (15) days from the date of receipt of any such New Shares Notice specifying the number of New Shares to be subscribed, which in any event can be no greater than such Investor’s Pro Rata Portion balance of such New Shares Offered Interests not so purchased at the same price and on the same terms and conditions specified set forth in the New original Notice of Proposed Issuance. Each such Buyer who receives an Oversubscription Notice must exercise its right of oversubscription by giving the Company written notice of its election during the *** Business Day period following its receipt of the Oversubscription Notice. If, as a result thereof, such oversubscription elections exceed the total number of the Offered Interests available in respect to such oversubscription privilege, the oversubscribing Buyers shall be cut back with respect to oversubscriptions on a pro rata basis in accordance with their relative Proportionate Shares Noticeor as they may otherwise agree among such oversubscribing Buyers.
(de) If the Investors (together with their Affiliates) do not elect within the applicable notice period described above to exercise their Preemptive Rights with respect to any all of the New Shares proposed to be sold Offered Interests have not been purchased by the CompanyBuyers pursuant to the foregoing provisions, the Company then General Manager shall have ninety (90) days after the right, until the expiration of such notice period *** days commencing on the first day immediately following the expiration of the *** Period, to sell such unsubscribed New Shares proposed to be sold issue the Offered Interests not purchased by the CompanyBuyers at not less than, at a price and on terms no more favorable in any material respect to the purchaser than those set forth purchaser(s) thereof than, the price and terms specified in the New Shares NoticeNotice of Proposed Issuance. If such remaining Offered Interests are not issued within such period and at such price and on such terms, the Company does not consummate the sale of the unsubscribed New Shares right to issue in accordance with the terms Notice of the New Shares Notice within such ninety (90)-day period, then the Company may not issue or sell such New Shares unless it sends a new New Shares Notice Proposed Issuance shall expire and once again complies with the provisions of this Agreement shall continue to be applicable to the Offered Interests.
(f) Notwithstanding the foregoing, the rights described in this Section 3.8 2.8 shall not apply with respect to such New Shares.
(e) Each Investor (together with its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant to the Preemptive Right upon closing of the issuance of Excluded Securities. For purposes of this Section 2.8, “Excluded Securities” shall mean any Interests in the New SharesCompany (i) issued in connection with the ***, whether by the *** or otherwise, which has been Approved by the Board and/or Members, to the extent that Approval of the Board and/or Approval of the Members, including Supermajority Approval of the Board and/or Supermajority Approval of the Members, is required hereunder, (ii) issued as part of an ***, and shall (iii) issued to financial institutions, financial syndicates or lessors in connection with bona fide commercial credit arrangements, equipment financings, or similar transactions for primarily other than equity financing purposes not exceeding cumulatively (including all prior issuances of Interests (or Units) that are Excluded Securities pursuant to this Section 2.8(f)(iii)) in the aggregate *** of the aggregate Percentage Interests then outstanding and which have no right been Approved by the Board and/or Members, to acquire such New Shares if the issuance thereof shall not be consummatedextent that Supermajority Approval or Approval of the Board and/or Supermajority Approval or Approval of the Members is required hereunder.
Appears in 2 contracts
Samples: Limited Liability Company Agreement, Limited Liability Company Agreement (HUGHES Telematics, Inc.)
Preemptive Rights. (a) Subject Except in the case of Excluded Securities, prior to Section 3.9the consummation of a Qualified IPO, the Company shall not, and shall cause its Subsidiaries not to, issue, exchange or otherwise Dispose, agree to issue, exchange or otherwise Dispose, or reserve or set aside for so long as the same, any Investor Beneficially Owns Investor Shares representing at least five percent (5%) of the Outstanding Stock, such Investor shall have, Membership Interests or the right to purchase, in accordance with the procedures set forth herein, its pro rata portion, calculated based on the number of Investor Shares held by such Investor as a percentage of the Outstanding Stock prior to issuance of the New Shares (such Investor’s “Pro Rata Portion”) Equity Interests of any New Shares that Subsidiary, unless in each case the Company may, from time shall have first offered or caused such Subsidiary to time, propose to sell and issue offer (hereinafter referred to as the “Preemptive RightOffer”) to sell such Membership Interests or Equity Interests, as applicable, to all Members who own Class I Units and are “accredited investors” as defined in Rule 501(a) under the Securities Act (the “Offered Securities”) by delivery to such Members of written notice of such offer stating the Company or Subsidiary of the Company, as the case may be, proposes to sell such Offered Securities, the number or amount of the Offered Securities proposed to be sold, the proposed purchase price therefor and any other terms and conditions of such offer. The Preemptive Offer shall by its terms remain open and irrevocable for a period of 15 days from the date it is delivered to the Members eligible to receive such notice (the “Preemptive Offer Period”).
(b) In Each Member being offered the event that Offered Securities (an “Offeree”) shall have the option, exercisable at any time during the Preemptive Offer Period by delivering written notice to the Company proposes to issue and sell New Shares, the Company shall notify each of the Investors in writing with respect to the proposed New Shares to be issued (the a “New Shares Preemptive Offer Acceptance Notice”). Each New Shares Notice shall set forth: , to subscribe for (i) the number or amount of New Shares such Offered Securities up to its Proportionate Percentage of the total number or amount of Offered Securities proposed to be issued by the Company and the purchase price therefor; (ii) each Investor’s Pro Rata Portion of such New Shares; and (iii) any other material term (including, if known, the expected date of consummation up to its Proportionate Percentage of the purchase Offered Securities not subscribed for by other Offerees as specified in its Preemptive Offer Acceptance Notice. Any Offered Securities not subscribed for by an Offeree shall be deemed to be re-offered to and sale accepted by the Offerees exercising their options specified in clause (ii) of the New Shares).
(c) Each Investor (together with its Affiliates) shall be entitled to exercise its right to purchase New Shares by delivering an irrevocable written notice to the Company within fifteen (15) days from the date of receipt of any such New Shares Notice specifying the number of New Shares to be subscribed, which in any event can be no greater than such Investor’s Pro Rata Portion of such New Shares at the price and on the terms and conditions specified in the New Shares Notice.
(d) If the Investors (together with their Affiliates) do not elect within the applicable notice period described above to exercise their Preemptive Rights immediately preceding sentence with respect to any the lesser of (A) the New Shares proposed amount specified in their respective Preemptive Offer Acceptance Notices and (B) an amount equal to be sold by the Company, the Company shall have ninety (90) days after expiration of such notice period to sell such unsubscribed New Shares proposed to be sold by the Company, at a price and on terms no more favorable to the purchaser than those set forth in the New Shares Notice. If the Company does not consummate the sale of the unsubscribed New Shares in accordance with the terms of the New Shares Notice within such ninety (90)-day period, then the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies with the provisions of this Section 3.8 their respective Proportionate Percentages with respect to such New Shares.
deemed offer. Such deemed offer and acceptance procedures described in the immediately preceding sentence shall be deemed to be repeated until either (e1) Each Investor all of the Offered Securities are accepted by the Offerees or (together with its Affiliates2) no Offeree desires to subscribe for more Offered Securities. The Company shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant to notify each Offeree accepting Offered Securities hereunder within five days following the expiration of the Preemptive Right upon closing Offer Period of the issuance number or amount of the New Shares, and shall have no right Offered Securities which such Offeree has subscribed to acquire such New Shares if the issuance thereof shall not be consummatedpurchase.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Antero Resources LLC), Limited Liability Company Agreement (Antero Resources Finance Corp)
Preemptive Rights. (a) Subject If at any time the Company determines to Section 3.9issue additional Units (or other equity interests) in the Company, for so long as any Investor Beneficially Owns Investor Shares representing at least five percent (5%) exclusive of the Outstanding StockCompany's issuance to Pon of up to six thousand seven hundred (6,700) Units at no less than ONE THOUSAND DOLLARS ($1,000) per Unit on or prior to January 31, 2000, to any Member (the "PURCHASING MEMBER") it shall deliver a written notice to each other Member of such Investor proposed issuance (the "PREEMPTIVE NOTICE"). The Preemptive Notice shall havecontain (i) the proposed issuance price, (ii) the right to purchase, in accordance with the procedures set forth herein, its pro rata portion, calculated based on the total number of Investor Shares held by such Investor as a percentage Units proposed to be issued, (iii) the identity of the Outstanding Stock prior to issuance Purchasing Member, and (iv) any other material terms and conditions of the New Shares (such Investor’s “Pro Rata Portion”) of any New Shares that the Company may, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive Right”)issuance.
(b) In Each other Member shall have the event that the Company proposes to issue and sell New Sharesright, the Company shall notify each of the Investors in writing with respect to the proposed New Shares to be issued (the “New Shares Notice”). Each New Shares Notice shall set forth: (i) the number of New Shares proposed to be issued by the Company and the purchase price therefor; (ii) each Investor’s Pro Rata Portion of such New Shares; and (iii) any other material term (including, if known, the expected date of consummation of the purchase and sale of the New Shares).
(c) Each Investor (together with its Affiliates) shall be entitled to exercise its right to purchase New Shares by delivering an irrevocable exercisable upon written notice to the Company within fifteen (15) days from the date of after receipt of any such New Shares the Preemptive Notice specifying (the number of New Shares "PREEMPTIVE RIGHTS NOTICE PERIOD"), to be subscribedpurchase, which in any event can be no greater than such Investor’s Pro Rata Portion of such New Shares at the price and on the terms and conditions specified as set forth in the New Shares Preemptive Notice the Units (or other equity interests) proposed to be issued on a pro rata basis based on the percentage of Units owned by each other Member electing to participate in the preemptive right (the "PREEMPTIVE RIGHT"). Any and all Members electing to exercise the Preemptive Right within the Preemptive Rights Notice Period shall enter into a purchase agreement with the Company and the Purchasing Member within sixty (60) days following the date of the Preemptive Notice on substantially similar terms and conditions as described in the Preemptive Notice.
(dc) If no other Member exercises the Investors (together with their Affiliates) do not elect Preemptive Right within the applicable notice period described above to exercise their Preemptive Rights with respect to any of the New Shares proposed to be sold by the CompanyNotice Period, the Company shall have ninety may, not later than sixty (9060) days after following expiration of such notice period the Preemptive Rights, conclude the issuance of Units (or other equity interests) to sell such unsubscribed New Shares the Purchasing Member on the same economic terms and substantially the same terms and conditions as described in the Preemptive Notice. Any proposed issuance of Units (or other equity interests) to be sold by the Company, at a price and Purchasing Member on terms no more favorable to the purchaser than and conditions materially different from those set forth described in the New Shares Notice. If Preemptive Notice or any proposed issuance more than sixty (60) days following the Company does not consummate the sale expiration of the unsubscribed New Shares in accordance with the terms of the New Shares Notice within such ninety (90)-day periodPreemptive Right, then the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once shall again complies with the provisions of this Section 3.8 with respect to such New Shares.
(e) Each Investor (together with its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant be subject to the Preemptive Right upon closing of the issuance of the New Shares, other Members as set forth in this Section 7.10 and shall have no right to acquire such New Shares if require compliance with the issuance thereof shall not be consummatedprocedures as described in this Section 7.10.
Appears in 2 contracts
Samples: Annual Report, Operating Agreement (Autobytel Com Inc)
Preemptive Rights. (a) Subject If the Company proposes to Section 3.9issue, for so long as sell or exchange, or agree to issue, sell or exchange (i) any Investor Beneficially Owns Investor Shares representing at least five percent (5%) equity security of the Outstanding StockCompany, such Investor shall have(ii) any debt security of the Company which by its terms is convertible into or exchangeable for any equity security of the Company or (iii) any option, warrant or other right to subscribe for, purchase or otherwise acquire any equity security or any debt security referred to in clause (i) or (ii) above (collectively, "Securities") to any person or entity, the right Company shall deliver to purchasethe Purchaser an offer (the "Preemptive Offer") to issue such number of Securities to it to enable it to retain its fully-diluted ownership position in the Company that it held immediately prior to the proposed issuance, in accordance with sale, or exchange (the procedures "Offered Securities") upon the same terms set forth hereinas such offer. The Preemptive Offer shall state that the Company proposes to issue such Securities and specify their number and terms (including purchase price). The Preemptive Offer shall remain open for a period of 20 days (the "Preemptive Period") from the date of its delivery unless earlier withdrawn by the Company as a result of termination by the Company of the proposed issuance, its pro rata portionsale or exchange giving rise to the Preemptive Offer. For purposes of this Section 4, calculated based on the Purchaser's "fully diluted ownership position" shall mean the proportion that the number of Investor Shares shares of Common Stock issued and held, or issuable upon exercise or conversion of any debt or equity securities of the Company convertible into or exchangeable for shares of Common Stock of the Company then held by such Investor as a percentage Purchaser bears to the total number of the Outstanding shares of Common Stock prior to issuance then outstanding (assuming full conversion and exercise of the New Shares (such Investor’s “Pro Rata Portion”) of any New Shares that the Company may, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive Right”all convertible or exercisable securities then outstanding).
(b) In Purchaser may accept the event that Preemptive Offer by delivering to the Company proposes a written notice (the "Purchase Notice") within the Preemptive Period and the appropriate amount of funds to issue and sell New Sharespurchase such Offered Securities. The Purchase Notice shall state the number (the "Preemptive Number") of Offered Securities Purchaser desires to purchase. If Purchaser fails to deliver the Purchase Notice within the Preemptive Period, Purchaser shall forfeit the Company shall notify each right to participate in the purchase of the Investors in writing with respect to the proposed New Shares to be issued (the “New Shares Notice”). Each New Shares Notice shall set forth: (i) the number of New Shares proposed to be issued by the Company and the purchase price therefor; (ii) each Investor’s Pro Rata Portion of such New Shares; and (iii) any other material term (including, if known, the expected date of consummation of the purchase and sale of the New Shares)Offered Securities.
(c) Each Investor Notwithstanding anything to the contrary in this Section 4, the Company shall not be required to extend a Preemptive Offer to the Purchaser with respect to (together with its Affiliatesi) shall be entitled to exercise its right the issuance or sale of options to purchase New Shares shares of Common Stock to employees, consultants, advisors, and directors, pursuant to any stock option plan approved by delivering an irrevocable written notice the Company's Board of Directors or otherwise approved by the Board of Directors, (ii) the issuance of shares of Common Stock upon exercise or conversion of any debt or equity securities of the Company convertible into shares of Common Stock of the Company outstanding as of the Closing or subsequent thereto, including, without limitation, the Equity Line of Credit in existence as of the date hereof; (iii) the issuance of shares of Common Stock upon exercise of the Warrant, (iv) shares of the Company's Common Stock or preferred stock issued in connection with any stock split or stock dividend; (v) securities issued as consideration to the acquisition of another corporation or entity, or any portion thereof, by the Company within fifteen by consolidation, merger, purchase of securities or purchase of all or substantially all of the assets thereof, provided that such transaction or series of transactions has been approved by the Board of Directors; (15vi) days from securities issued as part of strategic alliances which have been approved by the date Board of receipt Directors; or
(vii) securities issued as equity "kickers" issued in connection with a non-convertible debt financing, leasing transaction or other similar type of any such New Shares Notice specifying transaction approved by the number Board of New Shares to be subscribed, which in any event can be no greater than such Investor’s Pro Rata Portion of such New Shares at the price and on the terms and conditions specified in the New Shares NoticeDirectors.
(d) If the Investors (together with their Affiliates) do not elect within the applicable notice period described above to exercise their Preemptive Rights with respect to any of the New Shares proposed to be sold by the Company, the Company shall have ninety (90) days after expiration of such notice period to sell such unsubscribed New Shares proposed to be sold by the Company, at a price and on terms no more favorable to the purchaser than those The preemptive rights set forth in this Section 4 shall terminate (i) immediately upon the New Purchaser owning less than 25% of its Shares Notice. If purchased hereunder or (ii) upon (A) the acquisition of all or substantially all the assets of the Company does not consummate the sale or (B) an acquisition of the unsubscribed New Shares Company by another corporation or entity by consolidation, merger or other reorganization in accordance with which the terms holders of the New Shares Notice within such ninety (90)-day period, then the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies with the provisions of this Section 3.8 with respect Company's outstanding voting stock immediately prior to such New Shares.
transaction own, immediately after such transaction, securities representing less than fifty percent (e50%) Each Investor (together with its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant to the Preemptive Right upon closing or more of the issuance voting power of the New Shares, and shall have no right to acquire corporation or other entity surviving such New Shares if the issuance thereof shall not be consummatedtransaction.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Insurance Services Office Inc), Stock Purchase Agreement (Nam Corp)
Preemptive Rights. (a) Subject to Section 3.9If, for so long as at any Investor Beneficially Owns Investor Shares representing at least five percent (5%) of the Outstanding Stock, such Investor shall have, the right to purchase, in accordance with the procedures set forth herein, its pro rata portion, calculated based on the number of Investor Shares held by such Investor as a percentage of the Outstanding Stock prior to issuance of the New Shares (such Investor’s “Pro Rata Portion”) of any New Shares that the Company may, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive Right”).
(b) In the event that the Company proposes to issue and or sell any New SharesSecurities (as defined above) to any person, whether or not a Member, then, not less than fifteen (15) days nor more than one hundred twenty (120) days prior to the consummation of such transaction, the Company shall notify give notice thereof (“Preemptive Rights Notice”) to each of the Investors in writing with respect to the proposed New Shares to be issued Member who holds Interests (the individually, “New Shares NoticeParticipating Member,” and collectively, “Participating Members”). Each New Shares Preemptive Rights Notice shall set forth: shall:
VII.1.1. Specify in reasonable detail (i) the number and type of New Shares proposed to be issued by Securities which the Company proposes to issue or sell, and the purchase price therefor; (ii) each Investor’s Pro Rata Portion of such New Shares; the time within which, the price at which, and (iii) any all other material term (including, if known, the expected date of consummation of the purchase and sale of the New Shares).
(c) Each Investor (together with its Affiliates) shall be entitled to exercise its right to purchase New Shares by delivering an irrevocable written notice to the Company within fifteen (15) days from the date of receipt of any such New Shares Notice specifying the number of New Shares to be subscribed, which in any event can be no greater than such Investor’s Pro Rata Portion of such New Shares at the price and on the terms and conditions specified in the New Shares Notice.
(d) If the Investors (together with their Affiliates) do not elect within the applicable notice period described above to exercise their Preemptive Rights with respect to any of the New Shares proposed to be sold by the Companyupon which, the Company shall have ninety (90) days after expiration of such notice period proposes to sell such unsubscribed New Shares proposed to be sold by the Company, at a price and on terms no more favorable to the purchaser than those set forth in the New Shares Notice. If the Company does not consummate the sale of the unsubscribed New Shares in accordance with the terms of the New Shares Notice within such ninety (90)-day period, then the Company may not issue or sell such New Shares Securities; and,
VII.1.2. Make explicit reference to this Article VII and state that the right of each Participating Member to purchase any of such New Securities under this Article VII shall expire unless it sends exercised with thirty (30) days of the Preemptive Rights Notice.
VII.1.3. Notwithstanding anything contrary to the foregoing, XXXX has the right to assign XXXX’x preemptive rights under this Agreement, with any exercise of such assignment being evidenced by an executed assignment (of a new New Shares Notice and once again complies form attached hereto as Exhibit C) filed with the provisions Company and maintained in the company minute book. Upon XXXX’x exercise of such assignment right, the assignee and not XXXX shall be deemed the “Participating Member” pursuant to this Section 3.8 with respect Article VII.
VII.1.4. Each Participating Member shall have the right, in the nature of a preemptive right, but no obligation, to purchase up to all of its Preemptive Rights Pro Rata Amount (as defined below) of such New Shares.
Securities as described in Section 7.1 above. As used herein, the term “Preemptive Rights Pro Rata Amount,” as applied to any Participating Member on any date, shall mean a fraction (e) Each Investor (together with its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant to expressed as a percentage), the Preemptive Right upon closing numerator of which is the Interests of the issuance Company then held by such Participating Member and the denominator of which is the outstanding Interests of the Company, in each case, excluding the New Shares, and shall have no right Securities to acquire such New Shares if the issuance thereof shall not be consummatedissued.
Appears in 2 contracts
Samples: Operating Agreement, Operating Agreement
Preemptive Rights. (a) Subject If the Corporation proposes to Section 3.9, for so long as sell New Securities to any Investor Beneficially Owns Investor Shares representing at least five percent (5%) of the Outstanding Stock, such Investor shall havePerson, the right Corporation shall, before such sale, deliver to purchasethe Series C Investors, in accordance with the procedures Series A Investors and the Persons listed on Schedule 3.6 attached hereto (collectively, the “Schedule 3.6 Stockholders”) an offer (the “Offer”) to issue to the Schedule 3.6 Stockholders New Securities upon the terms set forth herein, its pro rata portion, calculated based on the number of Investor Shares held by such Investor as a percentage of the Outstanding Stock prior to issuance of the New Shares (such Investor’s “Pro Rata Portion”) of any New Shares in this Section. The Offer shall state that the Company may, from time Corporation proposes to time, propose to sell issue New Securities and issue specify their number and terms (hereinafter referred to as including purchase price). The Offer shall remain open and irrevocable for a period of thirty (30) days (the “Preemptive RightPeriod”)) from the date of its delivery.
(b) In Each Schedule 3.6 Stockholder may accept the event that the Company proposes Offer for up to issue and sell its Pro Rata Amount of New Shares, the Company shall notify each of the Investors in writing with respect Securities by delivering to the proposed New Shares to be issued Corporation a notice (the “New Shares Purchase Notice”)) within the Preemptive Period. Each New Shares The Purchase Notice shall set forth: (i) state the number (the “Preemptive Number”) of New Shares proposed Securities such Schedule 3.6 Stockholder desires to be issued by the Company and the purchase price therefor; (ii) each Investor’s purchase, up to but not exceeding its Pro Rata Portion of such New Shares; and (iii) any other material term (including, if known, the expected date of consummation of the purchase and sale of the New Shares)Amount.
(c) Each Investor (together with its Affiliates) The issuance of New Securities to the Schedule 3.6 Stockholders who delivered a Purchase Notice shall be entitled to exercise its right to purchase New Shares made on a business day, as designated by delivering an irrevocable written notice to the Company within fifteen Corporation, not less than five (155) and not more than thirty (30) days from after expiration of the date of receipt of any such New Shares Notice specifying the number of New Shares to be subscribed, which in any event can be no greater than such Investor’s Pro Rata Portion of such New Shares at the price and Preemptive Period on the those terms and conditions specified in of the New Shares NoticeOffer not inconsistent with this Section.
(d) If the Investors (together with their Affiliates) do not elect within number of New Securities exceeds the applicable notice period described above to exercise their sum of all Preemptive Rights with respect Numbers, the Corporation may issue such excess or any portion thereof on the terms and conditions of the Offer to any of the New Shares proposed to be sold by the Company, the Company shall have Person within ninety (90) days after expiration of such notice period to sell such unsubscribed New Shares proposed to be sold by the Company, at a price and on terms no more favorable to the purchaser than those set forth in the New Shares NoticePreemptive Period. If the Company does such issuance is not consummate the sale of the unsubscribed New Shares in accordance with the terms of the New Shares Notice made within such ninety (90)-day 90) day period, then the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies with the provisions of restrictions provided for in this Section 3.8 with respect to such New Sharesshall again become effective.
(e) Each Investor (together with its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant to The preemptive rights set forth in this Section 3.6 may be waived by the Preemptive Right upon closing vote or the written consent of the issuance holders of at least (i) a majority of the New then outstanding Series C Preferred Shares, (ii) a majority of the then outstanding Series A Preferred Shares and shall have no right to acquire such New Shares if the issuance thereof shall not be consummated(iii) a majority of shares held by Schedule 3.6 Stockholders.
Appears in 2 contracts
Samples: Stockholders Agreement (Nexsan Corp), Stockholders’ Agreement (Nexsan Corp)
Preemptive Rights. (a) Subject to and without limiting Section 3.95.15, for so long as any Investor Beneficially Owns Investor Shares representing at least five percent the Company grants to each Member who is part of a Founder Member Group (5%) of the Outstanding Stocka “PR Holder”), such Investor and each PR Holder shall have, have the right to purchase, in accordance with the procedures set forth herein, its up to such PR Holder’s pro rata portion, calculated portion (based on the number Percentage Interest of Investor Shares held by such Investor as a percentage of the Outstanding Stock Units immediately prior to issuance the time of the New Shares (such Investor’s “Pro Rata Portion”sale) of any New Shares Interests that the Company may, from time to time, propose to issue and sell and issue (hereinafter referred to as the “Preemptive RightRights”).
(b) In the event that If the Company proposes to issue and sell New SharesInterests, the Company shall notify each of the Investors PR Holder in writing with respect to the proposed New Shares Interests to be issued and sold (the “New Shares Interests Notice”). Each New Shares Interests Notice shall set forth: (i) the number of New Shares Interests proposed to be issued and sold by the Company and the their purchase price thereforprice; (ii) each InvestorPR Holder’s Pro Rata Portion pro rata portion of such New Shares; Interests and (iii) any other material term (includingterms and conditions, including any applicable regulatory requirements, and, if known, the expected date of consummation of the purchase issuance and sale of the New SharesInterests (which date, in any event shall be no earlier than forty-five (45) days following the date of delivery of the New Interests Notice).
(c) Each Investor (together with its Affiliates) PR Holder shall be entitled to exercise its right Preemptive Right to purchase such New Shares Interests by delivering an irrevocable written notice to the Company within fifteen thirty (1530) days from the date of receipt of any such New Shares Interests Notice specifying the number of New Shares Interests to be subscribed, which in any event can be no greater than such InvestorPR Holder’s Pro Rata Portion pro rata portion of such New Shares Interests, at the price and on the terms and conditions specified in the New Shares Interests Notice.
(d) If Each PR Holder exercising its right to purchase its entire pro rata portion of New Interests being issued (each, a “Subscribing Member”) shall have a right of over-allotment such that if another PR Holder fails to exercise its Preemptive Right to purchase its entire pro rata portion of New Interests (each, a “Non-Subscribing Member,” including any PR Holder that fails to exercise its right to purchase its entire pro rata share of Remaining New Interests, as described below), such Subscribing Member may purchase its pro rata share, based on the Investors relative percentage ownership of the Units then owned by the Subscribing Members, of those New Interests in respect to which the Non-Subscribing Members have not exercised their Preemptive Right (together with their Affiliatesthe “Remaining New Interests”) do not elect by giving written notice to the Company within three (3) Business Days from the applicable date that the Company provides written notice period described above of the amount of New Interests as to which such Non-Subscribing Members have failed to exercise their Preemptive Rights with respect to any of the New Shares proposed to be sold by the Company, the Company shall have ninety (90) days after expiration of such notice period to sell such unsubscribed New Shares proposed to be sold by the Company, at a price and on terms no more favorable to the purchaser than those set forth in the New Shares Notice. If the Company does not consummate the sale of the unsubscribed New Shares in accordance with the terms of the New Shares Notice within such ninety (90)-day period, then the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies with the provisions of this Section 3.8 with respect to such New Sharesrights thereunder.
(e) Each Investor (together with its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant to the Preemptive Right upon closing of the issuance of the New Shares, and shall have no right to acquire such New Shares if the issuance thereof shall not be consummated.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Exco Resources Inc), Limited Liability Company Agreement (Exco Resources Inc)
Preemptive Rights. (a) Subject to Section 3.9, for so long as any Investor Beneficially Owns Investor Shares representing at least five percent (5%) of the Outstanding Stock, such Investor shall have, the right to purchase, in accordance with the procedures set forth herein, its pro rata portion, calculated based on the number of Investor Shares held by such Investor as a percentage of the Outstanding Stock prior to issuance of the New Shares (such Investor’s “Pro Rata Portion”) of any New Shares that the Company may, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive Right”).
(b) In the event that the Company proposes to issue and sell New Shares, the Company shall notify each of the Investors in writing with respect to the proposed New Shares to be issued (the “New Shares Notice”). Each New Shares Notice shall set forth: (i) Until the number QIPO, the provisions of New Shares proposed this Article 14 shall apply:
(1) Any Additional Securities (as defined in Article 9 above) to be issued by the Company (the “Offered Securities”) shall first be offered by the Board of Directors by written notice to each Major Holder and Founder, for as long as such Founder holds shares in the purchase price therefor; Company (for purposes of this Article 14, the “Offerees”). The number of Offered Securities offered to each Offeree shall be the result of the multiplication of the Offered Securities by a fraction: (i) the numerator of which shall be the total number of outstanding Ordinary Shares of the Company (on an as-converted basis) held by such Offeree as determined prior to the offer made pursuant to this Article 14, and (ii) each Investor’s Pro Rata Portion the denominator of such New Shares; and (iii) any other material term (including, if known, which is the expected date total number of consummation outstanding Ordinary Shares of the purchase and sale of Company (on an as-converted basis), as determined prior to the New Shares)offer made pursuant to this Article 14.
(c2) Each Investor The Company shall provide each Offeree with a Notice (together with its Affiliatesthe “Notice of Offer”) shall be entitled to exercise its right to purchase New Shares by delivering an irrevocable written notice to the Company within fifteen (15) days from the date of receipt of any such New Shares Notice specifying the number of New Shares Offered Securities he is entitled to purchase and which shall state the terms of the proposed issuance, and any such Offeree may accept such offer, as to all or any part of the Offered Securities so offered to him, by giving the Company written notice of acceptance within twenty (20) days after being served with such Notice of Offer; provided, however, that the Founders may only exercise such right for their own benefit through their available funds, provided that if the purchase by such Offeree is being effected prior to, or concurrently with such issuance of Offered Securities (rather than subsequent thereto) then such Offeree shall be subscribed, which in any event can be no greater than such Investor’s Pro Rata Portion obligated to consummate the purchase of such New Shares at Offered Securities only if the price and on Company consummates the sale of the balance of the Offered Securities pursuant to the terms described in such Notice of Offer
(3) Any and conditions specified all preemption rights set forth in this Article 14, may be exercised by a Permitted Transferee of a Major Holder instead of by such Major Holder if such Major Holder so notifies the New Shares NoticeCompany in writing.
(dj) If Any Offered Securities not subscribed for by the Investors (together with their Affiliates) do not elect within Offeree as aforesaid, shall be under the applicable notice period described above to exercise their Preemptive Rights with respect to any control of the New Shares proposed Board of Directors and may be issued without regard to this Article 14, except to the extent that said Offered Securities may not be sold by the Company, the Company shall have ninety (90) days after expiration of such notice period to sell such unsubscribed New Shares proposed to be sold by the Company, at a price and allotted on terms no more favorable to the purchaser than those set forth in offered pursuant to this Article 14. In the New Shares Notice. If event the Company does Offered Securities are not consummate acquired by the sale expiration of 120 days from the date of expiration of the unsubscribed New Shares twenty (20) day period referred to in accordance with the terms of the New Shares Notice within such ninety (90)-day periodArticle 14(a)(2), then the Company they may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies be issued except by compliance with the provisions of this Section 3.8 with respect to such New SharesArticle 14.
(e) Each Investor (together with its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant to the Preemptive Right upon closing of the issuance of the New Shares, and shall have no right to acquire such New Shares if the issuance thereof shall not be consummated.
Appears in 2 contracts
Samples: Preferred Share Purchase Agreement (Negevtech Ltd.), Preferred Share Purchase Agreement (Negevtech Ltd.)
Preemptive Rights. (a) 3.1 Subject to Section 3.912.1 of this Agreement, for so long as if at any Investor Beneficially Owns Investor Shares representing at least five percent (5%) of the Outstanding Stock, such Investor shall have, the right to purchase, in accordance with the procedures set forth herein, its pro rata portion, calculated based on the number of Investor Shares held by such Investor as a percentage of the Outstanding Stock prior to issuance of the New Shares (such Investor’s “Pro Rata Portion”) of any New Shares that time the Company may, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive Right”).
(b) In the event that the Company proposes wishes to issue and sell New Sharesany Equity Equivalents to any Person or Persons, the Company shall notify each promptly deliver a notice of the Investors in writing with respect its intention to the proposed New Shares to be issued sell (the “New Shares NoticeCompany’s Notice of Intention to Sell”). Each New Shares Notice shall set forth: (i) to the number Eligible Shareholders setting forth a description of New Shares proposed the Equity Equivalents to be issued by issued, the Company and the proposed purchase price therefor; (ii) each Investorthereof and terms of sale. Upon receipt of the Company’s Pro Rata Portion Notice of such New Shares; and (iii) any other material term (including, if knownIntention to Sell, the expected date of consummation of Eligible Shareholder shall have the purchase and sale of the New Shares).
(c) Each Investor (together with its Affiliates) shall be entitled to exercise its right to purchase New Shares by delivering an irrevocable written notice elect to the Company within fifteen (15) days from the date of receipt of any such New Shares Notice specifying the number of New Shares to be subscribedpurchase, which in any event can be no greater than such Investor’s Pro Rata Portion of such New Shares at the price and on the terms and conditions specified stated in the New Shares NoticeCompany’s Notice of Intention to Sell, a number of the Equity Equivalents equal to the product of (i) a fraction, the numerator of which is such Eligible Shareholder’s aggregate ownership of Equity Equivalents (calculated on an as converted and fully-diluted basis) and the denominator of which is the number of such Equity Equivalents held by all Shareholders (calculated on an as converted and fully-diluted basis) immediately prior to the issuance of Equity Equivalents giving rise to the preemptive right, multiplied by (ii) the number of Equity Equivalents to be issued. Such election is to be made by the Eligible Shareholders (“Electing Eligible Shareholders”) by written notice to the Company within twenty (20) Business Days after receipt by the Eligible Shareholders of the Company’s Notice of Intention to Sell (the “Acceptance Period for Equity Equivalents”).
(d) 3.2 If the Investors (together with their Affiliates) do not elect within the applicable notice period described above any Eligible Shareholder fails to exercise their Preemptive Rights with respect its preemptive rights pursuant to any of the New Shares proposed to be sold by the CompanySection 3.1 above, the Company shall give notice of such failure (the “Company’s Second Notice of Intention to Sell”) to each other Electing Eligible Shareholder. Such Company’s Second Notice of Intention to Sell may be made by telephone if confirmed in writing within two (2) days. The Electing Eligible Shareholders shall have ninety a right of re-allotment such that they shall have five (905) days after from the date such Company’s Second Notice of Intention to Sell was received (the “Second Acceptance Period”) to elect to increase the number of Equity Equivalents they agreed to purchase under Section 3.1 above to include their respective pro rata share of the Equity Equivalents contained in any Company’s Second Notice of Intention to Sell.
3.3 If effective acceptances are not received pursuant to Section 3.2 above in respect of all the Equity Equivalents which are the subject of the Company’s Second Notice of Intention to Sell, then the Company may, at its election, during a period of sixty (60) days following the expiration of such notice period the Second Acceptance Period, sell and issue the remaining Equity Equivalents to sell such unsubscribed New Shares proposed to be sold by the Company, another Person at a price and on upon terms no not more favorable to the purchaser such Person than those set forth stated in the New Shares NoticeCompany’s Notice of Intention to Sell. If In the event the Company does has not consummate sold the sale of Equity Equivalents, or entered into an agreement to sell the unsubscribed New Shares in accordance with the terms of the New Shares Notice Equity Equivalents, within such ninety sixty (90)-day 60) day period, then the Company may shall not thereafter issue or sell any Equity Equivalents without first offering such New Shares unless it sends a new New Shares Notice securities to each Eligible Shareholder in the manner provided in Sections 3.1 and once again complies 3.2 hereof. Failure by an Eligible Shareholder to exercise his or its option to purchase with respect to one offering, sale and issuance of Equity Equivalents shall not affect his or its option to purchase Equity Equivalents in any subsequent offering, sale and purchase.
3.4 If an Eligible Shareholder gives the Company notice, pursuant to the provisions of this Section 3.8 with respect 3, that such Eligible Shareholder desires to purchase any of the Equity Equivalents, payment therefor shall be by check or wire transfer, against issuance of the securities at the executive offices of the Company, within fifteen (15) Business Days after giving the Company such New Sharesnotice, or, if later, the closing date for the sale of such Equity Equivalents.
3.5 The preemptive rights contained in this Section 3 shall not apply to (ei) Each Investor Ordinary Shares issued (together A) as a share dividend, stock split, subdivision, combination, recapitalization, or other similar transaction of the Company which is approved by the Preferred Shareholders in accordance with its Affiliatesthis Agreement and the Articles of Association, (B) shall take up and pay for pursuant to a public offering, (C) upon the conversion of any New Shares Equity Security or debt security of the Company issued on or prior to the date hereof provided that such Investor conversion has been fully disclosed to Red Star, JD and Oriza, (together with its AffiliatesD) upon the exercise of any option, warrant or other right to subscribe for, purchase or otherwise acquire either Ordinary Shares or any Equity Security or debt security convertible into Ordinary Shares, issued prior to the date hereof, provided that such issuance has elected been fully disclosed to purchase Red Star, JD and Oriza; (ii) the issuance by the Company of Ordinary Shares reserved or to be reserved for issuance upon the exercise of any options, granted or to be granted exclusively to employees, officers, directors or consultants of the Group Companies pursuant to the Preemptive Right Share Option Plan.
3.6 The preemptive rights contained in this Section 3 shall terminate immediately upon closing commencement of the issuance of the New Shares, and shall have no right to acquire such New Shares if the issuance thereof shall not be consummateda Qualified IPO.
Appears in 2 contracts
Samples: Shareholder Agreements (GigaCloud Technology Inc), Shareholder Agreement (GigaCloud Technology Inc)
Preemptive Rights. (a) Subject to Section 3.9, for For so long as any Warrants are outstanding, the Investor Beneficially Owns Investor Shares representing at least five percent (5%) will be entitled to participate in any of the Outstanding StockCompany’s future offerings of Common Stock of the Company or securities of the Company convertible into, or exercisable for, Common Stock of the Company (as the case may be, “Additional Securities”) in which the aggregate offering price of such Investor shall havesecurities is equal to or exceeds $15 million. Each time the Company proposes to offer any Additional Securities in which the aggregate offering price is equal to or exceeds $15 million, the right Company shall make an offering of such Additional Securities to purchase, the Investor in accordance with the procedures set forth herein, its pro rata portion, calculated based on the number of Investor Shares held by such Investor as a percentage of the Outstanding Stock prior to issuance of the New Shares (such Investor’s “Pro Rata Portion”) of any New Shares that the Company may, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive Right”).following provisions:
(bi) In the event that the Company proposes to issue and sell New Shares, the The Company shall notify each of the Investors in writing with respect to the proposed New Shares to be issued deliver a notice (the “New Shares Issuance Notice”). Each New Shares Notice shall set forth: ) to the Investor stating (ia) its bona fide intention to offer such Additional Securities, (b) the number of New Shares proposed such Additional Securities to be issued by offered, (c) the Company price and terms, if any, upon which it proposes to offer such Additional Securities, and (d) the purchase price therefor; anticipated closing date of the sale of such Additional Securities.
(ii) each Investor’s Pro Rata Portion of such New Shares; and (iii) any other material term (including, if known, the expected date of consummation of the purchase and sale of the New Shares).
(c) Each Investor (together with its Affiliates) shall be entitled to exercise its right to purchase New Shares by delivering an irrevocable By written notice notification delivered to the Company within fifteen (15) five trading days from after the date of receipt of any such New Shares Notice specifying the number of New Shares Issuance Notice, the Investor may elect to be subscribedpurchase, which in any event can be no greater than such Investor’s Pro Rata Portion of such New Shares at the price and on the terms and conditions specified in the New Shares Issuance Notice.
, Additional Securities equal to the number of Registrable Securities then held by the Investor (d) If for purposes of clarification, in the Investors (together with their Affiliates) do not elect within the applicable notice period described above to exercise their Preemptive Rights with respect to any event such Additional Securities are securities convertible into, or exercisable for, shares of the New Shares proposed to be sold by Common Stock of the Company, the Company shall have ninety (90) days after expiration number or amount of such notice period to sell such unsubscribed New Shares proposed to Additional Securities which the Investor shall be sold by the Company, at a price and on terms no more favorable to the purchaser than those set forth in the New Shares Notice. If the Company does not consummate the sale of the unsubscribed New Shares in accordance with the terms of the New Shares Notice within such ninety (90)-day period, then the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies with the provisions of this Section 3.8 with respect to such New Shares.
(e) Each Investor (together with its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected entitled to purchase pursuant to this Section 7(c) shall be equal to the Preemptive Right upon closing number or amount of such Additional Securities which are initially convertible into, or exercisable for, the number of shares of Common Stock of the Company equal to the number of Registrable Securities then held by the Investor). The rights of the Investor under this Section 7(c) shall not apply to: (A) the exercise of any warrants, options or other convertible securities of the Company outstanding on the date hereof, (B) the issuance to employees and directors of Common Stock, stock awards or options under, or the exercise of any such options granted pursuant to, any employee stock option or similar employee incentive or benefit plan for the issuance of stock awards, options or capital stock of the New SharesCompany approved by the Board of Directors, and shall have no right to acquire such New Shares if (C) the issuance thereof shall not be consummatedof shares of Common Stock of the Company in connection with a bona-fide strategic transaction, partnership or acquisition or (D) the issuance of shares of Common Stock of the Company pursuant to a stock split, combination or subdivision of the outstanding shares of Common Stock or preferred stock (as the case may be) of the Company.
Appears in 2 contracts
Samples: Investor Rights Agreement (Transmeridian Exploration Inc), Investor Rights Agreement (Transmeridian Exploration Inc)
Preemptive Rights. (a) Subject to Section 3.9and without limiting the other applicable provisions of this Agreement, for so long as should the Company determine to issue and sell any Investor Beneficially Owns Investor Shares representing at least five percent (5%) of the Outstanding StockNew Interests prior to an IPO, such Investor then each Member shall have, have the right to purchase, in accordance with the procedures set forth herein, its purchase up to such Member’s pro rata portion, calculated based on the number share of Investor Shares held by such Investor as a percentage of the Outstanding Stock prior to issuance of the New Shares Interests (such Investor’s “Pro Rata Portion”) of any New Shares that the Company maypurchase rights, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive RightRights”).
(b) In the event that the Company proposes to issue and or sell New SharesInterests, the Company shall notify each Member in writing within 30 days of the Investors in writing with respect to the proposed issuance and sale of New Shares to be issued Interests (the “New Shares Interests Notice”). Each New Shares Interests Notice shall set forth: (i) the number of New Shares Interests proposed to be issued or sold by the Company and the their purchase price thereforprice; (ii) each Investorsuch Member’s Pro Rata Portion pro rata portion of such New Shares; Interests and (iii) any other material term (includingterm, including any applicable regulatory requirements and, if known, the expected date of consummation of the purchase issuance and sale of the New SharesInterests (which date, in any event shall be no earlier than 30 days following the date of delivery of the New Interests Notice).
(c) Each Investor (together with its Affiliates) Member shall be entitled to exercise its right Preemptive Right to purchase such New Shares Interests by delivering an irrevocable written notice to the Company within fifteen (15) 20 days from the date of receipt of any such New Shares Interests Notice specifying the number of New Shares Interests to be subscribed, which in any event can be no greater than such InvestorMember’s Pro Rata Portion pro rata portion of such New Shares Interests, at the price and on the terms and conditions specified in the New Shares Interests Notice.
(d) If Each Member exercising its right to purchase its entire pro rata portion of New Interests being issued (each a “Subscribing Member”) shall have a right of over-allotment such that if any other Member fails to exercise its Preemptive Right to purchase its entire pro rata portion of New Interests (each, a “Non-Subscribing Member”, including any Member that fails to exercise its right to purchase its entire pro rata share of Remaining New Interests, as described below), such Subscribing Member may purchase its pro rata share, based on the Investors relative percentage ownership of the Units then owned by the Subscribing Members, of those New Interests in respect to which the Non-Subscribing Members have not exercised their Preemptive Right (together with their Affiliatesthe “Remaining New Interests”) do not elect by giving written notice to the Company within three Business Days from the applicable date that the Company provides written notice period described above of the amount of New Interests as to which such Non-Subscribing Members have failed to exercise their Preemptive Rights with respect rights thereunder. The Company shall reoffer any Remaining New Interests to any the Members in successive rounds (without regard to the time periods specified in the foregoing provisions) until such time as the Members have collectively agreed to purchase all of the New Shares proposed to be sold by Interests being issued or all of the Company, the Company shall have ninety (90) days after expiration of such notice period to sell such unsubscribed New Shares proposed to be sold by the Company, at a price and on terms no more favorable to the purchaser than those set forth Members are Non-Subscribing Members in the New Shares Notice. If the Company does not consummate the sale last round of the unsubscribed New Shares in accordance with the terms of the New Shares Notice within such ninety (90)-day period, then the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies with the provisions of this Section 3.8 with respect to such New Sharesoffers.
(e) Each Investor (together with its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant to the Preemptive Right upon closing of the issuance of the New Shares, and shall have no right to acquire such New Shares if the issuance thereof shall not be consummated.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Riviera Resources, LLC), Limited Liability Company Agreement (Linn Energy, Inc.)
Preemptive Rights. (a) Subject Except to Section 3.9, for so long as any Investor Beneficially Owns Investor Shares representing at least five percent (5%) of the Outstanding Stock, such Investor shall have, extent the right to purchasereceive such offer has been waived in writing by the Subscriber, and except for the issuance of (i) shares of the Company issuable upon exercise of options, warrants or convertible securities outstanding on the date hereof (including, without limitation, the Units); (ii) securities issued to employees, consultants or directors of the Company pursuant to any share option plan or share purchases or share bonus arrangement approved by the Board of Directors of the Company; and (iii) securities issued pursuant to share split, recapitalization, reclassification or payment of any dividend or distribution with respect to the Company’s issued and outstanding share capital; if the Company proposes at any time before the fifteen-month anniversary of the Closing Date any issuance of share capital of the Company, whether or not now authorized, and rights, options or warrants to purchase shares, or securities of any type whatsoever that are, or may become, convertible into share capital ("New Securities"), it shall enable the Subscriber to purchase its proportionate share of such New Securities, based on its proportionate share holdings in the share capital of the Company resulting solely from this offering, on an as if converted and exercised basis, prior to the issuance of the New Securities, in accordance with the procedures set forth herein, its pro rata portion, calculated based on the number provisions of Investor Shares held by such Investor as a percentage of the Outstanding Stock prior to issuance of the New Shares subsection (such Investor’s “Pro Rata Portion”b) of any New Shares that the Company may, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive Right”)below.
(b) In the event that the Company proposes undertakes an issuance of New Securities, it shall give the Subscriber written notice thereof, no less than two (2) business days prior to issue such issuance. Such notice of offer shall state the price and sell other terms of the proposed allotment, and offer to the Subscriber such number of New SharesSecurities, at such price and on such other terms, as is necessary for the Subscriber to retain the proportion of the Company's share capital resulting solely from this offering which it held immediately prior to such issuance (on an as if converted and if exercised basis), and the Subscriber may accept such offer, as to all or any part of the shares so offered to it, by giving the Company shall notify each written notice of the Investors in writing acceptance within fourteen (14) days after being served with respect to the proposed New Shares to be issued such notice of offer (the “New Shares NoticeOffer Period”). Each New Shares Notice shall set forth: (i) the number For avoidance of New Shares proposed to be issued by doubt, the Company and the purchase price therefor; (ii) each Investor’s Pro Rata Portion of such New Shares; Subscriber agree and (iii) any other material term (including, if known, acknowledge that the expected date of consummation of the purchase and sale of the New Shares).
(c) Each Investor (together with its Affiliates) shall be entitled to exercise its right to purchase New Shares by delivering an irrevocable written notice to the Company within fifteen (15) days from the date of receipt of any such New Shares Notice specifying the number of New Shares to be subscribed, which in any event can be no greater than such Investor’s Pro Rata Portion of such New Shares at the price and on the terms and conditions specified in the New Shares Notice.
(d) If the Investors (together with their Affiliates) do not elect within the applicable notice period described above to exercise their Preemptive Rights with respect to any of the New Shares proposed to be sold by the Company, the Company shall have ninety (90) days after expiration of such notice period to sell such unsubscribed New Shares proposed to be sold by the Company, at a price and on terms no more favorable to the purchaser than those set forth in the New Shares Notice. If the Company does not consummate the sale of the unsubscribed New Shares in accordance with the terms of the New Shares Notice within such ninety (90)-day period, then the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies with the provisions of this Section 3.8 with respect to such New Shares.
(e) Each Investor (together with its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant to the Preemptive Right upon closing of the issuance of New Securities to the New Sharesproposed purchaser may take place prior to the end of the Offer Period. In the event the Subscriber accepts the offer to participate in accordance with this Section 3.4(b), and the closing of the additional issuance to the Subscriber shall have no right to acquire such New Shares if take place within seven (7) days after the issuance thereof shall not be consummatedend of the Offer Period.
Appears in 2 contracts
Samples: Subscription Agreement (SuperCom Ltd.), Subscription Agreement (SuperCom Ltd.)
Preemptive Rights. (a) Subject If the Company proposes to Section 3.9issue or sell any Units (including any securities exchangeable or exercisable for, for so long as any Investor Beneficially Owns Investor Shares representing at least five percent (5%) or convertible into, Units), which proposal has been approved by the Board of Managers and Members of the Outstanding Stock, such Investor shall haveCompany pursuant to the provisions hereof, the right Company shall first deliver written notice of its proposal to purchasedo so (the “Purchase Right Notice”) to each of the Members. The Purchase Right Notice must: (i) identify the name and address of each Person (if known) to which the Company proposes to issue or sell the Units, in accordance with the procedures set forth herein, its pro rata portion, calculated based on (ii) specify the number of Investor Shares held by such Investor as a percentage of the Outstanding Stock prior to issuance of the New Shares (such Investor’s “Pro Rata Portion”) of any New Shares that the Company may, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive Right”).
(b) In the event Units that the Company proposes to issue or sell (the “Issued Units”), (iii) describe the consideration per Unit for the Issued Units (expressed as a value in cash, the “Issued Price”), (iv) describe the material terms and conditions upon which the Company proposes to issue or sell New Sharesthe Issued Units (the “Issued Terms”), and (v) irrevocably offer to issue or sell to each Member any number of Issued Units up to a pro rata portion of the Issued Units, based on the Member’s then-current Interest in the Company, for the Issued Price and on the Issued Terms and in accordance with this Section 10.5.
(b) Each Member shall have an option, exercisable for a period of 30 days from the date of delivery of the Purchase Right Notice (the “Purchase Period”), to purchase any number of Issued Units up to a pro rata portion of the Issued Units, based on the Member’s then current Interest in the Company, for the Issued Price and on the Issued Terms (the “Purchase Right”). The Purchase Right shall be exercised by delivery by such Member (a “Purchasing Member”) of written notice to the Board of Managers, which shall state the number of Issued Units to be purchased by such Member. Any written notice delivered by a Purchasing Member to the Company exercising the option set forth under this Section 10.5(b) shall constitute an irrevocable commitment by such Purchasing Member to purchase the number of Issued Units specified in such written notice in accordance with the Purchase Right Notice and this Section 10.5.
(c) If a Member does not exercise its Purchase Right during the Purchase Period, then such Member’s Purchase Right with respect to such Issued Units shall terminate.
(d) Each Purchasing Member shall purchase from the Company, and the Company shall notify each issue or sell to such Purchasing Member, the number of Issued Units that such Purchasing Member elected to purchase in accordance with this Section 10.5 for the Investors in writing with respect to Issued Price and on the proposed New Shares to be issued (the “New Shares Notice”). Each New Shares Notice shall set forth: Issued Terms on (i) the number date of New Shares proposed the closing of the issuance of the Issued Units described in the Purchase Right Notice delivered by the Company pursuant to Section 10.5(a) or (ii) such other date as may be agreed in writing by the Company and such Purchasing Member. Notwithstanding anything to the contrary herein, if the consideration per Unit for the Issued Units is other than for all cash, the Purchase Right hereunder may be exercisable in cash at the fair market value of the securities or other property that constitute such consideration, with such fair market value to be issued mutually agreed upon by the Company and the purchase price therefor; applicable Purchasing Member(s) or, in the case of any dispute as to the fair market value, by a nationally recognized, independent certified public accounting firm chosen by the Board of Managers that has no material business relationship with the Company or the applicable Purchasing Member(s), or as the Company and the applicable Purchasing Member(s) may otherwise agree.
(e) Upon the earlier of (i) the expiration of the Purchase Period and (ii) each Investor’s Pro Rata Portion delivery of such New Shares; and (iii) any other material term (including, if known, the expected date of consummation of the purchase and sale of the New Shares).
(c) Each Investor (together with its Affiliates) shall be entitled to exercise its right to purchase New Shares by delivering an irrevocable written notice notices to the Company within fifteen from all the Members indicating their intent, in the aggregate, to purchase less than all of the Issued Units (15) days from the date of receipt of any such New Shares Notice specifying earlier occurrence, the number of New Shares to be subscribed, which in any event can be no greater than such Investor’s Pro Rata Portion of such New Shares at the price and on the terms and conditions specified in the New Shares Notice.
(d) If the Investors (together with their Affiliates) do not elect within the applicable notice period described above to exercise their Preemptive Rights with respect to any of the New Shares proposed to be sold by the Company“Ending Date”), the Company shall have ninety the right, exercisable for a period of 120 days from the Ending Date (90the “Issuance Period”), to issue or sell all or a portion of the Issued Units that the Members have elected not to purchase (the “Remaining Issued Units”) days after expiration of such notice period to sell such unsubscribed New Shares proposed to be sold by the Company, at any Person for a price per Unit that is not less than the Issued Price and on terms no and conditions that are not more favorable to such other Person than the Issued Terms; provided that (i) the Company shall be deemed to have issued or sold the Remaining Issued Units during the Issuance Period if, during the Issuance Period, the Company has irrevocably entered into a bona fide binding agreement to issue or sell the Remaining Issued Units to any Person and (ii) the closing of the issuance or sale occurs within 60 days after the full execution of such bona fide binding agreement. If the Company wishes to issue or sell the Remaining Issued Units for a price per Unit that is less than the Issued Price or on terms and conditions that are more favorable to the purchaser than those set forth in the New Shares Notice. If Issued Terms, or if the Company does not consummate the sale of the unsubscribed New Shares in accordance with the terms of the New Shares Notice within such ninety (90)-day period, then the Company may not wishes to issue or sell such New Shares unless it sends a new New Shares Notice and once again complies the Remaining Issued Units following the expiration of the Issuance Period, the Company shall be required to first comply with the provisions of this Section 3.8 with respect to such New Shares10.5 anew.
(ef) Each Investor (together with its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant Notwithstanding anything to the Preemptive Right upon closing of contrary contained herein, the issuance of the New Shares, and shall have no right to acquire such New Shares if the issuance thereof Purchase Rights established by this Section 10.5 shall not be consummatedapplicable to any Unit split, dividend or division, or a recapitalization by the Company, pursuant to which all holders of Units are treated similarly.
Appears in 2 contracts
Samples: Operating Agreement (BFC Financial Corp), Operating Agreement (BBX Capital Corp)
Preemptive Rights. (a) Subject to Section 3.9, for so long as any Investor Beneficially Owns Investor Shares representing at least five percent (5%) of In the Outstanding Stock, such Investor shall have, the right to purchase, in accordance with the procedures set forth herein, its pro rata portion, calculated based on the number of Investor Shares held by such Investor as a percentage of the Outstanding Stock prior to issuance of the New Shares (such Investor’s “Pro Rata Portion”) of any New Shares that the Company mayevent that, from time to timetime following the date hereof, propose the Partnership proposes to sell and or issue New Units to any Person, each then-existing Member shall have the right (hereinafter referred to as the a “Preemptive Right”)) to purchase a pro rata portion of the New Units proposed to be sold or issued equal to the percentage determined by dividing (x) the Units held by each such Limited Partner at the time of such proposed sale or issuance by (y) the aggregate Units in the Partnership at the time of such proposed sale or issuance. Each Limited Partner will be entitled to purchase all or part of such New Units at the same price and on the same terms as such New Units are proposed to be sold or issued by the Company pursuant to this Section 10.03.
(b) Prior to the sale or issuance of any New Units to any Person, the Partnership shall cause to be given to each Limited Partner written notice of the Partnership’s intention to make such sale or issuance (the “Preemptive Notice”). The Preemptive Notice shall set forth the aggregate number of Units to be sold or issued, the proposed purchasers, the proposed date of sale or issuance (which date shall not be less than twenty (20) Business Days after the date of delivery of the Preemptive Notice, the consideration that the Company will receive therefore and all other material terms and conditions of such sale or issuance. Each Limited Partner shall have thirty (30) Business Days (the “Preemptive Notice Window”) from the date of receipt of the Preemptive Notice to agree to purchase up his or her pro rata portion of the New Units offered to such Limited Partner by the Partnership pursuant to this Section 10.03 for the price and upon the terms specified in the Preemptive Notice by giving written notice to the Company and stating therein the quantity of such New Units such Member elects to purchase (the “Preemptive Reply”). In the event that a Limited Partner delivers a Preemptive Reply (such Member, an “Exercising Member”), the Partnership shall sell to such Exercising Member, and such Exercising Member shall purchase from the Partnership, for the consideration and on the terms set forth in the Preemptive Notice the number of Units that such Exercising Member has elected to purchase on the same day the Partnership sells or issues (or would have sold or issued) the Units described in the Preemptive Notice.
(c) In the event that any Limited Partner fails to exercise in full the Preemptive Rights set forth in this Section 10.03 within the Preemptive Notice Window, the Partnership shall have thirty (30) Business Days thereafter to sell or issue the New Units not elected to be purchased under this Section 10.03 at the price and upon terms no more favorable to the purchasers than specified in the Preemptive Notice. In the event that the Company proposes to issue and sell has not sold such New SharesUnits within such subsequent thirty (30) Business Day period, the Company Partnership shall notify each of the Investors in writing with respect to the proposed not thereafter sell or issue any New Shares to be issued (the “New Shares Notice”). Each New Shares Notice shall set forth: (i) the number of New Shares proposed to be issued by the Company and the purchase price therefor; (ii) each Investor’s Pro Rata Portion of Units without first offering such New Shares; and (iii) any other material term (including, if known, the expected date of consummation of the purchase and sale of the New Shares).
(c) Each Investor (together with its Affiliates) shall be entitled to exercise its right to purchase New Shares by delivering an irrevocable written notice to the Company within fifteen (15) days from the date of receipt of any such New Shares Notice specifying the number of New Shares to be subscribed, which in any event can be no greater than such Investor’s Pro Rata Portion of such New Shares at the price and on the terms and conditions specified Units in the New Shares Notice.
(d) If the Investors (together with their Affiliates) do not elect within the applicable notice period described above to exercise their Preemptive Rights with respect to any of the New Shares proposed to be sold by the Company, the Company shall have ninety (90) days after expiration of such notice period to sell such unsubscribed New Shares proposed to be sold by the Company, at a price and on terms no more favorable to the purchaser than those set forth manner provided in the New Shares Notice. If the Company does not consummate the sale of the unsubscribed New Shares in accordance with the terms of the New Shares Notice within such ninety (90)-day period, then the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies with the provisions of this Section 3.8 with respect to such New Shares10.03.
(e) Each Investor (together with its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant to the Preemptive Right upon closing of the issuance of the New Shares, and shall have no right to acquire such New Shares if the issuance thereof shall not be consummated.
Appears in 2 contracts
Samples: Limited Partnership Agreement, Limited Partnership Agreement (Institutional Financial Markets, Inc.)
Preemptive Rights. (a) Subject to Section 3.9, for so long as any Investor Beneficially Owns Investor Shares representing at least five percent (5%) of the Outstanding Stock, such Investor shall have, the right to purchase, in accordance with the procedures set forth herein, its pro rata portion, calculated based on the number of Investor Shares held by such Investor as a percentage of the Outstanding Stock prior to issuance of the New Shares (such Investor’s “Pro Rata Portion”) of any New Shares that the Company may, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive Right”).
(b) In the event that the Company proposes to ----------------- issue and sell New Sharesany Common Stock or any other equity securities, the Company shall notify each of give not less than 30 days' prior written notice to the Investors in writing with respect to setting forth the terms and conditions of such proposed New Shares to be issued issuance (the “New Shares "Issuance Notice”"). Each New Shares Notice The --------------- Investors shall set forth: (i) have the number of New Shares proposed to be issued by the Company and the purchase price therefor; (ii) each Investor’s Pro Rata Portion of such New Shares; and (iii) any other material term (including, if known, the expected date of consummation of the purchase and sale of the New Shares).
(c) Each Investor (together with its Affiliates) shall be entitled to exercise its preemptive right to purchase New Shares up to 80% of the securities so offered on the terms and conditions set forth in the Issuance Notice by delivering an irrevocable giving written notice to the Company within fifteen (15) days from the date of after receipt of the Issuance Notice (the "Preemptive Election Period"). Each electing -------------------------- Investor shall have the right to purchase all or any such New Shares Notice specifying portion of its pro rata share of the number of New Shares to be subscribed, which in any event can be no greater than offered securities (determined by dividing such Investor’s Pro Rata Portion 's percentage interest in the Common Stock on a fully-diluted basis by the aggregate percentage interest of all electing Investors and multiplying such New Shares at quotient by 80% of the price offered securities); provided, however, that if any Investor declines to exercise its preemptive right in full, the remaining electing Investors shall be entitled to purchase such Investor's unpurchased portion of the offered securities on a pro rata basis. The Company may issue and sell all offered securities not purchased by the Investors on the terms and conditions specified set forth in the New Shares Notice.
(d) If issuance Notice within 90 days after the Investors (together with their Affiliates) do not elect within the applicable notice period described above to exercise their Preemptive Rights with respect to any expiration of the New Shares Preemptive Election Period; provided, however, that any offered securities not sold within such 90 day period or any offered securities that are proposed to be sold by the Company, the Company shall have ninety (90) days after expiration of such notice period to sell such unsubscribed New Shares proposed to be sold by the Company, at a price and on terms no more and conditions less favorable to the purchaser Company than those set forth in the New Shares NoticeIssuance Notice shall again be subject to the procedure set forth in this Section 4.10 prior to issuance. If the Company does not consummate the sale of the unsubscribed New Shares in accordance with the terms of the New Shares Notice within such ninety (90)-day period, then the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies with the The provisions of this Section 3.8 with respect 4.10 shall not apply to such New Shares.
any Permitted Issuance (eas defined in Section 6 of Article Four of the Company's Certificate of Incorporation, as amended) Each or any issuance of equity securities for non-cash consideration to non-Affiliates of the Company. For purposes of this Section 4.10, an Investor (together with and its Affiliates) Affiliates shall take up be deemed to be one person, and pay for any New Shares that such an Investor (together with may assign its Affiliates) has elected to purchase rights pursuant to the Preemptive Right upon closing this Section 4.10 to one or more of the issuance of the New Sharessuch Affiliates, and shall have no right subject only to acquire such New Shares if the issuance thereof shall not be consummatedcompliance with applicable securities laws.
Appears in 1 contract
Preemptive Rights. (a) Subject The Company hereby grants to Section 3.9, for so long as any Investor Beneficially Owns Investor Shares representing at least five percent (5%) of the Outstanding Stock, such Investor shall have, Class A Shareholders the right to purchasepurchase additional shares of the Company’s equity securities (or rights to acquire such equity securities) (the “Purchase Right”) in connection with any issuance from time to time by the Company of equity securities after the Closing Date, other than any public offering by the Company (such securities the issuance of which gives rise to a Purchase Right are referred to herein as “Covered Securities”) in accordance with the procedures set forth hereinfollowing provisions:
(a) In the event the Company determines to sell Covered Securities, it shall deliver to each Class A Shareholder a written notice (the “Transaction Notice”) stating (i) its pro rata portionbona fide intention to sell Covered Securities, calculated based on (ii) the number of Investor Shares held by such Investor as a percentage identity of the Outstanding Stock prior to issuance proposed transferee and the material terms of the New Shares transaction and (iii) the Per Share Price (as defined below) at which it intends to issue such Investor’s “Pro Rata Portion”) of any New Shares that the Company may, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive Right”)Covered Securities.
(b) In the event that the Company proposes to issue and sell New Shares, the Company shall notify each of the Investors in writing with respect to the proposed New Shares to be issued No later than ten (the “New Shares Notice”). Each New Shares Notice shall set forth: (i) the number of New Shares proposed to be issued by the Company and the purchase price therefor; (ii) each Investor’s Pro Rata Portion of such New Shares; and (iii) any other material term (including, if known, the expected date of consummation of the purchase and sale of the New Shares).
(c) Each Investor (together with its Affiliates) shall be entitled to exercise its right to purchase New Shares by delivering an irrevocable written notice to the Company within fifteen (15) days from the date of receipt of any such New Shares Notice specifying the number of New Shares to be subscribed, which in any event can be no greater than such Investor’s Pro Rata Portion of such New Shares at the price and on the terms and conditions specified in the New Shares Notice.
(d) If the Investors (together with their Affiliates) do not elect within the applicable notice period described above to exercise their Preemptive Rights with respect to any of the New Shares proposed to be sold by the Company, the Company shall have ninety (9010) days after expiration delivery to each Class A Shareholder of such notice period to sell such unsubscribed New Shares proposed to be sold by a Transaction Notice (or, if later, five days following the Company, at a price and on terms no more favorable date the independent qualified appraiser described in the definition of Per Share Price delivers its determination to the purchaser than those set forth Class A Shareholders), each Class A Shareholder may elect to purchase from the Company such number of shares of Covered Securities (“Preemptive Shares”) as will maintain its percentage ownership in the New Shares Notice. If the Company does not consummate on a fully diluted basis (after giving effect to the sale of the unsubscribed New Shares Covered Securities described in accordance with the terms Transaction Notice and the sale of the New Shares Notice within such ninety (90)-day period, then the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies with the provisions of this Section 3.8 with respect to such New Shares.
(e) Each Investor (together with its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase Common Stock pursuant to the Preemptive Right upon closing Purchase Right) at a price per share equal to the Per Share Price by delivery to the Company of an election notice (the issuance of “Election Notice”) stating such Class A Shareholder’s intention to exercise the New Shares, and shall have no right to acquire such New Shares if the issuance thereof shall not be consummatedPurchase Right.
Appears in 1 contract
Preemptive Rights. If at any time the Company issues any Additional Shares (a) Subject other than Warrant Shares pursuant to Section 3.9the exercise of a Warrant issued to the Holder), for so long as any Investor Beneficially Owns Investor Shares representing at least five percent (5%) of the Outstanding StockOptions, such Investor shall have, the right to purchaseConvertible Securities or other equity interests, in accordance with each case after the procedures set forth hereindate hereof, its pro rata portionthen, calculated based on the number of Investor Shares held by such Investor as a percentage of the Outstanding Stock prior in addition to issuance of the New Shares (such Investor’s “Pro Rata Portion”) of any New Shares adjustments that the Company may, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive Right”).
(b) In the event that the Company proposes to issue and sell New Sharesmay be required hereunder, the Company will offer to sell to each Holder a number such securities (“Offered Shares”) based on such Holder’s Pro Rata Share. The Company shall notify give each Holder at least thirty (30) days prior written notice of the Investors any proposed issuance, which notice shall disclose in writing with respect to reasonable detail the proposed New Shares to be issued terms (including price per Offered Share) and conditions of such issuance (the “New Shares Issuance Notice”). Each New Shares Notice shall set forth: (i) the number of New Shares proposed such Holder will be entitled to be issued by the Company and the purchase price therefor; (ii) each Investorsuch Holder’s Pro Rata Portion Share of such New Shares; and (iii) any other material term Offered Shares as determined above at the same price, on the same terms (including, if knownmore than one type of Offered Share is issued, the expected date same proportionate mix of consummation of the purchase and sale of the New such Shares).
(c) Each Investor (together with its Affiliates) shall be entitled to exercise its right to purchase New , and at the same time as the Offered Shares are issued, by delivering an delivery of irrevocable written notice to the Company of such election within thirty (30) days after delivery of the Issuance Notice (the “Election Notice”). If any Holder has elected to purchase any Offered Shares, the sale of such Offered Shares shall be consummated as soon as practical (but in any event within fifteen (15) days from days) after the date delivery of receipt of any such New Shares Notice specifying the number of New Shares to be subscribed, which in any event can be no greater than such Investor’s Pro Rata Portion of such New Shares at the price and on the terms and conditions specified in the New Shares Election Notice.
(d) If the Investors (together with their Affiliates) do not elect within the applicable notice period described above to exercise their Preemptive Rights with respect to any of the New Shares proposed to be sold by the Company, the Company shall have ninety (90) days after expiration of such notice period to sell such unsubscribed New Shares proposed to be sold by the Company, at a price and on terms no more favorable to the purchaser than those set forth in the New Shares Notice. If the Company does not consummate the sale of the unsubscribed New Shares in accordance with the terms of the New Shares Notice within such ninety (90)-day period, then the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies with the provisions of this Section 3.8 with respect to such New Shares.
(e) Each Investor (together with its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant to the Preemptive Right upon closing of the issuance of the New Shares, and shall have no right to acquire such New Shares if the issuance thereof shall not be consummated.
Appears in 1 contract
Samples: Warrant Agreement (Osage Exploration & Development Inc)
Preemptive Rights. (a) Subject to the terms and conditions specified in this Section 3.912.3, for so long as any Investor Beneficially Owns Investor Shares representing at least five percent (5%) the Network hereby grants to each Initial Member and each Substitute Member of the Outstanding StockInitial Members a preemptive right with respect to future sales by the Network of its Equity Interests (the “Preemptive Rights”). Each Member permitted to exercise its Preemptive Rights hereunder may designate one or more Affiliates of such Member to exercise all or any portion of such Member’s Preemptive Rights; provided that all such Affiliates, as a condition to exercising the Preemptive Rights, agree to execute a Joinder Agreement as if such Investor shall haveAffiliate were receiving a Transfer of Units from such Member pursuant to Section 11.1 hereof. Each time the Network proposes to offer any Equity Interests, the right Network shall first make an offering of such Equity Interests to purchase, each Initial Member and each Substitute Member of such Initial Members in accordance with the procedures set forth hereinfollowing provisions:
(a) The Network shall deliver a notice to the Initial Members and any Substitute Members of such Initial Members stating (i) its bona fide intention to offer such Equity Interests, its pro rata portion, calculated based on (ii) the number of Investor Shares held by such Investor as a percentage of Equity Interests to be offered, and (iii) the Outstanding Stock prior price and terms, if any, upon which it proposes to issuance of the New Shares offer such Equity Interests (such Investor’s “Pro Rata Portion”) of any New Shares that the Company may, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive RightRights Notice”).
(b) In the event that the Company proposes to issue and sell New Shares, the Company shall notify each of the Investors in writing with respect to the proposed New Shares to be issued (the “New Shares Notice”). Each New Shares Notice shall set forth: (i) the number of New Shares proposed to be issued by the Company and the purchase price therefor; (ii) each Investor’s Pro Rata Portion of such New Shares; and (iii) any other material term (including, if known, the expected date of consummation of the purchase and sale of the New Shares).
(c) Each Investor (together with its Affiliates) shall be entitled to exercise its right to purchase New Shares by delivering an irrevocable written notice to the Company within Within fifteen (15) days from the date of after receipt of any the Preemptive Rights Notice, each Initial Member and each Substitute Member for such New Shares Notice specifying Initial Member may elect, by written notice to the number of New Shares Network, to be subscribedpurchase or obtain, which in any event can be no greater than such Investor’s Pro Rata Portion of such New Shares at the price and on the terms and conditions specified in the New Shares Notice.
(d) If the Investors (together with their Affiliates) do not elect within the applicable notice period described above to exercise their Preemptive Rights with respect to any Notice, its proportionate share (the “Initial Preemptive Rights Proportionate Share”) of the New Shares proposed Equity Interests offered by the Network, such Initial Preemptive Rights Proportionate Share to be sold equal to the aggregate number of Equity Interests so offered multiplied by the Companypercentage obtained by dividing the number of Units held by such Initial Member and each Substitute Member for such Initial Member by the number of Units held by all Initial Members and Substitute Members. Promptly following the end of such fifteen (15) day period, the Company shall have ninety Network shall, in writing, inform each Financial Investor Member that exercises its right to purchase its Initial Preemptive Rights Proportionate Share whether any Equity Interests were offered to, but not purchased by, the other Financial Investor Members (90the “Financial Investor Member Preemptive Rights Interests”). During the five (5) days day period commencing after expiration receipt of such information, each such exercising Financial Investor Member may elect, by providing written notice period of such election to sell the Network and the other electing Members, to purchase its proportionate share of any Financial Investor Member Preemptive Rights Interests (or such unsubscribed New Shares proposed other proportion as may be agreed upon by all of the Financial Investor Members who elect to purchase Financial Investor Member Preemptive Rights Interests). For purposes of the preceding sentence, the proportionate share of each exercising Financial Investor Member who elects to purchase Financial Investor Member Preemptive Rights Interests shall be sold equal to the aggregate number of Financial Investor Member Preemptive Rights Interests multiplied by the Company, at a price and on terms no more favorable percentage obtained by dividing the number of Units held by such Financial Investor Member by the number of Units held by all Financial Investor Members who elect to the purchaser than those set forth in the New Shares Notice. If the Company does not consummate the sale of the unsubscribed New Shares in accordance with the terms of the New Shares Notice within such ninety (90)-day period, then the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies with the provisions of purchase Financial Investor Member Preemptive Rights Interests pursuant to this Section 3.8 with respect to such New Shares12.3(b).
(e) Each Investor (together with its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant to the Preemptive Right upon closing of the issuance of the New Shares, and shall have no right to acquire such New Shares if the issuance thereof shall not be consummated.
Appears in 1 contract
Samples: Limited Liability Company Operating Agreement (Radio One, Inc.)
Preemptive Rights. (a) Subject to Section 3.9subsection (b) below, for so long as if the Company issues any Investor Beneficially Owns Investor Shares representing additional Units, then the Company will offer to sell to each Member a number of such securities (“Offered Units”) based on such Member’s Pro Rata Share. The Company shall give each Member at least five percent thirty (5%30) days prior written notice of any proposed issuance, which notice shall disclose in reasonable detail the proposed terms (including price per Offered Unit) and conditions of such issuance (the “Issuance Notice”). Each Member will be entitled to purchase such Member’s Pro Rata Share of Offered Units as determined above at the same price, on the same terms (including, if more than one type of Offered Unit is issued, the same proportionate mix of such Units), and at the same time as the Offered Units are issued, by delivery of irrevocable written notice to the Company of such election within thirty (30) days after delivery of the Outstanding StockIssuance Notice (the “Election Notice”). If any Member has elected to purchase any Offered Units, the sale of such Investor Offered Units shall havebe consummated as soon as practical (but in any event within fifteen (15) days) after the delivery of the Election Notice. If any Member declines to purchase all or a portion of its Pro Rata Share of the Offered Units, all members that determined to exercise their rights to purchased Offered Units shall have the right to purchasepurchase all or any portion of such Member’s Pro Rata Share of the Offered Units that have not been so purchased. If any Offering Units still remain unsold, Platinum shall have the right, in accordance its sole discretion, to purchase any remaining Offered Units that have not been so purchased, provided that Platinum gives notice to the Company that it intends to exercise such right in its Election Notice, along with the procedures set forth herein, its pro rata portion, calculated based on the number of Investor Shares held by such Investor as a percentage an indication of the Outstanding Stock prior amount of additional Offered Units it is willing to issuance of the New Shares (such Investor’s “Pro Rata Portion”) of any New Shares that the Company may, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive Right”)purchase.
(b) In the event that Election Notices are not given, by the Company proposes to issue and sell New Shares, the Company shall notify each Members in respect of all of the Investors in writing with respect to the proposed New Shares to be issued (the “New Shares Notice”). Each New Shares Notice shall set forth: (i) the number of New Shares proposed to be issued by the Company and the purchase price therefor; (ii) each Investor’s Pro Rata Portion of such New Shares; and (iii) any other material term (including, if known, the expected date of consummation of the purchase and sale of the New Shares).
(c) Each Investor (together with its Affiliates) shall be entitled to exercise its right to purchase New Shares by delivering an irrevocable written notice to the Company within fifteen (15) days from the date of receipt of any such New Shares Notice specifying the number of New Shares to be subscribed, which in any event can be no greater than such Investor’s Pro Rata Portion of such New Shares at the price and on the terms and conditions specified in the New Shares Notice.
(d) If the Investors (together with their Affiliates) do not elect within the applicable notice period described above to exercise their Preemptive Rights with respect to any of the New Shares proposed to be sold by the CompanyOffered Units, the Company shall have ninety (90) days after from the expiration of such notice the foregoing fifteen (15) day period to sell such unsubscribed New Shares proposed all or any part of the Offered Units as to be sold which Election Notices have not been given by the CompanyMembers (the “Refused Securities”) to any other Person(s), at a but only upon terms and conditions that in all material respects (excluding, without limitation, unit price and on terms interest rates) are no more favorable to such other Person(s) and no less favorable to the purchaser Company than those set forth in the New Shares Issuance Notice. If , Upon the closing, which shall include full payment to the Company, of the sale to such other Person(s) of all of the Refused Securities, the Members shall purchase from the Company, and the Company does not consummate shall sell to the sale Members, the Offered Units in respect of which Election Notice were delivered to the unsubscribed New Shares in accordance with Company by the Members, at the terms of specified in the New Shares Notice within such ninety (90)-day period, then the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies with the provisions of this Section 3.8 with respect to such New SharesIssuance Notice.
(ec) Each Investor (together with its AffiliatesThe provisions of Section 12.5(a) shall take up and pay for not apply to any New Shares that such Investor issue or sale of Units or Unit Equivalents (together with its Affiliatesi) has elected to purchase upon the conversion or exchange of any Units, including pursuant to Section 12.6 below, or in connection with any split, reverse split, recapitalization, reclassification, combination or similar reorganization or other transaction affecting the Preemptive Right Units, (ii) upon closing conversion or exercise of the issuance of the New Sharesany Unit Equivalents, and shall have no right which, when issued, complied with this Section 12.5 or (iii) pursuant to acquire such New Shares if the issuance thereof shall not be consummatedSection 8.1 or 8.2.
Appears in 1 contract
Samples: Limited Liability Company Operating Agreement (Black Elk Energy Finance Corp.)
Preemptive Rights. (a) Subject If following the Effective Date and prior to Section 3.9an IPO, for so long as the Company shall propose to, or the Managing Member shall propose to cause the Company to, issue any Investor Beneficially Owns Investor Shares representing at least five percent New Units or other Equity Securities to any Person, in each case other than in a Permitted Issuance (5%collectively, “Additional Securities”), then each Eligible Member (the “Preemptive Members”) of the Outstanding Stock, such Investor shall have, have the right to purchase, in accordance with the procedures set forth herein, its pro rata portion, calculated based on the number of Investor Shares held by such Investor as a percentage of the Outstanding Stock prior to issuance of the New Shares purchase (such Investor’s “Pro Rata Portion”) of any New Shares that the Company may, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive Right”), on the same terms and at the same purchase price set forth in the Preemptive Notice, up to that number of Additional Securities (the “Pro Rata Share”) equal to the product of (x) the quotient (expressed as a percentage) obtained by dividing the Percentage Interest of such Preemptive Member by the aggregate Percentage Interest of all Preemptive Members and (y) the number of such Additional Securities to be issued.
(b) In the event that the Company proposes to issue and sell New Sharesconnection with any issuance of Additional Securities, the Company shall notify each of the Investors in writing with respect to the proposed New Shares to be issued shall, by written notice (the “New Shares Preemptive Notice”). Each New Shares , provide an offer to sell to each Preemptive Member that number of Additional Securities of any proposed issuance equal to its Pro Rata Share (subject to the Additional Purchase Right) as calculated in accordance with Section 4.08(a), which Preemptive Notice shall set forth: include (i) the number of New Shares proposed to be issued by the Company and the applicable purchase price therefor; per Additional Security, (ii) each Investor’s the aggregate amount of Additional Securities offered, (iii) the number of Additional Securities offered to such Preemptive Member as its Pro Rata Portion Share in accordance with Section 4.08(a), (iv) the proposed closing date (which shall be no less than fifteen (15) Business Days from the date of such New Shares; notice), (v) the place and time for the issuance thereof, and (iiivi) any other material term terms and conditions of the offer. Within ten (including, if known, 10) Business Days after the expected date of consummation receipt of the Preemptive Notice, any Preemptive Member wishing to exercise its Preemptive Right concerning such Additional Securities shall deliver notice to the Company setting forth the number of Additional Securities which such Preemptive Member irrevocably commits (unless such offering is terminated by the Company) to purchase and sale (which may be for all or any portion of such Additional Securities offered to such Preemptive Member as its Pro Rata Share in the Preemptive Notice). Subject to the terms of Section 4.08(c), each Preemptive Member shall have the additional right (the “Additional Purchase Right”) to offer in its notice of exercise to purchase any or all of the New SharesAdditional Securities not accepted for purchase by any other Preemptive Member, in which event such Additional Securities not accepted by any other Preemptive Member shall be deemed to have been offered to and accepted by the Preemptive Members exercising such Additional Purchase Right in proportion to their relative Percentage Interests on the same terms and at the same price per Additional Security as those specified in the Preemptive Notice, but in no event shall any Preemptive Member exercising its Additional Purchase Right be allocated a number of Additional Securities in excess of the maximum number such Preemptive Member has offered to purchase in its notice of exercise. Subject to the terms of Section 4.08(c), each Preemptive Member so exercising its right under this Section 4.08 shall be entitled and obligated to purchase that number of Additional Securities specified in such Preemptive Member’s notice on the terms and conditions set forth in the Preemptive Notice; provided that any such purchase shall occur simultaneously with the sale and purchase of all Additional Securities proposed to be sold in accordance with the Preemptive Notice.
(c) Each Investor (together with its Affiliates) shall be entitled If the Preemptive Members fail to exercise its right the rights set forth in this Section 4.08 with respect to purchase New Shares by delivering an irrevocable written notice to any portion of the Additional Securities, the Company within fifteen shall have twelve (1512) days months from the date of the Preemptive Notice to sell such portion of the Additional Securities in respect of which such Preemptive Members’ rights were not exercised, at a price no less than the price set forth in the Preemptive Notice and on terms and conditions no less favorable in the aggregate to the Company than as stated in the Preemptive Notice. If the Company has not sold such Additional Securities within twelve (12) months of the date of the Preemptive Notice, then the Company shall not thereafter issue or sell any Additional Securities without first offering such Additional Securities to the Preemptive Members in accordance with this Section 4.08; provided, that, if the consummation of such sale is subject to the receipt of any Governmental Authorizations and such New Shares Notice specifying Governmental Authorizations have not been received by the number of New Shares to be subscribed, which in any event can be no greater than such Investor’s Pro Rata Portion end of such New Shares at the price and on the terms and conditions specified in the New Shares Noticetwelve (12) month period, such twelve (12) month period shall automatically be extended for an additional thirty (30) days following receipt of such Governmental Authorizations.
(d) If Notwithstanding anything in this Section 4.08 to the Investors (together with their Affiliates) do not elect within the applicable notice period described above to exercise their Preemptive Rights with respect to any of the New Shares proposed to be sold by the Companycontrary, the Company may at its option determine not to proceed with the offering contemplated by the Preemptive Notice, in which case (i) the Company shall have ninety (90) days after expiration provide written notice of such notice period to sell such unsubscribed New Shares proposed to be sold by the Company, at a price and on terms no more favorable determination to the purchaser than those set forth in the New Shares Notice. If the Company does not consummate the sale Preemptive Members, and (ii) any subsequent proposed issuance of the unsubscribed New Shares in accordance with Additional Securities shall once again be subject to the terms of this Section 4.08.
(e) Notwithstanding anything in this Agreement to the New Shares Notice within contrary, in lieu of offering Additional Securities to the Preemptive Members at the time such ninety (90)-day periodAdditional Securities are offered to any other Person, then the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies comply with the provisions of this Section 3.8 with respect 4.08 by making an offer to such New Shares.
sell (eor cause to be sold) Each Investor (together with its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant to the Preemptive Right upon closing Members all or any portion of their Pro Rata Share of such Additional Securities promptly after the sale to such other Person is consummated, in each case, taking into account the number of Additional Securities actually sold to such other Person; provided, that, such offer to the Preemptive Members shall be made promptly and in no event later than ten (10) Business Days following the consummation of the sale to such other Person. In the event the Company sells any Additional Securities to any other Person pursuant to this Section 4.08(e) before making an offer to sell such Additional Securities to the Preemptive Members, the Company shall not make any distributions or permit any payment with respect to, or Disposition of, any such Additional Securities (including in connection with any Sale of the Company) prior to complying with the notice and offering requirements of this Section 4.08(e) and the consummation of any issuance of Additional Securities to the New Shares, and shall have no right Preemptive Members who elect to acquire such New Shares if the issuance thereof shall not be consummatedexercise their rights under this Section 4.08.
Appears in 1 contract
Preemptive Rights. (a) Subject Prior to Section 3.9the consummation of a Qualified IPO, for so long as if the Company or any Investor Beneficially Owns Investor Shares representing at least five percent (5%) Subsidiary of the Outstanding Stock, such Investor shall haveCompany proposes to issue additional Equity Securities (the “Offered Interests”) to any Person other than to the Company or another Subsidiary of the Company, the right Company shall deliver to purchaseeach Stockholder (each, in accordance with a “Preemptive Participant”) a written notice (the procedures set forth herein, its pro rata portion, calculated based on the number of Investor Shares held by such Investor as a percentage of the Outstanding Stock prior to issuance of the New Shares (such Investor’s “Pro Rata PortionPreemptive Notice”) of any New Shares that such proposed issuance at least eighteen (18) Business Days prior to the Company maydate of the proposed issuance (the period from the effectiveness (pursuant to Section 8.9) of such notice until the expiration of such fifteen (15) Business Day period, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive RightSubscription Period”). Such notice shall include, to the extent applicable, (i) the amount, kind and terms of the Offered Interests to be included in the issuance by the Company, (ii) the price of the Offered Interests to be included in the issuance and (iii) the proposed issuance date, if known.
(b) In Each Preemptive Participant shall have the event that option, exercisable at any time during the Company proposes to issue and sell New Shares, the Company shall notify each first fifteen (15) Business Days of the Investors in writing with respect to the proposed New Shares to be issued (the “New Shares Notice”). Each New Shares Notice shall set forth: (i) the number of New Shares proposed to be issued by the Company and the purchase price therefor; (ii) each Investor’s Pro Rata Portion of such New Shares; and (iii) any other material term (including, if known, the expected date of consummation of the purchase and sale of the New Shares).
(c) Each Investor (together with its Affiliates) shall be entitled to exercise its right to purchase New Shares Subscription Period by delivering an irrevocable written notice to the Company within fifteen (15except as otherwise provided in this Section 4.1) days from and on the same terms and conditions as those of the proposed issuance of Offered Interests, to irrevocably subscribe to purchase up to such number or amount, as applicable, of Offered Interests as is equal to the product of (A) the number or amount of such Offered Interests (including securities exercisable for or convertible into Equity Securities) to be offered and (B) a fraction the numerator of which is the number of shares of Common Stock (determined on an As-Converted Basis as of the date of receipt such proposed issuance) owned by such Preemptive Participant, and the denominator of any which is the total number of shares of Common Stock (determined on an As-Converted Basis as of the date of such New Shares proposed issuance) owned by all Stockholders (such fraction, the “Participation Percentage”), in each case, on the same terms and conditions as are to be provided to the proposed purchaser in the issuance in question. If a Preemptive Participant does not exercise such option in accordance with the above requirements, it shall be deemed to have waived all of its rights with respect to such issuance as described in the Preemptive Notice. If fewer than all of the Preemptive Participants elect to purchase their respective Participation Percentages of the Offered Interests, then the Company shall deliver a notice (a “Top-Up Notice”) to each Preemptive Participant electing to purchase its Participation Percentage of such Offered Interests (each a “Fully-Participating Holder”), which Top-Up Notice specifying shall include the number of New Shares Offered Interests that remain unsubscribed (the “Additional Offered Interests”). Each Fully-Participating Holder shall have the option, exercisable during the three (3) Business Day period immediately following the delivery of the Top-Up Notice, by delivering an irrevocable written notice to the Company, to subscribe to purchase up to such number or amount, as applicable, of Additional Offered Interests as is equal to the product of (A) the number or amount of such Additional Offered Interests and (B) such Fully-Participating Holder’s Participation Percentage, in each case, on the same terms and conditions as are to be subscribed, which provided to the proposed purchaser in any event can be no greater than such Investor’s Pro Rata Portion of such New Shares the issuance in question.
(c) If at the price end of the ninetieth (90th) day after the date of the effectiveness of the Preemptive Notice (as such period may be extended to obtain any required regulatory approvals), the Company has not completed the issuance, (i) each Preemptive Participant shall be released from their obligations under the written commitment, (ii) the Preemptive Notice shall be null and on void, and (iii) it shall be necessary for a separate Preemptive Notice to be furnished, and the terms and conditions specified provisions of this Section 4.1 separately complied with, in the New Shares Noticeorder to consummate such issuance.
(d) If In the Investors event that the participation in the issuance by any Preemptive Participant, as a purchaser would, due to the nature of such Preemptive Participant and not due to the nature of the Company or the Preemptive Participants as a whole, require under applicable Law (together with their Affiliatesi) do not elect within the applicable notice period described above to exercise their Preemptive Rights registration or qualification of such securities or of any Person as a broker or dealer or agent with respect to such securities where such registration or qualification is not otherwise required for the issuance, or (ii) the provision to such Preemptive Participant of any specified information regarding the Company or any of its Subsidiaries or the New Shares proposed securities to be sold by issued that is not otherwise required under applicable Law to be provided for the Companyissuance, such Preemptive Participant shall not have the right to participate in the issuance.
(e) Each Preemptive Participant shall take or cause to be taken all such reasonable actions as may be necessary or reasonably desirable in order to expeditiously consummate each issuance pursuant to this Section 4.1.
(f) Notwithstanding the requirements of this Section 4.1, the Company shall have ninety (90) days after expiration may proceed with any issuance of such notice period Offered Interests that would otherwise be subject to sell such unsubscribed New Shares proposed this Section 4.1 prior to be sold by the Company, at a price and on terms no more favorable to the purchaser than those set forth in the New Shares Notice. If the Company does not consummate the sale of the unsubscribed New Shares in accordance with the terms of the New Shares Notice within such ninety (90)-day period, then the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies having complied with the provisions of this Section 3.8 4.1; provided, that the Company shall:
(i) provide to each Preemptive Participant in connection with such issuance (A) prompt notice of such issuance (which notice, in any event, shall be provided not later than ten (10) days after such issuance) and (B) the Preemptive Notice in which the actual price of the Offered Interests shall be set forth;
(ii) within a reasonable period of time following the issuance, offer to issue (or have Transferred) to each Preemptive Participant, such number or amount of Offered Interests issued in the issuance as may be requested by such Preemptive Participant (not to exceed the Participation Percentage that the Preemptive Participant would have been entitled to pursuant to this Section 4.1 multiplied by the sum of (a) the number or amount of Offered Interests included in the issuance and (b) the maximum aggregate number or amount of Offered Interests to be issued pursuant to this Section 4.1(f) with respect to such issuance) on the same terms and conditions with respect to such Offered Interests as New SharesMountain received;
(iii) keep such offer open for a period of fifteen (15) Business Days, during which period, the Preemptive Participant may accept such offer by sending an irrevocable written acceptance to the Company and New Mountain committing to purchase in accordance with the procedures set forth in Section 4.1(b), an amount of such Offered Interests (not to exceed the amount specified in the offer made pursuant to Section 4.1(f)(ii)); and
(iv) if fewer than all of the Preemptive Participants elect to purchase their respective Participation Percentages of the Offered Interests, follow the procedures set forth in the last sentence of Section 4.1(b) to allocate any unsubscribed Offered Interests.
(eg) Each Investor In the case of the issuance or sale of Offered Interests that are subject to this Section 4.1 for a consideration in whole or in part other than cash, including securities acquired in exchange therefor (together with its Affiliatesother than securities by their terms so exchangeable), the value of the consideration other than cash shall be deemed to be the Fair Market Value thereof.
(h) The provisions of this Section 4.1 shall take up and pay for not apply to issuances by the Company as follows:
(i) any New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant issuance to the Preemptive Right upon closing Company or any wholly owned Subsidiary of the Company;
(ii) the issuance of the New SharesCommon Stock, the Convertible Preferred, the Series A Preferred and the Warrants on the date hereof, and shall have no right any issuance of Series A Preferred or increase in liquidation preference thereof contemplated by the terms of the Series A Preferred Stock Documents (including any dividends declared, made or paid pursuant to acquire Section 5 of the Series A Certificate of Designations), or upon the exercise or conversion of any Equity Securities in accordance with the terms thereof, including the Convertible Preferred, Warrants or other convertible securities, options or warrants;
(iii) any issuance of Equity Securities representing not more than 5% of the aggregate Common Stock issued and outstanding on a fully diluted basis, to officers, employees, directors or consultants (other than a Stockholder (excluding any Employee Stockholder and its Permitted Transferees) or an Affiliate thereof) of the Company or its Subsidiaries in connection with such New Shares Person’s employment or consulting arrangements with the Company or its Subsidiaries or service on the Board or the board of a Subsidiary, in each case to the extent approved by the Board or the applicable committee of the Board or pursuant to an employment benefit plan, incentive award program or other compensation arrangement;
(iv) any issuance of Equity Securities to the extent approved by the Board in the case of an issuance by the Company, (A) as consideration in any direct or indirect business combination or acquisition transaction involving the Company or any of its Subsidiaries, including with respect to a Change of Control, (B) in connection with any joint venture or strategic partnership entered into primarily for purposes other than raising capital (as determined by the Board) or (C) to financial institutions, commercial lenders, broker/finders or any similar party, or their respective designees, as “equity kickers” in connection with the incurrence or guarantee of Indebtedness by the Company or any of its Subsidiaries;
(v) any issuance of Equity Securities in a Qualified IPO;
(vi) the issuance of Equity Securities (of any class) to the Stockholders in connection with any stock split or stock dividend paid on a proportionate basis to all holders of the affected class of Equity Securities (including, if the affected class is the Common Stock, the holders of the Convertible Preferred on an As-Converted Basis); or
(vii) any issuance thereof of Equity Securities pursuant to the Advisory Agreement.
(i) The provisions of this Section 4.1 shall not be consummatedterminate upon the completion of the Qualified IPO.
Appears in 1 contract
Preemptive Rights. If the Corporation proposes to sell additional equity securities other than (a) Subject to Section 3.9, for so long as any Investor Beneficially Owns Investor Shares representing at least five percent (5%) employees of the Outstanding StockCorporation pursuant to employee benefit plans and other employee compensation plans approved by the Board, such (b) pursuant to an acquisition or business combination approved by the Board, (c) in an offering registered under the US Securities Act of 1933, as amended or qualified for sale under the securities laws of any province of Canada, or (d) in connection with the exercise, exchange or conversion of securities of the Corporation, the Investor shall have, have the right to purchase, in accordance with the procedures set forth herein, its purchase up to such Shareholder's "pro rata portion, calculated based on the share" of such additional securities. The Investor's "pro rata share" shall be that number of additional securities that would result in the Investor Shares held by such Investor as a owning the same percentage of the Outstanding Stock prior to Corporation's fully diluted shares (assuming all convertible securities or instruments were converted into Common Shares or Non-Voting Common Shares) after the issuance of the New Shares additional securities (such Investor’s “Pro Rata Portion”the "ISSUANCE") of any New Shares that the Company may, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive Right”).
(b) Investor owned immediately prior to the Issuance. In the event that the Company proposes to issue and sell New Sharesof a proposed Issuance, the Company Corporation shall notify each of the Investors in writing with respect deliver to the Investor written notice describing the proposed New Shares to be issued (Issuance, specifying the “New Shares Notice”). Each New Shares Notice shall set forth: (i) the number of New Shares proposed to be issued by the Company Investor's pro rata share and stating the purchase price therefor; for the additional securities, and the date, time and place of settlement for payment for the additional securities (iiwhich shall be no sooner than twenty-five (25) each Investor’s Pro Rata Portion Business Days following the date of the notice). For a period of twenty (20) Business Days following such New Shares; and (iii) any other material term (including, if knownnotice, the expected date of consummation of Investor shall have the purchase and sale of the New Shares).
(c) Each Investor (together with its Affiliates) shall be entitled to exercise its right to purchase New Shares subscribe, at the offering price established by delivering an irrevocable the Corporation, by written notice to the Company within fifteen (15) days from the date of receipt of Corporation, to purchase all or any such New Shares Notice specifying the number of New Shares to be subscribed, which in any event can be no greater than such Investor’s Pro Rata Portion of such New Shares at the price and on the terms and conditions specified in the New Shares Notice.
(d) If the Investors (together with their Affiliates) do not elect within the applicable notice period described above to exercise their Preemptive Rights with respect to any portion of the New Shares proposed to be sold by Investor's pro rata share of the Companyadditional securities. Following such twenty (20) Business Day period, the Company Corporation shall have be free for a period of ninety (90) days after expiration of such notice period Business Days thereafter to sell such all or any part of the unsubscribed New for additional securities and any Shares proposed to be sold by that have not been purchased as of the Company, applicable Closing Date at a price and on terms no more favorable to such purchasers than the purchaser than those set forth in the New Shares Notice. If the Company does not consummate the sale of the unsubscribed New Shares in accordance with the terms of the New Shares Notice within such ninety (90)-day period, then the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies with the provisions of this Section 3.8 with respect to such New Shares.
(e) Each Investor (together with its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant price offered to the Preemptive Right upon closing of the issuance of the New Shares, and shall have no right to acquire such New Shares if the issuance thereof shall not be consummated.Investor
Appears in 1 contract
Preemptive Rights. (a) Subject At any time that Shares shall be issued and outstanding, and until Ovonic Battery becomes a reporting company pursuant to Section 3.913 or 15 of the Exchange Act, Ovonic Battery shall not issue any shares of its capital stock or any securities convertible into or exchangeable for so long shares of its capital stock, or enter into any agreement in respect of the offering, sale or issuance of shares of its capital stock or such convertible or exchangeable securities, other than: (A) if such offering, sale or issuance is in connection with a transaction pursuant to which Ovonic Battery offers to each holder of the Shares the right to participate proportionately according to its Pro Rata Share (as hereinafter defined) as of the date of such proposed offering, sale or issuance and on the same terms and conditions (any Investor Beneficially Owns Investor Shares representing such offered shares or convertible or exchangeable securities are collectively referred to as "Offered Securities"); (B) at least five percent any time in connection with the offering, sale or issuance of any capital stock of Ovonic Battery under a registration statement as provided for in the Registration Rights Agreement; or (5%C) issuances of Ovonic Common Stock pursuant to the exercise of the options now held by Mr. Xxxxxxxxx xx described in Paragraph 4(d). Any right granted pursuant to clause (A) of the Outstanding Stock, such Investor shall have, the right to purchase, in accordance with the procedures set forth herein, its pro rata portion, calculated based on the number of Investor Shares held by such Investor as a percentage of the Outstanding Stock prior to issuance of the New Shares (such Investor’s “Pro Rata Portion”) of any New Shares that the Company may, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive Right”).
(b) In the event that the Company proposes to issue and sell New Shares, the Company shall notify each of the Investors in writing with respect to the proposed New Shares to be issued (the “New Shares Notice”). Each New Shares Notice shall set forth: (i) the number of New Shares proposed to be issued by the Company and the purchase price therefor; (ii) each Investor’s Pro Rata Portion of such New Shares; and (iii) any other material term (including, if known, the expected date of consummation of the purchase and sale of the New Shares).
(c) Each Investor (together with its Affiliates) preceding sentence shall be entitled to exercise its right to purchase New Shares exercisable by delivering an irrevocable written notice to Ovonic Battery ("Acceptance Notices") given within 30 days (the Company "Acceptance Period") after receipt by the holders of the Shares of written notice of such proposed offering, sale or issuance (the "Issuance Notice"). If any holder of Shares shall fail to respond to Ovonic Battery within fifteen (15) days from the date of receipt of any Acceptance Period, such New Shares Notice specifying the number of New Shares failure shall be deemed to be subscribed, which in any event can be no greater than such Investor’s Pro Rata Portion a rejection of such New Shares at the price and on the terms and conditions specified in the New Shares Notice.
(d) If the Investors (together with their Affiliates) do not elect within the applicable notice period described above to exercise their Preemptive Rights with respect to any of the New Shares proposed to be sold by the Company, the Company shall have ninety (90) days after expiration of such notice period to sell such unsubscribed New Shares proposed to be sold by the Company, at a price and on terms no more favorable to the purchaser than those set forth in the New Shares Notice. If the Company does not consummate the sale of the unsubscribed New Shares in accordance with the terms of the New Shares Notice within such ninety (90)-day period, then the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies with the provisions of this Section 3.8 with respect to such New Shares.
(e) Each Investor (together with its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant to the Preemptive Right upon closing of the issuance of the New Shares, and shall have no holder's right to acquire such New Shares if the issuance thereof shall not be consummated.to
Appears in 1 contract
Samples: Stock Purchase Agreement (Energy Conversion Devices Inc)
Preemptive Rights. The Company hereby grants the following preemptive rights (the “Preemptive Rights”) to the Class A Stockholders and the Class C Stockholders (but not to the Class B Stockholders, who shall have no Preemptive Rights hereunder):
(a) Subject If the Company, at any time or from time to time prior to the Company’s Initial Public Offering, makes any offering of New Shares (as defined in Section 3.9, for so long as any Investor Beneficially Owns Investor Shares representing at least five percent (5%4.3(f) of the Outstanding Stock, such Investor shall havebelow), the right Class A Stockholders and the Class C Stockholders shall each first be offered the opportunity to purchase, in accordance with acquire from the procedures set forth herein, its Company for the same price and on the same terms as such securities are proposed to be offered to others a pro rata portion, calculated based on the number of Investor Shares held by such Investor as a percentage of the Outstanding Stock prior to issuance portion of the New Shares (such Investor’s the “Pro Rata PortionBasic Amount”) determined by multiplying (i) the total number of any such offered New Shares that (or, in the case of options, warrants or other rights obligating the Company mayto issue Shares or other equity interests, from time to timethe total number of such New Shares or other equity interests covered by such options, propose to sell and issue warrants or rights) by (hereinafter referred to as ii) the “Preemptive Right”)Stockholder’s Percentage Interest.
(b) In the event that the Company proposes to issue and sell offer New Shares, it shall give each Class A Stockholder and Class C Stockholder written notice of its intention, describing the type of New Shares to be offered, and the price and other terms upon which the Company proposes to offer the same. Each Class A Stockholder and Class C Stockholder shall have fifteen (15) days from the later of (i) the date of receipt of any such notice or (ii) the date of determination of fair market cash value pursuant to Section 4.3(c) to notify the Company in writing that it intends to exercise such preemptive rights and as to the amount of New Shares such Stockholder desires to purchase, up to the maximum amount calculated pursuant to Section 4.3(a). Such notice shall constitute an agreement of such Stockholder to purchase the amount of New Shares so specified upon the price and other terms set forth in the Company’s notice to it. If one or more Class A Stockholders or Class C Stockholders do not exercise their Preemptive Right to acquire their full Basic Amount (the amount such Stockholder(s) choose to not exercise, the “Unsubscribed Amount”), the Company shall notify each of the Investors in writing with respect to the proposed New Shares to be issued promptly give notice (the “New Shares Undersubscription Notice”) of the Unsubscribed Amount to the Stockholders that exercised their preemptive rights for their full Basic Amount (the “Fully Subscribing Stockholders”). Each New Shares Notice shall set forth: (i) Fully Subscribing Stockholder will have the number of New Shares proposed right, exercisable by giving notice to be issued by the Company and the purchase price therefor; other Class A Stockholders and Class C Stockholders within fifteen (ii15) days after the Undersubscription Notice is given, to offer to acquire the Unsubscribed Amount. If the Fully Subscribing Stockholders offer to acquire, in the aggregate, more than the Unsubscribed Amount, then each Investor’s Pro Rata Portion of such New Shares; and (iii) any other material term (including, if known, the expected date of consummation Fully Subscribing Stockholder that elects to acquire more than its Basic Amount will be entitled to acquire its pro rata share of the purchase and sale Unsubscribed Amount (based on the number of the New Fully Subscribing Stockholders’ then existing Shares).
(c) Each Investor (together with its Affiliates) shall be entitled to exercise its right to purchase New Shares by delivering an irrevocable written notice to If the Company within fifteen (15) days from the date of receipt of any such New Shares Notice specifying the number of New Shares proposes to be subscribed, which in any event can be no greater than such Investor’s Pro Rata Portion of such New Shares at the price and on the terms and conditions specified in sell the New Shares Noticefor property other than cash, the fair market cash value of such consideration, for the purpose of determining the Class A Stockholders’ and Class C Stockholders’ price of exercising their Preemptive Rights, shall be determined by the Board.
(d) If the Investors (together with their Affiliates) do not elect within the applicable notice period described above to exercise their any Class A Stockholder or Class C Stockholder exercises its Preemptive Rights with respect to any hereunder, the closing of the purchase of the New Shares proposed with respect to be sold by the Company, the Company which such rights have been exercised shall have ninety take place within forty (9040) days after expiration the Company’s initial offer has been given. Each of such notice period the Company and any Stockholder which has agreed to sell such unsubscribed purchase New Shares proposed agrees to be sold by the Companyuse its commercially reasonable efforts to secure any regulatory approvals or other consents, at a price and on terms no more favorable to the purchaser than those set forth comply with any law or regulation necessary in the New Shares Notice. If the Company does not consummate the sale of the unsubscribed New Shares in accordance connection with the terms offer, Sale and purchase of the New Shares Notice within such ninety (90)-day period, then the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies with the provisions of this Section 3.8 with respect to such New Shares.
(e) Each Investor In the event that no Stockholder exercises its Preemptive Rights provided in this Section 4.3 (together with or such Preemptive Rights are only exercised in part) within the fifteen (15) day period specified in Section 4.3(b) or, if so exercised, the Stockholder is unable to consummate such purchase within the time period specified in Section 4.3(d) above because of its Affiliatesfailure to obtain any required regulatory consent or approval, the Company shall thereafter be entitled during the period of ninety (90) shall take up and pay for any days following the conclusion of the applicable period to Sell or enter into an agreement (pursuant to which the Sale of New Shares that such Investor covered thereby shall be consummated, if at all, within thirty (together with its Affiliates30) has days from the date of said agreement) to Sell the New Shares not elected to purchase be purchased pursuant to this Section 4.3 or which the Preemptive Right Stockholder is unable to purchase because of such failure to obtain any such consent or approval, at a price and upon closing terms no more favorable to the purchasers of such securities than were specified in the Company’s notice to the Class A Stockholders and Class C Stockholders. Notwithstanding the foregoing, if such Sale is subject to the receipt of any regulatory approval or expiration of any waiting period, the time period during which such Sale may be consummated shall be extended until the expiration of ten (10) days after all such approvals have been obtained or waiting periods expired, but in no event shall such time period exceed 180 days from the date of the issuance of applicable agreement with respect to such Sale. In the event that the Company has not Sold the New SharesShares or entered into an agreement to Sell the New Shares within said ninety (90) day period (or Sold and issued New Shares in accordance with the foregoing within thirty (30) days from the date of said agreement (as such period may be extended in the manner described above for a period not to exceed 180 days from the date of said agreement)), and the Company shall have no right to acquire not thereafter offer, issue or Sell such New Shares if without first offering such securities to the issuance thereof Class A Stockholders and Class C Stockholders in the manner provided above.
(f) As used herein, “New Shares” means Shares of the Company or other equity securities of the Company or any Subsidiary which the Company proposes to offer, issue or sell prior to the Company’s Initial Public Offering (including any options, warrants or other rights obligating the Company to issue Shares or other equity securities or equity interests); provided, however, that the following shall not be consummated.excluded from the definition of “New Shares”:
Appears in 1 contract
Preemptive Rights. (a) Subject to Section 3.9Notwithstanding any other provision hereof, for so long as the Common Stock is not Actively Publicly Traded, the Company shall not issue any Investor Beneficially Owns Investor Shares representing at least five percent (5%a) capital stock of the Outstanding StockCompany, such (b) securities convertible or exchangeable for capital stock of the Company or (c) options, warrants or rights carrying any rights to purchase capital stock of the Company (the securities described in clauses (a)-(c) are referred to herein collectively as the "PARTICIPATION SECURITIES"), in each case referred to in clauses (a)-(c), to any Affiliate of the Company, or to any Person if the offering price is less than the Effective Equivalent Share Price, without offering to each of the Odyssey Holders, Koch Holders, PF Telecom Holders, the Odyssey Co-Investor shall haveHolders, txx Xisco Co-Investor Holders and the Cisco Holders (collectively, the "PREEMPTIVE HOLDERS"), the right to purchasepurchase or subscribe for up to that number of additional Participation Securities (a "PRO RATA SHARE") which represents the product of (i) the total number of Participation Securities to be issued by the Company multiplied by (ii) a fraction, in accordance with (A) the procedures set forth herein, its pro rata portion, calculated based on numerator of which is the number of Investor Equivalent Shares represented by all Securities owned by such Preemptive Holder, and (B) the denominator of which is the number of Equivalent Shares represented by all Securities outstanding immediately prior to such issuance held by such Investor as a percentage of the Outstanding Stock prior to issuance of the New Shares all Preemptive Holders and all other Persons that have similar pre-emptive rights (such Investor’s “Pro Rata Portion”) of any New Shares it being understood and agreed that the Company may, from time will accordingly be required to time, propose reduce the number of shares of Participation Securities to sell and issue (hereinafter referred be issued or sold to as Persons other than the “Preemptive Right”Holders); provided that the provisions of this Section 14 shall not apply to any Exempt Issuance.
(b) In the event the Company proposes to issue or sell any Participation Securities in a transaction giving rise to the preemptive rights provided for in this Section 14, the Company shall send a written notice (the "PREEMPTIVE NOTICE") to each Preemptive Holder setting forth the number of such Participation Securities that the Company proposes to issue and sell New Sharesor issue, the Company shall notify each of the Investors in writing with respect to the price (before any commission or discount) at which such securities are proposed New Shares to be issued (or, in the “New Shares case of an underwritten or privately placed offering in which the price is not known at the time the Preemptive Notice is given, the method of determining such price and an estimate thereof), the other material terms of the transaction and such Preemptive Holder's Pro Rata Share of the Participation Securities. At any time within 15 business days after its receipt of the Preemptive Notice”, the Preemptive Holders may exercise their preemptive rights to purchase or subscribe for Participation Securities as provided for in this Section 14, by so informing the Company in writing (an "EXERCISE NOTICE"). Each New Shares Exercise Notice shall set forth: (i) state the number of New Shares proposed to be issued by the Company and the purchase price therefor; (ii) each Investor’s Pro Rata Portion of such New Shares; and (iii) any other material term (including, if known, the expected date of consummation percentage of the proposed sale or issuance that each Preemptive Holder elects to purchase (up to all the Participation Securities that could be purchased by all Preemptive Holders and sale of the New Sharesall other Persons that have similar preemptive rights).
(c) Each Investor To the extent that any Preemptive Holder has indicated that it will not fully subscribe for its Pro Rata Share of the Participation Securities, the Company shall allocate all such Participation Securities not subscribed for to the Preemptive Holders who have subscribed for more Participation Securities than their Pro Rata Share (together with the "FULLY PARTICIPATING PREEMPTIVE HOLDERS") in the proportion that the number of Equivalent Shares represented by the Securities each owns bears to the total number of Equivalent Shares represented by the Securities owned by all such Fully Participating Preemptive Holders. If the number of Participation Securities so allocated to a Fully Participating Preemptive Holder exceeds the maximum number of Participation Securities that it has indicated in its Affiliates) shall be entitled to exercise its right to purchase New Shares by delivering an irrevocable written notice to the Company within fifteen (15) days from the date of receipt of any such New Shares Notice specifying the number of New Shares it is willing to be subscribed, which in any event can be no greater than such Investor’s Pro Rata Portion of such New Shares at the price and on the terms and conditions specified in the New Shares Notice.
(d) If the Investors (together with their Affiliates) do not elect within the applicable notice period described above to exercise their Preemptive Rights with respect to any of the New Shares proposed to be sold by the Company, the Company shall have ninety (90) days after expiration of such notice period to sell such unsubscribed New Shares proposed to be sold by the Company, at a price and on terms no more favorable to the purchaser than those set forth in the New Shares Notice. If the Company does not consummate the sale of the unsubscribed New Shares in accordance with the terms of the New Shares Notice within such ninety (90)-day periodsubscribe for, then the Company may not issue or sell shall allocate any excess over such New Shares unless it sends maximum among all Fully Participating Preemptive Holders who have subscribed for a new New Shares Notice and once again complies with maximum number of Participation Securities which exceeds the provisions number of this Section 3.8 with respect Participation Securities allocated to such New Shares.
(e) Each Investor (together with its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase them pursuant to the preceding sentence, in the proportion that their respective holdings bear to the total number of Equivalent Shares represented by the Securities owned by all such Fully Participating Preemptive Right upon closing of the issuance of the New SharesHolders, and the Company shall follow this procedure, if necessary, until all Participation Securities available for purchase by the Preemptive Holders have no right been allocated to acquire such New Shares if the issuance thereof shall not be consummatedthem.
Appears in 1 contract
Preemptive Rights. (a) Subject to the terms and conditions specified in this Section 3.9, for so long as any Investor Beneficially Owns Investor Shares representing at least five percent (5%) of the Outstanding Stock, such Investor shall have3.2, the Company hereby grants to each Party a right of first offer with respect to purchasefuture sales by the Company of its Additional Stock (as hereinafter defined). Each time the Company proposes to offer any shares of, or securities convertible into or exercisable for any shares of, any class of its capital stock ("Additional Stock"), the Company shall first make an offering of such Additional Stock to each Party in accordance with the procedures set forth hereinfollowing provisions:
(a) The Company shall deliver a notice by certified mail ("Notice") to each Party stating (i) its bona fide intention to offer such Additional Stock, its pro rata portion, calculated based on (ii) the number of Investor Shares held by such Investor as a percentage shares of Additional Stock to be offered, and (iii) the Outstanding Stock prior price and terms, if any, upon which it proposes to issuance of the New Shares (offer such Investor’s “Pro Rata Portion”) of any New Shares that the Company may, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive Right”)Additional Stock.
(b) In the event that the Company proposes to issue and sell New Shares, the Company shall notify each Within 20 calendar days after receipt of the Investors in writing with respect to the proposed New Shares to be issued (the “New Shares Notice”). Each New Shares Notice shall set forth: (i) the number of New Shares proposed to be issued by the Company and the purchase price therefor; (ii) , each Investor’s Pro Rata Portion of such New Shares; and (iii) any other material term (including, if known, the expected date of consummation of the purchase and sale of the New Shares).
(c) Each Investor (together with its Affiliates) shall be entitled to exercise its right Party may elect to purchase New Shares by delivering an irrevocable written notice or obtain (each Party electing to the Company within fifteen (15) days from the date of receipt of any such New Shares Notice specifying the number of New Shares to be subscribedpurchase, which in any event can be no greater than such Investor’s Pro Rata Portion of such New Shares a "Subscribing Party"), at the price and on the terms and conditions specified in the New Shares Notice, up to that portion of such Additional Stock which equals the proportion that the number of shares of Common Stock issued and held by such Party bears to the total number of shares of Common Stock of the Company held by all Parties ("Pro Rata Share").
(c) If any Party elects not to purchase its respective Pro Rata Share of the Additional Stock (or fails to respond within the 20 day period specified in Section 3.2(b) above), then (i) the Company shall deliver a second notice by certified mail (the "Second Notice") to each Subscribing Party stating the number of shares of Additional Stock still available (the "Available Additional Stock") and (ii) each Subscribing Party may elect to purchase its Pro Rata Share of the Available Additional Stock within 10 calendar days after receipt of the Second Notice.
(d) If all shares of Additional Stock which a Party is entitled to obtain pursuant to Sections 3.2(b) and 3.2(c) are not elected to be obtained as provided, then the Investors (together with their AffiliatesCompany may, during the 60-day period following the expiration of the periods provided in Sections 3.2(b) do not elect within and 3.2(c), offer the applicable notice period described above to exercise their Preemptive Rights with respect remaining unsubscribed portion of such Additional Stock to any of the New Shares proposed to be sold by the Company, the Company shall have ninety (90) days after expiration of such notice period to sell such unsubscribed New Shares proposed to be sold by the Company, Person or Persons at a price not less than, and on upon terms no more favorable to the purchaser offeree than those set forth specified in the New Shares Notice. If the Company does not consummate enter into an agreement for the sale of the unsubscribed New Shares Additional Stock within such period, or if such agreement is not consummated within 60 days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Additional Stock shall not be sold unless first reoffered to the Parties in accordance with the terms of the New Shares Notice within such ninety (90)-day period, then the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies with the provisions of this Section 3.8 with respect to such New Sharesherewith.
(e) Each Investor The preemptive right in this Section 3.2 shall expire on the closing of an IPO.
(together with f) The preemptive right set forth in this Section 3.2 may be assigned or transferred by a Party to a transferee or assignee of any of its Affiliates) shall take up shares of capital stock of the Company, provided such transferee or assignee agrees in writing to be bound by and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant subject to the Preemptive Right upon closing terms and conditions of the issuance of the New Shares, and shall have no right this Agreement relating to acquire such New Shares if the issuance thereof shall not be consummatedthis Section 3.2.
Appears in 1 contract
Samples: Investors' Rights Agreement (Optimark Holdings Inc)
Preemptive Rights. (a) Subject 6.1 Until the later to Section 3.9, for so long as any Investor Beneficially Owns Investor Shares representing at least five percent (5%) occur of the Outstanding Stocktermination of the Standstill Period and the 2 (two) year anniversary of the Closing Date, such Investor prior to the Company directly or indirectly issuing additional Common Shares, Preference Shares or other equity securities of the Company or any securities convertible into, exercisable for, or exchangeable for Common Shares or other equity securities of the Company (collectively, the “New Shares”) to a proposed purchaser, Navy shall have, have the right to purchase, in accordance with the procedures set forth herein, its pro rata portion, calculated based on the number of Investor Shares held by such Investor as a percentage of the Outstanding Stock prior to issuance of the New Shares (such Investor’s “Pro Rata Portion”) of any New Shares that the Company may, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive Right”).
(b) In the event that the Company proposes to issue and sell New Shares, the Company shall notify each of the Investors in writing with respect to the proposed New Shares to be issued (the “New Shares Notice”). Each New Shares Notice shall set forth: (i) purchase the number of New Shares as provided in this Bye-law 6.
6.2 The Company shall give Navy at least 10 days’ prior notice (the “First Notice”) of any proposed issuance of New Shares, which notice shall set forth in reasonable detail the proposed terms and conditions thereof and shall offer Navy the opportunity to purchase its Pro Rata Share (which Pro Rata Share shall be calculated as of the date of such notice) of the New Shares at the same price, on the same terms and conditions and at the same time as the New Shares are proposed to be issued by the Company and the purchase price therefor; (ii) each Investor’s Pro Rata Portion of such New Shares; and (iii) any other material term (including, if known, the expected date of consummation of the purchase and sale of the New Shares).
(c) Each Investor (together with its Affiliates) shall be entitled Company. If Navy wishes to exercise its right to purchase New Shares preemptive rights, it must do so by delivering an irrevocable written notice to the Company within fifteen (15) five days from after delivery by the date Company of receipt of any such New Shares Notice specifying the number First Notice, which notice shall state the dollar amount of New Shares that Navy would like to be subscribed, which in any event can be no greater than such Investorpurchase up to a maximum amount equal to Navy’s Pro Rata Portion Share of such New Shares at the price and on the terms and conditions specified in the New Shares Noticetotal offering amount.
(d) If the Investors (together with their Affiliates) do not elect within the applicable notice period described above to exercise their Preemptive Rights with respect to any of the New Shares proposed to be sold by the Company, the Company shall have ninety (90) days after expiration of such notice period to sell such unsubscribed New Shares proposed to be sold by the Company, at a price and on terms no more favorable 6.3 Notwithstanding anything in this Bye-law 6 to the purchaser than those set forth in the New Shares Notice. If the Company does not consummate the sale of the unsubscribed New Shares in accordance with the terms of the New Shares Notice within such ninety (90)-day periodcontrary, then the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies with the provisions of this Section 3.8 with respect Bye-law 6 shall not apply to such New Shares.
(e) Each Investor (together with its Affiliates) shall take up and pay for any issuances of New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant to by the Preemptive Right upon closing of the issuance of the New Shares, and shall have no right to acquire such New Shares if the issuance thereof shall not be consummated.Company as follows:
Appears in 1 contract
Preemptive Rights. (a1) Subject In case the Company proposes at any time to Section 3.9, for so long as issue or sell any Investor Beneficially Owns Investor Shares representing at least five percent (5%) shares of equity securities of the Outstanding Stock, such Investor shall haveCompany (or securities convertible or exchangeable for equity securities of the Company) issued by the Company after the date hereof (collectively, the right "Company Offered Securities"), the Company shall, no later than twenty (20) days prior to purchasethe consummation of such transaction (a "Preemptive Rights Transaction"), give notice in writing (the "Preemptive Rights Offer Notice") to Xxxxxxxx, the Other Stockholders and their respective Permitted Transferees of such Preemptive Rights Transaction. The Preemptive Rights Offer Notice shall describe the proposed Preemptive Rights Transaction, identify the proposed purchaser or purchasers, and contain an offer (the "Preemptive Rights Offer") to sell Xxxxxxxx, the Other Stockholders and their respective Permitted Transferees, at the same price and for the same consideration to be paid by the proposed purchaser (provided, that, in accordance with the procedures set forth hereinevent any of such consideration is non-cash consideration, its at the election of Xxxxxxxx, the Other Stockholders or their respective Permitted Transferees to whom the Preemptive Rights Offer is made, Xxxxxxxx, the Other Stockholders and their respective Permitted Transferees may pay cash equal to the value of such non-cash consideration), all or any part of Xxxxxxxx', the Other Stockholders' and their respective Permitted Transferees' pro rata portion, calculated based on portion of the Company Offered Securities (which shall be a fraction of the Company Offered Securities determined by dividing the number of Investor Shares held shares of outstanding Voting Stock owned by Xxxxxxxx, the Other Stockholders or such Investor of their Permitted Transferees, as the case may be, by the total number of outstanding shares of Voting Stock). If Xxxxxxxx, the Other Stockholders or their respective Permitted Transferees to whom a percentage Preemptive Rights Offer is made fail to accept (each a "Non-Responding Holder") in writing the Preemptive Rights Offer by the fifteenth (15th) day after the Company's delivery of the Outstanding Stock prior to issuance of the New Shares (Preemptive Rights Offer Notice, such Investor’s “Pro Rata Portion”) of any New Shares that the Company may, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive Right”).
(b) In the event that the Company proposes to issue and sell New Shares, the Company Non-Responding Holders shall notify each of the Investors in writing have no further rights with respect to the proposed New Shares to be issued (the “New Shares Notice”). Each New Shares Notice shall set forth: (i) the number of New Shares proposed to be issued by Preemptive Rights Transaction and the Company and may proceed with the purchase price therefor; (ii) each Investor’s Pro Rata Portion proposed Preemptive Rights Transaction, free of any right on the part of such New Shares; and (iii) any other material term (includingNon-Responding Holders, if knownas the case may be, the expected date of consummation of the purchase and sale of the New Shares)under this Section 6 in respect thereof.
(c2) Each Investor The parties hereto agree that preemptive rights granted pursuant to paragraph (together with its Affiliatesa) of this Section 6.1 shall not be entitled to exercise its right to purchase New Shares by delivering an irrevocable written notice effective for issuances of shares of Common Stock pursuant to the Company within fifteen (15) days from the date of receipt of any such New Shares Notice specifying the number of New Shares to be subscribedCompany's 2000 Employee Stock Purchase Plan, which in any event can be no greater than such Investor’s Pro Rata Portion of such New Shares at the price and on the terms and conditions specified in the New Shares Notice.
(d) If the Investors (together with their Affiliates) do not elect within the applicable notice period described above to exercise their Preemptive Rights with respect to any of the New Shares proposed to be sold by the Company, the Company shall have ninety (90) days after expiration of such notice period to sell such unsubscribed New Shares proposed to be sold by the Company, at a price and on terms no more favorable to the purchaser than those set forth in the New Shares Notice. If the Company does not consummate the sale of the unsubscribed New Shares in accordance with the terms of such plan as in effect on the New Shares Notice within such ninety (90)-day perioddate hereof and without giving effect to any amendment, then the Company may not issue alteration or sell such New Shares unless it sends a new New Shares Notice and once again complies with the provisions repeal of this Section 3.8 with respect to such New Shares.
(e) Each Investor (together with its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant to the Preemptive Right upon closing of the terms of such plan or any increase in the number of shares of Common Stock reserved for issuance of the New Shares, and shall have no right to acquire under such New Shares if the issuance thereof shall not be consummatedplan.
Appears in 1 contract
Samples: Stockholders Agreement (Touch America Holdings Inc)
Preemptive Rights. (a) Subject to the provisions of this Section 3.96, if the Company intends or proposes to offer for so long as sale, or to sell, any Investor Beneficially Owns Investor Shares representing at least five percent Common Stock Equivalents, excluding any Excluded Securities, (5%) a “Subsequent Private Equity Financing”), the Company shall first provide Purchasers with written notice of the Outstanding Stock, such Investor shall have, proposed Subsequent Private Equity Financing (the right to purchase, in accordance with the procedures set forth herein, its pro rata portion, calculated based on the number of Investor Shares held by such Investor as a percentage of the Outstanding Stock prior to issuance of the New Shares (such Investor’s “Pro Rata PortionFinancing Notice”) describing the type of any New Shares that Common Stock Equivalents to be issued and the price and the general terms upon which the Company may, from time proposes to time, propose to sell and issue (hereinafter referred to as the “Preemptive Right”)such Common Stock Equivalents.
(b) In Each Purchaser shall have five (5) business days from receipt of the event that Financing Notice to elect to purchase its Pro Rata Share of such Common Stock Equivalents. Such election shall be provided to the Company proposes in writing prior to issue and sell New Shares, the expiration of such five (5) business day period (with any failure of a Purchaser to make such election to the Company shall notify each of the Investors in writing with respect to the proposed New Shares within such five (5) business day period to be issued (the “New Shares Notice”). Each New Shares Notice shall set forth: (i) the number of New Shares proposed deemed to be issued by the Company and the purchase price therefor; (ii) each Investor’s Pro Rata Portion a declination of its right to participate in such New Shares; and (iii) any other material term (including, if known, the expected date of consummation of the purchase and sale of the New SharesSubsequent Private Equity Financing).
(c) Each Investor (together with its Affiliates) shall be entitled to exercise its right to purchase New Shares by delivering an irrevocable written notice Notwithstanding anything to the contrary contained herein or in the Stock Purchase Agreement, it is expressly understood and agreed that the Company within fifteen (15) days from shall not, and the date Company shall cause each of its subsidiaries and each of its and their respective officers, directors, employees and agents not to, provide each Purchaser with any material, non-public information regarding the Company or any of its subsidiaries unless prior thereto such Purchaser shall have consented in writing to the receipt of any such New Shares Notice specifying information and agreed with the number of New Shares Company to be subscribed, which in any event can be no greater than keep such Investor’s Pro Rata Portion of such New Shares at the price and on the terms and conditions specified in the New Shares Noticeinformation confidential.
(d) If The preemptive right under this Section 6 shall terminate upon the Investors (together with their Affiliates) do not elect within date that a Purchaser and its affiliates hold in the applicable notice period described above to exercise their Preemptive Rights with respect to any aggregate less than 5% of all outstanding Common Stock Equivalents. Notwithstanding the New Shares proposed to be sold by foregoing, in the Company, event that the Company shall have ninety (90) days after expiration of such notice period to sell such unsubscribed New Shares proposed to be sold by the Company, at a price and on terms no more favorable to the purchaser than those preemptive right set forth in this Section 6 would prevent or limit the New Shares Notice. If ability of the Company does not consummate to list its Common Stock on a national securities exchange, including without limitation, the sale NYSE American, such rights shall be terminated or reformed only to the extent necessary to permit such listing, with such changes being made in the good faith judgment of the unsubscribed New Shares in accordance with the terms Company’s board of the New Shares Notice within such ninety (90)-day period, then the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies with the provisions of this Section 3.8 with respect to such New Sharesdirectors.
(e) Each Investor (together with its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant to the Preemptive Right upon closing of the issuance of the New Shares, and shall have no right to acquire such New Shares if the issuance thereof shall not be consummated.
Appears in 1 contract
Preemptive Rights. (a) Subject If the Issuer proposes to Section 3.9issue Equity Interests, for so long as any Investor Beneficially Owns Investor Shares representing at least five percent other than in an Excluded Issuance, then the Issuer shall:
(5%i) provide written notice to each Purchaser no less than twenty (20) Business Days prior to the planned announcement of such issuance (the date of such planned announcement, the “Proposed Announcement Date”), setting forth in reasonable detail (1) the designation and all of the Outstanding Stockterms and provisions of the securities proposed to be issued (the “Proposed Securities”), such Investor shall haveincluding, to the extent \\4140-6447-8783 v164123-4063-4962 v3 applicable, the right voting powers, preferences and relative participating, optional or other special rights, and the qualification, limitations or restrictions thereof and interest rate and maturity, (2) the anticipated price and other terms of the proposed sale of such securities (including the type of offering of the Proposed Securities) and (3) the amount of such securities proposed to purchasebe issued; provided, that following the delivery of such notice, the Issuer shall deliver to each Purchaser any such information such Purchaser may reasonably request in accordance with order to evaluate the procedures set forth hereinproposed issuance, its pro rata portionexcept that the Issuer shall not be required to deliver any information that has not been and will not be provided or otherwise made available to the proposed purchasers of the Proposed Securities; and
(ii) offer to issue and sell to each Purchaser, upon full payment by such Purchaser, on such terms as the Proposed Securities are to be issued a portion of the Proposed Securities equal to a percentage determined by dividing (1) the number of Shares of Common Stock such Purchaser beneficially owns on an as converted basis, but excluding for this purpose any attribution of ownership of securities held by Persons who are not Affiliates of such Purchaser by (2) the total number of Shares of Common Stock then outstanding on an as-converted basis (in each case, the as-converted basis shall be calculated using the maximum number of shares issuable under outstanding Equity Interests, but for the avoidance of doubt, solely to the extent such Equity Interests are then “in the money” or otherwise exercisable based on the number of Investor Shares held by such Investor as a percentage Closing Price of the Outstanding Common Stock prior to issuance of on the New Shares Trading Day immediately preceding the applicable Notice Date (as defined below)), such Investorpercentage, such Purchaser’s “Pro Rata Participation Portion”) of any New Shares that the Company may, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive Right”).
(b) Each Purchaser will have the option, exercisable by written notice to the Issuer, to irrevocably accept the Issuer’s offer and commit to purchase any or all of the Equity Interests offered to be sold by the Issuer to such Purchaser, which notice (a “Participation Notice”) must be given no less than fifteen (15) Business Days prior to the Proposed Announcement Date (the “Notice Date”). If the Issuer offers two or more securities in units to the other participants in the offering, each Purchaser must purchase such units as a whole and will not be given the opportunity to purchase only one of the securities making up such unit. The closing of the exercise of such subscription right shall take place simultaneously with the closing of the sale of the Proposed Securities giving rise to such subscription right. If any Purchaser does not deliver a Participation Notice on or before the Notice Date, the Issuer will be free to sell such Proposed Securities that such Purchaser has not elected to purchase during the 90 days following the Notice Date on terms and conditions no more favorable taken as a whole (but with aggregate economic terms not more favorable) to the purchasers thereof than those offered to such Purchaser in the notice delivered in accordance with Section 8.20(a). Any Proposed Securities offered or sold by the Issuer after such 90-day period must be reoffered to issue or sell to each Purchaser pursuant to this Section 8.20.
(c) The election by any Purchaser not to exercise its subscription rights under this Section 8.20 in any one instance shall not affect their right as to any subsequent proposed issuance.
(d) In the case of an issuance subject to this Section 8.20 for consideration in whole or in part other than cash, including securities acquired in exchange therefor (other than securities by their terms so exchangeable), the consideration other than cash shall be deemed to be the fair market value thereof.
(e) In the event that the Company Issuer proposes an issuance of Proposed Securities and the full Participation Portion of securities that would be issued to the Purchaser pursuant to this Section 8.20 in connection with such issuance of Proposed Securities would exceed the amount that the Issuer could issue and sell New Sharesto the Purchaser without shareholder approval pursuant to NYSE rules, the Company Issuer shall notify each use its reasonable best efforts to hold a special meeting of its shareholders as promptly as practicable to obtain such approval and the proxy statement related to such special meeting will include a recommendation from the Issuer’s Board of the Investors in writing with respect to Directors that the proposed New Shares to be issued (the “New Shares Notice”). Each New Shares Notice shall set forth: (i) the number of New Shares proposed to be issued by the Company and the purchase price therefor; (ii) each Investor’s Pro Rata Portion of such New Shares; and (iii) any other material term (including, if known, the expected date of consummation shareholders of the purchase and sale of the New Shares).
(c) Each Investor (together with its Affiliates) shall be entitled to exercise its right to purchase New Shares by delivering an irrevocable written notice to the Company within fifteen (15) days from the date of receipt of any such New Shares Notice specifying the number of New Shares to be subscribed, which Issuer vote in any event can be no greater than such Investor’s Pro Rata Portion of such New Shares at the price and on the terms and conditions specified in the New Shares Notice.
(d) If the Investors (together with their Affiliates) do not elect within the applicable notice period described above to exercise their Preemptive Rights with respect to any of the New Shares proposed to be sold by the Company, the Company shall have ninety (90) days after expiration of such notice period to sell such unsubscribed New Shares proposed to be sold by the Company, at a price and on terms no more favorable to the purchaser than those set forth in the New Shares Notice. If the Company does not consummate the sale of the unsubscribed New Shares in accordance with the terms of the New Shares Notice within such ninety (90)-day period, then the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies with the provisions of this Section 3.8 with respect to such New Shares.
(e) Each Investor (together with its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant to the Preemptive Right upon closing favor of the issuance to the Purchaser of the New SharesParticipation Portion (it being understood that no such issuance will be conditioned on the receipt of \\4140-6447-8783 v164123-4063-4962 v3 approval for issuance to the Purchaser of the applicable Participation Portion); provided that, and shall have no right to acquire such New Shares if shareholder approval of the issuance thereof to the Purchaser is not obtained, the applicable Participation Portion shall not automatically be consummateddecreased to one Equity Interest less than as would require shareholder approval pursuant to NYSE rules.
Appears in 1 contract
Samples: Convertible Note and Warrant Purchase Agreement (Terran Orbital Corp)
Preemptive Rights. (a) Subject In the event that after the date hereof the Company issues, or proposes to undertake an issuance of, New Securities (other than pursuant to an IPO or other underwritten Public Offering in which the Company requests the Investor follow the process described in Section 3.94.1(b) below), for so long as any it shall give the Investor Beneficially Owns Investor Shares representing at least five percent written notice not later than ten (5%10) of Business Days following the Outstanding Stock, such Investor shall have, the right to purchase, in accordance with the procedures set forth herein, its pro rata portion, calculated based on the number of Investor Shares held by such Investor as a percentage of the Outstanding Stock prior to issuance of the New Shares Securities (such Investor’s “Pro Rata Portion”) of any New Shares that the Company may, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive RightRights Notice”), describing the number and type of the New Securities, the Issue Price (if known) and the general terms upon which the Company issued or proposes to issue the same. The Investor shall have the right (but not the obligation) to elect to purchase all or any portion of the Investor Pro Rata Share for the Issue Price and upon the other terms specified in the Preemptive Rights Notice (which other terms shall, with respect to representations and warranties, closing conditions, indemnification and registration rights, be no less favorable than those granted to any other Person in connection with the applicable issuance) by giving irrevocable written notice to the Company not later than twenty-five (25) Business Days after the Preemptive Rights Notice is given (or, if later, five (5) Business Days following the determination of the Issue Price and other final terms as set forth in a supplement to the Preemptive Rights Notice). Subject to the last sentence of Section 6.2(a), the closing of the purchase by the Investor of all or any portion of the Investor Pro Rata Share pursuant to this Section 4.1(a) shall be the latest of (i) the closing of such issuance of New Securities, (ii) ten (10) Business Days after the delivery of the notice of election by the Investor, (iii) ten (10) Business Days after receipt of any necessary regulatory approvals, or (iv) such other date as the Company and the Investor agree.
(b) In connection with an IPO, if requested by the event Company, the Investor will (i) use commercially reasonable efforts to indicate to the Company its non-binding intention a reasonable period of time prior to the Company’s anticipated filing date of its initial Form S-1 with the SEC, and (ii) provide a binding (subject to the other provisions of this Section 4.1(b)) notice of election (the “IPO Election Notice”) as to its preemptive rights in connection with such IPO no later than three (3) days prior (the “IPO Election Deadline”) to when the preliminary prospectus used in connection with the IPO “roadshow” (the “Preliminary Prospectus”) is printed, provided that the Company proposes to issue and sell New Shares, the Company shall notify each of the Investors in writing with respect has delivered a written notice to the proposed New Shares to Investor specifying the price range that shall be issued reflected in the Preliminary Prospectus (the “New Shares Preliminary Price Range”) and number of Capital Securities anticipated to be reflected in such Preliminary Prospectus (the “IPO Preemptive Rights Notice”)) as early as is reasonably practicable and at least three (3) Business Days prior to the IPO Election Deadline. Each New Shares The IPO Election Notice shall set forth: shall
(i) indicate the Investor’s election as to the number of New Shares proposed it wishes to acquire (which may vary based on the price at which such Shares would be issued acquired within the Binding Price Range; provided, that the amount of Shares being acquired shall not exceed the Investor Pro Rata Share; and provided, further, that the Shares shall be acquired at the IPO Price), including in respect of any “green shoe” or similar supplemental offering being disclosed in the Preliminary Prospectus and the IPO Preemptive Rights Notice and (ii) be binding so long as (x) the final offering price (the “IPO Price”) is no higher than twenty percent (20%) above the high end of the Preliminary Price Range nor lower than ten percent (10%) below the low end of the Preliminary Price Range (the “Binding Price Range”), (y) the aggregate amount of proceeds of the IPO (based on the IPO Price multiplied by the number of Capital Securities sold by the Company and and/or the purchase price therefor; selling securityholders) is no higher than twenty percent (ii20%) each Investor’s Pro Rata Portion above the proceeds that would have been obtained by selling the number of such New Shares; Capital Securities reflected in the Preliminary Prospectus at the high end of the Preliminary Price Range and (iiiz) the IPO Price has been definitively determined within twenty (20) Business Days after the IPO Election Deadline; provided, that in the event any other material term of the conditions set forth in the foregoing clauses (includingx), if known(y) or (z) is not satisfied, the expected date of consummation Investor shall be entitled to revoke or revise its IPO Election Notice by no later than 48 hours or one Business Day (whichever is sooner) after the Company provides written notice to the Investor that one or more of the purchase and sale of the New Shares)foregoing conditions will not be satisfied.
(c) Each In the event the equity valuation of the Company implied by the IPO Price increases by more than 20% above the implied valuation at the high end of the Preliminary Price Range or decreases by more than 10% below the implied valuation at the low end of the Preliminary Price Range (regardless of whether the other parameters set forth in Section 4.1(b) are satisfied), the Company shall provide prompt written notice of such change to the Investor, and the Investor shall have forty-eight (together with 48) hours (and at least one (1) Business Day) from receipt of such notice to revoke or revise its AffiliatesIPO Election Notice.
(d) For the avoidance of doubt, (A) upon the Investor’s revocation of its IPO Election Notice pursuant to clause (x) or (y) of Section 4.1(b) or pursuant to Section 4.1(c), the Investor shall be deemed to have declined to exercise in full its right to purchase the Investor Pro Rata Share in the IPO based on the change in terms described therein, but if the Company subsequently materially changes the economic terms of the offering, the Investor shall be entitled to exercise its preemptive right to purchase New Shares by delivering an irrevocable within forty-eight (48) hours of written notice to from the Company within fifteen (15which shall include at least one (1) days from Business Day) of the date revised terms of the offering, and (B) the Investor’s purchase of all or a portion of its Investor Pro Rata Share hereunder shall instead be purchased at the IPO Price in a private placement pursuant to Section 4(a)(2) of or Regulation D under the Securities Act and subject to customary terms and conditions for such a private placement with a preexisting investor. The closing of the purchase of all or any portion of the Investor Pro Rata Share pursuant to this Section 4.1(b) shall be (1) the later of (x) the closing of such IPO and (y) two (2) Business Days after receipt of any necessary antitrust or regulatory approvals or (2) on such New Shares Notice specifying other date as the number Company and the Investor agree. For the avoidance of New doubt, any Shares to be subscribedacquired by the Investor pursuant to paragraphs (b), which in any event can (c), (d) and (e) of this Section 4.1 shall be no greater than such Investor’s Pro Rata Portion of such New Shares purchased at the price and on the terms and conditions specified in the New Shares NoticeIPO Price.
(de) If the Investors (together with their Affiliates) do not elect within the applicable notice period described above to exercise their Preemptive Rights with respect to any of the New Shares proposed to be sold by the Company, the Company shall have ninety (90) days after expiration of such notice period to sell such unsubscribed New Shares proposed to be sold by the Company, at a price and on terms no more favorable to the purchaser than those set forth in the New Shares Notice. If the Company does not consummate definitively price the sale IPO with the underwriters prior to expiration of the unsubscribed New Shares time period contemplated in accordance with clause (z) of Section 4.1(b), the terms of Sections 4.1(b)-(e) shall apply to any subsequent IPO.
(f) The Investor shall be entitled to designate one of its director designees to serve on any pricing or similar committee established in connection with any Public Offering (which, for the New Shares Notice within such ninety (90)-day periodavoidance of doubt, then shall count toward satisfaction of its right to designate one or more Investor Directors thereto as set forth in the Voting Agreement), and the Company may not issue shall keep the Investor reasonably informed of all material developments with respect to the pricing, sizing, structure and other relevant matters with respect to any Public Offering. The Investor shall be provided with copies of any valuation materials or sell analyses prepared for the Board and senior management of the Company in connection with a Public Offering.
(g) For underwritten Public Offerings other than an IPO, the Investor and the Company shall use commercially reasonable efforts to adhere to the procedures set forth in Section 4.1(b), with appropriate modifications depending on the timeline for such New Shares unless it sends a new New Shares Notice offering, and once again complies otherwise cooperate in order to permit disclosure of the Investor’s intentions with the provisions respect to its preemptive rights in connection therewith reasonably in advance of such underwritten Public Offering; provided, that no breach of this Section 3.8 with respect to such New Shares.
(e4.1(g) Each by the Investor (together with its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant give rise to, or operate as, a waiver of diminution of the Investor’s preemptive rights under this Section 4.1 except to the Preemptive Right upon closing of extent set forth in a binding notice delivered by the issuance of the New Shares, and shall have no right to acquire such New Shares if the issuance thereof shall not be consummatedInvestor in its sole discretion.
Appears in 1 contract
Preemptive Rights. (a) Subject Each Preferred Stockholder (the “Preemptive Participants”) shall have a preemptive right to purchase up to its Pro Rata Share (as defined in this Section 3.9, for so long as any Investor Beneficially Owns Investor Shares representing at least five percent (5%6(a)) of future sales by the Outstanding StockCompany of its equity securities issued for cash other than as provided in Section 6(c) below (“New Securities”). For each Preemptive Participant, such Investor shall have, the right to purchase, in accordance with the procedures set forth herein, its pro rata portion, calculated based on the number of Investor Shares held by such Investor as a percentage of the Outstanding Stock prior to issuance of the New Shares (such Investor’s “Pro Rata Portion”) of any New Shares Share” equals the ratio that the Company may, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive Right”).
(b) In the event that the Company proposes to issue and sell New Shares, the Company shall notify each of the Investors in writing with respect to the proposed New Shares to be issued (the “New Shares Notice”). Each New Shares Notice shall set forth: (i) the number of New Shares proposed to be issued shares of Common Stock issuable upon conversion of the Preferred Stock held by the Company and Preemptive Participant (plus the purchase price therefor; number of shares of Common Stock held by the Preemptive Participant if the Preemptive Participant is West Central or a member of the USBG Group), immediately prior to the sale of the New Securities bears to (ii) each Investor’s Pro Rata Portion the sum of the total number of shares of Common Stock issuable upon conversion of all shares of Preferred Stock outstanding and the total number of shares of Common Stock held by West Central and members of the USBG Group, immediately prior to the sale of the New Securities. Each time the Company proposes to offer any of its securities, the Company shall give written notice thereof to the Preemptive Participants stating (i) its bona fide intention to offer such securities, (ii) the number of such New Shares; securities to be offered, and (iii) any other material term the price and terms upon which the Company proposes to offer such securities (including, if known, the expected date of consummation of the purchase and sale of the New Shares“Offer Notice”).
(c) Each Investor (together with its Affiliates) shall be entitled to exercise its right to purchase New Shares . By written notification received by delivering an irrevocable written notice to the Company within fifteen ten (1510) days from after the date of receipt of any such New Shares Notice specifying the number of New Shares Offer Notice, a Preemptive Participant may elect to be subscribedpurchase, which in any event can be no greater than such Investor’s Pro Rata Portion of such New Shares at the price and on the terms and conditions specified in the New Shares Offer Notice.
(d) If , up to such holder’s Pro Rata Share and stating therein the Investors (together with their Affiliates) do not elect within the applicable notice period described above to exercise their Preemptive Rights with respect to any quantity of the New Shares proposed such securities to be sold by purchased. To the Companyextent any Preemptive Participant elects not to purchase such holder’s Pro Rata Share of New Securities, then such holder’s Pro Rata Share shall be allocated pro rata among the Company shall have ninety (90) days after expiration Preemptive Participants electing to purchase their Pro Rata Share of such notice period to sell such unsubscribed New Shares proposed to be sold by the Company, at Securities in a price and on terms no more favorable similar “as converted” basis to the purchaser than those set forth in the New Shares Notice. If the Company does not consummate the sale of the unsubscribed New Shares in accordance with the terms of the New Shares Notice within extent such ninety (90)-day period, then the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies with the provisions of this Section 3.8 with respect to such New Shares.
(e) Each Investor (together with its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected holders wish to purchase pursuant to the Preemptive Right upon closing of the issuance of the New Shares, and shall have no right to acquire such New Shares if the issuance thereof shall not be consummated.more than their full
Appears in 1 contract
Samples: Stockholder Agreement
Preemptive Rights. (a) Subject If the Corporation proposes to Section 3.9, for so long as issue any Investor Beneficially Owns Investor Shares representing at least five percent (5%) of the Outstanding Stock, such Investor shall haveNew Securities to any Person, the right Corporation shall, before such issuance, deliver to purchase, in accordance with the procedures Investors a written notice offering to issue to the Investors such New Securities upon the terms set forth herein, its pro rata portion, calculated based on the number of Investor Shares held by such Investor as a percentage of the Outstanding Stock prior to issuance of the New Shares in this Section 3.4 (such Investor’s “Pro Rata Portion”) of any New Shares that the Company may, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive RightOffer Notice”). The Preemptive Offer Notice shall state that the Corporation proposes to issue New Securities and shall set forth the number and terms and conditions (including the purchase price) of such New Securities. The offer (the “Preemptive Offer”) shall remain open and irrevocable for a period of ten (10) days (the “Preemptive Offer Period”) from the date of its delivery.
(b) In Each Investor may accept the event that the Company proposes to issue and sell New Shares, the Company shall notify each of the Investors in writing with respect Preemptive Offer by delivering to the proposed New Shares to be issued Corporation a notice (the “New Shares Purchase Notice”)) at any time during the Preemptive Offer Period. Each New Shares The Purchase Notice shall set forth: state the number (ithe “Preemptive Offer Number”) of New Securities such Investor desires to purchase. If the sum of all Preemptive Offer Numbers exceeds the number of New Shares proposed to Securities, the New Securities shall be issued by allocated among the Company and the purchase price therefor; (ii) each Investor’s Investors that delivered a Purchase Notice in accordance with their respective Pro Rata Portion of such New Shares; and (iii) any other material term (including, if known, the expected date of consummation of the purchase and sale of the New Shares)Amount.
(c) Each Investor (together with its Affiliates) The issuance of New Securities to the Investors who delivered a Purchase Notice shall be entitled to exercise its right to purchase New Shares made on a Business Day, as designated by delivering an irrevocable written notice to the Company within fifteen Investor not more than sixty (1560) days from after expiration of the date of receipt of any such New Shares Notice specifying the number of New Shares to be subscribed, which in any event can be no greater than such Investor’s Pro Rata Portion of such New Shares at the price and Preemptive Offer Period on the those terms and conditions specified in of the New Shares NoticePreemptive Offer not inconsistent with this Section 3.4.
(d) If the Investors (together with their Affiliates) do not elect within number of New Securities exceeds the applicable notice period described above to exercise their sum of all Preemptive Rights with respect Offer Numbers, the Corporation may issue such excess or any portion thereof on the terms and conditions set forth in the Preemptive Offer to any of the New Shares proposed to be sold by the Company, the Company shall have Person within ninety (90) days after expiration of such notice period to sell such unsubscribed New Shares proposed to be sold by the Company, at a price and on terms no more favorable to the purchaser than those set forth in the New Shares NoticePreemptive Offer Period. If the Company does such issuance is not consummate the sale of the unsubscribed New Shares in accordance with the terms of the New Shares Notice made within such ninety (90)-day 90-day period, then the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies with the provisions of restrictions provided for in this Section 3.8 with respect to such New Shares3.4 shall again become effective.
(e) Each For purposes of this Section 3.4, each Investor (together with may aggregate his, her or its Affiliates) shall take up and pay for any New Shares Pro Rata Amount among other Investors in his, her or its Group to the extent that such Investor (together with other Investors in his, her or its Affiliates) has elected Group do not elect to purchase pursuant to the Preemptive Right upon closing of the issuance of the New Shares, and shall have no right to acquire such New Shares if the issuance thereof shall not be consummatedtheir respective Pro Rata Amounts.
Appears in 1 contract
Preemptive Rights. (a) Subject to Section 3.9, for For so long as any the Investor Beneficially Owns Investor Shares representing at least five percent (5%) of the Outstanding StockDenominator Shares, such the Investor shall have, the right to purchase, in accordance with the procedures set forth herein, its pro rata portion, calculated based on the number of the Investor Shares held by such Investor as a percentage of the Outstanding Stock Denominator Shares prior to issuance of the New Shares (such the Investor’s “Pro Rata Portion”) of any New Shares that the Company may, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive Right”).
(b) In the event that the Company proposes to issue and sell New Shares, the Company shall notify each of the Investors Investor in writing with respect to the proposed New Shares to be issued (the “New Shares Notice”). Each New Shares Notice shall set forth: (i) the number of New Shares proposed to be issued by the Company and the purchase price therefor; (ii) each the Investor’s Pro Rata Portion of such New Shares; and (iii) any other material term (including, if known, the expected date of consummation of the purchase and sale of the New Shares).
(c) Each The Investor (together with its Affiliates) shall be entitled to exercise its right to purchase New Shares by delivering an irrevocable written notice to the Company within fifteen (15) days from the date of receipt of any such New Shares Notice specifying the number of New Shares to be subscribed, which in any event can be no greater than such the Investor’s Pro Rata Portion of such New Shares at the price and on the terms and conditions specified in the New Shares Notice.
(d) If the Investors Investor (together with their its Affiliates) do does not elect within the applicable notice period described above to exercise their its Preemptive Rights with respect to any of the New Shares proposed to be sold by the Company, the Company shall have ninety (90) days after expiration of such notice period to sell such unsubscribed New Shares proposed to be sold by the Company, at a price and on terms no more favorable to the purchaser than those set forth in the New Shares Notice. If the Company does not consummate the sale of the unsubscribed New Shares in accordance with the terms of the New Shares Notice within such ninety (90)-day period, then the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies with the provisions of this Section 3.8 3.6 with respect to such New Shares.. NY\6038815.13
(e) Each The Investor (together with its Affiliates) shall take up and pay for any New Shares that such the Investor (together with its Affiliates) has elected to purchase pursuant to the Preemptive Right upon closing of the issuance of the New Shares, and shall have no right to acquire such New Shares if the issuance thereof shall not be consummated.
Appears in 1 contract
Samples: Stockholders Agreement (CIFC Corp.)
Preemptive Rights. (a) Subject to Section 3.9In the event of any offering or other issuance of New Debt (as defined below) by the Company, for so long as any each Investor Beneficially Owns Investor Shares representing holding at least five percent $1,000,000 of Notes (5%) each an “Eligible Investor”), shall have the right to purchase or participate in a percentage of the Outstanding Stock, New Debt being offered that is equal to the percentage that the outstanding Notes owned by such Eligible Investor bears to the outstanding Notes owned by all Eligible Investors. An Eligible Investor shall be deemed to have waived its rights under this Section 5.2 if such Investor shall havehave not delivered to the Company its written election to purchase such securities within thirty (30) days of receipt of the Company’s notice of such offering or issuance describing the material terms thereof (such thirty (30) day period, the “Offer Period”). If any Eligible Investor fails to exercise its purchase or participation right pursuant to this Section 5.2, then each Eligible Investor exercising its purchase or participation right pursuant to this Section 5.2 shall have the right to purchase, purchase or participate in accordance with the procedures set forth herein, its pro rata portion, share (calculated based on the number proportion that the principal amount of Investor Shares held Notes owned by such participating Eligible Investor as a percentage bears to the principal amount of the Outstanding Stock prior to issuance Notes owned by all exercising Eligible Investors) of the New Shares (Debt as to which such Investor’s “Pro Rata Portion”) Eligible Investor failed to exercise such right. To the extent that there remains any portion of any New Shares that the Company may, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive Right”).
(b) In the event that the Company proposes to issue and sell New Shares, the Company shall notify each of the Investors in writing with respect to the proposed New Shares Debt as to be issued (the “New Shares Notice”). Each New Shares Notice shall set forth: (i) the number of New Shares proposed which Eligible Investors have not exercised their rights pursuant to be issued by the Company and the purchase price therefor; (ii) each Investor’s Pro Rata Portion of such New Shares; and (iii) any other material term (includingthis Section 5.2, if known, the expected date of consummation of the purchase and sale of the New Shares).
(c) Each Investor (together with its Affiliates) shall be entitled to exercise its right to purchase New Shares by delivering an irrevocable written notice to the Company within fifteen (15) days from the date of receipt of any such New Shares Notice specifying the number of New Shares to be subscribed, which in any event can be no greater than such Investor’s Pro Rata Portion of such New Shares at the price and on the terms and conditions specified in the New Shares Notice.
(d) If the Investors (together with their Affiliates) do not elect within the applicable notice period described above to exercise their Preemptive Rights with respect to any of the New Shares proposed to be sold by the Company, then the Company shall have ninety the right, until the expiration of one hundred eighty (90180) days after commencing upon the expiration of the Offer Period, to issue such notice period New Debt to sell such unsubscribed New Shares proposed to be sold by the Company, at a price and one or more Affiliates on terms no more favorable to the purchaser purchasers or participators thereof than those set forth the terms specified in the New Shares Notice. If Company’s notice of such offering to the Company does not consummate the sale of the unsubscribed New Shares in accordance with Investors, after which the terms of this Section 5.2 shall again apply to the New Shares Notice within such ninety (90)-day period, then the Company may not issue Company’s offering or sell issuance of such New Shares unless it sends a new New Shares Notice and once again complies with the provisions of this Section 3.8 with respect to such New SharesDebt.
(eb) Each Investor For purposes of this Agreement, the term “New Debt” shall mean debt securities, notes, loans or other rights or instruments (together with its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant to the Preemptive Right upon closing whether or not convertible into equity of the issuance Company) that represent Indebtedness (as defined in the Indenture) of the New SharesCompany or any of its Subsidiaries that is proposed to be issued to any Affiliate of the Company, and shall have no right to acquire such New Shares if including the issuance thereof shall not be consummatedXxxxxxx Parties.
Appears in 1 contract
Samples: Note Exchange Agreement (Accelerate Diagnostics, Inc)
Preemptive Rights. (a) Subject to Section 3.95.1(b), for so long as any Investor Beneficially Owns Investor Shares representing at least five percent (5%) of the Outstanding Stock, such Investor shall have, the right to purchase, in accordance with the procedures set forth herein, its pro rata portion, calculated based on the number of Investor Shares held by such Investor as a percentage of the Outstanding Stock prior to issuance of the New Shares (such Investor’s “Pro Rata Portion”) of any New Shares that the Company may, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive Right”).
(b) In the event that if the Company proposes to issue and sell New additional Common Stock of the Company, or of securities convertible into or exchangeable for or otherwise valued by reference to such Common Stock or carrying rights (including voting rights) equivalent to any class or series of Common Stock (such securities, the “Offered Shares”), the Company shall notify deliver to each of the Investors in writing with respect to the proposed New Shares to be issued Investor a written notice (the “New Shares Preemptive Rights Notice”). Each New Shares Notice ) of such proposed issuance at least 20 days prior to the date of the proposed issuance, which notice shall set forth: include (i) the number proposed issuance date, (ii) the material terms and conditions of New Shares the securities proposed to be issued by the Company and the purchase price therefor; (ii) each Investor’s Pro Rata Portion of such New Shares; and issued, (iii) any other the issue price per security and (iv) the material term (including, if known, the expected date of consummation terms and conditions of the purchase and sale issuance. Subject to Section 5.1(b), each Investor shall have the option, exercisable within 10 days following delivery of the New Shares).
(c) Each Investor (together with its Affiliates) shall be entitled to exercise its right to purchase New Shares Preemptive Rights Notice by delivering an irrevocable delivery of written notice to the Company within fifteen (15) days from the date of receipt of any such New Shares Notice specifying the number of New Shares Company, to be subscribed, which in any event can be no greater subscribe for not more than such Investor’s Pro Rata Portion Percentage Interest of such New Shares the securities to be issued at the price and on the terms and conditions specified per security set forth in the New Shares Notice.
(d) If the Investors (together with their Affiliates) do not elect within the applicable notice period described above to exercise their Preemptive Rights with respect to any of the New Shares proposed to be sold by the Company, the Company shall have ninety (90) days after expiration of such notice period to sell such unsubscribed New Shares proposed to be sold by the Company, at a price Notice and on terms no more favorable less beneficial to the purchaser than those set forth in the New Shares Preemptive Rights Notice. If In the event that any Investor does not elect to acquire its aggregate Percentage Interest of such securities, the Company does shall deliver a second notice, not consummate more than 15 days following the delivery of the Preemptive Rights Notice, to each of the Investors that elected to acquire its full Percentage Interest of securities (the “Participating Investors”), indicating the number of securities for which the other Investors did not subscribe. The Participating Investors may, by notice in writing to the Company on or prior to the 20th day following the delivery of the Preemptive Rights Notice, elect to acquire any or all of the remaining securities at the price per security set forth in the Preemptive Rights Notice and on terms no less beneficial to the purchaser than those set forth in the Preemptive Rights Notice, which securities shall be allocated among the Participating Investors based on their relative Percentage Interests.
(b) Section 5.1(a) shall not apply to (i) the issuance or grant of Common Stock of the Company, or of securities convertible into or exchangeable for or otherwise valued by reference to such Common Stock or carrying rights equivalent to any such securities to officers, directors or employees of the Company or any subsidiary thereof pursuant to any management equity rights plan or other equity-based employee benefits plan or arrangement that has been duly authorized by the Board; (ii) the issuance or sale of equity securities of the unsubscribed New Shares Company, or of securities convertible into or exchangeable for such securities or carrying rights equivalent to any such securities, in connection with an acquisition of a Person (other than an Affiliate of the Company) that has been duly authorized by the Board; (iii) the issuance of Common Stock in connection with the conversion or exercise of preferred stock, options, warrants or similar securities that have been issued in accordance with the terms of the New Shares Notice within such ninety (90)-day period, then the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies with the provisions of this Section 3.8 with respect to such New Shares.
5.1 or that are outstanding as of October 27, 2005; and (eiv) Each Investor (together with its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant to the Preemptive Right upon closing of the issuance of Common Stock in connection with the New Shares, and shall have no right to acquire such New Shares if the issuance thereof shall not be consummatedQualified IPO.
Appears in 1 contract
Preemptive Rights. (a) Subject Buyer shall have the rights set forth in this Section 6.5 as the holder of record and beneficially of shares of Company Stock. The rights set forth herein are in favor of Buyer and its successors and assigns, provided that any exercise procedures to be accomplished hereunder shall be performed by Buyer or its nominee and no other person may accomplish such procedures or seek to exercise the preemptive right set forth in this Section 3.9, for so long as any Investor Beneficially Owns Investor Shares representing at least five percent (5%) 6.5. Absent an express assignment of the Outstanding Stockrights of Buyer under this Section 6.5, such Investor no transfer by Buyer of shares of Company Preferred Stock or Company Common Stock shall affect the rights of Buyer hereunder.
(b) Buyer shall have, at any time and from time to time, the preemptive right to purchase, in accordance with the procedures set forth herein, its pro rata portion, calculated based on the number of Investor Shares held by such Investor as a percentage case of the Outstanding proposed issuance by the Company of, or the proposed granting by the Company of shares of, any class of Company Stock, or any rights to subscribe for or to purchase, or any options for the purchase of, Company Stock prior to issuance of or any stock or securities convertible into or exchangeable for Company Stock (including, without limitation, interests in the New Shares Operating Partnership) (such Investor’s “Pro Rata Portion”) of any New Shares that the Company may, from time to time, propose to sell and issue (rights or options being hereinafter referred to as "Options" and such convertible or exchangeable stock or securities being hereinafter referred to as "convertible securities"). Except upon the “Preemptive Right”).
(b) In occurrence on or before November 31, 1997, of an underwritten widely distributed offering of Company Common Stock at a price per share to the event public of not less than $11.3125, with not more than $150,000,000 in gross offering proceeds, on each occasion that the Company proposes to issue and sell New SharesCompany Stock, options, warrants or convertible securities, or any of the foregoing, the Company shall notify each give to Buyer prior written notice (the "Company Notice") of its intention, by first class mail, postage prepaid, addressed at its last address as shown by the records of the Investors Company describing the same, the price and the specific terms (or in writing with respect the context of an offering of Company Stock, convertible securities, warrants or options to the proposed New Shares to be issued (the “New Shares Notice”). Each New Shares Notice shall set forth: (ipublic, a range of price and terms) the number of New Shares proposed to be issued by upon which the Company and proposes to issue the purchase price therefor; (ii) each Investor’s Pro Rata Portion of such New Shares; and (iii) any other material term (including, if known, the expected date of consummation of the purchase and sale of the New Shares).
(c) Each Investor (together with its Affiliates) same. Buyer shall be entitled to exercise its right to purchase New Shares by delivering an irrevocable written notice to the Company within fifteen (15) days have 15 Business Days from the date of the receipt by Buyer of the Company Notice to deliver a notice (the "Rights Exercise Notice") notifying the Company of Buyer's intention to purchase all or a part of its pro rata share of shares or other securities represented by Company Stock, convertible securities, warrants or options, or any of the foregoing, in accordance herewith, for the price and upon the terms specified by the Company Notice, such New Shares Notice specifying the number of New Shares pro rata share to be subscribed19.9% (or, which in any the event can be no greater than such Investor’s Pro Rata Portion of such New Shares the widely distributed public offering on the schedule, at the price and on the terms and conditions specified in the New Shares Notice.
amount of gross offering proceeds noted above, such lesser percentage as Buyer shall hold immediately after such offering assuming no purchase by Buyer in such offering or hereunder in connection with such offering) reduced after completion of the public offering of Company Common Stock by Xxxxxx Bros., Inc. (d) If or such lesser percentage as may reflect the Investors (together with their Affiliates) do not elect within the applicable notice period described above to exercise their Preemptive Rights with respect to beneficial ownership of Buyer of such shares or securities or Company Stock, options, warrants or convertible securities, warrants or any of the New Shares foregoing, but assuming until March 19, 1999, that Buyer has purchased as at the Execution Closing all 2,737,000 shares of Company Preferred Stock the sale and purchase of which is the object of this Agreement, and assuming thereafter that Buyer is the holder of each and every outstanding share of Company Preferred Stock), and at a price or prices no less favorable to Buyer than the price or prices at which such Company Stock, convertible securities, options or warrants are proposed to be sold by offered for sale to others, less, in the Companyevent of any sale other than a public offering, the per unit amount of any placement fees or commissions, and provided, however, that the purchase of such Company Stock, convertible securities, warrants or options shall be consummated prior to the later of (i) 30 days after the date of the Rights Exercise Notice and (ii) the date that the Company consummates the issuance of the Company Stock, convertible securities, warrants or options described in the Company Notice. If, in connection with any proposed issue of Company Stock, convertible securities, warrants or options, the Buyer fails to exercise in full its preemptive right as set forth in this Section 6.5, then subject to the next following sentence, the Company shall have ninety may sell the unsold Company Stock, convertible securities, warrants or options at any time within 180 days (9060 days in the case of a public offering) days after expiration of such notice period to sell such unsubscribed New Shares proposed to be sold by the Company, thereafter at a price and on upon terms no more favorable to the purchaser purchasers thereof than those set forth specified in the New Shares Company Notice. If ; provided, that the Company does shall not consummate the sale sell or grant, or permit conversion under, any Company Stock, convertible securities, warrants or Options, or any of the unsubscribed New Shares foregoing, after such 180-day period (or 60-day period in accordance the case of a public offering) without renewed compliance with this Section 6.5; provided, further, that in the case of a widely distributed underwritten public offering of Company Stock, convertible securities, warrants or options, if in the good faith opinion of the Company and the underwriter, such renewed compliance by the Company with the terms procedural requirements hereunder (i.e., timing of notices, etc.) would otherwise materially impede the New Shares Notice within consummation of such ninety public offering, the parties agree to take such further action as may be reasonably necessary to effectuate such offering while preserving Buyer's substantive preemptive right hereunder.
(90)-day period, then the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies with the c) The provisions of this Section 3.8 6.5 shall not apply to any shares of any class of the Company Stock or convertible securities, warrants, options, or any of them, (i) issuable upon redemption of Operating Partnership Units, the conversion of any Company Preferred Stock, or upon exercise of the Warrants; (ii) issuable upon conversion of convertible securities or the exercise of options or warrants, or both, if Buyer was offered the opportunity to purchase such shares or securities, or convertible securities, warrants or options, or both, pursuant to this Section 6.5, and declined the same, or as to which Buyer was not given such opportunity by reason of the application of this Section 6.5; (iii) issuable in connection with respect stock splits, stock dividends or recapitalizations as to the effects of which adjustment will be made as provided elsewhere herein, or in the Certificate of Designation pertaining to the Company Preferred Stock; (iv) issuable to employees and prospective employees, directors and prospective directors, pursuant to any plan or pattern of employee or director equity participation set forth in Schedule 3.3(a); and (v) issuable upon acquisition of assets by the Operating Partnership in consideration for the issuance of Operating Partnership Units.
(d) Notwithstanding the foregoing, if and to the extent that Buyer is prevented or prohibited from the exercise in full or in part of its preemptive right to purchase any Company Stock, convertible securities, warrants or options, due to restrictions on the ownership by Buyer (or any group of holders with which such Buyer may be affiliated or may be deemed to be affiliated) of any thereof, whether under applicable Delaware law, or the Amended Company By-laws, or by reason of restrictions applicable for purposes of the Company's continued qualification as a REIT for purposes of the Code (the "Exercise Restriction"), such number of Company Stock, convertible securities, warrants or options required to be purchased pursuant to such New Sharespreemptive right shall automatically be reduced to such amount as to not exceed the Exercise Restriction, and Buyer from time to time thereafter may exercise such right up to an aggregate number of Company Stock, convertible securities, warrants or options as is equal to such reduction, subject always to the restrictions as aforesaid.
(e) Each Investor (together with its Affiliates) The rights of Buyer set forth in this Section 6.5 shall take up commence on the date hereof and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant to shall expire on the Preemptive Right upon closing fifth anniversary of the issuance of the New Sharesdate hereof, and except as to purchases as to which Buyer may make on a deferred basis under Section 6.5(d) which shall have no right to acquire such New Shares if the issuance thereof shall not be consummatedcontinue without time restriction.
Appears in 1 contract
Samples: Stock Purchase Agreement (Berkshire Realty Co Inc /De)
Preemptive Rights. (a) Subject From and after the Closing, the Company shall not sell any Common Stock or any securities exercisable or exchangeable for or convertible into, directly or indirectly, Common Stock (collectively, the “Preemptive Securities”) to Section 3.9, any Person unless the Company shall have first offered to sell to each Investor (for so long as any such Investor Beneficially Owns Investor Shares representing holds at least five percent (5%) 50% of the Outstanding Stock, such Investor shall have, the right to purchase, in accordance with the procedures set forth herein, its pro rata portion, calculated based on the number of Investor Shares held acquired by such Investor as hereunder) (each a percentage “Preemptive Holder”) such Preemptive Holder’s Preemptive Share of the Outstanding Stock prior to issuance of the New Shares (such Investor’s “Pro Rata Portion”) of any New Shares that the Company may, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive Right”).
(b) In the event that the Company proposes to issue and sell New Shares, the Company shall notify each of the Investors in writing with respect to the proposed New Shares to be issued (the “New Shares Notice”). Each New Shares Notice shall set forth: (i) the number of New Shares proposed to be issued by the Company and the purchase price therefor; (ii) each Investor’s Pro Rata Portion of such New Shares; and (iii) any other material term (including, if known, the expected date of consummation of the purchase and sale of the New Shares).
(c) Each Investor (together with its Affiliates) shall be entitled to exercise its right to purchase New Shares by delivering an irrevocable written notice to the Company within fifteen (15) days from the date of receipt of any such New Shares Notice specifying the number of New Shares to be subscribed, which in any event can be no greater than such Investor’s Pro Rata Portion of such New Shares at the price and on the terms and conditions specified in the New Shares Notice.
(d) If the Investors (together with their Affiliates) do not elect within the applicable notice period described above to exercise their Preemptive Rights with respect to any of the New Shares proposed to be sold by the Company, the Company shall have ninety (90) days after expiration of such notice period to sell such unsubscribed New Shares proposed to be sold by the CompanySecurities, at a price and on such other terms no as shall have been specified by the Company in writing delivered to each such Preemptive Holder (the “Preemptive Offer”) at the address set forth on the signature page hereto, which Preemptive Offer shall by its terms remain open and irrevocable for a period of at least fifteen business days from the date it is delivered by the Company (the “Preemptive Offer Period”). Each Preemptive Holder may elect to purchase all or any portion of such Preemptive Holder’s Preemptive Share of the Preemptive Securities as specified in the Preemptive Offer at the price and upon the terms specified therein by delivering written notice of such election to the Company as soon as practical but in any event within the Preemptive Offer Period; provided that if the Company is issuing Common Stock together as a unit with any debt securities or other equity securities, then any Preemptive Holder who elects to purchase the Preemptive Securities pursuant to this Section 7.12 must purchase the same proportionate mix of all of such securities.
(b) Each Preemptive Holder’s “Preemptive Share” of Preemptive Securities shall be determined as follows: the total number of Preemptive Securities, multiplied by a fraction, (i) the numerator of which is the number of shares of Common Stock that were purchased by such Preemptive Holder pursuant to this Agreement or pursuant to an exercise of a Warrant and that, in each case, continue to be held by such Preemptive Holder, and (ii) the denominator of which is the number of shares of Common Stock then issued and outstanding.
(c) Upon the expiration of the Preemptive Offer Period, the Company shall be entitled during the 180 day period following expiration of the Preemptive Offer Period to sell such Preemptive Securities which the Preemptive Holders have not elected to purchase on terms and conditions not materially more favorable to the purchaser purchasers thereof than those set forth in offered to the New Shares Notice. If Preemptive Holders.
(d) The provisions of this Section 7.12 shall not apply to the following issuances of Common Stock:
(i) Common Stock issued to employees, officers, directors and other service providers of or to the Company does not consummate the sale or any of the unsubscribed New Shares its Subsidiaries in accordance with the terms of the New Shares Notice within such ninety (90)-day period, then any applicable incentive plan of the Company may not issue approved by the Board;
(ii) Common Stock issued for consideration other than cash in connection with consulting, licensing, acquisition, equipment leasing, lending, merger or sell such New Shares unless it sends a new New Shares Notice and once again complies other business transactions;
(iii) Common Stock issued upon exercise of the Warrants; and
(iv) in connection with the provisions subdivision of this Section 3.8 with respect to such New Shares.
Common Stock (eincluding any split), any combination of Common Stock (including any reverse split, including the Reverse Split) Each Investor (together with its Affiliates) shall take up and pay for or any New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant to the Preemptive Right upon closing recapitalization, reorganization, reclassification or conversion of the issuance of the New Shares, and shall have no right to acquire such New Shares if the issuance thereof shall not be consummatedCompany.
Appears in 1 contract
Preemptive Rights. Subject to the terms and conditions of this Section 4.1 and applicable securities laws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to each Investor and Holdings.
(a) Subject The Company shall give notice (the “Offer Notice”) to Section 3.9each Investor and Holdings, for so long as any Investor Beneficially Owns Investor Shares representing at least five percent stating (5%i) of the Outstanding Stockits bona fide intention to offer such New Securities, such Investor shall have, the right to purchase, in accordance with the procedures set forth herein, its pro rata portion, calculated based on (ii) the number of Investor Shares held by such Investor as a percentage of New Securities to be offered, and (iii) the Outstanding Stock prior price and terms, if any, upon which it proposes to issuance of the offer such New Shares (such Investor’s “Pro Rata Portion”) of any New Shares that the Company may, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive Right”)Securities.
(b) In the event that the Company proposes to issue and sell New Shares, the Company shall notify each of the Investors in writing with respect to the proposed New Shares to be issued (the “New Shares Notice”). Each New Shares Notice shall set forth: (i) the number of New Shares proposed to be issued by the Company and the purchase price therefor; (ii) each Investor’s Pro Rata Portion of such New Shares; and (iii) any other material term (including, if known, the expected date of consummation of the purchase and sale of the New Shares).
(c) Each Investor (together with its Affiliates) shall be entitled to exercise its right to purchase New Shares by delivering an irrevocable written notice By notification to the Company within fifteen twenty (1520) days from after the date of receipt of any such New Shares Offer Notice specifying the number of New Shares is given, each Investor and Holdings may elect to be subscribedpurchase or otherwise acquire, which in any event can be no greater than such Investor’s Pro Rata Portion of such New Shares at the price and on the terms and conditions specified in the Offer Notice, up to that portion of such New Shares Notice.
Securities which equals the proportion that the Common Stock then held by such Investor and Holdings (dincluding all shares of Common Stock then issuable (directly or indirectly) If the Investors (together with their Affiliates) do not elect within the applicable notice period described above to exercise their Preemptive Rights with respect to any upon conversion and/or exercise, as applicable, of the New Shares proposed Preferred Stock and any other Derivative Securities then held by such Investor and Holdings) bears to be sold by the Companytotal Common Stock of the Company then outstanding (assuming full conversion and/or exercise, as applicable, of all Preferred Stock and any other Derivative Securities then outstanding). At the expiration of such twenty (20) day period, the Company shall have promptly notify each Investor and Holdings that elects to purchase or acquire all the shares available to it (each, a “Fully Exercising Investor”) of any other Investor’s or Holdings’ failure to do likewise. During the ten (10) day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which Investors and Holdings were entitled to subscribe but that were not subscribed for by the Investors and Holdings which is equal to the proportion that the Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Preferred Stock and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Preferred Stock and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares The closing of any sale pursuant to this Subsection 4.1(b) shall occur within the later of ninety (90) days after of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 4.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 4.1(b), the Company may, during the ninety (90) day period following the expiration of the periods provided in Section 4.1(b), offer and sell the remaining unsubscribed portion of such notice period New Securities to sell such unsubscribed New Shares proposed to be sold by the Company, any Person or Persons at a price not less than, and on upon terms no more favorable to the purchaser than offeree than, those set forth specified in the New Shares Offer Notice. If the Company does not consummate enter into an agreement for the sale of the unsubscribed New Shares Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Investors and Holdings in accordance with this Section 4.1.
(d) The preemptive rights in this Section 4.1 shall not be applicable (i) to Exempted Securities (as defined in the terms Certificate of Incorporation); (ii) to shares of Common Stock issued in or after the IPO, or (iii) to the issuance of shares of Preferred Stock to Additional Purchasers or the Initial Purchaser pursuant to Section 1.3 of the New Shares Notice within such ninety Purchase Agreement.
(90)-day periode) Notwithstanding any provision hereof to the contrary, then the Company may not issue New Securities to Holdings or sell such New Shares unless it sends a new New Shares Notice and once again complies any Investor without first complying with the provisions of this Section 3.8 with respect to 4.1; provided that following such issuance, (i) the Company give notice describing the type, price and terms of such New Shares.
(e) Each Investor (together with its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant Securities to the Preemptive Right upon closing of other Investors and Holdings to whom New Securities were not so issued within thirty (30) days after the issuance of the such New Shares, Securities and (ii) Holdings and each Investor to whom such New Securities were not issued shall have no right twenty (20) days from the date notice is given to acquire elect to purchase up to the number of New Securities that would, if purchased by such Investor or Holdings, maintain such Investor’s and Holdings’, as applicable, percentage ownership position, calculated as set forth in Section 4.1(b) before giving effect to the issuance of such New Shares if the issuance thereof shall not be consummatedSecurities.
Appears in 1 contract
Samples: Preferred Stock Purchase Agreement (Ondas Holdings Inc.)
Preemptive Rights. (a) Subject If the Company proposes to Section 3.9issue any Membership Interests to any Person in a transaction or transactions other than the Membership Interests attributable to the Capital Contributions made or agreed to be made by the Members pursuant to ARTICLE 4 as in effect on the date hereof, for so long as any Investor Beneficially Owns Investor Shares representing at least five percent each Member (5%other than a Defaulting Member) of the Outstanding Stock, such Investor shall have, have the right to purchasepurchase directly or through any Affiliate such portion of such Membership Interests sufficient to maintain such Member’s then Percentage Interest, in accordance with the procedures set forth herein, its pro rata portion, calculated based on the number of Investor Shares held by such Investor same terms and conditions as a percentage of the Outstanding Stock prior applied to issuance of the New Shares (such Investor’s “Pro Rata Portion”) of any New Shares that the Company may, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive Right”)all Persons purchasing Membership Interests.
(b) In the event of a proposed transaction or transactions, as the case may be, that would give rise to preemptive rights of the Company proposes to issue and sell New SharesMembers under Section 3.14(a), the Company shall notify each of the Investors in writing with respect to the proposed New Shares to be issued provide notice (the “New Shares Initial Notice”) to the Members no later than twenty (20) Business Days prior to the expected consummation of such transaction or transactions. Each Member shall provide notice of its election to exercise such rights within five (5) Business Days after delivery of such Initial Notice from the Company (each Member electing to exercise its preemptive right in such instance is referred to as an “Exercising Member”). Each New Shares The failure of a Member to respond to the Initial Notice shall set forth: (i) the number of New Shares proposed to be issued by the Company and the purchase price therefor; (ii) each Investor’s Pro Rata Portion of such New Shares; and (iii) any other material term (including, if known, the expected date of consummation of the purchase and sale of the New Shares).
(c) Each Investor (together with its Affiliates) shall be entitled to affirmatively exercise its preemptive right to purchase New Shares by delivering an irrevocable written notice to the Company within fifteen (15) days from the date of receipt of any such New Shares Notice specifying the number of New Shares to be subscribed, which in any event can be no greater than such Investor’s Pro Rata Portion of such New Shares at the price and on the terms and conditions specified in the New Shares Notice.
(d) If the Investors (together with their Affiliates) do not elect within the applicable notice period described above to exercise their Preemptive Rights with respect to any of the New Shares proposed to be sold by the Company, the Company shall have ninety (90) days after expiration of such notice period to sell such unsubscribed New Shares proposed to be sold by the Company, at a price and on terms no more favorable to the purchaser than those set forth in the New Shares Notice. If the Company does not consummate the sale of the unsubscribed New Shares in accordance with the terms of this Agreement and the New Shares Initial Notice within shall be deemed an election not to exercise its preemptive right in connection with such ninety proposed transaction or transactions.
(90)-day periodc) If a Member shall elect not to exercise its respective preemptive right, then the Company may Exercising Members shall have the right to purchase additional Membership Interests (a “Subsequent Purchase”), from those securities as to which no such right was exercised, on a pro rata basis insofar as more than one such Exercising Member desires to so purchase additional securities. In the event of a situation described in the preceding sentence in which a Member elects not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies with the provisions of this Section 3.8 to exercise its respective preemptive right with respect to a proposed transaction or transactions, the Company shall provide notice (the “Subsequent Notice”) of such New Shares.
fact within three (e3) Each Investor (together with its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant to Business Days following the Preemptive Right upon closing receipt of all of the issuance notices concerning such elections from the Members possessing such preemptive rights. Each Exercising Member shall respond to this Subsequent Notice by sending a response notice with respect thereto within three (3) Business Days after delivery of the New Shares, Subsequent Notice. The failure of an Exercising Member to respond to such Subsequent Notice and affirmatively exercise its preemptive right in accordance with the terms of this Agreement shall have no be deemed an election not to exercise its preemptive right to acquire in connection with such New Shares if the issuance thereof shall not be consummatedSubsequent Purchase.
Appears in 1 contract
Preemptive Rights. (a) Subject to Section 3.9, for so long as any Investor Beneficially Owns Investor Shares representing at least five percent (5%) Each holder of the Outstanding Stock, such Investor Series D Preferred Stock shall have, have the right to purchase, in accordance with the procedures set forth herein, purchase its pro rata portion, calculated based on the number of Investor Shares held by such Investor as a percentage of the Outstanding Stock prior to issuance of the New Shares (such Investor’s “Pro Rata Portion”) Amount of any New Shares Securities that the Company may, from time to time, propose to sell and issue. In the event the Company proposes to issue any New Securities, it shall give all holders of Series D Preferred Stock written notice, at their last addresses as they shall appear in the stock register, at least 20 Business Days before such issuance, describing the type of New Securities, the price and number of shares (hereinafter referred or principal amount) and the general terms upon which the Company proposes to issue the same. Each such holder shall have 20 Business Days from the date of receipt of any such notice to agree to purchase up to the amount of New Securities equal to such holder's Pro Rata Amount of such New Securities for the price and upon the general terms specified in the notice by giving written notice to the Company, at its principal office or such other address as may be specified by the “Preemptive Right”)Company in its written notice to the holders, of such holder's intention to purchase such New Securities at the initial closing of the sale of New Securities and the number of such New Securities that such holder intends to purchase.
(b) In the event that the Company proposes a holder of Series D Preferred Stock fails to issue and sell New Sharesexercise in full its right of participation within said 20 Business Day period as set forth in Section 8(a) above, the Company shall notify each have thirty (30) days thereafter to sell additional amounts of New Securities respecting which such holder's option was not exercised, at the Investors price and upon the terms specified in writing with respect the Company's notice. The Company shall not issue or sell any additional amounts of New Securities after the expiration of such 30-day period without first offering such securities to the proposed New Shares to be issued (holders of Series D Preferred Stock in the “New Shares Notice”). Each New Shares Notice shall set forth: (i) the number of New Shares proposed to be issued by the Company and the purchase price therefor; (ii) each Investor’s Pro Rata Portion of such New Shares; and (iii) any other material term (including, if known, the expected date of consummation of the purchase and sale of the New Shares)manner provided above.
(c) Each Investor (together with its Affiliates) shall be entitled to exercise its right to purchase New Shares by delivering an irrevocable written notice to the Company within fifteen (15) days from the date of receipt of any such New Shares Notice specifying the number of New Shares to be subscribed, which in any event can be no greater than such Investor’s Pro Rata Portion of such New Shares at the price and on the terms and conditions specified in the New Shares Notice.
(d) If the Investors (together with their Affiliates) do not elect within the applicable notice period described above to exercise their Preemptive Rights with respect to any of the New Shares proposed to be sold by the Company, the Company shall have ninety (90) days after expiration of such notice period to sell such unsubscribed New Shares proposed to be sold by the Company, at a price and on terms no more favorable to the purchaser than those The rights set forth in the New Shares Notice. If the Company does not consummate the sale of the unsubscribed New Shares in accordance with the terms of the New Shares Notice within such ninety (90)-day period, then the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies with the provisions of this Section 3.8 with respect to such New Shares8, including the notice provisions relating thereto, may be waived by the Requisite Holders.
(e) Each Investor (together with its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant to the Preemptive Right upon closing of the issuance of the New Shares, and shall have no right to acquire such New Shares if the issuance thereof shall not be consummated.
Appears in 1 contract
Preemptive Rights. (a) Subject Preemptive Rights in Connection with the Issuance of Class C Interests.
(i) The Company shall not issue or sell any Class C Interests pursuant to Section 3.93.3(b) hereof, for so long as any Investor Beneficially Owns Investor Shares representing at least five percent (5%) of the Outstanding Stock, such Investor shall have, the right to purchase, in accordance with the procedures set forth herein, its pro rata portion, calculated based on the number of Investor Shares held by such Investor as a percentage of the Outstanding Stock unless prior to the issuance or sale of such Class C Interests each Member holding Class C Interests shall have been given the New Shares opportunity (such Investor’s “Pro Rata Portion”) of any New Shares that the Company may, from time to time, propose to sell and issue (hereinafter opportunity being herein referred to as the “Cash Preemptive Right”) to purchase (on the same terms as such Cash Preemptive Right Interests are proposed to be sold) a proportion of such Class C Interests being issued or offered for sale by the Company equal to the ratio (expressed as a percentage) of such Member’s issued and outstanding Class C Interests as of the date of the Cash Preemptive Notice (as defined below) to all of the Company’s issued and outstanding Class C Interests on such date. For purposes of this Section 9.7(a), the “Cash Preemptive Right” shall not include or apply to (A) up to an aggregate of Class C Interests issuable pursuant to one or more employee equity plans or option plans, (B) Class C Interests issued in consideration of services provided by third party vendors and/or service providers, (C) Class C Interests issued in connection with a recapitalization, reclassification, stock split or other similar event, or (D) LLC Interests issued or sold pursuant to an IPO (if applicable).
(bii) At least thirty (30) days prior to the issuance or sale by the Company of any Class C Interests pursuant to Section 3.3(b) hereof, the Company shall give written notice thereof (the “Cash Preemptive Notice”) to each Member holding Class C Interests. The Cash Preemptive Notice shall specify (A) the total amount of capital proposed to be raised by the Company pursuant to the issuance or sale of Class C Interests, (B) the number of LLC Interests of such Class C Interests proposed to be issued or sold, (C) the price and other terms of their proposed issuance or sale, (D) the number of such Class C Interests which such Member is entitled to purchase (determined as provided in subsection 9.7(a)(i), above), and (E) the period during which such Member may elect to purchase such Class C Interests, which period shall extend for at least thirty (30) days following the receipt by such Member of the Cash Preemptive Notice (the “Cash Preemptive Acceptance Period”). Each Member that desires to purchase Class C Interests shall notify the Company within the Cash Preemptive Acceptance Period of the number of Class C Interests such Member wishes to purchase, as well as the number, if any, of additional Class C Interests such Member would be willing to purchase in the event that all of the Class C Interests subject to the Cash Preemptive Right are not subscribed for by the other applicable Members.
(iii) In the event that the Company proposes a Member declines to issue and sell New Shares, the Company shall notify each subscribe for all or any part of the Investors its portion (determined as provided in writing with respect Section 9.7(a)(i) above) of any Class C Interests which are subject to the proposed New Shares to be issued Cash Preemptive Right (the “New Shares NoticeDeclining Cash Preemptive Purchaser”). Each New Shares Notice ) during the Cash Preemptive Acceptance Period, then the other Members shall set forth: have the right to subscribe for all (ior any declined part) of the number Declining Cash Preemptive Purchaser’s portion of New Shares proposed such Class C Interests (to be issued by divided among the Company and the purchase price therefor; other Members desiring to exercise such right on a ratable basis (iias provided in Section 9.7(a)(i) each Investor’s Pro Rata Portion of such New Shares; and (iii) any other material term (including, if known, the expected date of consummation of the purchase and sale of the New Sharesabove)).
(civ) Each Investor (together with its Affiliates) shall be entitled to exercise its right Any such Class C Interest which none of the Members elect to purchase New Shares by delivering an irrevocable written notice to in accordance with the Company within fifteen (15provisions of this Section 9.7(a) days from the date of receipt of any such New Shares Notice specifying the number of New Shares to be subscribed, which in any event can be no greater than such Investor’s Pro Rata Portion of such New Shares at the price and on the terms and conditions specified in the New Shares Notice.
(d) If the Investors (together with their Affiliates) do not elect within the applicable notice period described above to exercise their Preemptive Rights with respect to any of the New Shares proposed to may be sold by the Company, the Company shall have ninety within a period of one hundred and eighty (90180) days after the expiration of such notice period the Cash Preemptive Acceptance Period, to sell such unsubscribed New Shares proposed to be sold by any other Person or Persons at not less than the Company, at a price and on upon other terms no more and conditions not less favorable to the purchaser Company than those set forth in the New Shares Cash Preemptive Notice. If the Company does not consummate the sale of the unsubscribed New Shares in accordance with the terms of the New Shares Notice within such ninety (90)-day period, then the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies with the provisions of this Section 3.8 with respect to such New Shares.
(e) Each Investor (together with its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant to the Preemptive Right upon closing of the issuance of the New Shares, and shall have no right to acquire such New Shares if the issuance thereof shall not be consummated.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Translink Management Development Corp)
Preemptive Rights. Subject to the terms and conditions of this Section 10.07 and applicable securities laws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to each Preferred Member. A Preferred Member shall be entitled to apportion the right of first offer hereby granted to it among itself and its Affiliates in such proportions as it deems appropriate.
(a) Subject The Company shall give notice (the “Offer Notice”) to Section 3.9each such Preferred Member, for so long as any Investor Beneficially Owns Investor Shares representing at least five percent stating (5%i) of the Outstanding Stockits bona fide intention to offer such New Securities, such Investor shall have, the right to purchase, in accordance with the procedures set forth herein, its pro rata portion, calculated based on (ii) the number of Investor Shares held by such Investor as New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities, including a percentage summary of the Outstanding Stock prior to issuance rights and privileges of the such New Shares (such Investor’s “Pro Rata Portion”) of any New Shares that the Company may, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive Right”)Securities.
(b) In the event that the Company proposes to issue and sell New Shares, the Company shall notify each of the Investors in writing with respect to the proposed New Shares to be issued (the “New Shares Notice”). Each New Shares Notice shall set forth: (i) the number of New Shares proposed to be issued by the Company and the purchase price therefor; (ii) each Investor’s Pro Rata Portion of such New Shares; and (iii) any other material term (including, if known, the expected date of consummation of the purchase and sale of the New Shares).
(c) Each Investor (together with its Affiliates) shall be entitled to exercise its right to purchase New Shares by delivering an irrevocable written notice By notification to the Company within fifteen twenty (1520) days from after the date of receipt of any Offer Notice is given, each such New Shares Notice specifying the number of New Shares Preferred Member may elect to be subscribedpurchase or otherwise acquire, which in any event can be no greater than such Investor’s Pro Rata Portion of such New Shares at the price and on the terms and conditions specified in the Offer Notice, up to that portion of such New Shares Notice.
Securities which equals the proportion that the Capital Units then held by such Preferred Member bears to the total number of Capital Units then held by all Members. At the expiration of such twenty (d20) If the Investors (together with their Affiliates) do not elect within the applicable notice period described above to exercise their Preemptive Rights with respect to any of the New Shares proposed to be sold by the Companyday period, the Company shall have promptly notify each Preferred Member that elects to purchase or acquire all the units available to it (each, a “Fully Exercising Preferred Member”) of any other Member’s failure to do likewise. During the ten (10) day period commencing after the Company has given such notice, each Fully Exercising Preferred Member may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of units specified above, up to that portion of the New Securities for which Preferred Members were entitled to subscribe but that were not subscribed for by the Investors which is equal to the proportion that the Capital Units then held, by such Fully Exercising Preferred Member bears to the Capital Units then held, by all Fully Exercising Preferred Members who wish to purchase such unsubscribed Capital Units. The closing of any sale pursuant to this Section 10.07(b) shall occur within the later of one hundred twenty (120) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Section 10.07(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 10.07(b), the Company may, during the ninety (90) days after day period following the expiration of the periods provided in Section 10.07(b), offer and sell the remaining unsubscribed portion of such notice period New Securities to sell such unsubscribed New Shares proposed to be sold by the Company, any Person or Persons at a price not less than, and on upon terms no more favorable to the purchaser than offeree than, those set forth specified in the New Shares Offer Notice. If the Company does not consummate enter into an agreement for the sale of the unsubscribed New Shares Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Preferred Members in accordance with the terms of the New Shares Notice within such ninety (90)-day period, then the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies with the provisions of this Section 3.8 with respect to such New Shares10.07.
(ed) Each Investor The covenants set forth in Sections 10.03, 10.04, 10.06 and 10.07 shall terminate and be of no further force or effect (together with its Affiliatesi) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant to immediately before the Preemptive Right upon closing consummation of the issuance IPO or (ii) upon a Change of the New SharesControl, and shall have no right to acquire such New Shares if the issuance thereof shall not be consummatedwhichever event occurs first.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Cullinan Oncology, LLC)
Preemptive Rights. (a) Subject If the Company shall propose to Section 3.9issue and sell any additional Investor Interests or any rights to subscribe for or purchase pursuant to any option or otherwise any Equity Securities in the Company to any Class A Investor or any of its Affiliates (collectively the “Additional Investor Interests”), for so long as or enter into any contracts relating to the issuance or sale of any Additional Investor Interests to any Investor Beneficially Owns Investor Shares representing at least five percent (5%) or any of the Outstanding Stockits Affiliates, such each other Class A Investor shall have, have the right to purchasepurchase that number of Additional Investor Interests at the same price and on the same other terms proposed to be issued and sold to such Class A Investor or any of its Affiliates, so that each such Class A Investor would, in accordance with the procedures set forth hereinaggregate, its pro rata portion, calculated based on after the number issuance or sale of all of such Additional Investor Shares held by Interests have the same Percentage Investor Interest in the Company as such Class A Investor as a percentage had in the Investor Interests of the Outstanding Stock Company prior to such issuance of the New Shares and sale (in each such Investor’s “Pro Rata Portion”) of any New Shares that the Company maycase, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive RightProportionate Percentage”). For the avoidance of doubt, to the extent a Warrant Holder (in its capacity as such) desires to exercise its preemptive rights under this Section 10.1, such Warrant Holder shall only have the right to purchase warrants to acquire its Proportionate Percentage of Additional Investor Interests.
(b) In The Company shall offer to sell to each Class A Investor its Proportionate Percentage of such Additional Investor Interests and to sell to each such Class A Investor such of the event that Additional Investor Interests as shall not have been subscribed for by the other Class A Investors as hereinafter provided, at the price and on the terms described above, which shall be specified by the Company proposes to issue and sell New Shares, in a written notice delivered by the Company shall notify Board to each of the Investors in writing with respect to the proposed New Shares to be issued Class A Investor (the “New Shares NoticePreemptive Offer”). Each New Shares Notice The Preemptive Offer shall set forth: by its terms remain open for a period of at least thirty (i30) days from the number of New Shares proposed to be issued by the Company and the purchase price therefor; (ii) each Investor’s Pro Rata Portion of such New Shares; and (iii) any other material term (including, if known, the expected date of consummation receipt thereof and shall specify the date on which the Additional Investor Interests will be sold to accepting Class A Investors (which shall be at least thirty (30) but not more than one hundred and eighty (180) days from the date of the purchase and sale of the New SharesPreemptive Offer).
(c) Each Class A Investor (together with its Affiliates) shall be entitled have the right, during the period of the Preemptive Offer, to exercise its right elect to purchase New Shares by delivering an irrevocable written notice to any or all of its Proportionate Percentage of the Company within fifteen (15) days from the date of receipt of any such New Shares Notice specifying the number of New Shares to be subscribed, which in any event can be no greater than such Investor’s Pro Rata Portion of such New Shares Additional Investor Interests at the purchase price and on the terms and conditions specified stated in the New Shares NoticePreemptive Offer. Notice by any such Class A Investor of its acceptance, in whole or in part, of a Preemptive Offer shall be irrevocable, in writing and signed by such Class A Investor and delivered to the Company no later than thirty (30) days following delivery of the Preemptive Offer, setting forth the amount of Additional Investor Interests such Class A Investor elects to purchase up to the amount determined pursuant to Sections 10.1(a) and 10.1(b) in respect of such Class A Investor.
(d) If Each Class A Investor shall have the Investors (together with their Affiliates) do not elect within the applicable notice period described above additional right to exercise their Preemptive Rights with respect offer in its Notice of Acceptance to purchase any of the New Shares proposed Additional Investor Interests not accepted for purchase by any other Class A Investors, in which event such Additional Investor Interests not accepted by such other Class A Investors shall be deemed to be sold have been offered to and accepted by the Company, the Company shall have ninety (90) days after expiration of Class A Investors exercising such notice period to sell such unsubscribed New Shares proposed to be sold by the Company, at a price and on terms no more favorable to the purchaser than those set forth in the New Shares Notice. If the Company does not consummate the sale of the unsubscribed New Shares in accordance with the terms of the New Shares Notice within such ninety (90)-day period, then the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies with the provisions of additional right under this Section 3.8 with respect to such New Shares.
(e) Each Investor (together with its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant to the Preemptive Right upon closing of the issuance of the New Shares, and shall have no right to acquire such New Shares if the issuance thereof shall not be consummated.paragraph 10.1
Appears in 1 contract
Samples: Limited Liability Company Agreement (Chicagoland Television News, LLC)
Preemptive Rights. (a) Subject to Section 3.9If, for so long as any Investor Beneficially Owns Investor Shares representing at least five percent (5%) of following the Outstanding StockClosing Date, such Investor shall have, the right to purchase, in accordance with the procedures set forth herein, its pro rata portion, calculated based on the number of Investor Shares held by such Investor as a percentage of the Outstanding Stock prior to issuance of the New Shares (such Investor’s “Pro Rata Portion”) of any New Shares that the Company may, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive Right”).
(b) In the event that the Company proposes to issue and sell New Company Shares, the Company shall notify each provide written notice (the "Preemptive Rights Notice") of the Investors in writing with respect such anticipated issuance to the proposed New Shares Investor (and any of its Permitted Transferees) no later than twenty (20) Business Days prior to be issued (the “New Shares Notice”)anticipated issuance date. Each New Shares The Preemptive Rights Notice shall set forth: (i) forth the number material terms and conditions of New Shares the issuance, including the proposed to be issued by the Company and the purchase price therefor; (ii) each Investor’s for the New Company Shares. The Investor and its Permitted Transferees shall have the right to purchase up to their Pro Rata Portion of such New Shares; and (iii) any other material term (including, if known, the expected date of consummation of the purchase and sale of the New Shares).
(c) Each Investor (together with its Affiliates) shall be entitled to exercise its right to purchase New Shares by delivering an irrevocable written notice to the Company within fifteen (15) days from the date of receipt of any such New Shares Notice specifying the number of New Shares to be subscribed, which in any event can be no greater than such Investor’s Pro Rata Portion of such New Shares at the price and on the terms and conditions specified in the Preemptive Rights Notice by delivering an irrevocable written notice to the Company no later than three (3) Business Days before the anticipated issuance date (the "Election Date") setting forth the number of such New Company Shares Noticefor which the right is exercised. In the event the Investor or any of its Permitted Transferees elects not to purchase its full Pro Rata Portion of New Company Shares, the Company shall allocate any remaining amount among the Investor and/or those Permitted Transferees (pro rata in accordance with the Company Shares then held by each such Investor or Permitted Transferee) who have indicated in writing a desire to purchase Company Shares in excess of their respective Pro Rata Portions.
(db) If In the Investors (together event the Investor or its Permitted Transferees does not purchase all such New Company Shares in accordance with their Affiliatesthe procedures set forth in Section 3.01(a) do not elect within the applicable notice period described above to exercise their Preemptive Rights with respect to any of the New Shares proposed to be sold by the CompanyElection Date, the Company shall have ninety sixty (9060) days after expiration of such notice period from the Election Date to sell such unsubscribed to other Persons the remaining New Company Shares proposed to be sold by at the Company, at a price and on the terms no more favorable to the purchaser than those set forth and conditions specified in the New Shares Preemptive Rights Notice. If the Company does not consummate the sale fails to sell such New Company Shares within sixty (60) days of the unsubscribed New Shares in accordance with the terms of the New Shares Notice within such ninety (90)-day periodElection Date, then the Company may shall not thereafter issue or sell any New Company Shares without first offering such New Company Shares unless it sends a new New Shares Notice and once again complies with the provisions of this Section 3.8 with respect to such New Shares.
(e) Each Investor (together with its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant to the Preemptive Right upon closing of Investor and its Permitted Transferees in the issuance of the New Shares, and shall have no right to acquire such New Shares if the issuance thereof shall not be consummatedmanner provided in Section 3.01(a).
Appears in 1 contract
Samples: Investor Rights Agreement (Biltmore Surgery Center Holdings Inc)
Preemptive Rights. (a) Subject to Section 3.9, for so long as any Investor Beneficially Owns Investor Shares representing at least five percent (5%) of the Outstanding Stock, such Investor shall have, the right to purchase, in accordance with the procedures set forth herein, its pro rata portion, calculated based on the number of Investor Shares held by such Investor as a percentage of the Outstanding Stock prior to issuance of the New Shares (such Investor’s “Pro Rata Portion”) of any New Shares that the Company may, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive Right”).
(bi) In the event that the Company Company, at the direction of the Management Board, proposes to issue and sell New Sharesany Additional Units, the Company shall notify first give each of Member a notice setting forth in reasonable detail the Investors in writing with respect to the price and other terms on which such Additional Units are proposed New Shares to be issued or sold, the terms of such Additional Units and the amount thereof proposed to be sold (the a “New Shares Preemptive Right Notice”). Each New Shares Notice Member shall set forth: (i) thereafter have the number of New Shares proposed to be issued preemptive right, exercisable by the Company and the purchase price therefor; (ii) each Investor’s Pro Rata Portion of such New Shares; and (iii) any other material term (including, if known, the expected date of consummation of the purchase and sale of the New Shares).
(c) Each Investor (together with its Affiliates) shall be entitled to exercise its right to purchase New Shares by delivering an irrevocable written notice to the Company within fifteen no later than twenty (1520) days following receipt of the Preemptive Right Notice, to purchase the portion of the Additional Units as shall be equal to (A) the aggregate Additional Units multiplied by (B) such Member’s Percentage Interest. The portion of such Additional Units such Member is entitled to purchase under this Section 2.2(e)(i) shall be referred to as its “Pro Rata Portion” and shall be set forth in such Member’s Preemptive Right Notice. Any notice by a Member exercising the right to purchase Additional Units pursuant to this Section 2.2(e)(i) shall constitute an irrevocable commitment to purchase from the date Company the Additional Units set forth in such notice. If, as contemplated by clause (ii) of receipt this Section 2.2(e), the Company shall issue or sell the remaining Additional Units to third parties, then the closing of the purchase by the Members shall take place at the same time as the closing of such issuance or sale to such third parties. If for any reason the Company shall not issue or sell Additional Units to any Persons other than the Members, then the closing of the purchase of the Additional Units by the Members shall take place on such New Shares Notice specifying date, no less than ten (10) and no more than thirty (30) days after the number expiration of New Shares the twenty (20) day period referred to be subscribedabove, which in as the Management Board may select.
(ii) In the event of a failure by any event can be no greater than such Investor’s Member to purchase all or any portion of its Pro Rata Portion of such New Shares at the price and on the terms and conditions specified in the New Shares Notice.
(d) If the Investors (together with their Affiliates) do not elect within the applicable notice period described above to exercise their Preemptive Rights with respect to any of the New Shares Additional Units proposed to be issued or sold by the CompanyCompany in the Preemptive Right Notice, any Member that has elected pursuant to Section 2.2(e)(i) above to purchase its entire Pro Rata Portion, may purchase its Percentage Interest (based on all of the Members, purchasing pursuant to this Section 2.2(e)) of the unpurchased Additional Units. In the event of a failure by the Members to purchase all or any portion of the Additional Units pursuant to Section 2.2(e)(i) and (ii), the Company shall have be entitled to issue or sell the remaining Additional Units on the terms set forth in the Preemptive Right Notice. From the expiration of the twenty (20) day period referred to in clause (e)(i) of this Section 2.2 and for a period of ninety (90) days after expiration of such notice period to sell such unsubscribed New Shares proposed to be sold by thereafter, the Company, at the direction of the Management Board, may offer, issue and sell to any Person, the remaining Additional Units having the terms set forth in the Preemptive Right Notice for a price and on other terms no more less favorable to the purchaser Company, and including no less cash, than those set forth in the New Shares Notice. If the Company does not consummate the sale of the unsubscribed New Shares Preemptive Right Notice (without deduction for reasonable underwriting, sales agency and similar fees payable in accordance with the terms of the New Shares Notice within such ninety (90)-day periodconnection therewith); provided, then however, that the Company may not issue or sell such New Shares unless it sends a new New Shares Additional Units in an amount greater than the amount set forth in the Preemptive Right Notice and once again complies with minus the provisions amount purchased or committed to be purchased by the Members upon exercise of their preemptive rights.
(iii) For purposes of this Section 3.8 with respect to such New Shares2.2(e), “Additional Units” means all Units sold by the Company after the date hereof, whether or not subsequently reacquired or retired by the Company, other than Units granted or issued upon conversion of any securities then outstanding convertible for or exchangeable into Units.
(e) Each Investor (together with its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant to the Preemptive Right upon closing of the issuance of the New Shares, and shall have no right to acquire such New Shares if the issuance thereof shall not be consummated.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Albertsons Companies, Inc.)
Preemptive Rights. (a) Subject Until the earlier of (i) the termination of this Agreement pursuant to Section 3.9Article IV hereunder or (ii) January 2, for so long 2010, if the Company proposes to sell any subordinated debt, Equity Securities or Derivative Securities (other than Excluded Shares) (all such securities, other than Excluded Shares, are referred to collectively herein as any Investor Beneficially Owns Investor Shares representing at least five percent (5%) of the Outstanding Stock, such Investor shall have“Additional Securities”), the right Company shall first give to purchaseeach Investor (and, in accordance only with respect to preferred shares, to any Holders) holding shares of Series B-1 Stock the procedures set forth herein, its pro rata portion, calculated based on the number of Investor Shares held by such Investor as a percentage of the Outstanding Stock prior to issuance of the New Shares opportunity (such Investor’s “Pro Rata Portion”) of any New Shares that the Company may, from time to time, propose to sell and issue (hereinafter opportunity being herein referred to as the “Preemptive Right”).
) to purchase (bon the same terms as such Additional Securities are proposed to be sold) In the event that same percentage of such Additional Securities proposed to be sold by the Company proposes to issue and sell New Shares, as equals the Company shall notify each of the Investors in writing with respect percentage equal to the proposed New Shares to be issued (the “New Shares Notice”). Each New Shares Notice shall set forth: quotient of (i) the number of New Shares shares of Common Stock into which the shares held by such Investor of Series B-1 Stock could be converted, divided by (ii) the sum of (A) all the outstanding shares of Common Stock of the Company and (B) the number of shares of Common Stock into which all the shares of Series B-1 Stock held by all Investors (and Holders, if applicable) could be converted; provided, however, that no Preemptive Rights shall apply (i) to any issuance of Additional Securities pursuant to a registration statement filed under the Securities Act; or (ii) any issuance of rights to all holders of Common Stock (or of all Voting Securities) of the Company.
(b) At least 20 days prior to the issuance by the Company of any Additional Securities, the Company shall give written notice thereof (the “Preemptive Notice”) to each Investor and Holders (if applicable). The Preemptive Notice shall specify (i) the name and address of the bona fide investor (if known) to whom the Company proposes to issue or sell Additional Securities, (ii) the total amount of capital to be raised by the Company pursuant to the issuance or sale of Additional Securities, (iii) the number of such Additional Securities proposed to be issued or sold, (iv) the price and other terms of the Additional Securities and of their proposed issuance or sale, (v) the number of such Additional Securities which such Investor is entitled to purchase (determined as provided in Section 3.2(a)), and (vi) the period during which such Investor may elect to purchase such Additional Securities, which period shall extend for at least 20 days following the receipt by such Investor or Holder, as applicable, of the Preemptive Notice (the “Preemptive Acceptance Period”). Each Investor who desires to purchase Additional Securities shall notify the Company within the Preemptive Acceptance Period of the number of Additional Securities he wishes to purchase, as well as the number, if any, of extra Additional Securities (“Extra Additional Securities”) he would be willing to purchase in the event that all of the Additional Securities subject to the Preemptive Right are not subscribed for by the Company other Investors and Holders (the purchase price therefor; (ii) each Investor’s Pro Rata Portion of such New Shares; and (iii) any other material term (including, if known, the expected date of consummation of the purchase and sale of the New Shares“Preemptive Acceptance Notice”).
(c) In the event an Investor or Holder, as applicable, declines to subscribe for all or any part of its pro rata portion of any Additional Securities which are subject to the Preemptive Right (the “Declining Preemptive Purchaser”) during the Preemptive Acceptance Period, then the other Investors or Holders, as applicable, shall have the right to subscribe for all (or any declined part) of such Declining Preemptive Purchaser’s pro rata portion of such Additional Securities (to be divided among the other Investors desiring to exercise such right on a ratable basis) (the “Overallotment Right”). Each Investor (together with its Affiliates) Investor’s Overallotment Right, if any, shall be entitled deemed to exercise its right to purchase New Shares by delivering an irrevocable written notice to the Company within fifteen (15) days from be exercised on the date of receipt of any such New Shares the Preemptive Acceptance Notice specifying the number of New Shares to be subscribed, which in any event can be no greater than such Investor’s Pro Rata Portion of such New Shares at the price and on the terms and conditions specified in the New Shares Noticeis given.
(d) If After the Investors (together with their Affiliates) do not elect within conclusion of the applicable notice period described above to exercise their Preemptive Acceptance Period, Additional Securities, less any Additional Securities for which Preemptive Rights with respect to any of the New Shares proposed to or Overallotment Rights are exercised, may be sold by the Company, within a period of 4 months after the Company shall have ninety (90) days after expiration of such notice period the Preemptive Acceptance Period, to sell such unsubscribed New Shares proposed to be sold by any other Person or Persons at not less than the Company, at a price and on upon other terms no more and conditions not less favorable to the purchaser Company than those set forth in the New Shares Preemptive Notice. If the Company does not consummate the sale of the unsubscribed New Shares in accordance with the terms of the New Shares Notice within such ninety (90)-day period, then the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies with the provisions of this Section 3.8 with respect to such New Shares.
(e) Each Investor (together with its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant to the Preemptive Right upon closing of the issuance of the New Shares, and shall have no right to acquire such New Shares if the issuance thereof shall not be consummated.
Appears in 1 contract
Samples: Investors’ Rights Agreement (First Union Real Estate Equity & Mortgage Investments)
Preemptive Rights. (a) Subject In addition to Section 3.9any rights provided to Holders in the Certificates of Designation, for so long until the earlier of (i) the termination of this Agreement pursuant to Article IV hereunder or (ii) January 2, 2010, if the Company proposes to sell any subordinated debt, Equity Securities or Derivative Securities (other than Excluded Shares) (all such securities, other than Excluded Shares, are referred to collectively herein as any Investor Beneficially Owns Investor Shares representing at least five percent (5%) of the Outstanding Stock, such Investor shall have“Additional Securities”), the right Company shall first give to purchaseeach Investor (and, in accordance only with respect to preferred shares, to any Holders) holding shares of Series C Stock the procedures set forth herein, its pro rata portion, calculated based on the number of Investor Shares held by such Investor as a percentage of the Outstanding Stock prior to issuance of the New Shares opportunity (such Investor’s “Pro Rata Portion”) of any New Shares that the Company may, from time to time, propose to sell and issue (hereinafter opportunity being herein referred to as the “Preemptive Right”).
) to purchase (bon the same terms as such Additional Securities are proposed to be sold) In the event that same percentage of such Additional Securities proposed to be sold by the Company proposes to issue and sell New Shares, as equals the Company shall notify each of the Investors in writing with respect percentage equal to the proposed New Shares to be issued (the “New Shares Notice”). Each New Shares Notice shall set forth: quotient of (i) the number of New Shares shares of Common Stock into which the shares held by such Investor of Series C Stock could be converted, divided by (ii) the sum of (A) all the outstanding shares of Common Stock of the Company and (B) the number of shares of Common Stock into which all the shares of Series C Stock held by all Investors (and Holders, if applicable) could be converted and (C) the number of shares of Common Stock into which all the shares of Series B-1 Stock could be converted; provided, however, that no Preemptive Rights shall apply (i) to any issuance of Additional Securities pursuant to a registration statement filed under the Securities Act; or (ii) any issuance of rights to all holders of Common Stock (or of all Voting Securities) of the Company.
(b) At least 20 days prior to the issuance by the Company of any Additional Securities, the Company shall give written notice thereof (the “Preemptive Notice”) to each Investor and Holders (if applicable). The Preemptive Notice shall specify (i) the name and address of the bona fide investor (if known) to whom the Company proposes to issue or sell Additional Securities, (ii) the total amount of capital to be raised by the Company pursuant to the issuance or sale of Additional Securities, (iii) the number of such Additional Securities proposed to be issued or sold, (iv) the price and other terms of the Additional Securities and of their proposed issuance or sale, (v) the number of such Additional Securities which such Investor is entitled to purchase (determined as provided in Section 3.2(a)), and (vi) the period during which such Investor may elect to purchase such Additional Securities, which period shall extend for at least 20 days following the receipt by such Investor or Holder, as applicable, of the Preemptive Notice (the “Preemptive Acceptance Period”). Each Investor who desires to purchase Additional Securities shall notify the Company within the Preemptive Acceptance Period of the number of Additional Securities he wishes to purchase, as well as the number, if any, of extra Additional Securities (“Extra Additional Securities”) he would be willing to purchase in the event that all of the Additional Securities subject to the Preemptive Right are not subscribed for by the Company other Investors and Holders (the purchase price therefor; (ii) each Investor’s Pro Rata Portion of such New Shares; and (iii) any other material term (including, if known, the expected date of consummation of the purchase and sale of the New Shares“Preemptive Acceptance Notice”).
(c) In the event an Investor or Holder, as applicable, declines to subscribe for all or any part of its pro rata portion of any Additional Securities which are subject to the Preemptive Right (the “Declining Preemptive Purchaser”) during the Preemptive Acceptance Period, then the other Investors or Holders, as applicable, shall have the right to subscribe for all (or any declined part) of such Declining Preemptive Purchaser’s pro rata portion of such Additional Securities (to be divided among the other Investors desiring to exercise such right on a ratable basis) (the “Overallotment Right”). Each Investor (together with its Affiliates) Investor’s Overallotment Right, if any, shall be entitled deemed to exercise its right to purchase New Shares by delivering an irrevocable written notice to the Company within fifteen (15) days from be exercised on the date of receipt of any such New Shares the Preemptive Acceptance Notice specifying the number of New Shares to be subscribed, which in any event can be no greater than such Investor’s Pro Rata Portion of such New Shares at the price and on the terms and conditions specified in the New Shares Noticeis given.
(d) If After the Investors (together with their Affiliates) do not elect within conclusion of the applicable notice period described above to exercise their Preemptive Acceptance Period, Additional Securities, less any Additional Securities for which Preemptive Rights with respect to any of the New Shares proposed to or Overallotment Rights are exercised, may be sold by the Company, within a period of 4 months after the Company shall have ninety (90) days after expiration of such notice period the Preemptive Acceptance Period, to sell such unsubscribed New Shares proposed to be sold by any other Person or Persons at not less than the Company, at a price and on upon other terms no more and conditions not less favorable to the purchaser Company than those set forth in the New Shares Preemptive Notice. If the Company does not consummate the sale of the unsubscribed New Shares in accordance with the terms of the New Shares Notice within such ninety (90)-day period, then the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies with the provisions of this Section 3.8 with respect to such New Shares.
(e) Each Investor (together with its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant to the Preemptive Right upon closing of the issuance of the New Shares, and shall have no right to acquire such New Shares if the issuance thereof shall not be consummated.
Appears in 1 contract
Samples: Investors' Rights Agreement (Winthrop Realty Trust)
Preemptive Rights. (aA) Subject to Section 3.9During the Investor Approval Period, for so long as other than upon (w) any Investor Beneficially Owns Investor Shares representing at least five percent (5%) of issuances from the Outstanding Stock, such Investor shall have, the right to purchase, Partnership's equity incentive plans in accordance with the procedures set forth herein, its pro rata portion, calculated based on the number of Investor Shares held by such Investor as a percentage of the Outstanding Stock prior to issuance of the New Shares (such Investor’s “Pro Rata Portion”) of any New Shares that the Company may, effect from time to time, propose (x) the conversion of the Class B Units, (y) adjustments pursuant to sell Section 5.12(b)(ix) or (z) the issuance of (1) General Partner Units pursuant to Section 5.2(b), (2) Units pursuant to the Unit Purchase Agreement, (3) the CEI Class B Units and (4) the CTPL Class B Units, the Partnership shall not issue or transfer any Equity Securities other than in compliance with this Section 5.12(b)(vii), Section 5.8 and Section 5.12(b)(ix). If at any time the Partnership wishes to issue or transfer to any Person any Equity Securities, the Partnership shall (hereinafter referred 1) promptly, but not later than ten (10) days prior to as the planned date of any such issuance or transfer, deliver a notice of such proposed issuance or transfer to the Purchaser (the “Preemptive RightEquity Securities Notice”) and (2) promptly deliver a notice to the Purchaser of approval of such issuance or transfer by the Board of Directors. The Equity Securities Notice shall include (x) a description of the Equity Securities, (y) the identity of the proposed recipient(s) of the Equity Securities if such proposed recipient(s) have been identified and (z) a description of the consideration and material terms and conditions upon which the proposed issuance or transfer is being made (provided, that in no event shall such terms and conditions include matters that would violate the Purchaser's rights pursuant to this Section 5.12(b)(vii)), together with a copy of any written agreements relating thereto.
(bB) In Beginning on the event Purchaser Class B Initial Funding Date, the Purchaser and the General Partner (in connection with the exercise of any rights of the General Partner pursuant to Section 5.8 (each an “Electing Party”) shall have an option for a period of three (3) Business Days from the date that the Company proposes to issue and sell New Shares, Board of Directors approves the Company shall notify each issuance of the Investors Equity Securities, which shall be no sooner than 13 days from the Equity Securities Notice, to elect to purchase, at the same price and on the same material terms and conditions as described in writing with respect the Equity Securities Notice, some or all of the offered Equity Securities in an amount up to the proposed New Shares Electing Party's Preemptive Share, by delivering to be issued (the “New Shares Notice”). Each New Shares Notice shall set forth: (i) Partnership irrevocable written notice within such period setting forth the number of New Shares proposed Equity Securities which the Purchaser and CEI wish to be issued by the Company purchase and an undertaking to pay in full at closing the purchase price therefor; (ii) each Investor’s Pro Rata Portion of for such New Shares; and (iii) any other material term (including, if known, the expected date of consummation of the purchase and sale of the New Shares)Equity Securities.
(cC) Each Investor If the General Partner does not exercise its right set forth in Section 5.8 and this Section 5.12(b)(vii) to purchase its Preemptive Share of the Equity Securities stated in the Equity Securities Notice, then the Purchaser shall have an option for a period of three (together with its Affiliates3) shall Business Days after the Purchaser's receipt of notice that the General Partner has not exercised all or any portion of such right to elect to purchase an additional amount of such Equity Securities up to the aggregate amount of offered Equity Securities not committed to be entitled purchased by the General Partner. The Purchaser desiring to exercise its right to purchase New Shares by delivering an option set forth in this Section 5.12(b)(vii)(C) shall deliver irrevocable written notice to the Company Partnership within fifteen such three (153) days from the date of receipt of any such New Shares Notice specifying Business Day period setting forth the number of New Shares Equity Securities which the Purchaser wishes to purchase and an undertaking to pay in full at closing the purchase price for such Equity Securities.
(D) The closing of the Equity Securities offered pursuant to the Equity Securities Notice shall occur concurrently with the closing of the offering contemplated in the Equity Securities Notice. The Purchaser shall pay the same amount per Equity Security that the Partnership would receive from the underwriters (to the extent the Equity Securities are contemplated being sold pursuant to an underwritten sale) in connection with any exercise of its preemptive rights pursuant to Section 5.8 and this Section 5.12(b)(vii).
(E) Any Equity Securities for which the Purchaser or the General Partner, as applicable, has not elected to purchase following the expiration of the applicable period(s) set forth in Section 5.12(b)(vii)(C) and Section 5.12(b)(vii)(D) may be subscribed, which in any event can be no greater than such Investor’s Pro Rata Portion of such New Shares at sold or transferred to the price and proposed recipient(s) on substantially the same terms and conditions specified set forth in the New Shares Notice.
(d) If Equity Securities Notice at any time during the Investors (together with their Affiliates) do not elect within the applicable notice period described above to exercise their Preemptive Rights with respect to any of the New Shares proposed to be sold by the Company, the Company shall have ending ninety (90) days after expiration termination of the later of such notice applicable period. Any Equity Securities that the Partnership desires to issue or transfer following such ninety (90) day period to sell such unsubscribed New Shares proposed to be sold by or not on substantially the Company, at a price same terms and on terms no more favorable to the purchaser than those conditions set forth in the New Shares Notice. If Equity Securities Notice must be offered to the Company does not consummate Purchaser and the sale of the unsubscribed New Shares in accordance General Partner and its Affiliates with a new Equity Securities Notice pursuant to the terms of the New Shares Notice within such ninety (90)-day period, then the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies with the provisions of this Section 3.8 with respect to such New Shares5.12(b)(vii).
(e) Each Investor (together with its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant to the Preemptive Right upon closing of the issuance of the New Shares, and shall have no right to acquire such New Shares if the issuance thereof shall not be consummated.
Appears in 1 contract
Samples: Unit Purchase Agreement (Cheniere Energy Partners, L.P.)
Preemptive Rights. (a) Subject to Section 3.9, for so long as 3.1 If at any Investor Beneficially Owns Investor Shares representing at least five percent (5%) of the Outstanding Stock, such Investor shall have, the right to purchase, in accordance with the procedures set forth herein, its pro rata portion, calculated based on the number of Investor Shares held by such Investor as a percentage of the Outstanding Stock prior to issuance of the New Shares (such Investor’s “Pro Rata Portion”) of any New Shares that the Company may, time and from time to time, propose for a period of three (3) years from the date of this Agreement, the Board of Directors authorizes the Company to sell and issue (hereinafter referred the "Sale"), solely for cash, shares of Common Stock (the "Shares"), or shares of preferred stock or other securities (the "Derivative Securities") that are exercisable for, convertible into or exchangeable for shares of Common Stock in a private placement transaction pursuant to as the “Preemptive Right”).
(b) In exemption from registration under Regulation D of the event that the Company proposes to issue and sell New SharesSecurities Act of 1933, the Company shall notify send a written notice to each Holder of such authorization (the "Notice of Preemptive Rights") offering the Holders the right to participate in such Sale. For purposes of this Section, a "Sale" shall not include (a) an issuance of Shares directly or underlying options or other rights granted to employees, consultants or directors under an agreement or an employee incentive plan or otherwise as incentives or compensation, (b) an issuance of Shares either directly or underlying Derivative Securities in whole or in part in consideration for services, (c) the issuance as part of an acquisition transaction or (d) an issuance to a party (other than the Holders or an affiliate of a Holder) whom the members of the Investors in writing with respect Board of Directors other than the Designees unanimously determine would be a strategically important stockholder; provided, however, that during the first 12 months of this Agreement the Company may only issue up to ten percent (10%) of its equity on a fully-diluted basis to such party.
3.2 The Notice of Preemptive Rights shall specify the proposed New total aggregate number of Shares to be issued (the “New Shares Notice”). Each New Shares Notice shall set forth: (i) the number of New Shares proposed to be issued by the Company and the purchase price therefor; (ii) each Investor’s Pro Rata Portion of such New Shares; and (iii) any other material term (includingissued, if known, the expected date of consummation of the purchase and sale of the New Shares).
(c) Each Investor (together with its Affiliates) shall be entitled to exercise its right to purchase New Shares by delivering an irrevocable written notice to the Company within fifteen (15) days from the date of receipt of any such New Shares Notice specifying the number of New Shares to be subscribed, which in any event can be no greater than such Investor’s Pro Rata Portion of such New Shares at the price and on the terms and conditions specified in the New Shares Notice.
(d) If the Investors (together with their Affiliates) do not elect within the applicable notice period described above to exercise their Preemptive Rights with respect to any of the New Shares proposed to be sold by the Company, the Company shall have ninety (90) days after expiration of such notice period to sell such unsubscribed New Shares proposed to be sold by the Company, at a price and on terms no more favorable to the purchaser than those set forth in the New Shares Notice. If the Company does not consummate the sale of the unsubscribed New Shares in accordance with the other terms of the New proposed Sale, the amount of Shares Notice within such ninety (90)-day period, then the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies with the provisions of this Section 3.8 with respect Derivative Securities to such New Shares.
(e) Each Investor (together with its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected which each Holder is entitled to purchase pursuant and the period during which the Holders may elect to the Preemptive Right upon closing of the issuance of the New Shares, and shall have no right to acquire such New Shares if the issuance thereof shall not be consummated.participate in the
Appears in 1 contract
Preemptive Rights. (a) Subject to Section 3.9, for so long as any Investor Beneficially Owns Investor Shares representing at least five percent (5%) of the Outstanding Stock, such Investor shall have, the right to purchase, in accordance with the procedures set forth herein, its pro rata portion, calculated based on the number of Investor Shares held by such Investor as a percentage of the Outstanding Stock prior to issuance of the New Shares (such Investor’s “Pro Rata Portion”) of any New Shares that If the Company may, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive Right”).
(b) In the event that or any subsidiary of the Company proposes to issue and sell New Shares, the Company shall notify each any shares of the Investors in writing with respect to the proposed New Shares to be issued capital stock or other equity securities (the “New Shares Notice”). Each New Shares Notice shall set forth: other than (i) issuances by a subsidiary of the number Company to the Company, (ii) issuances to persons that are not Affiliates of New Shares the Company, (iii) issuances to a third party lender in connection with a debt financing from such lender, (iv) issuances pursuant to the Approved Stock Plan, (v) issuances of Common Stock upon the exercise or conversion of options, warrants or convertible securities that were originally issued to non-Affiliates or pursuant to the Approved Stock Plan or (vi) issuances, if any, of Common Stock (or warrants or other rights to acquire the same or upon the exercise of any such warrants or rights), of up to an aggregate of 49% of the Company's Common Stock (on a fully diluted basis) to any holder of the Company's Series A Preferred Stock in consideration for any amendment to the Series A Preferred Stock Certificate of Designation or in consideration for such holder's agreement to participate in the Company's senior credit facility as contemplated and provided for in the Letter Agreements dated the date hereof among the Company, KCSN, TCW and Ares), each Stockholder shall have the right of first refusal to purchase a portion of such securities equal to such Stockholder's percentage interest in the Common Stock on a fully-diluted basis (giving effect to the exercise of all Vested Options and the conversion of all outstanding Notes) immediately prior to such issuance. The Company shall give each Stockholder at least 30 days' prior written notice of any such proposed issuance setting forth in reasonable detail the proposed terms and conditions thereof and shall offer to each Stockholder the opportunity to purchase such securities at the same price, on the same terms, and at the same time as the securities are proposed to be issued by the Company Company; provided, however, that if such securities are to be sold for non-cash consideration, the Board of Directors shall make a good faith determination of the fair value of such non-cash consideration and the purchase price therefor; (ii) each Investor’s Pro Rata Portion of such New Shares; and (iii) any other material term (including, if known, the expected date of consummation of the purchase and sale of the New Shares).
(c) Each Investor (together with its Affiliates) Stockholders shall be entitled to pay such value in cash. A Stockholder may exercise its right to purchase New Shares of first refusal by delivering delivery of an irrevocable written notice to the Company within fifteen (15) not more than 20 days from the date of receipt of any such New Shares Notice specifying the number of New Shares to be subscribed, which in any event can be no greater than such Investor’s Pro Rata Portion of such New Shares at the price and on the terms and conditions specified in the New Shares Notice.
(d) If the Investors (together with their Affiliates) do not elect within the applicable notice period described above to exercise their Preemptive Rights with respect to any after delivery of the New Shares Company's notice. The obligation of the Stockholders exercising their rights pursuant to this Section 8 to purchase and pay for securities shall be conditioned upon the consummation of the proposed to be sold issuance by the Company, the Company shall have ninety (90) days after expiration of such notice period to sell such unsubscribed New Shares proposed to be sold by the Company, at a price and on terms no more favorable to the purchaser than those set forth in the New Shares Notice. If the Company does not consummate the sale of the unsubscribed New Shares in accordance with the terms of the New Shares Notice within such ninety (90)-day period, then the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies with the provisions of this Section 3.8 with respect to such New Shares.
(e) Each Investor (together with its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant to the Preemptive Right upon closing of the issuance of the New Shares, and shall have no right to acquire such New Shares if the issuance thereof shall not be consummated.
Appears in 1 contract
Preemptive Rights. Until the earlier of (x) the first date on which less than 400,000 shares of Series C Preferred are outstanding (subject to adjustment for stock splits, combinations or reclassifications of the Series C Preferred) and (y) , 2012:
(a) Subject to Section 3.9, for so long as any Investor Beneficially Owns Investor Shares representing at least five percent (5%) of the Outstanding Stock, such Investor Each Holder shall have, have the right to purchase, in accordance with the procedures set forth hereinpro rata, its pro rata portion, calculated based on the number of Investor Shares held by such Investor as a percentage of the Outstanding Stock prior to issuance of the New Shares (such Investor’s “Pro Rata Portion”) portion of any New Shares Securities that the Company may, from time to time, propose Corporation proposes to sell and issue (hereinafter referred to as issue. Each Holder’s pro rata share of New Securities, for the “Preemptive Right”).
(b) In the event that the Company proposes to issue and sell New Sharespurposes of this right, the Company shall notify each of the Investors in writing with respect be equal to the proposed New Shares to be issued (the “New Shares Notice”). Each New Shares Notice shall set forth: ratio of (i) the number of shares of Common Stock into which the shares of Series C Preferred held by such Holder at the time the New Shares proposed to be issued Securities are offered are then convertible, divided by the Company and the purchase price therefor; (ii) the sum of (x) to the total number of then outstanding shares of Common Stock, plus (y) the number of shares of Common Stock then issuable upon all other then outstanding shares of Convertible Securities, including the Series C Preferred.
(b) If the Corporation proposes to issue New Securities, it shall give each Investor’s Pro Rata Portion Holder written notice of its intention, describing the type of New Securities, the price and the general terms and conditions upon which the Corporation proposes to issue the same. Each such Holder shall have ten calendar days from the giving of such New Shares; and (iii) any other material term (including, if known, the expected date of consummation of the notice to agree to purchase and sale its pro rata share of the New Shares).
(c) Each Investor (together with its Affiliates) shall be entitled to exercise its right to purchase New Shares by delivering an irrevocable written notice to the Company within fifteen (15) days from the date of receipt of any such New Shares Notice specifying the number of New Shares to be subscribed, which in any event can be no greater than such Investor’s Pro Rata Portion of such New Shares at Securities for the price and on upon the terms and conditions specified in the notice by giving written notice to the Corporation and stating therein the quantity of New Shares NoticeSecurities to be purchased.
(dc) If any of the Investors (together with their Affiliates) do not elect within the applicable notice period described above Holders fails to exercise their Preemptive Rights with respect its right under this Section 9 to purchase its pro-rata share of the New Securities within ten calendar days following the date of the first notice contemplated by Section 9(b), the Corporation shall have until the 90th day following such date to enter into a letter of intent or definitive agreement and a period of 90 days thereafter to sell any of the New Shares proposed to be sold by the Company, the Company shall have ninety (90) days after expiration Securities in respect of which such notice period to sell such unsubscribed New Shares proposed to be sold by the CompanyHolder’s rights were not exercised, at a price and on terms no more favorable to the purchaser purchasers thereof than those set forth specified in the New Shares NoticeCorporation’s notice to the Holders pursuant to Section 9(b). If the Company does Corporation has not consummate the sale entered into such a letter of the unsubscribed intent or agreement or sold such New Shares in accordance with the terms of the New Shares Notice Securities within such ninety (90)-day period, then the Company may Corporation shall not thereafter issue or sell any such New Shares unless it sends a new New Shares Notice and once Securities without again complies with first offering such securities to the provisions of Holders in the manner provided in this Section 3.8 with respect to such New Shares9.
(e) Each Investor (together with its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant to the Preemptive Right upon closing of the issuance of the New Shares, and shall have no right to acquire such New Shares if the issuance thereof shall not be consummated.
Appears in 1 contract
Samples: Securities Purchase Agreement (Taylor Capital Group Inc)
Preemptive Rights. (a) Subject Except as provided in Section 2.07(g) or Section 2.07(h), if the Company wishes to Section 3.9issue any Equity Securities to any Person or Persons (all such Equity Securities, for so long as any Investor Beneficially Owns Investor collectively, the “New Securities”), then the Company shall promptly deliver a written notice of intention to sell (the “Preemptive Rights Notice”) to each holder of Preemptive Shares representing at least five percent (5%) setting forth a description of the Outstanding Stock, such Investor shall haveNew Securities to be sold, the right proposed purchase price, the aggregate number of New Securities to be sold and the terms and conditions of sale. Upon receipt of the Preemptive Rights Notice, each holder of Preemptive Shares shall have the right, during the Acceptance Period, to elect to purchase, at the price and on the terms and conditions stated in accordance with the procedures set forth hereinPreemptive Rights Notice, its pro rata portion, calculated based on up to the number of Investor Shares held New Securities equal to the product of (i) such holder’s Preemptive Proportion, multiplied by such Investor as a percentage (ii) the aggregate number of the Outstanding Stock prior New Securities to issuance of be issued; provided, that if the New Securities consist of more than one class, series or type of Equity Securities, then any holder of Preemptive Shares (who elects to purchase such Investor’s “Pro Rata Portion”) New Securities pursuant to this Section 2.07 must purchase the same proportionate mix of all of such securities; provided, further, that if the New Securities are issued in connection with any New Shares that debt financing undertaken by the Company mayor any of its Subsidiaries and to which preemptive rights otherwise apply pursuant to this Section 2.07, from time then any Class A-1 Member, Class D Member, Class E Member, Class F Preferred Member, or Class G Preferred Member who elects to timepurchase such New Securities pursuant to this Section 2.07 must, propose to sell be eligible to receive such New Securities, participate in the underlying debt instrument for such financing (A) with and issue (hereinafter referred to on the same terms as the “other lenders thereunder and (B) in the same percentage as their Preemptive Right”)Proportion of New Securities that such Member wishes to purchase pursuant to this Section 2.07.
(b) In If one or more holders of Preemptive Shares do not elect to purchase their entire share of the event New Securities (such aggregate portion of New Securities that has not been so elected, the “Excess New Securities”), then the Company proposes to issue and sell New Shareswill offer, the Company shall notify each of the Investors in writing with respect to the proposed New Shares to be issued by written notice (the “New Shares Supplemental Preemptive Rights Notice”). Each , to each holder of Preemptive Shares who has elected to purchase his, her or its entire proportion of the New Shares Notice shall set forth: Securities allocated to such holder pursuant to Section 2.07(a) (the “Overallotment Investors”) the right to elect to purchase, at the price and on the terms and conditions stated in the Preemptive Rights Notice:
(i) up to such Overallotment Investor’s Second Preemptive Proportion of such Excess New Securities (the number of New Shares proposed to be issued by the Company and the purchase price therefor“First Overallotment Process”); and
(ii) each following completion of the First Overallotment Process, up to such Overallotment Investor’s Pro Rata Portion Remaining Preemptive Proportion of such Excess New Shares; and (iii) any other material term (including, if known, Securities that remain available for purchase following the expected date of consummation of the purchase and sale of the New Shares)First Overallotment Process.
(c) Each Investor (together with its AffiliatesAll elections under Section 2.07(a) shall and Section 2.07(b) must be entitled to exercise its right to purchase New Shares made by delivering an irrevocable written notice to the Company within fifteen (15) days from (or such later date determined by the date Board of Directors) after receipt by such holder of any such New Preemptive Shares of (as applicable) the Preemptive Rights Notice specifying or the number of New Shares to be subscribed, which in any event can be no greater than such Investor’s Pro Rata Portion of such New Shares at Supplemental Preemptive Rights Notice (the price and on the terms and conditions specified in the New Shares Notice“Acceptance Period”).
(d) If the Investors (together with their Affiliates) do holders of Preemptive Shares have not elect within the applicable notice period described above elected to exercise their Preemptive Rights with respect to any purchase all of the New Shares proposed to be sold by the CompanySecurities described in a Preemptive Rights Notice, then the Company shall have may, at its election, during the period of ninety (90) days after immediately following the expiration of such notice period the Acceptance Period therefor (or the expiration of the Acceptance Period relating to the Supplemental Preemptive Rights Notice, if the same is issued), sell such unsubscribed and issue any of the New Shares proposed Securities not elected for purchase pursuant to be sold by the Company, Section 2.07(a) and Section 2.07(b) to any Person(s) at a price and on upon terms and conditions no more favorable favorable, in the aggregate, to the purchaser such Person(s) than those set forth stated in the New Shares Preemptive Rights Notice. If .
(e) In the event the Company does has not consummate the sale of the unsubscribed New Shares in accordance with the terms of sold the New Shares Notice Securities to be issued within such ninety (90)-day 90) day period, then the Company shall not thereafter issue or sell any such New Securities without once again offering such securities to each holder of Preemptive Shares in the manner provided in Section 2.07(a) and Section 2.07(b).
(f) If a holder of Preemptive Shares elects to purchase any of the New Securities, payment therefor shall be made by wire transfer against delivery of such New Securities at the principal office of the Company within fifteen (15) days of such election unless a later date is mutually agreed between the Company and such holder of Preemptive Shares; provided, that if SoftBank elects to purchase any of the New Securities, to the extent necessary in order to accommodate the time required to call capital to purchase the Preemptive Shares, payment therefor shall be made by wire transfer against delivery of such New Securities at the principal office of the Company within thirty five (35) days of such election by SoftBank.
(g) Notwithstanding anything to the contrary in this Agreement, (i) no holder of Preemptive Shares shall have a right to purchase New Securities pursuant to this Section 2.07, if such purchase will, in the good faith determination of the Board of Directors, violate any applicable laws (whether or not such violation may be cured by a filing of a registration statement or any other special disclosure) and (ii) in lieu of offering any New Securities to any holder of Preemptive Shares prior to the time such New Securities are offered or sold to any other Person or Persons, the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies comply with the provisions of this Section 3.8 2.07 by first issuing New Securities to such other Person or Persons, and promptly after such issuance (or acceptance) (and, in any event, within thirty (30) days thereafter) making an offer to sell (or causing such other Person or Persons to offer to sell), to the holders of Preemptive Shares, New Securities in such a manner so as to enable such holders of Preemptive Shares to effectively exercise their respective rights pursuant to Section 2.07(a) and/or Section 2.07(b) with respect to their purchase, for cash, of such New Shares.
(e) Each Investor (together with its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected Securities as they would have been entitled to purchase pursuant to Section 2.07(a) and/or Section 2.07(b).
(h) Notwithstanding anything to the Preemptive Right upon closing contrary in this Section 2.07, the preemptive rights contained in this Section 2.07 shall not apply to:
(i) any Equity Securities issued pursuant to the funding of the issuance GM Commitment, the SoftBank Commitment and the Subsequent SoftBank Commitment;
(ii) any Equity Securities issued pursuant to Section 2.10 or 2.11;
(iii) any Class B Common Shares that may be issued to Participants and/or Employee Members, including upon the exercise or settlement of any Equity Award;
(iv) any Equity Securities issued in connection with an IPO (including pursuant to Section 9.10(c));
(v) any Equity Securities issued upon any subdivision, split, recapitalization, reclassification, combination or similar reorganization; and
(vi) any Equity Securities (including any Class H Common Shares) issued in connection with any merger, consolidation, acquisition for stock, business combination, purchase of assets or business(es) of, or any similar extraordinary transaction with a third party (each, an “M&A Transaction”); provided that the value (measured as of the New Sharesdate of issuance) of such Equity Securities issued by the Company pursuant to the exemption set forth in this Section 2.07(h)(iv) does not exceed an aggregate of $250,000,000 with respect to any individual calendar year (it being understood that in the event such $250,000,000 cap is exceeded in any given calendar year, and shall have no right the preemptive rights contained in this Section 2.07 will apply (subject to acquire the other limitations set forth in this Agreement) solely with respect to that portion of Equity Securities issued in excess of such New Shares if the issuance thereof shall not be consummatedcap in such calendar year).
Appears in 1 contract
Samples: Limited Liability Company Agreement (General Motors Co)
Preemptive Rights. (a) Subject to Section 3.9, for so long as any Investor Beneficially Owns Investor Shares representing at least five percent (5%) of the Outstanding Stock, such Investor shall have, the right to purchase, in accordance with the procedures set forth herein, its pro rata portion, calculated based on the number of Investor Shares held by such Investor as a percentage of the Outstanding Stock prior to issuance of the New Shares (such Investor’s “Pro Rata Portion”) of any New Shares that If the Company may, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive Right”).
(b) In the event that the Company proposes desires to issue and sell New Sharesany additional shares of common stock or preferred stock, the Company shall notify each or any rights, options or warrants to purchase said common or preferred stock, or securities that are, or may become, convertible into said common or preferred stock, in exchange for cash (other than (i) in or following a Qualified Public Offering, (ii) shares of the Investors in writing with respect to the proposed New Shares common stock or preferred stock to be issued (the “New upon conversion or exchange of Preferred Shares Notice”). Each New or Common Shares Notice shall set forth: (i) the number of New Shares proposed to be issued by the Company and the purchase price therefor; (ii) each Investor’s Pro Rata Portion of such New Shares; and (iii) or any other material term convertible or exercisable security (including, if known, the expected date of consummation of the purchase and sale of the New Shares).
(c) Each Investor (together with its Affiliates) shall be entitled which issuance was subject to exercise its right to purchase New Shares by delivering an irrevocable written notice to the Company within fifteen (15) days from the date of receipt of any such New Shares Notice specifying the number of New Shares to be subscribed, which in any event can be no greater than such Investor’s Pro Rata Portion of such New Shares at the price and on the terms and conditions specified in the New Shares Notice.
(d) If the Investors (together with their Affiliates) do not elect within the applicable notice period described above to exercise their Preemptive Rights with respect to any of the New Shares proposed to be sold by the Company, the Company shall have ninety (90) days after expiration of such notice period to sell such unsubscribed New Shares proposed to be sold by the Company, at a price and on terms no more favorable to the purchaser than those set forth in the New Shares Notice. If the Company does not consummate the sale of the unsubscribed New Shares in accordance with the terms of the New Shares Notice within such ninety (90)-day period, then the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies with the provisions of this Section 3.8 4.7), or (iii) shares of common stock to be issued or other securities issuable or issued upon the exercise of any of the options or warrants described in Section 2.2 of the Subscription Agreement dated December 30, 1997, as amended, or similar options or warrants for the purchase of up to a maximum of four million (4,000,000) shares of Series A Common Stock, the Company shall give written notice thereof (the "Transaction Notice") to each Stockholder, describing the kind and number of securities to be issued, the price and all other material terms and conditions of the issuance and sale not later than twenty (20) business days prior to the consummation of such proposed issuance and sale. Each Stockholder shall have fifteen (15) business days from the date the Transaction Notice is deemed given as herein provided to agree to purchase or obtain on the same terms and conditions as the issuance and sale described in the Transaction Notice such amount of common stock or preferred stock, as the case may be, as will permit such Stockholder to maintain its respective percentage ownership of Shares (measured on an as-converted to Common Shares basis) prior to such issuance and sale by giving as herein provided written notice within such 15-business day period to the Company of its desire to do so, which notice shall constitute the irrevocable agreement of such Stockholder to so purchase or obtain, subject to the consummation of the transaction described in the Transaction Notice. Any purchase pursuant to such notice shall be consummated simultaneously with and subject to the consummation of the transaction described in the Transaction Notice, provided, however, that in the event the purchase of such securities is subject to any regulatory approval, the purchase and sale shall not be consummated until five business days following the date on which such approval shall have been obtained. Any Stockholder that shall fail to deliver a timely notice indicating its desire to purchase Shares pursuant to this Section 4.7 or shall fail to consummate the purchase in accordance with the preceding sentence, shall be deemed to have waived all pre-emptive rights under this Section 4.7 with respect to such New Shares.
(e) Each Investor (together with its Affiliates) shall take up the issuance and pay for sale described in the Transaction Notice. Notwithstanding anything to the contrary herein, each Stockholder hereby waives any New Shares that such Investor (together with its Affiliates) has elected to purchase and all pre-emptive or similar rights it, he or she may have pursuant to the Preemptive Right upon closing of Constitutional Documents or this Agreement or otherwise with respect to the issuance of up to 7,000,000 Shares pursuant to the New SharesSubscription Agreement or pursuant to the Company's Series F Subscription Agreement dated June 4, and 1999. The Company shall have no right cause any purchasers of any equity securities (or securities convertible into or exchangeable for equity securities) of the Company which may be issued prior to acquire or after the Closing to waive such New purchaser's pre-emptive rights with respect to the transactions contemplated by the Subscription Agreement (including with respect to any Common Shares if or Preferred Shares issuable upon the issuance thereof shall not be consummatedconversion or exchange of any Shares issued thereunder or upon the exercise of any options issued thereunder).
Appears in 1 contract
Preemptive Rights. (a) Subject to Section 3.93(e), for so long as any Investor Beneficially Owns Investor Shares representing at least five percent each Member shall have a non-transferable right (5%subject to Section 21 hereof) of first refusal (the Outstanding Stock, such Investor shall have, the right to purchase, in accordance with the procedures set forth herein, its pro rata portion, calculated based on the number of Investor Shares held by such Investor as a percentage of the Outstanding Stock prior to issuance of the New Shares (such Investor’s “Pro Rata PortionPreemptive Right”) of to purchase any New Shares Securities that the Company mayor any Subsidiary of the Company, as the case may be, may from time to time, propose to issue and sell but only to the extent, in the case of a Subsidiary, such issuance and issue sale would result in the Company directly or indirectly holding less than 100% of the equity securities of such Subsidiary. Such Preemptive Right shall allow each Member to purchase its Pro Rata Portion (hereinafter referred which shall be determined immediately prior to as the delivery of the New Issue Notice of the New Securities) proposed to be issued and sold by the Company or any such Subsidiary (an “Preemptive RightIssuer”).
(b) In the event that the Company an Issuer proposes to issue and sell undertake an issuance or sale of New SharesSecurities, the Company Issuer shall notify give each Member written notice of the Investors in writing with respect to the proposed New Shares to be issued its intention (the “New Shares Issue Notice”). Each New Shares Notice shall set forth: (i) , describing the type and number of New Shares proposed Securities the Issuer intends to be issued by the Company and issue, the purchase price therefor; therefor (ii) each Investorwhich shall be payable solely in cash by such Member), and the terms and conditions upon which the Issuer proposes to issue the same. Each Member shall have 15 days following the date the New Issue Notice is received by such Member to determine whether to purchase all or any portion of such Member’s Pro Rata Portion of such New Shares; and (iii) any other material term (including, if known, the expected date of consummation of Securities for the purchase and sale of the New Shares).
(c) Each Investor (together with its Affiliates) shall be entitled to exercise its right to purchase New Shares by delivering an irrevocable written notice to the Company within fifteen (15) days from the date of receipt of any such New Shares Notice specifying the number of New Shares to be subscribed, which in any event can be no greater than such Investor’s Pro Rata Portion of such New Shares at the price and on upon the terms and conditions specified in the New Shares NoticeIssue Notice by giving written notice (the “New Issue Response”) to the Issuer stating therein the number of New Securities to be purchased.
(dc) If the Investors (together with their Affiliates) do Members have not elect within the applicable notice period described above agreed to exercise their Preemptive Rights with respect to purchase all or any portion of the New Shares proposed Securities to be sold by the Company, the Company shall have ninety (90) days after expiration of such notice period to sell such unsubscribed New Shares proposed to be sold by the Company, at a price and on terms no more favorable to the purchaser than those set forth in the New Shares Notice. If the Company does not consummate the sale of the unsubscribed New Shares issued in accordance with the terms of the any New Shares Notice within such ninety (90)-day periodIssue Notice, then the Company may not Issuer shall have the right to issue or and sell all such New Shares unless it sends Securities not agreed to be purchased by the Members pursuant to Section 3(b) hereof (the “Remaining New Securities”) at a new price no less than that contained in the New Shares Issue Notice and once again complies upon non-price terms and conditions that are no less favorable (taken as a whole) to the Issuer than those contained in the New Issue Notice; provided that (i) the Issuer has fully complied with the provisions of this Section 3.8 3 and (ii) such issuance and sale of Remaining New Securities is fully consummated by the Issuer within 210 days after the sending of the New Issue Notice to the Members pursuant to Section 3(b) hereof. In the event that the issuance and sale of the Remaining New Securities is not fully consummated by the Issuer prior to the end of such 210-day period, the provisions of this Section 3 must again be complied with respect by the Issuer before the Issuer may issue or sell any additional New Securities.
(d) Notwithstanding anything in this Section 3 to such the contrary but subject to Section 7.1(d) of the Bye-Laws, the purchase price for any New SharesSecurities shall be determined by the Board or the board of directors of the issuing Subsidiary, as the case may be; provided that, for the avoidance of doubt, any purchases of New Securities by the Members pursuant to this Section 3 shall be at the same price and upon non-price terms and conditions that are no less favorable (taken as a whole) to the Members that those of any concurrent issuance of similar New Securities by the Issuer to any other Person, if any, pursuant to Section 3(c) hereof.
(e) Each Investor (together with its AffiliatesIn the event the Issuer is offering New Securities in an underwritten offering, then the rights set forth in Sections 3(a) to 3(d) shall take up not apply and pay the Issuer shall use its commercially reasonable efforts to provide each Member with the right to purchase its Pro-Rata Portion of such New Securities, in accordance with procedures to be reasonably determined by the Issuer after consultation with the underwriters for any New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant to the Preemptive Right upon closing of the issuance of the New Shares, and shall have no right to acquire such New Shares if the issuance thereof shall not be consummatedoffering.
Appears in 1 contract
Samples: Agreement Among Members (Third Point Reinsurance Ltd.)
Preemptive Rights. (a) Subject For the purposes of this Section 4, “Excluded Issuance” shall mean (i) the issuance of shares of any Equity Securities (including upon exercise of options) to Section 3.9directors, for so long as any Investor Beneficially Owns Investor Shares representing at least five percent (5%) officers, employees, consultants or other agents of the Outstanding StockCompany as approved by the Board in connection with their employment or performance of services, such Investor shall have(ii) the issuance of any Equity Securities in connection with any “business combination” (as defined in the rules and regulations promulgated by the SEC) or otherwise in connection with bona fide acquisitions of securities or substantially all of the assets of another Person, the right to purchasebusiness unit, division or business, in accordance with each case, to the procedures set forth hereinsellers in such transaction as consideration thereof, its pro rata portion(iii) the issuance of any securities pursuant to the conversion, calculated based on redemption or exchange of Preferred Stock issued to the number Investor and (iv) the issuance of Investor Shares held by such Investor as any shares of a percentage subsidiary of the Outstanding Stock prior Company to issuance the Company or a wholly owned subsidiary of the New Shares (such Investor’s “Pro Rata Portion”) of any New Shares that the Company may, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive Right”)Company.
(b) In For so long as the event that Investor Amount is at least 50%, if the Company proposes to issue and sell New SharesEquity Securities of any kind, other than in an Excluded Issuance, then the Company shall:
(i) give written notice to the Investor no less than five (5) Business Days prior to the closing of such issuance or, if the Company reasonably expects such issuance to be completed in less than five (5) Business Days, such shorter period (which shall notify each be as given as promptly as commercially practicable but in any event not less than three (3) Business Days prior to such closing), setting forth in reasonable detail (A) the designation and all of the Investors in writing with respect to material terms and provisions of the securities proposed New Shares to be issued (the “New Shares NoticeProposed Securities”). Each New Shares Notice , including, to the extent applicable, the voting powers, preferences and relative participating, optional or other special rights, and the qualifications, limitations or restrictions thereof and interest rate and maturity, (B) the price and other terms of the proposed sale of such securities and (C) the amount of such securities proposed to be issued; provided that, following the delivery of such notice, the Company shall set forthdeliver to the Investor any such information the Investor may reasonably request in order to evaluate the proposed issuance, except that, in connection with a public offering, the Company shall not be required to deliver any information that has not been or will not be provided or otherwise made available to the proposed purchasers of the Proposed Securities; and
(ii) offer to issue and sell to the Investor, on such terms as the Proposed Securities are issued and upon full payment by the Investor, a portion of the Proposed Securities equal to a percentage determined by dividing: (ix) the number of New Shares proposed to be issued shares of Common Stock beneficially owned, on an as-converted basis, by the Company and Investor, by (y) the purchase price therefor; (ii) each Investor’s Pro Rata Portion total number of such New Shares; and (iii) any other material term (including, if known, shares of Common Stock outstanding immediately prior to the expected date of consummation issuance of the purchase and sale of the New Shares)Proposed Securities, on an as-converted basis.
(c) Each The Investor (together with its Affiliates) shall be entitled to exercise its right to purchase New Shares will have the option exercisable by delivering an irrevocable written notice to the Company within fifteen (15) days from Company, to accept the Company’s offer and commit to purchase any or all of the Equity Securities offered to be sold, which notice must be given on or prior to the Business Day immediately prior to the date of receipt the closing of any such New Shares Notice specifying the number of New Shares to be subscribed, which in any event can be no greater than such Investor’s Pro Rata Portion issuance of such New Shares Equity Securities (or, if notice of all such terms has not been given prior to the Business Day immediately prior to the such closing date, at any time prior to such closing date) (the failure of the Investor to respond within such time period shall be deemed a waiver of its rights under this Section 4 with respect to the applicable issuance of Equity Securities). Such notice to the Company shall constitute a binding commitment by the Investor to purchase the amount of Equity Securities so specified at the price and other terms set forth in the Company’s notice to the Investor. The closing of the exercise of such subscription right shall take place simultaneously with the closing of the sale of the Proposed Securities giving rise to such subscription right; provided, however, that the closing of any purchase by the Investor may be extended beyond the closing of the sale of the Proposed Securities giving rise to such preemptive right to the extent necessary to (i) obtain required approvals from any Governmental Entity or (ii) permit the Investor to receive proceeds from calling capital pursuant to commitments made by its (or its Affiliated investment funds’) limited partners. Upon the expiration of the offering period described above, the Company will be free to sell such Proposed Securities that the Investor has not elected to purchase during the 120 days following such expiration on the terms and conditions specified no more favorable to the purchasers thereof than those offered to the Investor in the New Shares Noticenotice delivered in accordance with this Section 4. Any Proposed Securities offered or sold by the Company after such 120-day period must be reoffered to issue or sell to the Investor pursuant to this Section 4.
(d) If The election by the Investors (together with their Affiliates) do Investor not elect within the applicable notice period described above to exercise their Preemptive Rights with respect its subscription rights under this Section 4 in any one instance shall not affect its right as to any of the New Shares subsequent proposed to be sold by the Company, the Company shall have ninety (90) days after expiration of such notice period to sell such unsubscribed New Shares proposed to be sold by the Company, at a price and on terms no more favorable to the purchaser than those set forth in the New Shares Notice. If the Company does not consummate the sale of the unsubscribed New Shares in accordance with the terms of the New Shares Notice within such ninety (90)-day period, then the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies with the provisions of this Section 3.8 with respect to such New Sharesissuance.
(e) Each If the proposed issuance by the Company of securities which gave rise to the exercise by the Investor (together with of its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase preemptive rights pursuant to this Section 4 shall be terminated or abandoned by the Preemptive Right upon closing of Company without the issuance of any securities, then the New Sharespurchase rights of the Investor pursuant to this Section 4 shall also terminate as to such proposed issuance by the Company (but not any subsequent or future issuance), and shall have no right any funds in respect thereof paid to acquire such New Shares if the issuance Company by the Investor in respect thereof shall not be consummatedrefunded in full.
(f) In the case of an issuance subject to this Section 4 for consideration in whole or in part other than cash, including securities acquired in exchange therefor (other than securities by their terms so exchangeable), the consideration other than cash shall be deemed to be the fair market value thereof as reasonably determined in good faith by the Board.
Appears in 1 contract
Samples: Investment Agreement
Preemptive Rights. (a) Subject to Section 3.9, for so long as any Investor Beneficially Owns Investor Shares representing at least five percent (5%) Until the consummation of the Outstanding Stock, such Investor shall havea Public Offering, the right Company shall not issue, nor shall it permit any Subsidiary to purchaseissue, any New Securities except in accordance with the procedures set forth hereinfollowing terms:
(a) Before any New Securities are issued, its pro rata portion, calculated based on the Company shall first deliver to each Investor Member a written notice (the "Notice of Proposed Issuance") specifying the type and total number of Investor Shares held by such Investor as a percentage of the Outstanding Stock prior to issuance of the New Shares (such Investor’s “Pro Rata Portion”) of any New Shares Securities that the Company may, from time then intends to time, propose to sell and issue (hereinafter referred the "Offered New Securities"), all of the terms, including the price upon which the Offered New Securities are proposed to as be issued and stating that each Investor Member shall have the “Preemptive Right”)right to purchase such Investor Member's Proportionate Share of the Offered New Securities in the manner specified in this Article VIII for the same price per share and in accordance with the same terms and conditions specified in such Notice of Proposed Issuance.
(b) In During the event that thirty (30) consecutive day period commencing on the date the Company proposes delivers to issue all of the Investor Members the Notice of Proposed Issuance (the "Thirty Day Period") in accordance with Section 8.1(a), each Investor Member shall have the option to purchase such Investor Member's Proportionate Share of the Offered New Securities at the same price per share and sell upon the same terms and conditions specified in the Notice of Proposed Issuance. Each Investor Member electing to purchase Offered New Shares, Securities must give written notice of its election to the Company shall notify each prior to the expiration of the Investors in writing with respect to the proposed New Shares to be issued (the “New Shares Notice”). Each New Shares Notice shall set forth: (i) the number of New Shares proposed to be issued by the Company and the purchase price therefor; (ii) each Investor’s Pro Rata Portion of such New Shares; and (iii) any other material term (including, if known, the expected date of consummation of the purchase and sale of the New Shares)Thirty Day Period.
(c) Each Investor (together with its Affiliates) Member shall be entitled to exercise its have the right to purchase that number of the Offered New Shares by delivering an irrevocable written notice Securities as shall be equal to the Company within fifteen (15) days from the date of receipt of any such New Shares Notice specifying the number of the Offered New Securities multiplied by a fraction, the (i) numerator of which shall be the number of Common Shares to then held by such Investor Member and (ii) the denominator of which shall be subscribed, which in any event can be no greater than the aggregate number of Common Shares Deemed Outstanding at such Investor’s Pro Rata Portion time. The amount of such Offered New Shares at the price and on the terms and conditions specified in the New Shares NoticeSecurities that each Investor Member is entitled to purchase under this Section 8.1(c) is referred to as such Investor Member's "Proportionate Share".
(d) If Each Investor Member shall have a right of oversubscription such that if any other Investor Member fails to purchase such other Investor Member's full Proportionate Share of the Investors (together with Offered New Securities, the other Investor Member(s) shall, among them, have the right to purchase up to the balance of such Offered New Securities not so purchased. The Investor Members may exercise such right of oversubscription by indicating their Affiliates) do not elect within desire to purchase more than their Proportionate Share of Offered New Securities in their written notice given prior to the applicable notice period described above expiration of the Thirty Day Period. If, as a result thereof, such oversubscription exceeds the total number of the Offered New Securities available in respect to exercise their Preemptive Rights such oversubscription privilege, the oversubscribing Investor Members shall be cut back with respect to any oversubscriptions, pro rata based on their respective Proportionate Shares or as they may otherwise agree among themselves.
(e) If some or all of the Offered New Shares proposed to be sold Securities have not been purchased by the CompanyInvestor Members pursuant to Section 8.1 (a)-(d), then the Company shall have the right, until the expiration of ninety (90) days after commencing on the first day immediately following the expiration of the Thirty Day Period, to enter into a definitive agreement to issue such notice period remaining Offered New Securities to sell such unsubscribed New Shares proposed to be sold by the Companyone or more third parties at not less than, at a price and on terms no more favorable to the purchaser purchasers thereof than those set forth the price and terms specified in the New Shares NoticeNotice of Proposed Issuance. If for any reason the Company does not consummate enter into a definitive agreement to issue such Offered New Securities within such period and at such price and on such terms (or if the sale of issuance contemplated by such definitive agreement is not subsequently consummated), the unsubscribed New Shares right to issue in accordance with the terms Notice of Proposed Issuance shall expire and the provisions of this Agreement shall continue to be applicable to the Offered New Securities.
(f) The Investor Member purchasing the greatest percentage of the Offered New Shares Notice within Securities shall set the place, time and date for the consummation of the purchase of the Offered New Securities (a "Closing"), which closing shall occur not more than five (5) days after the first day immediately following the expiration of the Thirty Day Period. The purchase price for the Offered New Securities shall, unless otherwise agreed in writing by the parties to such ninety (90)-day periodtransaction, then be paid in immediately available funds on the date of the Closing. At the Closing, the Investor Members shall deliver the consideration required by Section 8.1(b) and the Company shall deliver any documents or instruments, if applicable, representing the Offered New Securities.
(g) The Company may not issue or sell proceed with the issuance of New Securities without first following procedures in Section 8.1(a) - (f) above, provided that (i) the purchaser of such New Shares unless it sends a new Securities agrees in writing to take such New Shares Notice and once again complies with Securities subject to the provisions of this Section 3.8 with respect to 8.1(g), and (ii) within ten (10) days following the issuance of such New SharesSecurities, the Company or the purchaser of the New Securities undertakes steps substantially similar to those in Section 8.1(a) - (f) above to offer to all Investor Members the right to purchase from such purchaser a pro rata portion of such New Securities at the same price and terms applicable to the purchaser's purchase thereof so as to achieve substantially the same effect from a dilution protection standpoint as if the procedures set forth in Section 8.1(a) - (f) had been followed prior to the issuance of such New Securities.
(eh) Each The rights under this Section 8.1 may be waived in whole or in part as to all of the Investor (together Members with its Affiliates) the consent of the Majority Investors if none of the Investor Members comprising such Majority Investors is purchasing New Securities in the transaction subject to such waiver; and any such waiver consented to by such Majority Investors shall take up and pay for be binding upon all of the Investor Members, whether or not any New Shares that such Investor (together with its Affiliates) Member has elected agreed to purchase pursuant to the Preemptive Right upon closing of the issuance of the New Shares, and shall have no right to acquire waive such New Shares if the issuance thereof shall not be consummatedInvestor Member's rights under this Section 8.1.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Consolidated Communications Texas Holdings, Inc.)
Preemptive Rights. (a) Subject The Corporation shall not issue, sell or exchange, agree to Section 3.9issue, sell or exchange, or reserve or set aside for so long as issuance, sale or exchange, any Offered Securities unless in each case the Corporation shall have first offered to sell to each Investor Beneficially Owns Investor Shares representing at least five percent (5%) an amount of the Outstanding Stock, such Offered Securities equal to that amount of Offered Securities which such Investor shall havewould be entitled to purchase based on such Investor's Equity Percentage, on the right to purchase, in accordance with the procedures terms set forth herein. Each Investor may delegate its rights and obligations with respect to such Offer to one or more Affiliates, its pro rata portion, calculated based on which Affiliates shall thereafter also be deemed to be the number "Investor" for the purpose of Investor Shares held by applying this Section 2.3 to such Investor as a percentage of the Outstanding Stock prior to issuance of the New Shares (such Investor’s “Pro Rata Portion”) of any New Shares that the Company may, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive Right”)Offer.
(b) In the event that the Company proposes The Corporation shall deliver to issue and sell New Shares, the Company shall notify each Investor written notice of the Investors in writing with respect offer to sell the proposed New Shares to be issued Offered Securities, specifying the price and terms and conditions of the offer (the “New Shares Notice”"Offer"). Each New Shares Notice The Offer by its terms shall set forth: remain open and irrevocable for a period of twenty (i) 20 days from the number of New Shares proposed to be issued by the Company and the purchase price therefor; (ii) each Investor’s Pro Rata Portion of such New Shares; and (iii) any other material term (including, if known, the expected date of consummation of its delivery to such Investor (the purchase and sale of the New Shares"20-Day Period").
(c) Each Investor (together with shall evidence its Affiliates) shall be entitled intention to exercise its right to purchase New Shares accept the Offer, in whole or in part, by delivering an irrevocable a written notice to the Company within fifteen (15) days from the date of receipt of any such New Shares Notice specifying signed by an Investor setting forth the number of New Shares shares of the Offered Securities that such Investor elects to purchase (the "Notice of Acceptance"). The Notice of Acceptance must be subscribed, which in any event can be no greater than such Investor’s Pro Rata Portion delivered to the Corporation prior to the end of such New Shares at the price and on the terms and conditions specified in the New Shares Notice20-Day Period.
(d) If an Investor tenders its Notice of Acceptance prior to the end of the 20-Day Period indicating its intention to purchase the Offered Securities, the Corporation shall schedule a closing of the sale of such Offered Securities. Upon the closing of the sale of the Offered Securities to be purchased by an Investor, such Investor shall (i) purchase from the Corporation that portion of the Offered Securities for which it tendered a Notice of Acceptance upon the terms specified in the Offer, and (ii) execute and deliver an agreement further restricting transfer of such Offered Securities substantially as set forth in Section 3.1, 3.2 and 3.3 of this Agreement. In addition, with respect to the Offered Securities being purchased by an Affiliate of an Investor, the Corporation shall provide the Affiliate with the rights and benefits set forth in this Agreement, and such Affiliate shall become a party hereto. The obligation of an Investor to purchase such Offered Securities is further 5
(e) The Corporation shall have one hundred eighty (180) days from the expiration of the 20-Day Period, to sell the Offered Securities refused by any of the Investors (together with their Affiliatesthe "Refused Securities") do not elect within the applicable notice period described above to exercise their Preemptive Rights with respect to any of the New Shares proposed to be sold by the Companyother person or persons, the Company shall have ninety but only upon terms and conditions which are in all material respects (90) days after expiration of such notice period to sell such unsubscribed New Shares proposed to be sold by the Companyincluding, at a without limitation, price and on terms interest rate) no more favorable to such other person or persons, and no less favorable to the purchaser Corporation, than those set forth in the New Shares Notice. If Offer.
(f) In each case, any Offered Securities not purchased either by the Company does not consummate the sale of the unsubscribed New Shares Investors or by any other person in accordance with the terms of the New Shares Notice within such ninety (90)-day period, then the Company this Section 2.3 may not issue be sold or sell such New Shares unless it sends a new New Shares Notice and once otherwise disposed of until they are again complies with offered to the provisions of Investors under the procedures specified in this Section 3.8 with respect to such New Shares2.3.
(eg) Each An Investor (together with may, by prior written consent, waive its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant to the Preemptive Right upon closing of the issuance of the New Shares, and shall have no right to acquire such New Shares if the issuance thereof shall not be consummatedrights under this Section 2.
Appears in 1 contract
Samples: Stockholders' Agreement (New Brunswick Scientific Co Inc)
Preemptive Rights. If at any time prior to an initial public offering of its equity securities More Gastech (aIndia) Subject Private Limited (hereinafter "the Company") proposes to Section 3.9, for so long as issue and sell any Investor Beneficially Owns Investor Shares representing at least five percent (5%) securities of the Outstanding StockCompany (including, without limitation, Ordinary Shares or any class of preferred shares), whether or not already authorized, or rights, options or warrants to purchase such Investor shall haveshares, the right to purchaseand securities of any type whatsoever that are, in accordance with the procedures set forth hereinor may become, its pro rata portion, calculated based on the number of Investor Shares held by such Investor as a percentage convertible into shares of the Outstanding Stock prior to issuance of Company (all the New Shares (such Investor’s “Pro Rata Portion”) of any New Shares that the Company may, from time to time, propose to sell and issue (hereinafter previous mentioned together hereby referred to as the “Preemptive Right”)."Proposed Issue" or "New Securities" as relevant) the Foreign Company (hereinafter "the Investor") shall have the right to exercise the Proposed Issue as follows:
(b) 1.1. In the event that the Company undertakes an issuance of New Securities, it shall give the Investor written notice thereof, which notice shall be given prior to such issuance, describing the type and amount of New Securities offered and the price and the terms upon which the Company proposes to issue the same, and sell New Shares, offering the Company shall notify each of Investor the Investors in writing with respect opportunity to the proposed New Shares to be issued (the “New Shares Notice”). Each New Shares Notice shall set forth: (i) the number of New Shares proposed to be issued by the Company and the purchase price therefor; (ii) each Investor’s Pro Rata Portion of such New Shares; and Securities. The Investor shall have thirty (iii) any other material term (including, if known, the expected date of consummation of the purchase and sale of the New Shares).
(c) Each Investor (together with its Affiliates) shall be entitled to exercise its right to purchase New Shares by delivering an irrevocable written notice to the Company within fifteen (1530) days from the date of receipt of any such New Shares Notice specifying notice to accept such offer, in whole or in part, by written notice to the number of New Shares to be subscribed, which in any event can be no greater than such Investor’s Pro Rata Portion of such New Shares at the price and on the terms and conditions specified in the New Shares NoticeCompany.
(d) If 1.2. In the Investors (together with their Affiliates) do not elect within event that the applicable notice period described above Investor fails to exercise their Preemptive Rights with respect accept such offer as to any all of the New Shares proposed to be sold by the CompanySecurities, the Company shall have ninety the right within one hundred and twenty (90120) days after expiration of such notice period thereafter to sell or enter into an agreement (pursuant to which the sale of New Securities covered thereby shall be closed, if at all, within sixty (60) days from the date of said agreement), to sell the New Securities as to which such unsubscribed New Shares proposed to offer was not accepted, provided however that no such sale be sold by the Company, effected at a price and on or upon terms no more favorable to the purchaser purchasers thereof than those set forth specified in the New Shares NoticeCompany's notice to the Investor. If In the event the Company does has not consummate sold or entered into an agreement to sell such New Securities within the sale of the unsubscribed New Shares in accordance with the terms of the New Shares Notice within such ninety (90)-day periodperiods specified above, then the Company may shall not thereafter issue or sell such New Shares unless it sends a new New Shares Notice and once again complies Securities without first complying with the provisions of procedure set forth in this Section 3.8 with respect to such New SharesArticle.
(e) Each Investor (together with its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant to the Preemptive Right upon closing of the issuance of the New Shares, and shall have no right to acquire such New Shares if the issuance thereof shall not be consummated.
Appears in 1 contract
Samples: Collaboration Agreement (Energtek)
Preemptive Rights. (a) Subject From the Closing Date and until the first date upon which no Investor Designee is entitled hereunder to Section 3.9, for so long as any Investor Beneficially Owns Investor Shares representing at least five percent (5%) of serve on the Outstanding Stock, such Investor shall have, the right to purchaseBoard, in accordance with the procedures set forth herein, its pro rata portion, calculated based on the number of Investor Shares held by such Investor as a percentage of the Outstanding Stock prior to issuance of the New Shares (such Investor’s “Pro Rata Portion”) of any New Shares that the Company may, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive Right”).
(b) In the event that the Company proposes to issue Common Shares or any securities exercisable, convertible or exchangeable for shares of its capital stock (collectively, the “Preemptive Securities”), other than (w) pursuant to any employee stock option plan of the Company, (x) pursuant to any merger, share exchange or acquisition, (y) pro rata distributions to all holders of Common Shares (including without limitation stock dividends and sell New Sharesstock splits) and (z) the issuance of employee stock options and exercise thereof, the Company shall notify each shall:
(i) deliver to the Investors written notice setting forth in reasonable detail (A) the terms and provisions of the Investors in writing with respect to the Preemptive Securities proposed New Shares to be issued (the “New Shares NoticeProposed Securities”). Each New Shares Notice shall set forth: , (iB) the price and other terms of the proposed sale of such securities, (C) the amount of such securities proposed to be issued, (D) the proposed closing date and (E) such other information as the Investors may reasonably request in order to evaluate the proposed issuance; and
(ii) offer to issue to each Investor a portion of the Proposed Securities equivalent to a percentage determined by dividing (x) the number of New Acquired Shares proposed Beneficially Owned by such Investor prior to be such issuance by (y) the number of Common Shares issued by and outstanding at such time.
(b) The Investors must give notice to the Company and of their election to exercise the purchase price therefor; rights hereunder within ten (ii10) each Investor’s Pro Rata Portion Business Days after receipt of such New Shares; and (iii) any other material term (including, if known, notice from the expected date of consummation of the purchase and sale of the New Shares)Company.
(c) Each Upon the expiration of the offering period described in Section 5.1(b), or if any Investor (together with its Affiliates) shall be entitled to exercise its right to purchase New Shares by delivering an irrevocable written notice to default in paying for or purchasing the Company within fifteen (15) days from the date of receipt of any such New Shares Notice specifying the number of New Shares to be subscribed, which in any event can be no greater than such Investor’s Pro Rata Portion of such New Shares at the price and Proposed Securities on the terms and conditions specified in the New Shares Notice.
(d) If the Investors (together with their Affiliates) do not elect within the applicable notice period described above to exercise their Preemptive Rights with respect to any of the New Shares proposed to be sold offered by the Company, the Company shall have ninety (90) days after expiration of such notice period thereafter be free to sell such unsubscribed New Shares proposed Proposed Securities that such Investor has not elected to be sold by purchase during the Company, at a price and one hundred eighty (180) days following such expiration on terms and conditions no more favorable to the purchaser purchasers thereof than those set forth in offered to the New Shares NoticeInvestors. If Any Proposed Securities offered or sold by the Company does not consummate after such 180-day period must be reoffered to the sale of the unsubscribed New Shares in accordance with Investors pursuant to this Section 5.1, subject to the terms of the New Shares Notice within such ninety (90)-day period, then the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies with the provisions of this Section 3.8 with respect to such New Shareshereof.
(ed) Each Investor The election by the Investors not to exercise preemptive rights under this Section 5.1 in any one instance shall not affect their rights (together with its Affiliatesother than in respect of a reduction in their percentage holdings) as to any subsequent proposed issuance. Any sale of such securities by the Company without first giving the Investors the rights described in this Section 5.1 shall take up be void and pay for any New Shares that of no force and effect, and the Company shall not register such Investor (together with its Affiliates) has elected to purchase pursuant to sale or issuance on the Preemptive Right upon closing books and records of the issuance of the New Shares, and shall have no right to acquire such New Shares if the issuance thereof shall not be consummated.Company. ARTICLE VI
Appears in 1 contract
Preemptive Rights. (a) Subject In the event that the Corporation proposes to Section 3.9issue additional shares of its capital stock, for so long whether or not currently authorized, as well as rights, options, or warrants to purchase any Investor Beneficially Owns Investor Shares representing at least five percent (5%) equity securities of the Outstanding StockCorporation, or securities of any type whatsoever that are, or may become, convertible or exchangeable into or exercisable (in each case, directly or indirectly) for such Investor shall haveequity securities (“New Shares”) at a time when any Shareholder who has executed this Agreement continues to be an owner of Shares, the right Corporation shall provide to purchase, in accordance with each such Shareholder a notice which shall constitute an offer to such Shareholder to purchase (for the procedures price and on the terms established by the Corporation for all purchasers of New Shares as set forth herein, its pro rata portion, calculated based on in the number of Investor Shares held by notice) such Investor as a percentage of the Outstanding Stock prior to issuance portion of the New Shares so offered for sale as the number of Shares owned by him or her at such time shall bear to the total number of Shares owned by all shareholders of the Corporation (such InvestorShareholder’s “Pro Rata Portion”) ). Each such Shareholder shall inform the Corporation of any New Shares that the Company may, from time his or her election to time, propose to sell and issue (hereinafter referred to as the “Preemptive Right”).
(b) In the event that the Company proposes to issue and sell New Shares, the Company shall notify each of the Investors in writing exercise its preemptive right under this Section 3.1 with respect to the proposed New Shares to be issued (the “New Shares Notice”). Each New Shares Notice shall set forth: (i) the number all or any portion of New Shares proposed to be issued by the Company and the purchase price therefor; (ii) each Investor’s his or her Pro Rata Portion of such New Shares; and (iii) any other material term (including, if known, the expected date of consummation of the purchase and sale of the New Shares).
(c) Each Investor (together with its Affiliates) shall be entitled to exercise its right to purchase New Shares by delivering an irrevocable written notice to the Company within fifteen (15) days from the date of receipt of any such the Corporation’s notice.
(b) If all New Shares Notice specifying referred to in the number of New Shares Corporation’s notice are not elected to be subscribedpurchased or acquired by the Shareholders pursuant to Section 3.1(a), which the Corporation may, following the expiration of the fifteen (15) day period provided in any event can be no greater than such Investor’s Pro Rata Portion Section 4.1(a), offer and sell the remaining unsubscribed portion of such New Shares at the price and on the terms and conditions specified in the New Shares Notice.
(d) If the Investors (together with their Affiliates) do not elect within the applicable notice period described above to exercise their Preemptive Rights with respect to any of the New Shares proposed to be sold by the Company, the Company shall have ninety (90) days after expiration of such notice period to sell such unsubscribed New Shares proposed to be sold by the Company, person or persons at a price not less than, and on upon terms no more favorable to the purchaser than offeree than, those set forth specified in the New Shares NoticeShareholders’ offer notices. If the Company Corporation does not consummate enter into an agreement for the sale of the unsubscribed New Shares within sixty (60) days, or if such agreement is not consummated within thirty (30) days of the execution thereof, the preemptive right provided hereunder shall be deemed to be revived and such New Shares shall not be offered unless first reoffered to the Shareholders again in accordance with the terms of the New Shares Notice within such ninety (90)-day period, then the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies with the provisions of this Section 3.8 with respect to such New Shares3.1.
(e) Each Investor (together with its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant to the Preemptive Right upon closing of the issuance of the New Shares, and shall have no right to acquire such New Shares if the issuance thereof shall not be consummated.
Appears in 1 contract
Samples: Shareholder Agreement (Spherix Inc)
Preemptive Rights. (a) Subject to the terms and conditions specified in this Section 3.97.03, for the Company hereby grants to each Purchaser a right to purchase up to the number of Additional Shares (as defined below) in connection with any Transaction (as defined below) undertaken by the Company; provided, however, that the rights set forth in this Section 7.03 shall only apply to WC so long as any Investor Beneficially Owns Investor Shares representing WC holds at least five percent (5%) of the Outstanding Stock, such Investor Originally Issued Shares and shall have, the right only apply to purchase, in accordance with the procedures set forth herein, its pro rata portion, calculated based on the number of Investor Shares held by such Investor CHA so long as a percentage CHA holds at least twenty-five percent (25%) of the Outstanding Stock prior to issuance of the New Shares (such Investor’s “Pro Rata Portion”) of any New Shares that the Company may, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive Right”)Originally Issued Shares.
(b) In Subject to the event that terms and conditions specified in this Section 7.03, each time the Company proposes to offer, sell or otherwise issue and sell any New SharesShares in a public or private transaction (a "Transaction"), the Company shall notify each of the Investors in writing with respect to the proposed New Shares to be issued deliver a notice (the “New Shares "Notice”). Each New Shares Notice shall set forth: ") to each Purchaser stating (i) the number of New Shares proposed Company's bona fide intention to be issued by the Company and the purchase price therefor; undertake such Transaction, (ii) each Investor’s Pro Rata Portion of such New Shares; and (iii) any other material term (including, if known, the expected date of consummation of the purchase and sale of the New Shares).
(c) Each Investor (together with its Affiliates) shall be entitled to exercise its right to purchase New Shares by delivering an irrevocable written notice to the Company within fifteen (15) days from the date of receipt of any such New Shares Notice specifying the number of New Shares to be subscribedoffered in the Transaction (the "Transaction Shares"), (iii) the number of Additional Shares up to which such Purchaser may elect to purchase in any event can such Transaction (which would be no greater than such Investor’s Pro Rata Portion of such added to the Transaction Shares) and (iv) the price and terms, if any, upon which it proposes to offer, sell or otherwise issue New Shares in the Transaction.
(c) Within 7 days after receipt by such Purchaser of the Notice, such Purchaser may elect to purchase, at the price and on the terms and conditions specified in the Notice, up to the number of Additional Shares set forth in the Notice. The number of New Shares Notice("Additional Shares") that the Purchaser may elect to purchase and include in the Transaction shall be calculated as follows: Additional Shares = Transaction Shares -- Transaction Shares ------------------ 1-- X% X% represents the percentage (stated as a decimal) of the outstanding shares of Common Stock then held by such Purchaser (assuming the conversion, exercise or exchange of all New Shares then held by such Purchaser and acquired pursuant to this Section 7.03).
(d) If In the Investors event that the price or terms upon which the Company proposes to offer, sell or otherwise issue New Shares in the Transaction or the number of Transaction Shares to be included in such Transaction changes for any reason (together with their Affiliatesother than including the Additional Shares) do not elect within after the applicable notice period described above Notice is delivered to exercise their Preemptive Rights the Purchasers, the number of Additional Shares shall, with respect to a change in the number of Transaction Shares, be recalculated using the new number of Transaction Shares and, in any of the New Shares proposed to be sold by the Companycase, the Company shall have ninety (90) days after expiration of promptly provide a revised Notice to each Purchaser reflecting any such notice period recalculated Additional Shares and any change to sell such unsubscribed New Shares proposed to be sold by the Company, at a price and on terms no more favorable to the purchaser than those set forth in the New Shares Noticeor terms. If the Company does not consummate the sale of the unsubscribed proposes to offer, sell or issue any New Shares for consideration other than cash, each Purchaser may exercise the right set forth in accordance with this Section 7.03 and purchase Additional Shares for cash at a per share purchase price equal to (i)(A) the terms face amount of the New Shares Notice within such ninety (90)-day period, then the Company may not issue or sell any cash received for such New Shares unless it sends plus (B) the fair market value of the non-cash consideration expressly received for such New Shares, as reasonably determined by the Board of Directors of the Company in good faith, divided by (ii) the number of Transaction Shares issued in such Transaction (excluding any Additional Shares).
(e) The rights of the Purchasers set forth in this Section 7.03 shall not be applicable to (i) shares of Common Stock issued as a new New stock dividend to all holders of shares of Common Stock or upon any subdivision or combination of shares of Common Stock; (ii) securities issued for the acquisition by the Company of another entity or business by merger or such other transaction as would result in the ownership by the Company of not less than a majority of the voting power of the other entity or for the purchase of all the assets of an entity or business, (iii) shares of Common Stock or Rights that are sold by the Company pursuant to a bona fide public offering pursuant to a registration statement filed under the 1933 Act; (iv) shares of Common Stock or Rights issued pursuant to the Company's stock option plans in existence at the date of this Agreement or other such stock option plans as approved by the stockholders of the Company; (v) shares of Common Stock issued upon exercise of any Rights as to which the Purchasers shall have been afforded the opportunity to exercise their rights of first refusal pursuant to this Section 7.03; (vi) up to an aggregate of 70,000 shares of Common Stock or Rights issued to Silicon Valley Bank; and (vii) up to aggregate of 50,000 shares of Common Stock or Rights issued to Xxxxxxx Xxxx.
(f) The rights and obligations of the Purchasers under this Section 7.03 shall not be assignable, except that the right to purchase any Additional Shares Notice and once again complies with may be assigned by each Purchaser to any of its Affiliates that agrees in writing to be bound by the provisions of this Section 3.8 with respect to such New Shares7.03.
(e) Each Investor (together with its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant to the Preemptive Right upon closing of the issuance of the New Shares, and shall have no right to acquire such New Shares if the issuance thereof shall not be consummated.
Appears in 1 contract
Preemptive Rights. (a) Subject to Section 3.9, for so long as any Investor Beneficially Owns Investor Shares representing at least five percent (5%) of the Outstanding Stock, such Investor shall have, the right to purchase, in accordance with the procedures set forth herein, its pro rata portion, calculated based on the number of Investor Shares held by such Investor as a percentage of the Outstanding Stock prior to issuance of the New Shares (such Investor’s “Pro Rata Portion”) of any New Shares that the Company may, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive Right”).
(b) In the event that the Company proposes desires to issue and sell New Sharesany securities in an offering that is not required to be registered under the Securities Act or any applicable state securities law (a "Private Offering"), the Company shall notify each of must first offer to sell the Investors in writing with respect to the proposed New Shares to be issued (the “New Shares Notice”). Each New Shares Notice shall set forth: (i) the number of New Shares securities proposed to be issued in such Private Offering to the Investors in accordance with this Section 17 on the same terms and conditions as the sale of securities or other securities in such proposed Private Offering. The offer (the "Preemptive Right Notice") by the Company to the Investors shall be dated, shall be in writing and shall set forth the purchase price therefor; (ii) each Investor’s Pro Rata Portion full details of such New Shares; and (iii) any other material term (the proposed Private Offering, including, if knownbut not limited to, the expected date of consummation of consideration to be paid, and all other details, terms and conditions related to the purchase proposed Private Offering. From and sale of after the New Shares).
(c) Each time that the Investors receive the Preemptive Right Notice, each Investor (together with its Affiliates) shall be entitled to exercise its right to purchase New Shares have the right, exercisable by delivering an irrevocable giving written notice to the Company of such Investor's intent to exercise such right within fifteen thirty (1530) Business Days of the Preemptive Right Notice, to subscribe for and purchase a number of securities subject to the Preemptive Right Notice, on the terms set forth in the Preemptive Right Notice, such that, after giving effect to the issuance of securities subject to the Preemptive Right Notice and the exercise of the rights of each Investor set forth in this Section 17 (including, for the purpose of this calculation, the issuance of Common Stock upon conversion, exchange or exercise of any securities convertible, exchangeable or exercisable into shares of Common Stock to be issued in such Private Offering), the shares of Common Stock owned by such Investor (after giving effect to the conversion of any securities held by such Investor convertible into Common Stock) shall represent the same percentage of the outstanding shares of Common Stock owned by such Investor prior to the consummation of such Private Offering (after giving effect to the conversion of any securities held by such Investor convertible into Common Stock, provided, however, that all warrants and options shall not be included in the calculation of the ownership percentage of each Investor). If any Investor fails to give written notice of such Investor's election to exercise the rights of such Investor set forth in this Section 17 within thirty (30) Business Days of the date of the Preemptive Right Notice, such Investor shall be deemed to have waived the rights granted to such Investor under this Section 17 with respect to the securities so offered under such Preemptive Right Notice. Each Investor that has exercised its right to purchase securities pursuant to this Section 17 shall, within sixty (60) calendar days from the date of receipt of any such New Shares Notice specifying the number of New Shares to be subscribedPreemptive Right Notice, which in any event can be no greater than such Investor’s Pro Rata Portion of such New Shares at purchase the price and on the terms and conditions specified in the New Shares Notice.
(d) If the Investors (together with their Affiliates) do not elect within the applicable notice period described above to exercise their Preemptive Rights with respect to any of the New Shares proposed to be sold by the Company, the Company shall have ninety (90) days after expiration of such notice period to sell such unsubscribed New Shares proposed to be sold by the Company, at a price and on terms no more favorable securities or other securities subject to the purchaser than those set forth in the New Shares Notice. If the Company does not consummate the sale of the unsubscribed New Shares Preemptive Right Notice in accordance with the terms of the New Shares Notice within such ninety (90)-day period, then the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies with the provisions of this Section 3.8 with respect to such New Shares17.
(e) Each Investor (together with its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant to the Preemptive Right upon closing of the issuance of the New Shares, and shall have no right to acquire such New Shares if the issuance thereof shall not be consummated.
Appears in 1 contract
Preemptive Rights. (a) Subject After the Equalization Date, prior to the Company issuing any Interests or options or rights to acquire Interests (other than (i) any equity issuance associated with an acquisition previously approved by NGPMR, (ii) Interests issued in connection with any split, distribution or recapitalization of the Company, (iii) Interests issued in any initial public offering registration statement filed under the Securities Act, or (iv) in connection with any capital raising or financing efforts by the Company the purpose of which is to fund any activities of the Company which were the subject of a Capital Call made pursuant to Section 3.94.1(c) or Section 4.1(d) that was not fully funded by the Members; provided, for so long as however, that any Investor Beneficially Owns Investor Shares representing at least five percent Interests to be issued in such capital raising or financing efforts, and the pricing of such Interests, are equivalent to the terms of such Capital Call), whether through exchange, conversion or otherwise (5%the "New Interests"), to a proposed third party purchaser (the "Proposed Purchaser"), each Member who is not in default of this Agreement and which certifies to the Company's reasonable satisfaction that it is an "accredited investor" within the meaning of Rule 501 under the Securities Act (an "Eligible Member") of the Outstanding Stock, such Investor shall have, have the right to purchase, purchase a portion of the New Interests in accordance with the procedures set forth herein, its pro rata portion, calculated based on the number of Investor Shares held by such Investor as a percentage of the Outstanding Stock prior to issuance of the New Shares (such Investor’s “Pro Rata Portion”) of any New Shares that the Company may, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive Right”)this Section 5.7.
(b) In the event that the Company proposes to issue and sell New Shares, the The Company shall notify give each Eligible Member prior written notice (the "First Notice") of any proposed issuance of New Interests, which shall set forth in reasonable detail the proposed terms and conditions thereof (as determined by the Board in good faith) and shall offer to each Eligible Member the opportunity to purchase its Percentage Interest (as of the Investors in writing with respect to date of such notice) of the proposed New Shares to be issued (Interests, on the “same terms and conditions and at the same time as the New Shares Notice”). Each New Shares Notice shall set forth: (i) the number of New Shares Interests are proposed to be issued by the Company and Company. If any Eligible Member desires to exercise its preemptive rights under this Section 5.7, it must deliver an irrevocable written notice within 30 days after the purchase price therefor; (ii) each Investor’s Pro Rata Portion of such New Shares; and (iii) any other material term (including, if known, the expected date of consummation Eligible Member's receipt of the purchase and sale First Notice (the "Election Period") setting forth the dollar amount of the New Shares)Interests the Eligible Member (the "Electing Member") is electing to purchase, up to its Percentage Interest plus any additional amount of New Interests it desires to purchase in excess of its Percentage Interest (the "Over-Allotment Amount") if other Eligible Members do not exercise their preemptive rights hereunder. The right of each Electing Member to purchase New Interests in excess of its Percentage Interest shall be based on the relative Percentage Interests of the Electing Members desiring to purchase Over-Allotment Amounts.
(c) Each Investor (together with its Affiliates) shall be entitled to exercise its right to purchase New Shares by delivering an irrevocable written notice to the Company within fifteen (15) days from the date of receipt of any such New Shares Notice specifying the number of New Shares to be subscribed, which in any event can be no greater than such Investor’s Pro Rata Portion of such New Shares at the price and on the terms and conditions specified in the New Shares Notice.
(d) If the Investors (together with their Affiliates) Eligible Members do not elect within the applicable notice period described above to exercise their Preemptive Rights with respect to any subscribe for all of the New Shares proposed to be sold by the CompanyInterests, the Company shall have ninety (90) the right, but not the obligation, to issue and sell the unsubscribed portion of the New Interests to the Proposed Purchaser at any time during the 90 days after expiration following the end of such notice period to sell such unsubscribed New Shares proposed to be sold by the CompanyElection Period, at a the same price and on terms no more favorable pursuant to the purchaser than those terms and conditions set forth in the New Shares First Notice. If 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 in connection with any preemptive rights offering. In the Company does not consummate the sale of the unsubscribed New Shares in accordance with the terms of event any Electing Member refuses to purchase the New Shares Notice within such ninety (90)-day periodInterests for which it subscribed pursuant to this Section 5.7, then in addition to any other rights the Company may not issue have at law or sell in equity, such New Shares unless it sends a new New Shares Notice Electing Member and once again complies with the provisions of this Section 3.8 with respect to such New Shares.
(e) Each Investor (together with its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant to the Preemptive Right upon closing of the issuance of the New Shares, and shall have no right to acquire such New Shares if the issuance transferee thereof shall not be consummatedconsidered an Eligible Member for any future rights granted under this Section 5.7 unless the Board expressly designates otherwise (which the Board may, in its sole discretion, do on an offer-by-offer basis or not at all) and shall be deemed a Defaulting Member under Section 4.2.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Markwest Energy Partners L P)
Preemptive Rights. (a) Subject The Company shall not issue or sell shares of its Common Stock (“Shares”) (other than (i) as provided in the Subscription Agreement, (ii) up to Section 3.9, 75,000 Class A Shares that may be issued to Wxxx Xxxxxx and Lxxxxx Xxxxxxx Xxxxxxxx in consideration for so long as any Investor Beneficially Owns Investor Shares representing at least five percent (5%) services rendered on behalf of the Outstanding StockCompany, such Investor shall have(iii) up to 150,000 Class C Shares that may be issued to Txx Xxxxxx-Xxxxx at a purchase price of not less than $1.00 per Class C Share, (iv) Shares issued pursuant to any equity incentive plan adopted by the Company, (v) Shares or securities convertible into Shares issued or sold in connection with acquisitions or business combinations with third parties that are not affiliates of any shareholder of the Company, or (v) sales or transfers of Shares or securities convertible into or giving the right to purchasepurchase Shares in connection with financing transactions for borrowed money with third parties that are not affiliates of any shareholder of the Company), in accordance with unless prior to the procedures set forth herein, its pro rata portion, calculated based issuance or sale of such Shares each Shareholder shall have been given the opportunity to purchase (on the same terms as such Shares are proposed to be sold) (i) the same proportion of such Shares being issued or offered for sale by the Company as (A) the number of Investor Shares of the Company held of record by such Investor as a percentage Shareholder bears to (B) all of the Outstanding Stock prior to issuance issued and outstanding Shares of the New Shares (such Investor’s “Pro Rata Portion”) of any New Shares Company on that the Company may, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive Right”)day.
(b) In Prior to the event that issuance or sale by the Company proposes to issue and sell New of any Shares, the Company shall notify each of the Investors in writing with respect to the proposed New Shares to be issued give written notice thereof (the “New Shares Notice”). Each New Shares ) to each Shareholder, which Notice shall set forth: (i) specify the number of New Shares proposed to be issued by issued, the Company price and other terms of their proposed issuance, the number of Shares that each Shareholder is entitled to purchase, and the period during which such Shareholder may elect to purchase price therefor; such Shares (iiwhich period shall not be less than ten (10) each Investor’s Pro Rata Portion of such New Shares; and (iii) any other material term (including, if known, calendar days following the expected date of consummation delivery of the purchase and sale of the New SharesNotice).
(c) Each Investor (together with its Affiliates) shall be entitled to exercise its right Shareholder who desires to purchase New Shares by delivering an irrevocable written notice to hereunder shall notify the Company in writing within fifteen (15) days from the date of receipt of any such New Shares Notice specifying the specified period that number of New Shares he wishes to be subscribed, which in purchase. The Company may sell any event can be no greater than such Investor’s Pro Rata Portion of such New remaining Shares at the price and on the terms and conditions specified in the New Shares Notice.
(d) If the Investors (together with their Affiliates) do that are not elect within the applicable notice period described above to exercise their Preemptive Rights with respect to any of the New Shares proposed to be sold purchased by the Company, the Company shall have Shareholders hereunder within ninety (90) calendar days after the expiration of the time for electing to purchase such notice period to sell such unsubscribed New Shares proposed to be sold by at not less than the Company, at a price set forth in the Notice and on upon other terms no more and conditions not less favorable to the purchaser Company than those set forth in the New Shares Notice. If the Company does not consummate the sale of the unsubscribed New Shares in accordance with the terms of the New Shares Notice within such ninety (90)-day period, then the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies with the provisions of this Section 3.8 with respect to such New Shares.
(e) Each Investor (together with its Affiliates) shall take up and pay for any New Shares that such Investor (together with its Affiliates) has elected to purchase pursuant to the Preemptive Right upon closing of the issuance of the New Shares, and shall have no right to acquire such New Shares if the issuance thereof shall not be consummated.
Appears in 1 contract
Preemptive Rights. (a) Subject to Section 3.94.04(e), for so long as until the earlier of a Qualified IPO and a Change of Control, if the Company or any Investor Beneficially Owns Investor Shares representing at least five percent (5%) of its Subsidiaries proposes to issue any additional Units or other Equity Securities, or any rights to subscribe for, or option to purchase, or otherwise acquire, any of the Outstanding Stockforegoing (collectively, “Additional Securities”), to any Person(s), (the “Proposed Offeree(s)”) or enter into any contract relating to the issuance of such Investor Additional Securities through a private issuance or private placement, then each Class A Member shall have, have the right to purchase, in accordance with the procedures set forth herein, its pro rata portion, calculated based on the number of Investor Shares held by such Investor as a percentage of the Outstanding Stock prior to issuance of the New Shares purchase (such Investor’s “Pro Rata Portion”) of any New Shares that the Company may, from time to time, propose to sell and issue (hereinafter referred to as the “Preemptive Right”), on the same terms and at the same purchase price per share or other unit of such Additional Securities offered to the Proposed Offeree(s), that number of Additional Securities so that such Class A Member would, in the aggregate, after the issuance of all such Additional Securities, hold a Percentage Interest of such Additional Securities in the same proportion as such Class A Member’s Percentage Interest of the Class A Units immediately prior to such issuance.
(b) In the event that the Company proposes to issue and sell New Sharesconnection with any Preemptive Right, the Company shall notify each of the Investors in writing with respect to the proposed New Shares to be issued shall, by written notice (the “New Shares Preemptive Notice”). Each New Shares , provide an offer to sell to each Class A Member that number of Additional Securities in accordance with Section 4.04(a), which Preemptive Notice shall set forth: (i) include the number of New Shares proposed to be issued by the Company and the applicable purchase price therefor; per share or other unit, aggregate amount of Additional Securities offered, number or amount of Additional Securities offered to such Member based on the respective Percentage Interests of the Class A Members immediately prior to such issuance, name of Proposed Offeree(s) (iiif then known), proposed closing date, place and time for the issuance thereof (which shall be no less than thirty (30) each Investor’s Pro Rata Portion days from the date of such New Shares; notice), and (iii) any other material term (including, if known, the expected date of consummation terms and conditions of the purchase and sale of the New Shares).
(c) Each Investor (together with its Affiliates) shall be entitled to exercise its right to purchase New Shares by delivering an irrevocable written notice to the Company within offer. Within fifteen (15) days from the date of receipt of the Preemptive Notice, any Class A Member wishing to exercise its Preemptive Right concerning such New Shares Notice specifying Additional Securities shall deliver notice to the Company setting forth the number of New Shares Additional Securities which such Member commits to purchase (which may be subscribed, which in for all or any event can be no greater than such Investor’s Pro Rata Portion portion of such New Shares Additional Securities offered to such Class A Member in the Preemptive Notice). Each Class A Member shall have the additional right (the “Additional Purchase Right”) to offer in its notice of exercise to purchase any or all of the Additional Securities not accepted for purchase by any other Class A Member, in which event such Additional Securities not accepted by any other Class A Member shall be deemed to have been offered to and accepted by the Class A Members exercising such Additional Purchase Right in proportion to their respective Percentage Interests immediately prior to such issuance on the same terms and at the same price per share or other unit as those specified in the Preemptive Notice, but in no event shall any Class A Member exercising its Additional Purchase Right be allocated a number of Additional Securities in excess of the maximum number such Class A Member has offered to purchase in its notice of exercise. Each Class A Member so exercising its right under this Section 4.04 shall be entitled and obligated to purchase that number of Additional Securities specified in such Class A Member’s notice on the terms and conditions specified set forth in the New Shares Preemptive Notice.
(d) If the Investors (together with their Affiliates) do . Any Additional Securities not elect within the applicable notice period described above to exercise their Preemptive Rights with respect to any of the New Shares proposed to be sold accepted for purchase by the CompanyClass A Members pursuant to this Section 4.04 shall be offered to the Proposed Offeree on the same terms and price per share or other unit as set forth in the Preemptive Notice; provided, however, if such Proposed Offeree does not consummate the Company shall have purchase of such Additional Securities within ninety (90) days after expiration of such notice period to sell such unsubscribed New Shares proposed to be sold by the Company, at a price and on terms no more favorable to the purchaser than those set forth in the New Shares Notice. If the Company does not consummate the sale following delivery of the unsubscribed New Shares in accordance with Preemptive Notice, any subsequent proposed issuance of Additional Securities shall once again be subject to the terms of the New Shares Notice within such ninety (90)-day period, then the Company may not issue or sell such New Shares unless it sends a new New Shares Notice and once again complies with the provisions of this Section 3.8 with respect to such New Shares4.04.
(ec) Each Investor (together with its Affiliates) shall take up and pay for Notwithstanding anything to the contrary in Section 7.04(b), no issuance of Additional Securities by the Company to any New Shares that such Investor (together with its Affiliates) has elected to purchase Class A Member pursuant to the exercise by such Class A Member of its Preemptive Right upon closing Rights shall require Disinterested Manager Approval if all of the issuance of the New Shares, and shall have no right other Class A Members are entitled to acquire Preemptive Rights in connection with such New Shares if the issuance thereof shall not be consummatedissuance.
Appears in 1 contract
Samples: Transaction Agreement (Apollo Global Management LLC)
