Preemptive Rights. (a) The Company hereby grants to each current holder of Company Securities, including Athens and its Affiliates and Subsidiaries except in connection with the issuance of any Debt Instrument, (the “Preemptive Participants”) the right to purchase its Pro Rata Portion of New Securities that the Company may, from time to time, propose to sell or issue 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 “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 has not sold such New Securities within said 90-day period, the Company shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without first again complying with the preemptive purchase right procedures provided for in this Section 4.1. (f) The preemptive rights set forth in this Section 4.1 may be waived upon the written approval of the Minority Independent Director (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the Company.
Appears in 3 contracts
Samples: Stockholders Agreement, Stockholders Agreement (Greektown Superholdings, Inc.), Shareholder Agreement (Athens Acquisition LLC)
Preemptive Rights. (a) The Subject to Section 4.06(d) and the limitations set forth in Section 4.06(c) below, the Company hereby grants shall not issue or sell any Securities (collectively, “New Issue Securities”) to each current holder of Company Securitiesany Person, including Athens and its Affiliates and Subsidiaries except in connection accordance with the issuance of any Debt Instrument, (the “Preemptive Participants”) the right to purchase its Pro Rata Portion of New Securities that the Company may, from time to time, propose to sell or issue 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 “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.following provisions:
(b) The Company shall give written a 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 each Stockholder hereunder (the “Issuance Preemptive Notice”) shall set forth stating: (i) the material terms and conditions of such proposed transaction, including, as applicable, Company’s intention to issue the New Issue Securities; (ii) the number or amount and description thereof or the amount of the securities proposed New Issue Securities to be issued, ; (iii) the purchase price (calculated as of the proposed issuance or incurrence date date) and the proposed purchase price per securityother terms upon which the Company is offering the New Issue Securities.
(c) At any time during the 15-day period following the receipt Transmittal of an Issuance Notice, the Preemptive Participants Notice to the Stockholder by the Company shall have constitute an offer by the right Company to elect irrevocably sell to purchase their Pro Rata Portion each Stockholder his, her or its pro rata portion, or any lesser number specified by the Stockholder, of the number or amount of New Issue Securities for the Offered Securities at price and upon the purchase price terms set forth in the Issuance Preemptive Notice. For a period of 10 Business Days after the submission of the Preemptive Notice and upon to the other terms and conditions specified in Stockholder, each Stockholder shall have the Issuance Notice option, exercisable by delivering a written notice to the Company. Except , to accept the Company’s offer 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 Stockholder’s pro rata portion or 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 lesser number of remaining securities in excess the New Issue Securities; provided, however, that if any Stockholder notifies the Company that it desires to purchase less than all of the number available, the remaining securities New Issues 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 it 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 abovepurchase, the Company shall be free promptly offer to complete the proposed issuance, sale or incurrence sell such excess New Issue Securities to any Stockholder exercising its right to purchase all of the New Issue Securities described available for it to purchase. If two (2) or more types of New 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 Issue Securities granted to the Stockholders under this Section 4.06 must be exercised to purchase all types of New Issue Securities and such other securities in the Issuance Notice with respect same proportion as such New Issue Securities and other securities are to which Exercising Holders failed be issued by the Company. If the Stockholders (as a group) agree to exercise purchase less than the option set forth in this Section 4.1 on total number of New Issue Securities proposed to be issued and sold, the Company shall have one hundred twenty (120) days thereafter to sell any or all of the remaining New Issue Securities (i.e., those not to be sold to any Stockholder) to one or more other Persons, upon terms and conditions no less favorable to the Company Company, and no more favorable to such Person or Persons, than those set forth in the Issuance Notice Preemptive Notice. In the event the Company has not sold such New Issue Securities within said one hundred twenty (except that 120) day period, the number Company will not thereafter issue or amount of securities sell any New Issue Securities without first offering such New Issue Securities to be issued or sold the Stockholders in the manner provided above.
(d) The preemptive rights contained in this Section 8 shall not apply to:
(i) the issuance by the Company may be reduced)of Common Stock pursuant to the Management Compensation Plan;
(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 this Section 4.06(d) or Securities which were issued in an issuance that is exempt from this Section 4.06; and
(v) the 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 the contrary contained in this Section 4.06, the Company may, in order to expedite the issuance of New Issue Securities hereunder, issue all or a portion of the New Issue Securities to one or more Persons (each, an “Initial Subscribing Stockholder”) without complying with the provisions of this Section 4.06; provided that (x) that, prior to such issuance, sale either (i) each Initial Subscribing Stockholder agrees to offer to sell to each Stockholder his, her or incurrence is closed 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, as applicable, shall offer to sell such New Issue Securities to each other Stockholder within ninety (90) days after the expiration closing of the 15-day period described in Section 4.1(c) and (y) the price at which purchase of the New Issue Securities are Transferred must be equal to or higher than by 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 has not sold such New Securities within said 90-day period, the Company shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without first again complying with the preemptive purchase right procedures provided for in this Section 4.1Initial Subscribing Stockholders.
(f) The preemptive Any Stockholder may assign its rights set forth in pursuant to this Section 4.1 may be waived upon the written approval of the Minority Independent Director (4.06, in whole or in part and from time to time, to an Affiliate that is not a Competitor or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the CompanyCompetitor Affiliate.
Appears in 3 contracts
Samples: Stockholders Agreement (Euramax International, Inc.), Stockholders Agreement (Euramax International, Inc.), Stockholders Agreement (Euramax International, Inc.)
Preemptive Rights. (a) The Subject to and without limiting the other terms of this Agreement, the Company hereby grants to each current holder of Company SecuritiesMember, including Athens and its Affiliates and Subsidiaries except in connection with the issuance of any Debt Instrument, (the “Preemptive Participants”) each Member shall have the right to purchase its Pro Rata Portion purchase, in accordance with the procedures set forth herein, up to such Member’s pro rata portion (based on each Member’s Ownership Percentage at the time of the applicable New Securities that Interests Notice) of any New Interests which the Company may, from time to time, propose to issue and sell or issue 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 (hereinafter referred to as the “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 thereofPreemptive Rights”).
(b) The In the event that the Company proposes to issue or sell New Interests, the Company shall give written notice of a proposed issuance, sale or incurrence described notify each Member 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 writing with respect to the proposed issuance, sale New Interests to be issued or incurrence. Such notice sold (the “Issuance New Interests Notice”) ). Each New Interests Notice shall set forth the material terms and conditions of such proposed transaction, including, as applicable, forth: (i) the number or amount and description class of the securities New Interests proposed to be issuedissued or sold by the Company and their purchase price, (ii) such Member’s pro rata portion of New Interests and (iii) any other material term, including any applicable regulatory requirements and, if known, the proposed expected date of consummation of the issuance or incurrence and sale of the New Interests (which date, in any event shall be no earlier than thirty (30) days following the date and of delivery of the proposed purchase price per securityNew Interests Notice).
(c) At any time during Each Member shall be entitled to exercise its Preemptive Rights to purchase such New Interests by delivering an irrevocable written notice to the 15-day period following Company within ten (10) days from the date of receipt of an Issuance Notice, the Preemptive Participants shall have the right to elect irrevocably to purchase their Pro Rata Portion of any New Interests Notice specifying the number or amount of the Offered Securities New Interests to be subscribed, which in any event can be no greater than such Member’s pro rata portion of such New Interests, at the purchase price set forth in and on 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 New Interests 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 Member exercising its right to purchase its respective entire pro rata portion of the Offered Securities in full New Interests being issued (an each a “Exercising HolderSubscribing Member”) shall have a right of over-allotment such that if any other securityholder 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 hereunder to purchase its full Pro Rata Portion entire pro rata share of Remaining New Securities (a “Non-Purchasing Holder”Interests, as described below), such Exercising Holder Subscribing Member may purchase all or any part its pro rata share, based on the relative Ownership Percentage then owned by the Subscribing Members, of such securities 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, Company within three (3) Business Days from the 15-day period following date that the receipt Company provides written notice of an Issuance Notice, of its interest in purchasing a specified the amount of New Securities Interests as to which any such Non-Purchasing Holders has Subscribing Members have failed to exercise their preemptive purchase right hereunder; provided that 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 event there are two or more foregoing provisions) until such Exercising Holders that choose time as the Members have collectively agreed to exercise the last-mentioned option for a total number of remaining securities in excess purchase all of the number available, New Interests being issued or all of the remaining securities available for purchase under this Section 4.1(d) shall be allocated among such Exercising Holders pro rata based on Members are Non-Subscribing Members in the number last round of New Securities such Exercising Holders elected to purchase pursuant to Section 4.1(c)offers.
(e) If the Preemptive Participants or Exercising Holders fail Members do not elect within the applicable notice periods described above to exercise fully their preemptive purchase right hereunder within Preemptive Rights with respect to any of the periods described aboveNew Interests proposed to be sold by the Company, 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 have one hundred and twenty (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 (90120) days after the expiration of all such notice periods to sell or to enter into an agreement to sell such unsubscribed New Interests proposed to be sold by the 15-day period described in Section 4.1(c) Company, at a price 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 on material terms no more favorable to the extent necessary purchaser than those offered to obtain required governmental approvals and other required approvals and the Company shall use its commercially reasonable efforts Members pursuant to obtain such approvals. In the event that the Company has not sold such New Securities within said 90-day period, the Company shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without first again complying with the preemptive purchase right procedures provided for in this Section 4.16.04.
(f) The preemptive rights set forth in this Section 4.1 may No Member will be waived upon required to take up and pay for any New Interests pursuant to the written approval of the Minority Independent Director Preemptive Right unless all New Interests (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, other than those to be in taken up by the best interest of Member) are sold, whether to the Companyother Members or pursuant to Section 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) The Company hereby grants Subject to each current holder Section 3.9, for so long as any Investor Beneficially Owns Investor Shares representing at least five percent (5%) of Company Securitiesthe Outstanding Stock, including Athens and its Affiliates and Subsidiaries except in connection with the issuance of any Debt Instrumentsuch Investor shall have, (the “Preemptive Participants”) 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 Portion”) of any New Securities Shares that the Company may, from time to time, propose to sell or and issue 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 (hereinafter referred to as the “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 thereofPreemptive Right”).
(b) The In the event that the Company proposes to issue and sell New Shares, the Company shall give 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 of a proposed issuance, sale or incurrence described in Section 4.1(a) to the Preemptive Participants Company 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 from the proposed issuance, sale or incurrence. Such notice (the “Issuance Notice”) shall set forth the material terms and conditions date of receipt of any such proposed transaction, including, as applicable, New Shares Notice specifying the number or amount and description of the securities proposed New Shares to be issuedsubscribed, the proposed issuance or incurrence date and the proposed purchase price per security.
(c) At which in 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 event can be no greater than such Investor’s Pro Rata Portion of the number or amount of the Offered Securities such New Shares at the purchase price set forth in and on 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 New Shares 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 If the Offered Securities in full Investors (an “Exercising Holder”together with their Affiliates) 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, do not elect within the 15-day applicable notice 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 described above to exercise their preemptive purchase right hereunder; provided that in the event there are two or more such Exercising Holders that choose Preemptive Rights with respect to exercise the last-mentioned option for a total number of remaining securities in excess any of the number available, New Shares proposed to be sold by 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 aboveCompany, the Company shall have ninety (90) days after expiration of such notice period to sell such unsubscribed New Shares proposed to be free to complete sold by the proposed issuanceCompany, 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 at a price and on terms no less more favorable to the Company purchaser than those set forth in the Issuance 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 (except that the number or amount of securities to be issued or sold by 90)-day period, then 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 has not sold such New Securities within said 90-day period, the Company shall not thereafter issue or sell any such New Securities or incur Shares unless it sends a new indebtedness, as applicable, without first New Shares Notice and once again complying complies with the preemptive purchase right procedures provided for in provisions of this Section 4.13.8 with respect to such New Shares.
(fe) The preemptive rights set forth in this Section 4.1 may be waived 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 the written approval closing of the Minority Independent Director (or a majority issuance of the Directors on New Shares, and shall have no right to acquire such New Shares if the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to issuance thereof shall not be in the best interest of the Companyconsummated.
Appears in 3 contracts
Samples: Stockholders Agreement, Stockholders Agreement (Deerfield Capital Corp.), Stockholders Agreement (Deerfield Capital Corp.)
Preemptive Rights. (a) The If the Company hereby grants or any of its Subsidiaries proposes to issue 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 current holder of Company Securities, including Athens and its Affiliates and Subsidiaries except in connection with the issuance of any Debt Instrument, (the “Preemptive Participants”) the right to purchase its Pro Rata Portion of New Securities that the Company may, from time to time, propose to sell or issue 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 “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 Investor Shareholder 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 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 Offered Securities 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 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 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 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 Company’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 so accept by written notice to the Company given within such 10-day period, provided that all acceptances by Carlyle’s Affiliates shall be made by Carlyle on behalf of its Affiliates. No further offer to the Investor Shareholders under this paragraph 4 is then required with respect to the same offering of securities, except as otherwise required in paragraph 4(c).
(b) Notwithstanding the foregoing, the provisions of this paragraph 4 shall not be applicable to the issuance of equity securities (i) pursuant to the Capital Contribution Agreement, (ii) upon 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 Certificate of Incorporation, or (iii) as a stock dividend or any stock split or other subdivision or combination of the outstanding equity securities; provided, however, the provisions of this paragraph 4 shall terminate upon completion of a Public Offering.
(c) 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 (the “Preemptive Notice”). After receiving a Preemptive Notice, if any of the Investor Shareholders wishes to exercise the preemptive rights granted by this paragraph 4 it must give notice to the Company in writing, within 15 business days after the date that such Preemptive Notice is deemed given pursuant to paragraph 22 (subject to extension in the event of a re-offer described in paragraph 3(a) above), stating the quantity of the shares or other securities offered pursuant to this paragraph 4 it agrees to purchase price on the terms and conditions set forth in the Issuance 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 event of a re-offer described in paragraph 3(a) 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 expiration of such 15-business day period, be issued, sold or subjected to rights or options to any purchaser at a price not less than the price at which they were offered to such Investor Shareholders and upon the on other terms and conditions specified in the Issuance Notice by delivering a written notice no more favorable 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 purchasers thereof than those offered to the extent necessary Investor Shareholders. Any such shares or other securities not so issued, sold or subjected to obtain required governmental approvals and other required approvals, and the Company shall use its commercially reasonable efforts rights or options to obtain any purchaser during 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 15120-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 will thereafter again 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 subject 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 has not sold such New Securities within said 90-day period, the Company shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without first again complying with the preemptive purchase right procedures rights provided for in this Section 4.1paragraph 4.
(f) The preemptive rights set forth in this Section 4.1 may be waived upon the written approval of the Minority Independent Director (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the Company.
Appears in 2 contracts
Samples: Capital Contribution Agreement (Apollo Group Inc), Shareholders’ Agreement (Apollo Group Inc)
Preemptive Rights. (ai) The Company hereby grants Until the QIPO, the provisions of this Article 14 shall apply:
(1) Any Additional Securities (as defined in Article 9 above) to each current holder of Company Securities, including Athens and its Affiliates and Subsidiaries except in connection with the issuance of any Debt Instrument, (the “Preemptive Participants”) the right to purchase its Pro Rata Portion of New Securities that be issued by the Company may, from time to time, propose to sell or issue 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 “Offered Securities.” The preemptive purchase right provided in this Section 4.1(a”) shall apply at first be offered by the time Board of issuance or incurrenceDirectors by written notice to each Major Holder and Founder, for as long as such Founder holds shares in the 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) the denominator of which is the total number of outstanding Ordinary Shares of the Company (on an as-converted basis), as applicable, of any right, warrant or option or convertible or exchangeable security and not determined prior to the conversion, exchange or exercise thereofoffer made pursuant to this Article 14.
(b2) The Company shall give written notice provide each Offeree with a Notice (the “Notice of a proposed issuance, sale or incurrence described in Section 4.1(aOffer”) specifying the number of Offered Securities he is entitled to purchase and which shall state the Preemptive Participants within five (5) Business Days following any meeting terms 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 any such proposed transaction, includingOfferee may accept such offer, 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 the Offered Securities so offered to him, by giving the Company written notice to the Company, of acceptance 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).
twenty (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 (9020) days after being served with such Notice of Offer; provided, however, that the expiration 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 obligated to consummate the purchase of such Offered Securities only if the Company consummates the sale of the 15-day period balance of the Offered Securities pursuant to the terms 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 has not sold such New Securities within said 90-day period, the Company shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without first again complying with the preemptive purchase right procedures provided for in this Section 4.1.Notice of Offer
(f3) The preemptive Any and all preemption rights set forth in this Section 4.1 Article 14, may be waived upon exercised by a Permitted Transferee of a Major Holder instead of by such Major Holder if such Major Holder so notifies the written approval Company in writing.
(j) Any Offered Securities not subscribed for by the Offeree as aforesaid, shall be under the control of the Minority Independent Director (or a majority Board of Directors and may be issued without regard to this Article 14, except to the extent that said Offered Securities may not be allotted on terms more favorable to the purchaser than those offered pursuant to this Article 14. In the event the Offered Securities are not acquired by the expiration of 120 days from the date of expiration of the Directors on twenty (20) day period referred to in Article 14(a)(2), they may not be issued except by compliance with the Board who are Independent Directors if there is no Minority Independent Director at the time provisions of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the CompanyArticle 14.
Appears in 2 contracts
Samples: Preferred Share Purchase Agreement (Negevtech Ltd.), Preferred Share Purchase Agreement (Negevtech Ltd.)
Preemptive Rights. (a) The Company hereby grants to each current holder Except in the case of Company Excluded Securities, including Athens prior to the consummation of a Qualified IPO, the Company shall not, and shall cause its Affiliates and Subsidiaries except in connection with not to, issue, exchange or otherwise Dispose, agree to issue, exchange or otherwise Dispose, or reserve or set aside for the issuance same, any of the Membership Interests or the Equity Interests of any Debt InstrumentSubsidiary, unless in each case the Company shall have first offered or caused such Subsidiary to offer (the “Preemptive ParticipantsOffer”) the right to purchase its Pro Rata Portion of New Securities that the Company may, from time to time, propose to sell such Membership Interests or issue or that relate to incurred indebtednessEquity Interests, as applicable. The number or amount of New , to all Members who own Class I Units and are “accredited investors” as defined in Rule 501(a) under the Securities which the Preemptive Participants may purchase pursuant to this Section 4.1(a) shall be referred to as Act (the “Offered Securities.” The preemptive purchase right provided in this Section 4.1(a”) shall apply at the time by delivery to such Members 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 such offer stating the Company or incurrence described in Section 4.1(a) to the Preemptive Participants within five (5) Business Days following any meeting Subsidiary 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, includingCompany, as applicablethe case may be, the number or amount and description of the securities proposed proposes to be issuedsell such Offered Securities, 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 proposed to be sold, the proposed purchase price set forth in the Issuance Notice therefor and upon the any other terms and conditions specified in of such offer. The Preemptive Offer shall by its terms remain open and irrevocable for a period of 15 days from the Issuance Notice date it is delivered to the Members eligible to receive such notice (the “Preemptive Offer Period”).
(b) Each Member being offered the Offered Securities (an “Offeree”) shall have the option, exercisable at any time during the Preemptive Offer Period 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 HolderPreemptive Offer Acceptance Notice”), 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 subscribe 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(i) 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 such Offered Securities up to its Proportionate Percentage of the total number or amount of Offered Securities proposed to be issued or sold and (ii) up to its Proportionate Percentage of the 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 accepted by the Offerees exercising their options specified in clause (ii) of the immediately preceding sentence with respect to the lesser of (A) the amount specified in their respective Preemptive Offer Acceptance Notices and (B) an amount equal to their respective Proportionate Percentages with respect to such deemed offer. Such deemed offer and acceptance procedures described in the immediately preceding sentence shall be deemed to be repeated until either (1) all of the Offered Securities are accepted by the Offerees or (2) no Offeree desires to subscribe for more Offered Securities. The Company may be reduced); provided that (x) such issuance, sale or incurrence is closed shall notify each Offeree accepting Offered Securities hereunder within ninety (90) five days after following the expiration of the 15-day period described in Section 4.1(c) and (y) Preemptive Offer Period of the price at which the New number or amount of Offered 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 Offeree has subscribed 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 has not sold such New Securities within said 90-day period, the Company shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without first again complying with the preemptive purchase right procedures provided for in this Section 4.1purchase.
(f) The preemptive rights set forth in this Section 4.1 may be waived upon the written approval of the Minority Independent Director (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the Company.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Antero Resources LLC), Limited Liability Company Agreement (Antero Resources Finance Corp)
Preemptive Rights. (a) The Subject to and without limiting the other applicable provisions of this Agreement, should the Company hereby grants determine to issue and sell any New Interests prior to an IPO, then each current holder of Company Securities, including Athens and its Affiliates and Subsidiaries except in connection with the issuance of any Debt Instrument, (the “Preemptive Participants”) Member shall have the right to purchase its Pro Rata Portion up to such Member’s pro rata share of such New Securities that the Company mayInterests (such purchase rights, from time to time, propose to sell or issue 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 “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 thereofPreemptive Rights”).
(b) The In the event that the Company proposes to issue or sell New Interests, the Company shall give written notice of a proposed issuance, sale or incurrence described notify each Member in Section 4.1(a) to the Preemptive Participants writing within five (5) Business Days following any meeting 30 days of the Board at which any such issuance, proposed issuance and sale or incurrence is approved and at least fifteen (15) days prior to the proposed issuance, sale or incurrence. Such notice of New Interests (the “Issuance New Interests Notice”) ). Each New Interests Notice shall set forth the material terms and conditions of such proposed transaction, including, as applicable, forth: (i) the number or amount and description of the securities New Interests proposed to be issuedissued or sold by the Company and their purchase price; (ii) such Member’s pro rata portion of New Interests and (iii) any other material term, including any applicable regulatory requirements and, if known, the proposed expected date of consummation of the issuance or incurrence and sale of the New Interests (which date, in any event shall be no earlier than 30 days following the date and of delivery of the proposed purchase price per securityNew Interests Notice).
(c) At any time during Each Member shall be entitled to exercise its Preemptive Right to purchase such New Interests by delivering an irrevocable written notice to the 15-day period following Company within 20 days from the date of receipt of an Issuance Notice, the Preemptive Participants shall have the right to elect irrevocably to purchase their Pro Rata Portion of any New Interests Notice specifying the number or amount of the Offered Securities New Interests to be subscribed, which in any event can be no greater than such Member’s pro rata portion of such New Interests, at the purchase price set forth in and on 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 New Interests 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 Member exercising its right to purchase its respective entire pro rata portion of the Offered Securities in full New Interests being issued (an each a “Exercising HolderSubscribing Member”) shall have a right of over-allotment such that if any other securityholder 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 hereunder to purchase its full Pro Rata Portion entire pro rata share of Remaining New Securities (a “Non-Purchasing Holder”Interests, as described below), such Exercising Holder Subscribing Member may purchase all or any part its pro rata share, based on the relative percentage ownership of such securities 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 (the “Remaining New Interests”) by giving written notice to the Company, Company within three Business Days from the 15-day period following date that the receipt Company provides written notice of an Issuance Notice, of its interest in purchasing a specified the amount of New Securities Interests as to which any such Non-Purchasing Holders has Subscribing Members have failed to exercise their preemptive purchase right hereunder; provided that rights thereunder. The Company shall reoffer any Remaining New Interests to the Members in successive rounds (without regard to the time periods specified in the event there are two or more foregoing provisions) until such Exercising Holders that choose to exercise time as 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 Members have collectively agreed 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 all of the New Securities described Interests being issued or all of the Members are Non-Subscribing Members 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 last round 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 has not sold such New Securities within said 90-day period, the Company shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without first again complying with the preemptive purchase right procedures provided for in this Section 4.1offers.
(f) The preemptive rights set forth in this Section 4.1 may be waived upon the written approval of the Minority Independent Director (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the Company.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Riviera Resources, LLC), Limited Liability Company Agreement (Linn Energy, Inc.)
Preemptive Rights. (a) The If the Company hereby grants proposes to each current holder issue, sell or exchange, or agree to issue, sell or exchange (i) any equity security of Company Securities, including Athens and its Affiliates and Subsidiaries except in connection with the issuance of any Debt InstrumentCompany, (the “Preemptive Participants”ii) the right to purchase its Pro Rata Portion any debt security of New Securities that the Company may, from time to time, propose to sell which by its terms is convertible into or issue exchangeable for any equity security of the Company 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(iii) shall be referred to as the “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 rightoption, warrant or option other right to subscribe for, purchase or convertible otherwise acquire any equity security or exchangeable any debt security and not referred to in clause (i) or (ii) above (collectively, "Securities") to any person or entity, the Company shall deliver to the conversion, exchange or exercise thereof.
Purchaser an offer (b) The Company shall give written notice of a proposed issuance, sale or incurrence described in Section 4.1(athe "Preemptive Offer") to issue such number of Securities to it to enable it to retain its fully-diluted ownership position in 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 Company that it held immediately prior to the proposed issuance, sale sale, or incurrence. Such notice exchange (the “Issuance Notice”"Offered Securities") shall upon the same terms set forth the material terms and conditions of as 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 Noticeoffer. 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 Offer shall state that the Company proposes to issue such Securities and specify their number and terms (including purchase price). The Preemptive Offer shall use its commercially reasonable efforts to obtain such approvals.
remain open for a period of 20 days (dthe "Preemptive Period") Each Preemptive Participant exercising its right to purchase its respective portion of from 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, date 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, delivery unless earlier withdrawn by the Company shall be free to complete as a result of termination by the Company of the proposed issuance, sale or incurrence exchange giving rise to the Preemptive Offer. For purposes of this Section 4, the Purchaser's "fully diluted ownership position" shall mean the proportion that the number of shares of Common Stock issued and held, or issuable upon exercise or conversion of any debt or equity securities of the New Company convertible into or exchangeable for shares of Common Stock of the Company then held by such Purchaser bears to the total number of shares of Common Stock then outstanding (assuming full conversion and exercise of all convertible or exercisable securities then outstanding).
(b) Purchaser may accept the Preemptive Offer by delivering to the Company a written notice (the "Purchase Notice") within the Preemptive Period and the appropriate amount of funds to purchase such Offered Securities. The Purchase Notice shall state the number (the "Preemptive Number") of Offered Securities described Purchaser desires to purchase. If Purchaser fails to deliver the Purchase Notice within the Preemptive Period, Purchaser shall forfeit the right to participate in the Issuance Notice with respect purchase of the Offered Securities.
(c) Notwithstanding anything to which Exercising Holders failed to exercise the option set forth contrary 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 has not sold such New Securities within said 90-day period4, the Company shall not thereafter issue be required to extend a Preemptive Offer to the Purchaser with respect to (i) the issuance or sell sale of options to purchase shares of Common Stock to employees, consultants, advisors, and directors, pursuant to any New Securities stock option plan approved by the Company's Board of Directors or incur new indebtednessotherwise 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 applicableof the Closing or subsequent thereto, including, without first again complying 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 preemptive acquisition of another corporation or entity, or any portion thereof, by the Company by consolidation, merger, purchase right procedures of securities or purchase of all or substantially all of the assets thereof, provided for that such transaction or series of transactions has been approved by the Board of Directors; (vi) securities issued as part of strategic alliances which have been approved by the Board of Directors; or
(vii) securities issued as equity "kickers" issued in this Section 4.1connection with a non-convertible debt financing, leasing transaction or other similar type of transaction approved by the Board of Directors.
(fd) The preemptive rights set forth in this Section 4.1 may be waived 4 shall terminate (i) immediately upon the written approval Purchaser owning less than 25% of its Shares purchased hereunder or (ii) upon (A) the acquisition of all or substantially all the assets of the Minority Independent Director Company or (or a majority B) an acquisition of the Directors on Company by another corporation or entity by consolidation, merger or other reorganization in which the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest holders of the Company's outstanding voting stock immediately prior to such transaction own, immediately after such transaction, securities representing less than fifty percent (50%) or more of the voting power of the corporation or other entity surviving such transaction.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Insurance Services Office Inc), Stock Purchase Agreement (Nam Corp)
Preemptive Rights. (a) The Company hereby grants to each current holder of Company SecuritiesIf, including Athens and its Affiliates and Subsidiaries except in connection with the issuance of at any Debt Instrument, (the “Preemptive Participants”) the right to purchase its Pro Rata Portion of New Securities that the Company may, from time to time, propose to sell or issue 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 “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 proposes 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 has not sold such New Securities within said 90-day period, the Company shall not thereafter issue or sell any New Securities (as defined above) to any person, whether or incur new indebtednessnot 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 give notice thereof (“Preemptive Rights Notice”) to each Member who holds Interests (individually, “Participating Member,” and collectively, “Participating Members”). Each Preemptive Rights Notice shall:
VII.1.1. Specify in reasonable detail (i) the number and type of New Securities which the Company proposes to issue or sell, and (ii) the time within which, the price at which, and all other material terms and conditions upon which, the Company proposes to issue or sell such New 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 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 form attached hereto as applicable, without first again complying Exhibit C) filed with the preemptive purchase right procedures provided for 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 4.1Article 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 (fas defined below) The preemptive rights set forth of such New Securities as described in this Section 4.1 may be waived upon 7.1 above. As used herein, the written approval term “Preemptive Rights Pro Rata Amount,” as applied to any Participating Member on any date, shall mean a fraction (expressed as a percentage), the numerator of which is the Interests of the Minority Independent Director (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed Company then held by such Minority Independent Director, or majority Participating Member and the denominator of which is the Independent Directors, as applicable, to be in the best interest outstanding Interests of the Company, in each case, excluding the New Securities to be issued.
Appears in 2 contracts
Samples: Operating Agreement, Operating Agreement
Preemptive Rights. Subject to the terms and conditions specified in this Section 2.1, the Company hereby grants to each Investor a right to participate 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 following provisions:
(a) The Company hereby grants shall deliver a notice by certified mail (a “Notice”) to each current holder of Company Securities, including Athens and Investor stating (i) its Affiliates and Subsidiaries except in connection with the issuance of any Debt Instrumentbona fide intention to offer such Shares, (the “Preemptive Participants”ii) the right number of such Shares to purchase its Pro Rata Portion of New Securities that be offered or sold, and (iii) the Company mayprice and terms, from time if any, upon which it proposes to time, propose to offer or sell or issue 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 “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 thereofsuch Shares.
(b) The Company shall give written notice Within twenty (20) calendar days after delivery of a proposed issuancethe Notice, sale each Investor may elect to purchase or incurrence described obtain, at the price and on the terms specified in Section 4.1(a) the Notice, up to that portion of such Shares which 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 Preemptive Participants within five total number of shares of Common Stock then outstanding (5) Business Days following any meeting assuming full conversion and exercise 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 securityall Warrants).
(c) At any time The Company may, during the 15-sixty (60) 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 expiration of the number or amount period provided in Section 2.1(b) hereof, offer the remaining unsubscribed portion of the Offered Securities Shares to any Person or Persons at the purchase a price set forth in the Issuance Notice not less than, and upon terms no more favorable to the other terms and conditions offeree than those specified in the Issuance Notice by delivering a written notice to Notice. If the Company. Except as provided in Company does not enter into an agreement for the following sentence, such purchase shall be consummated concurrently with the consummation sale of the issuanceShares within such period, 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 if 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 agreement is closed not consummated within ninety (90) days after the expiration of the 15-day period described in Section 4.1(c) and (y) execution thereof, 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 right provided hereunder shall be extended deemed to the extent necessary to obtain required governmental approvals be revived and other required approvals and the Company shall use its commercially reasonable efforts to obtain such approvals. In the event that the Company has not sold such New Securities within said 90-day period, the Company Shares shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without be sold unless first again complying with the preemptive purchase right procedures provided for reoffered to each Investor in this Section 4.1accordance herewith.
(fd) The preemptive rights set forth in this Section 4.1 2.1 shall not be applicable (i) to the issuance or sale by the Company of any of its capital stock pursuant to any employee benefit plan (including any option plan, restricted stock plan, stock purchase plan or 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 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 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 a stock split, reverse stock split, reclassification, recapitalization, consolidation, merger or similar event.
(e) The rights under this Section 2.1 may be waived upon the written approval of the Minority Independent Director assigned by any Investor (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiverassignee thereof) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the Companyan Investor Assignee.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (Prolong International Corp), Investors’ Rights Agreement (St Cloud Capital Partners Lp)
Preemptive Rights. (a) The Subject to the Class A Member(s) or Class B Member(s) obligation or right to contribute additional capital as set forth in Section 4.1, prior to the Company hereby grants issuing any Interests or options or rights to each current holder of Company Securitiesacquire Interests (other than (i) any equity issuance associated with an acquisition previously approved by EMG, including Athens and its Affiliates and Subsidiaries except (ii) Interests issued in connection with any split, distribution or recapitalization of the issuance 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 Debt Instrumentactivities 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 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 “Preemptive ParticipantsNew 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 the right to purchase its Pro Rata Portion a portion of the New Securities that the Company may, from time to time, propose to sell or issue or that relate to incurred indebtedness, as applicable. The number or amount of New Securities which the Preemptive Participants may purchase pursuant to Interests in accordance with this Section 4.1(a) shall be referred to as the “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 thereof5.6.
(b) The Company shall give each Eligible Member prior 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 First Notice”) of any proposed issuance of New Interests, which shall set forth in reasonable detail the material 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 date of such proposed transaction, including, as applicable, the number or amount and description notice) of the securities New Interests, on the same terms and conditions and at the same time as the New Interests are proposed to be issuedissued by the 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 proposed issuance or incurrence date and Eligible Member’s receipt of the proposed First Notice (the “Election Period”) setting forth the dollar amount of the New 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 price per securityin 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) At If the Eligible Members do not subscribe for all of the New Interests, the Company shall have 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 15-day period 90 days following the receipt of an Issuance Notice, the Preemptive Participants shall have the right to elect irrevocably to purchase their Pro Rata Portion end of the number or amount of the Offered Securities Election Period, at the purchase same price and pursuant to the terms and conditions 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 First Notice. The Board may, in its reasonable discretion, impose such other reasonable and customary terms and procedures such as setting a closing of date and requiring customary closing deliveries in connection with 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 approvalsrights offering. In the event that any Electing Member refuses to purchase the New Interests for which it subscribed pursuant to this Section 5.6, then in addition to any other rights the Company has not sold may have at law or in equity, such New Securities within said 90-day period, the Company Electing Member and any transferee thereof shall not thereafter issue or sell be considered an Eligible Member for any New Securities or incur new indebtedness, as applicable, without first again complying with the preemptive purchase right procedures provided for in future rights granted under this Section 4.1.
(f) The preemptive rights set forth in this Section 4.1 may be waived upon the written approval of the Minority Independent Director (or a majority of the Directors on 5.6 unless the Board who are Independent Directors if there is no Minority Independent Director expressly designates otherwise (which the Board may, in its sole discretion, do on an offer-by-offer basis or not at the time of such waiverall) if such waiver is and shall be deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the Companya 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. Subject to the provisions of Section 16(a) hereof, in the event that, prior to the occurrence of a Qualified Public Offering, RHH seeks to sell shares of Capital Stock (aconsisting of one share of Preferred Stock and one share of Common Stock as a “Unit”) The Company hereby grants in a private or similar non-public placement, each Shareholder shall be entitled to acquire, at the proposed offering price of such Units, that number of Units equal to the 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 current holder respective Shareholder and, without duplication, their Permitted Transferees and the denominator of Company Securitieswhich shall be the aggregate number of shares of Capital Stock (both Common and Preferred) owned by all Shareholders and, including Athens and its Affiliates and Subsidiaries except in without duplication, their Permitted Transferees. In connection with the any proposed issuance of such Units, RHH will give prior notice as soon as possible, but in any Debt Instrument, (the “Preemptive Participants”) the right to purchase its Pro Rata Portion of New Securities that the Company may, from time to time, propose to sell or issue 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 “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 event at least fifteen (15) days prior written notice, of its intention to effect such issuance to each Shareholder, specifying in such notice the number of Units to be sold, 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 proposed issuancemaximum number of Units to which such Shareholder is entitled to acquire hereunder with such purchase being effected by such Shareholder’s payment to RHH, sale on or incurrence. Such notice (before the “Issuance Notice”) shall set forth 20th day after such notice, by wire transfer of immediately available funds, an amount equal to the material terms 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 conditions Common Stock so acquired, which will be issued in the name of such proposed transaction, including, as applicable, Shareholder. To the number or amount and description of the securities extent any Units proposed to be issuedsold in such private placement shall not have been subscribed to by an existing Shareholder, the proposed issuance RHH shall be free thereafter to sell such Units by way of a private placement, or incurrence date and the proposed purchase similar offering, at an offering 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 Unit not less than that 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 CompanyShareholders. Except as provided in Until the following sentenceoccurrence of a Qualified Public Offering, such purchase or until the redemption of all shares of Preferred Stock, RHH 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, only issue shares of its interest Capital Stock 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)Units.
(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 has not sold such New Securities within said 90-day period, the Company shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without first again complying with the preemptive purchase right procedures provided for in this Section 4.1.
(f) The preemptive rights set forth in this Section 4.1 may be waived upon the written approval of the Minority Independent Director (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the Company.
Appears in 2 contracts
Samples: Shareholders Agreement (FreightCar America, Inc.), Shareholders Agreement (FCA Acquisition Corp.)
Preemptive Rights. (a) The Company hereby grants Subject to each current holder Section 3.9, for so long as any Investor Beneficially Owns Investor Shares representing at least five percent (5%) of Company Securitiesthe Denominator Shares, including Athens and its Affiliates and Subsidiaries except in connection with the issuance of any Debt Instrumentsuch Investor shall have, (the “Preemptive Participants”) 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 Denominator Shares prior to issuance of the New Shares (such Investor’s “Pro Rata Portion Portion”) of any New Securities Shares that the Company may, from time to time, propose to sell or and issue 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 (hereinafter referred to as the “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 thereofPreemptive Right”).
(b) The In the event that the Company proposes to issue and sell New Shares, the Company shall give 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 of a proposed issuance, sale or incurrence described in Section 4.1(a) to the Preemptive Participants Company 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 from the proposed issuance, sale or incurrence. Such notice (the “Issuance Notice”) shall set forth the material terms and conditions date of receipt of any such proposed transaction, including, as applicable, New Shares Notice specifying the number or amount and description of the securities proposed New Shares to be issuedsubscribed, the proposed issuance or incurrence date and the proposed purchase price per security.
(c) At which in 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 event can be no greater than such Investor’s Pro Rata Portion of the number or amount of the Offered Securities such New Shares at the purchase price set forth in and on 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 New Shares 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 If the Offered Securities in full Investors (an “Exercising Holder”together with their Affiliates) 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, do not elect within the 15-day applicable notice 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 described above to exercise their preemptive purchase right hereunder; provided that in the event there are two or more such Exercising Holders that choose Preemptive Rights with respect to exercise the last-mentioned option for a total number of remaining securities in excess any of the number available, New Shares proposed to be sold by 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 aboveCompany, the Company shall have ninety (90) days after expiration of such notice period to sell such unsubscribed New Shares proposed to be free to complete sold by the proposed issuanceCompany, 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 at a price and on terms no less more favorable to the Company purchaser than those set forth in the Issuance 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 (except that the number or amount of securities to be issued or sold by 90)-day period, then 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 has not sold such New Securities within said 90-day period, the Company shall not thereafter issue or sell any such New Securities or incur Shares unless it sends a new indebtedness, as applicable, without first New Shares Notice and once again complying complies with the preemptive purchase right procedures provided for in provisions of this Section 4.13.8 with respect to such New Shares.
(fe) The preemptive rights set forth in this Section 4.1 may be waived 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 the written approval closing of the Minority Independent Director (or a majority issuance of the Directors on New Shares, and shall have no right to acquire such New Shares if the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to issuance thereof shall not be in the best interest of the Companyconsummated.
Appears in 2 contracts
Samples: Stockholders Agreement (CIFC Corp.), Asset Purchase Agreement (CIFC Corp.)
Preemptive Rights. For so long as the Investment Percentage is at least 33%, except as otherwise provided in Section 3.02(c), each time the Company proposes to issue any Company Securities (collectively, “New Issue Securities”) to any Person, the Company shall first offer the New Issue Securities to the Investor Parties in accordance with the following provisions:
(a) The Company hereby grants shall give a notice to each current holder of Company Securities, including Athens and its Affiliates and Subsidiaries except in connection with the issuance of any Debt Instrument, Investor Parties (the “Preemptive ParticipantsNotice”) stating (i) its intention to issue the right 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) Transmittal of the Preemptive Notice to each Investor Party by the Company shall constitute an offer by the Company to sell to such Investor Party its Pro Rata Portion of the New Issue Securities that for the Company may, from time to time, propose to sell or issue or that relate to incurred indebtedness, as applicable. The number or amount of New Securities which price and upon the terms set forth in the Preemptive Participants may purchase pursuant to this Section 4.1(a) shall be referred to as Notice. For a period of 10 Business Days after the “Offered Securities.” The preemptive purchase right provided in this Section 4.1(a) shall apply at the time submission 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 Notice to an Investor Party, 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 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 elect irrevocably purchase under this Section 3.02 with respect to purchase less than their Pro Rata Portion of the number or amount of the Offered New Issue Securities at the purchase price set forth in the Issuance Notice proposed to be issued 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 abovesold, the Company shall be free have 90 days thereafter to complete the proposed issuance, sale sell any or incurrence all of the remaining New Issue Securities described in the Issuance Notice with respect (i.e., those not to which Exercising Holders failed be sold to exercise the option set forth in this Section 4.1 on an Investor Party), upon terms and conditions no less favorable to the Company Company, and no more favorable to the purchasers of such New Issue Securities, 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 Preemptive 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 has not sold such New Issue Securities within said such 90-day period, the Company shall not thereafter issue or sell any New Issue Securities or incur new indebtedness, as applicable, without first again complying with offering such New Issue Securities to Investor in the preemptive purchase right procedures manner provided for in this Section 4.13.02. 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 New 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.
(fc) The preemptive rights set forth contained in this Section 4.1 may be waived 3.02 shall not apply to (i) the issuance of Common Stock issuable upon the written approval conversion or exchange of Company Securities outstanding as of the Minority Independent Director date hereof or issued after the date hereof in accordance with the provisions of this Section 3.02; (or a majority ii) the issuance of Company Securities in connection with any bona fide acquisition of another Person (whether by merger, acquisition of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time capital stock of such waiver) if Person, acquisition of all or substantially all of the assets of such waiver is deemed by such Minority Independent DirectorPerson, or majority other reorganization), to the sellers in such transaction as consideration for such acquisition; or (iii) the issuance of 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 Independent Directors, as applicable, Company or any of its Subsidiaries pursuant to be in stock purchase or stock option plans or other arrangements that are approved by the best interest of the CompanyBoard.
Appears in 2 contracts
Samples: Shareholder Agreement (MRC Global Inc.), Purchase Agreement (MRC Global Inc.)
Preemptive Rights. (a) The From the Closing Date, in the event the Company hereby grants proposes to issue Common Shares or securities convertible into or exercisable for Common Shares or rights, options or warrants entitling the holders thereof to subscribe for 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 defined below), or (B) upon issuance of the Notes 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 securities; (3) the amount of such securities proposed to be issued; and (4) such other information as the Shareholders may reasonably request in order to evaluate the proposed issuance; and
(ii) offer to issue to each current holder Shareholder a portion of Company Securities, including Athens and its Affiliates and Subsidiaries except in connection with the Proposed Securities equivalent to a percentage determined by dividing (x) the number of Common Shares beneficially owned by such Shareholder prior to such issue (assuming the issuance of any Debt Instrument, (the “Preemptive Participants”) the right to purchase its Pro Rata Portion of New Securities that the Company may, from time to time, propose to sell or issue or that relate to incurred indebtedness, as applicable. The number or amount of New Securities which the Preemptive Participants may purchase all Common Shares issuable pursuant to this Section 4.1(a) shall be referred to as the “Offered Securities.” The preemptive purchase right provided in this Section 4.1(a) shall apply at the time of issuance or incurrencethen outstanding warrants, as applicableoptions (including employee stock options), of any right, warrant or option or convertible or exchangeable security securities (including, without limitation, the Notes, even if at such time the Notes are not convertible) and not other rights to acquire Preemptive Securities from the conversionCompany), exchange or exercise thereofby (y) the Fully-Diluted Shares at such time.
(b) The Company shall give written notice For purposes of a proposed issuance, sale or incurrence described in calculating the number of Common Shares beneficially owned pursuant to 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 applicable4.1(a)(ii), 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.
Conversion Price (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 as defined 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(dNotes) 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).
(e1) If the Preemptive Participants or Exercising Holders fail to exercise fully their preemptive purchase right hereunder within the periods described aboveabsent a Liquidity Event, the Company shall be free to complete the proposed issuance, sale or incurrence of the New Securities described Base Conversion Price (as defined in the Issuance Notice Notes); or (2) if a Liquidity Event has occurred, the Conversion Price determined with respect reference to which Exercising Holders failed to exercise the option set forth in this Section 4.1 on terms no less favorable Annex A to the Company than those set forth Notes, in each case as the Issuance Notice (except that the number or amount of securities to be issued or sold by the Company same 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 adjusted in accordance with 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 has not sold such New Securities within said 90-day period, the Company shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without first again complying with the preemptive purchase right procedures provided for in this Section 4.1.
(f) The preemptive rights set forth in this Section 4.1 may be waived upon the written approval of the Minority Independent Director (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the Company.4.2
Appears in 2 contracts
Samples: Shareholder Agreement (Viatel Holding Bermuda LTD), Shareholder Agreement (Morgan Stanley)
Preemptive Rights. (a) The If the Company hereby grants or any of its Subsidiaries proposes to issue 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 current holder of Company Securities, including Athens and its Affiliates and Subsidiaries except in connection with the issuance of any Debt Instrument, (the “Preemptive Participants”) the right to purchase its Pro Rata Portion of New Securities that the Company may, from time to time, propose to sell or issue 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 “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 Investor Shareholder 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 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 Offered Securities 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 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 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 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 Company’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 so accept by written notice to the Company given within such 10-day period, provided that all acceptances by Carlyle’s Affiliates shall be made by Carlyle on behalf of its Affiliates. No further offer to the Investor Shareholders under this paragraph 4 is then required with respect to the same offering of securities, except as otherwise required in paragraph 4(c).
(b) Notwithstanding the foregoing, the provisions of this paragraph 4 shall not be applicable to the issuance of equity securities (i) pursuant to the Joint Venture Agreement, (ii) upon 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 Certificate of Incorporation, or (iii) as a stock dividend or any stock split or other subdivision or combination of the outstanding equity securities; provided, however, the provisions of this paragraph 4 shall terminate upon completion of a Public Offering.
(c) 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 (the “Preemptive Notice”). After receiving a Preemptive Notice, if any of the Investor Shareholders wishes to exercise the preemptive rights granted by this paragraph 4 it must give notice to the Company in writing, within 15 business days after the date that such Preemptive Notice is deemed given pursuant to paragraph 21 (subject to extension in the event of a re-offer described in paragraph 3(a) above), stating the quantity of the shares or other securities offered pursuant to this paragraph 4 it agrees to purchase price on the terms and conditions set forth in the Issuance 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 event of a re-offer described in paragraph 3(a) 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 expiration of such 15-business day period, be issued, sold or subjected to rights or options to any purchaser at a price not less than the price at which they were offered to such Investor Shareholders and upon the on other terms and conditions specified in the Issuance Notice by delivering a written notice no more favorable 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 purchasers thereof than those offered to the extent necessary Investor Shareholders. Any such shares or other securities not so issued, sold or subjected to obtain required governmental approvals and other required approvals, and the Company shall use its commercially reasonable efforts rights or options to obtain any purchaser during 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 15120-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 will thereafter again 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 subject 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 has not sold such New Securities within said 90-day period, the Company shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without first again complying with the preemptive purchase right procedures rights provided for in this Section 4.1paragraph 4.
(f) The preemptive rights set forth in this Section 4.1 may be waived upon the written approval of the Minority Independent Director (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the Company.
Appears in 2 contracts
Samples: Joint Venture Agreement (Apollo Group Inc), Shareholders' Agreement (Apollo Group Inc)
Preemptive Rights. (a) The In case the Company hereby grants proposes to issue or sell any Company Securities (collectively, 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 current holder Investor of Company Securitiessuch Preemptive Rights Transaction. The Offer Notice shall describe the proposed Preemptive Rights Transaction, including Athens price and its Affiliates other terms and Subsidiaries except in connection with the issuance of any Debt Instrumentconditions, and contain an offer (the “Preemptive ParticipantsRights Offer”) to sell to each such Investor (other than a Defaulting Investor) who certifies (to the right to purchase its Pro Rata Portion reasonable satisfaction of New the Company) that such Investor is an Accredited Investor (an “Offeree”), at the price set forth in the Offer Notice, all or part of such Offeree’s pro rata portion of the Offered Securities (which shall be the proportion that the number of shares of Fully-Diluted Common Stock owned by such Investor 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 Offer Notice. If no Investor provides a valid Acceptance, then the Company may, from time to time, propose to sell or may proceed with the proposed issue or that relate to incurred indebtedness, as applicable. The number or amount sale of New the Offered Securities which on the Preemptive Participants may purchase pursuant to terms contained in the Offer Notice free of any right on the part of any Investor under this Section 4.1(a) shall be referred to as the “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 thereof4.01(a).
(b) The Company shall give written notice of a proposed issuance, sale or incurrence described in Section 4.1(a) to If 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 Investors do not accept all 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(c4.01(a).
(e) If the Preemptive Participants or Exercising Holders fail to exercise fully their preemptive purchase right hereunder within the periods described above, then the Company shall be free to complete the proposed issuanceshall, 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 within ten (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 (9010) days after the expiration of the 15Acceptance 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-day period described in Section 4.1(c) and (y) Diluted Common Stock owned by such Accepting Holder bears to the price at which the New number of shares of Fully-Diluted Common Stock owned by all Accepting Holders who desire to purchase Offered Securities are Transferred must be equal to or higher than the purchase price described in the Issuance 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 periods within which such issuance, sale or incurrence must be closed acceptance shall be extended made by delivering written notice of such acceptance to the extent necessary Company prior to obtain required governmental approvals and other required approvals and the 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 use offer each Accepting Holder who indicated in its commercially reasonable efforts acceptance of the Company’s Second Offer the desire to obtain purchase shares in 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 proportion that the number of shares of Fully-Diluted Common Stock owned by such approvalsAccepting 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 made by delivering written notice of such acceptance to the Company within such one (1) Business Day period. If upon expiration of such period there are Remaining Securities, then the Company may proceed with the proposed issue or sale of such Remaining Securities on the terms contained in the Offer Notice free of any further right on the part of any Stockholder under this Section 4.01(a).
(c) This Section 4.01 shall not apply to (i) issuances or sales of Company Securities to employees, officers, or directors of the Company 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%) of the fully-diluted Common Stock of the Company as of the date of 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 other corporation or entity or greater than fifty percent (50%) of the voting power of 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 Common 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 material respect more favorable to such institutional investor(s) than the terms and conditions set forth in the Subscription Agreement (the “Follow-on Offering”). In the event that of any issuances or sales of any Company Securities as a unit with any other security of the Company has not sold such New Securities within said 90-day periodor its Subsidiaries, the Company shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without first again complying with the preemptive purchase right procedures provided for in rights under this Section 4.1.
(f) The preemptive rights set forth in this Section 4.1 may 4.01 shall be waived upon applicable to the written approval of entire unit rather than only the Minority Independent Director (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be Company Security included in the best interest of the Companyunit.
Appears in 2 contracts
Samples: Stockholders' Agreement (Corsair Capital LLC), Stockholders Agreement (NewStar Financial, Inc.)
Preemptive Rights. (a) The So long as Xxxxxxx and its controlled Affiliates beneficially own in excess of 20% of the shares of New Common Stock then outstanding, and subject to the terms and conditions of Section 11(b), the Company hereby shall not issue additional Equity Securities (an “Issuance”) unless, prior to such Issuance, the Company notifies Xxxxxxx in writing of the proposed Issuance and grants to each current holder Xxxxxxx, or at Xxxxxxx’x election, one or more of Company Securitiesits Affiliates, including Athens the right (the “Right”) to subscribe for and its Affiliates purchase in whole or in part, at the same price and Subsidiaries except upon the same terms and conditions as set forth in connection with 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 any Debt Instrument, (the “Preemptive Participants”) the right to purchase its Pro Rata Portion shares of New Securities that the Company may, from time to time, propose to sell or issue 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 “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 Common Stock upon conversion, exchange or exercise thereofof any Equity Security issued in the Issuance and subject to the Right), the shares of New Common Stock that Xxxxxxx and its Affiliates beneficially own (rounded to the nearest whole share) shall represent the same percentage of the aggregate number of shares of New Common Stock outstanding as was beneficially owned by Xxxxxxx and its Affiliates immediately prior to the Issuance. In the event Equity Securities are issued as part of a unit with other securities, the Right will apply to such unit and not separately to any component of such unit.
(b) The Company shall give Right may be exercised by Xxxxxxx, or, at Xxxxxxx’x election, one or more of its Affiliates, as the case may be, provided that the Person exercising the Right must (i) be an Accredited Investor and (ii) deliver 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 Company of such exercise of the Board at Right which any such issuance, is received by the Company within twenty (20) business days after the date on which Xxxxxxx receives notice from the Company of the proposed Issuance. The closing of the purchase and sale or incurrence is approved and at least fifteen (15) days prior pursuant 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 exercise of the securities proposed to Right shall occur on the date scheduled by the Company for the Issuance, which may not be issued, earlier than ten (10) business days and no later than sixty (60) business days after the proposed issuance or incurrence date and Company receives notice of the proposed purchase price per securityexercise of the Right.
(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 Nothing in this Section 4.1 11 shall be deemed to prevent any Person from purchasing for cash or the Company from issuing any additional Equity Securities without first complying with the provisions of this Section 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 than those set forth in the Issuance Notice aggregate than such purchase is available on a no less timely basis, and (except that c) the delay caused by compliance with 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 investment as soon as practicable, and in any event at least five (5) business days prior to the consummation of such investment; and (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’ beneficial ownership of outstanding Equity Securities relative to the total number or amount of securities outstanding Equity Securities, in each case prior to be issued or sold the issuance 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 Equity 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 has not sold such New Securities within said 90-day period, the Company shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without first again complying with the preemptive purchase right procedures provided for in transaction contemplated by this Section 4.111(c).
(f) The preemptive rights set forth in this Section 4.1 may be waived upon the written approval of the Minority Independent Director (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the Company.
Appears in 2 contracts
Samples: Standstill Agreement (Supermedia Inc.), Standby Purchase Agreement (Idearc Inc.)
Preemptive Rights. (a) The For so long as the IEP Group owns at least 10% of the outstanding Common Stock, if the Company hereby grants proposes to each current holder 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 (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 material terms and provisions of the securities proposed to be issued (the “Proposed Securities”), including Athens including, to the extent applicable, the voting powers, preferences and its Affiliates relative participating, optional or other special rights, and Subsidiaries 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, considered together, outstanding immediately prior to the issuance of any Debt Instrument, the Proposed Securities (the “Preemptive ParticipantsPro 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 right number of shares of Class A Common Stock and Voting Stock beneficially owned by the IEP Group prior to purchase its 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 New Securities that the Company mayProposed Securities, from time to time, propose to sell or issue or that relate to incurred indebtedness, as applicable. The number or in aggregate and (2) the amount of New Securities which the Preemptive Participants may purchase Class A Common Stock or other Voting Stock delivered pursuant to clause (A) of this Section 4.1(a) shall be referred to as the “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 thereof3.06(a)(ii).
(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 IEP Group will 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 option, exercisable by delivering a irrevocable written notice to the 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 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 applicable issuance of Equity Securities). Except as provided 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 in the following sentence, Company’s notice to the IEP Group. The closing of the exercise of such purchase subscription right shall be consummated concurrently take place simultaneously with the consummation closing of the issuancesale of the Proposed Securities giving rise to such subscription right; provided, sale or incurrence described in however, that the Issuance Notice. The closing of any purchase by any Preemptive Participants the IEP Group may be extended beyond the closing of the transaction described in sale of the Issuance Notice Proposed Securities giving rise to such preemptive right to the extent necessary to (i) obtain required governmental approvals and other required approvalsfrom any Governmental Authority or (ii) permit the IEP Group to receive proceeds from calling capital pursuant to commitments made by its (or its Affiliates’) limited partners (but in such event, and such extension shall not be longer than 10 Business Days). Upon the expiration of the offering period described above, the Company will be free to 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 after such 120-day period must be reoffered to issue or sell to the IEP Group pursuant to this Section 3.06.
(c) The election by the IEP Group not to exercise its subscription rights under this Section 3.06 in any one instance shall use not affect its commercially reasonable efforts right as to obtain such approvalsany subsequent proposed issuance.
(d) Each Preemptive Participant exercising If the proposed issuance by the Company of securities which gave rise to the exercise by the IEP Group of its right preemptive rights pursuant to this Section 3.06 shall be terminated or abandoned by the Company without the issuance of any securities, then the purchase its respective portion rights of the Offered Securities in full IEP Group pursuant to this Section 3.06 shall also terminate as to such proposed issuance by the Company (an “Exercising Holder”) shall have a right of over-allotment such that if but not any other securityholder fails to exercise its right hereunder to purchase its full Pro Rata Portion of New Securities (a “Non-Purchasing Holder”subsequent or future issuance), such Exercising Holder may purchase all or and any part of such securities by giving written notice funds in respect thereof paid to the Company, within Company by the 15-day period following the receipt of an Issuance Notice, of its interest IEP Group 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) respect thereof 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)refunded in full.
(e) If In the Preemptive Participants case of an issuance subject to this Section 3.06 for consideration in whole or Exercising Holders fail to exercise fully in part other than cash, including securities acquired in exchange therefor (other than securities by their preemptive purchase right hereunder within the periods described aboveterms so exchangeable), the Company consideration other than cash 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 deemed to be issued or sold the fair market value thereof as reasonably determined in good faith 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 has not sold such New Securities within said 90-day period, the Company shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without first again complying with the preemptive purchase right procedures provided for in this Section 4.1Board.
(f) The preemptive rights set forth in this Section 4.1 may be waived upon the written approval of the Minority Independent Director (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the Company.
Appears in 2 contracts
Samples: Shareholders Agreement (Icahn Enterprises Holdings L.P.), Membership Interest Purchase Agreement (Tenneco Inc)
Preemptive Rights. (a) The Subject to clause (f) below, the officers of the Company hereby grants shall not solicit capital contributions or issue any Interests (or Units) in the Company therefor unless it first delivers to each current holder of Company Securities, including Athens and its Affiliates and Subsidiaries except Initial Member (each such Initial Member being referred to in connection with the issuance of any Debt Instrument, this Section 2.8 as a “Buyer”) a written notice (the “Preemptive ParticipantsNotice 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”), 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 the right to purchase its Pro Rata Portion of New Securities that the Company may, from time to time, propose to sell or issue or that relate to incurred indebtedness, as applicable. The number or amount of New Securities which Offered Interests in the Preemptive Participants may purchase pursuant to this Section 4.1(a) shall be referred to as the “Offered Securities.” The preemptive purchase right provided manner specified in this Section 4.1(a) shall apply 2.8 for the same price per share and in accordance with the same terms and conditions specified in such Notice of Proposed Issuance, provided, that if such price consists of non-cash consideration, a Buyer may purchase the Offered Interest with the same type and amount of non-cash consideration described in such Notice of Proposed Issuance or, may instead (at the time election of issuance or incurrencesuch Buyer), as applicable, pay for such Offered Interests with the cash equivalent of any right, warrant or option or convertible or exchangeable security and not to the conversion, exchange or exercise thereofsuch price.
(b) The During the *** Business Day period commencing on the date Company shall give written notice of a proposed issuance, sale or incurrence described in Section 4.1(a) delivers to the Preemptive Participants within five (5) Business Days following any meeting all of the Board at which any such issuance, sale or incurrence is approved and at least fifteen (15) days prior to Buyers the proposed issuance, sale or incurrence. Such notice Notice of Proposed Issuance (the “Issuance Notice*** Period”) 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 Buyers shall have the right to elect irrevocably option to purchase their Pro Rata Portion of the number or amount up to all of the Offered Securities Interests at the purchase same price set forth in the Issuance Notice and upon the other same terms and conditions specified in the Issuance Notice by delivering a of Proposed Issuance. Each Buyer electing to purchase Offered Interests must give written notice of its election to Company prior to the Company. Except as provided expiration of the *** Period.
(c) Each Buyer shall have the right to purchase up to that percentage of the Offered Interests equal to the Percentage Interest in the following sentence, Company then held by such Buyer. The amount of such Offered Interests that each Buyer is entitled to purchase under this Section 2.8 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 referred to the extent necessary to obtain required governmental approvals and other required approvals, and the Company shall use as its commercially reasonable efforts to obtain such approvals“Proportionate Share.”
(d) Each Preemptive Participant exercising its right In the event that any Buyer elects not to purchase its respective portion full Proportionate Share of the Offered Securities in full Interests pursuant to Sections 2.8 (an a), (b) and (c) above, the Company shall deliver to all of the other Buyers a written notice (the “Exercising HolderOversubscription 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 over-allotment oversubscription to purchase up to the balance of such that if any other securityholder fails to Offered Interests not so purchased at the same price and on the same terms and conditions set forth in the original Notice of Proposed Issuance. Each such Buyer who receives an Oversubscription Notice must exercise its right hereunder to purchase of oversubscription by giving the Company written notice of its full Pro Rata Portion election during the *** Business Day period following its receipt of New Securities (the Oversubscription Notice. If, as a “Non-Purchasing Holder”)result thereof, such Exercising Holder may purchase all or any part of such securities by giving written notice to oversubscription elections exceed 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 the Offered Interests available in excess of the number availablerespect to such oversubscription privilege, the remaining securities available for purchase under this Section 4.1(d) oversubscribing Buyers shall be allocated cut back with respect to oversubscriptions on a pro rata basis in accordance with their relative Proportionate Shares or as they may otherwise agree 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)oversubscribing Buyers.
(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 all of the New Securities described in Offered Interests have not been purchased by 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 Buyers pursuant to the Company than those set forth in foregoing provisions, then General Manager shall have the Issuance Notice (except that right, until the number or amount expiration of securities to be issued or sold by *** days commencing on the Company may be reduced); provided that (x) such issuance, sale or incurrence is closed within ninety (90) days after first day immediately following the expiration of the 15-day period described *** Period, to issue the Offered Interests not purchased by the Buyers at not less than, and on terms no more favorable in Section 4.1(cany material respect to the purchaser(s) and (y) thereof than, the price at which the New Securities are Transferred must be equal to or higher than the purchase price described and terms specified in the Notice of Proposed Issuance. If such remaining Offered Interests are not issued within such period and at such price and on such terms, the right to issue in accordance with the Notice of Proposed Issuance Notice. Such periods within which such issuance, sale or incurrence must shall expire and the provisions of this Agreement shall continue to be closed shall be extended applicable 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 has not sold such New Securities within said 90-day period, the Company shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without first again complying with the preemptive purchase right procedures provided for in this Section 4.1Offered Interests.
(f) The preemptive Notwithstanding the foregoing, the rights set forth described in this Section 4.1 may be waived upon 2.8 shall not apply with respect to the written approval issuance of Excluded Securities. For purposes of this Section 2.8, “Excluded Securities” shall mean any Interests in the Company (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 Minority Independent Director 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 (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 a majority Units) that are Excluded Securities pursuant to this Section 2.8(f)(iii)) in the aggregate *** of the Directors on aggregate Percentage Interests then outstanding and which have been Approved by the Board who are Independent Directors if there is no Minority Independent Director at and/or Members, to the time of such waiver) if such waiver is deemed by such Minority Independent Director, extent that Supermajority Approval or majority Approval of the Independent Directors, as applicable, to be in the best interest Board and/or Supermajority Approval or Approval of the CompanyMembers is required hereunder.
Appears in 2 contracts
Samples: Limited Liability Company Agreement, Limited Liability Company Agreement (HUGHES Telematics, Inc.)
Preemptive Rights. (a) The a. Until immediately prior to the consummation of an IPO of the securities of the Company hereby grants or an Exit Event, in the event that the Company proposes to issue or sell any New Securities, the Company shall first offer to each current holder of Company Securities, including Athens and its Affiliates and Subsidiaries except in connection with the issuance of any Debt Instrument, (the “Preemptive Participants”) Equityholders the right to purchase such number of New Securities reflecting a Equityholder’s Pro-Rata Equity right of the New Securities.
b. In the event that the Company proposes to issue New Securities, it shall give each of the Equityholders a written notice (a “Rights Notice”) of its Pro Rata Portion intention, describing the type of New Securities, the price, the general terms upon which the Company proposes to issue such New Securities, and the number of New Securities that the Company may, from time to time, propose to sell or issue 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 “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 each Equityholder has the right to elect irrevocably purchase hereunder. Pursuant to purchase their Pro Rata Portion of the number or amount of the Offered Securities at the purchase price set forth mechanics identified in the Issuance Notice and upon the other terms and conditions specified in the Issuance Notice by delivering Article 18c) below, each Equityholder shall have fourteen (14) calendar days from its receipt of 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 Rights Notice to the extent necessary agree 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 Equityholder’s Pro Rata Equity right of such New Securities for the price and upon the general terms specified in the applicable Rights Notice, by giving written notice to the Company, Company setting forth the quantity of New Securities to be purchased.
c. In the event that any Equityholder fails to exercise in full its respective preemptive right within the 1514-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 have ninety (90) calendar days after the expiration of the 15such 14-day period described in Section 4.1(c) and (y) the price at which to enter into an agreement with a third party to sell the New Securities are Transferred must be equal in respect of which the applicable Equityholders’ pre-emptive right set forth in this Article 18 is not exercised, at a price and upon general terms no more favorable to or higher the purchasers thereof than the purchase price described specified in the Issuance applicable Rights 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 has not sold entered into an agreement to sell such New Securities within said such ninety (90-day ) -day period, the Company shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without first again complying with offering such New Securities to each of the preemptive purchase right procedures Equityholders in the manner provided for in this Section 4.1Article 18.
(f) The preemptive rights set forth in this Section 4.1 may be waived upon the written approval of the Minority Independent Director (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the Company.
Appears in 2 contracts
Samples: Equity Joint Venture Agreement (InMode Ltd.), Equity Joint Venture Agreement (InMode Ltd.)
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) The Company hereby grants shall give notice (the “Offer Notice”) to each current holder such Major Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number of Company such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities, including Athens a summary of the rights and its Affiliates and Subsidiaries except in connection with the issuance privileges of any Debt Instrument, (the “Preemptive Participants”) the right to purchase its Pro Rata Portion of such New Securities that the Company may, from time to time, propose to sell or issue 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 “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) By notification to the Preemptive Participants Company within twenty (20) days after the Offer Notice is given (provided, that with the consent of the Requisite Preferred Holders, the Company may reduce such period to respond to no less than five (5) Business Days following any meeting days), each such Major Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Preferred Units (as 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 with respect to some but not all of the Board at which any New Securities by the end of the twenty (20) day period specified above (or such issuanceshorter period (to be no less than five (5) days) as approved by the Requisite Preferred Holders), sale or incurrence is approved and at least fifteen (15) days prior to then the proposed issuance, sale or incurrence. Such Company shall send written notice (the “Issuance Secondary Offer Notice”) shall set forth to those Major Investors who fully exercised their preemptive rights within the material terms and conditions initial notice period. During the ten (10) day period commencing after the Company has given such notice (provided, that with the consent of such proposed transaction, including, as applicablethe 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 number or amount and description of units specified above, up to that portion of the securities proposed New Securities for which Major Investors were entitled to be issuedsubscribe 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 occur within the proposed issuance or incurrence later of ninety (90) days of the date that the Offer Notice is given and the proposed purchase price per securitydate of initial sale of New Securities pursuant to Section 10.12(c).
(c) At any time 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 15-ninety (90) 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 expiration of the number periods provided in Section 10.12(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or amount of the Offered Securities Persons at the purchase a price set forth in the Issuance Notice not less than, and upon terms no more favorable to the other terms and conditions offeree than, those specified in the Issuance Notice by delivering a written notice Offer Notice. If the Company does not enter into an agreement for the sale of the New 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 Company. Except as provided Major Investors in the following sentence, such purchase shall be consummated concurrently accordance 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 approvalsthis Section 10.12.
(d) Each Preemptive Participant exercising its right Notwithstanding any provision hereof to purchase its respective portion the contrary, in lieu of complying with the Offered Securities in full (an “Exercising Holder”) shall have a right provisions of over-allotment such that if any other securityholder fails this Section 10.12, the Company may elect 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 give notice to the Company, Major Investors within thirty (30) days after the 15-day period following the receipt of an Issuance Notice, of its interest in purchasing a specified amount issuance of New Securities as to which any Non-Purchasing Holders has failed to exercise their preemptive purchase right hereunder; provided that in Securities. Such notice shall describe 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 type, price, and terms of the number available, New Securities. Each Major Investor shall have twenty (20) days from the remaining securities available for date notice is given to elect to purchase under this Section 4.1(d) shall be allocated among such Exercising Holders pro rata based on up to the number of New Securities that would, if purchased by such Exercising Holders elected Major Investor, maintain such Major Investor’s percentage-ownership position, calculated as set forth in Section 10.12(b) before giving effect to purchase pursuant to Section 4.1(c)the issuance of such New Securities.
(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 The covenants set forth in this Section 4.1 on terms Sections 10.03, 10.04, 10.06, 10.09 and 10.12 shall terminate and be of no less favorable further force or effect (i) immediately before the consummation of an IPO, (ii) when the Company first becomes subject to the Company than those set forth in the Issuance Notice (except that the number periodic reporting requirements of Section 12(g) or amount of securities to be issued or sold by the Company may be reduced); provided that (x15(d) 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 has not sold such New Securities within said 90-day period, the Company shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without first again complying with the preemptive purchase right procedures provided for in this Section 4.1.
(f) The preemptive rights set forth in this Section 4.1 may be waived upon the written approval of the Minority Independent Director (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed by such Minority Independent DirectorExchange Act, or majority (iii) upon a Change of the Independent DirectorsControl, as applicable, to be in the best interest dissolution or liquidation of the Company, whichever 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) The After the Equalization Date, prior to the Company hereby grants issuing any Interests or options or rights to each current holder of Company Securitiesacquire Interests (other than (i) any equity issuance associated with an acquisition previously approved by NGPMR, including Athens and its Affiliates and Subsidiaries except (ii) Interests issued in connection with any split, distribution or recapitalization of the issuance 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 Debt Instrumentactivities of the Company which were the subject of a Capital Call made pursuant to Section 4.1(c) that was not fully funded by the Members; provided, however, that any 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 (the “Preemptive ParticipantsNew 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 the right to purchase its Pro Rata Portion a portion of the New Securities that the Company may, from time to time, propose to sell or issue or that relate to incurred indebtedness, as applicable. The number or amount of New Securities which the Preemptive Participants may purchase pursuant to Interests in accordance with this Section 4.1(a) shall be referred to as the “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 thereof5.7.
(b) The Company shall give each Eligible Member prior 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 First Notice”) of any proposed issuance of New Interests, which shall set forth in reasonable detail the material 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 date of such proposed transaction, including, as applicable, the number or amount and description notice) of the securities New Interests, on the same terms and conditions and at the same time as the New Interests are proposed to be issuedissued by the 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 proposed issuance or incurrence date and Eligible Member’s receipt of the proposed First Notice (the “Election Period”) setting forth the dollar amount of the New 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 price per securityin 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) At If the Eligible Members do not subscribe for all of the New Interests, the Company shall have 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 15-day period 90 days following the receipt of an Issuance Notice, the Preemptive Participants shall have the right to elect irrevocably to purchase their Pro Rata Portion end of the number or amount of the Offered Securities Election Period, at the purchase same price and pursuant to the terms and conditions 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 First Notice. The Board may, in its reasonable discretion, impose such other reasonable and customary terms and procedures such as setting a closing of date and requiring customary closing deliveries in connection with 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 approvalsrights offering. In the event that any Electing Member refuses to purchase the New Interests for which it subscribed pursuant to this Section 5.7, then in addition to any other rights the Company has not sold may have at law or in equity, such New Securities within said 90-day period, the Company Electing Member and any transferee thereof shall not thereafter issue or sell be considered an Eligible Member for any New Securities or incur new indebtedness, as applicable, without first again complying with the preemptive purchase right procedures provided for in future rights granted under this Section 4.1.
(f) The preemptive rights set forth in this Section 4.1 may be waived upon the written approval of the Minority Independent Director (or a majority of the Directors on 5.7 unless the Board who are Independent Directors if there is no Minority Independent Director expressly designates otherwise (which the Board may, in its sole discretion, do on an offer-by-offer basis or not at the time of such waiverall) if such waiver is and shall be deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the Companya Defaulting Member under Section 4.2.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Markwest Energy Partners L P), Contribution Agreement (Markwest Energy Partners L P)
Preemptive Rights. (a) The 3.1 Subject to Section 12.1 of this Agreement, if at any time the Company hereby grants wishes to each current holder issue any Equity Equivalents to any Person or Persons, the Company shall promptly deliver a notice of Company Securities, including Athens and its Affiliates and Subsidiaries except in connection with the issuance of any Debt Instrument, intention to sell (the “Preemptive ParticipantsCompany’s Notice of Intention to Sell”) the right to purchase its Pro Rata Portion of New Securities that the Company may, from time to time, propose to sell or issue 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 “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 Eligible Shareholders setting forth the material terms and conditions of such proposed transaction, including, as applicable, the number or amount and a description of the securities proposed Equity Equivalents 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 thereof and terms of sale. Upon receipt of an Issuance Noticethe Company’s Notice of Intention to Sell, the Preemptive Participants Eligible Shareholder shall have the right to elect irrevocably to purchase their Pro Rata Portion purchase, at the price and on the terms stated in the Company’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 or amount of such Equity Equivalents held by all Shareholders (calculated on an as converted and fully-diluted basis) immediately prior to the Offered Securities at issuance of Equity Equivalents giving rise to the purchase price set forth in preemptive right, multiplied by (ii) the Issuance Notice and upon number of Equity Equivalents to be issued. Such election is to be made by the other terms and conditions specified in the Issuance Notice Eligible Shareholders (“Electing Eligible Shareholders”) by delivering a written notice to the Company. Except as provided in Company within twenty (20) Business Days after receipt by the following sentence, such purchase shall be consummated concurrently with the consummation Eligible Shareholders of the issuance, sale or incurrence described in Company’s Notice of Intention to Sell (the Issuance Notice. The closing of “Acceptance Period for Equity Equivalents”).
3.2 If any purchase by any Preemptive Participants may be extended beyond the closing of the transaction described in the Issuance Notice Eligible Shareholder fails to exercise its preemptive rights pursuant to the extent necessary to obtain required governmental approvals and other required approvalsSection 3.1 above, and the Company shall use its commercially reasonable efforts give notice of such failure (the “Company’s Second Notice of Intention to obtain such approvals.
(d) Each Preemptive Participant exercising its right to purchase its respective portion of the Offered Securities in full (an “Exercising HolderSell”) 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 a right of overre-allotment such that if any other securityholder fails they shall have five (5) days from the date such Company’s Second Notice of Intention to exercise its right hereunder Sell was received (the “Second Acceptance Period”) 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 elect 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 increase the number of New Securities such Exercising Holders elected 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 4.1(c).
(e) If 3.2 above in respect of all the Preemptive Participants or Exercising Holders fail Equity Equivalents which are the subject of the Company’s Second Notice of Intention to exercise fully their preemptive purchase right hereunder within the periods described aboveSell, then the Company shall be free to complete the proposed issuancemay, sale or incurrence at its election, during a period 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 sixty (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 (9060) days after following the expiration of the 15-day period described in Section 4.1(c) Second Acceptance Period, sell and (y) issue the remaining Equity Equivalents to another Person at a price at which the New Securities are Transferred must be equal and upon terms not more favorable to or higher such Person than the purchase price described those stated in the Issuance Notice. Such periods within which such issuance, sale or incurrence must be closed shall be extended Company’s Notice of Intention 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 approvalsSell. In the event that the Company has not sold the Equity Equivalents, or entered into an agreement to sell the Equity Equivalents, within such New Securities within said 90-sixty (60) day period, the Company shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, Equity Equivalents without first again complying offering such securities to each Eligible Shareholder in the manner provided in Sections 3.1 and 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, 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 notice, or, if later, the closing date for the sale of such Equity Equivalents.
3.5 The preemptive purchase right procedures provided for rights contained in this Section 4.13 shall not apply to (i) Ordinary Shares issued (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 this Agreement and the Articles of Association, (B) pursuant to a public offering, (C) upon the conversion of any Equity Security or debt security of the Company issued on or prior to the date hereof provided that such conversion has been fully disclosed to Red Star, JD and Oriza, (D) 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 been fully disclosed to 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 Share Option Plan.
(f) 3.6 The preemptive rights set forth contained in this Section 4.1 may be waived 3 shall terminate immediately upon the written approval commencement of the Minority Independent Director (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the CompanyQualified IPO.
Appears in 2 contracts
Samples: Shareholder Agreements (GigaCloud Technology Inc), Shareholder Agreement (GigaCloud Technology Inc)
Preemptive Rights. For so long as any Warrants are outstanding, the Investor will be entitled to participate in any of the Company’s future offerings of Common Stock of the Company or securities of the Company convertible into, or exercisable for, Common Stock of the Company (aas the case may be, “Additional Securities”) The in which the aggregate offering price of such securities is equal to or exceeds $15 million. Each time the Company hereby grants proposes to each current holder offer any Additional Securities in which the aggregate offering price is equal to or exceeds $15 million, the Company shall make an offering of Company Securities, including Athens and its Affiliates and Subsidiaries except such Additional Securities to the Investor in connection accordance with the issuance of any Debt Instrument, (the “Preemptive Participants”) the right to purchase its Pro Rata Portion of New Securities that the Company may, from time to time, propose to sell or issue 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 “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.following provisions:
(bi) The Company shall give written notice of deliver 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 to the material terms and conditions Investor stating (a) its bona fide intention to offer such Additional Securities, (b) the number of such proposed transactionAdditional Securities to be offered, including(c) the price and terms, as applicableif any, upon which it proposes to offer such Additional Securities, and (d) the anticipated closing date of the sale of such Additional Securities.
(ii) By written notification delivered to the Company within five trading days after the date of the Issuance Notice, the Investor may elect to purchase, at the price and on the terms specified in the Issuance Notice, Additional Securities equal to the number of Registrable Securities then held by the Investor (for purposes of clarification, in the event such Additional Securities are securities convertible into, or exercisable for, shares of the Common Stock of the Company, the number or amount and description of such Additional Securities which the securities proposed to Investor shall 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 entitled to purchase their Pro Rata Portion of pursuant to this Section 7(c) shall be equal to the number or amount of such Additional Securities which are initially convertible into, or exercisable for, the Offered Securities at number of shares of Common Stock of 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 Company equal to the Companynumber of Registrable Securities then held by the Investor). Except as provided in the following sentence, such purchase shall be consummated concurrently with the consummation The rights 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 Investor under this Section 4.1(d7(c) shall be allocated among such Exercising Holders pro rata based not apply to: (A) the exercise of any warrants, options or other convertible securities of the Company outstanding on the number date hereof, (B) the issuance to employees and directors of New Securities Common Stock, stock awards or options under, or the exercise of any such Exercising Holders elected to purchase 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 Company approved by the Board of Directors, (C) the issuance of 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 Section 4.1(c).
(e) If the Preemptive Participants a stock split, combination 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 subdivision of the New Securities described in outstanding shares of Common Stock or preferred stock (as 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 case may be reduced); provided that (xbe) 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 has not sold such New Securities within said 90-day period, the Company shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without first again complying with the preemptive purchase right procedures provided for in this Section 4.1.
(f) The preemptive rights set forth in this Section 4.1 may be waived upon the written approval of the Minority Independent Director (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the Company.
Appears in 2 contracts
Samples: Investor Rights Agreement (Transmeridian Exploration Inc), Investor Rights Agreement (Transmeridian Exploration Inc)
Preemptive Rights. 10.1 Subject to the terms and conditions specified in this Section 10, the Company hereby grants to each Holder a right of first offer with respect to future 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 following provisions:
(a) The Company hereby grants shall deliver a notice (a “First Offer Notice”) to each current holder of Company Securities, including Athens and the Holder stating (i) its Affiliates and Subsidiaries except in connection with the issuance of any Debt Instrumentbona fide intention to offer such Offered Shares, (the “Preemptive Participants”ii) the right number and type of Offered Shares to purchase its Pro Rata Portion of New Securities that be offered, and (iii) the Company mayprice and terms, from time if any, upon which it proposes to time, propose to sell or issue 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 “offer such 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 thereofShares.
(b) Within ten (10) business days after receipt of the First Offer Notice, the Holder may elect to purchase or obtain, at the price and on the terms specified in the 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 give written notice 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 a proposed issuance, sale or incurrence described the period provided in Section 4.1(a10.2(b), the Company shall deliver a second notice (“Second Offer Notice”) to the Preemptive Participants 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) The Company may, during the forty-five (45) day period following the expiration of the period provided in Section 10.2(c) hereof, offer the remaining unsubscribed portion of the Holder Offeree Shares to Sponsor at a price not less than that, and upon terms no more favorable to Sponsor than those, specified in the First Offer Notice.
(e) 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 (5) Business Days business days following any meeting of such sale 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 purchasers of such proposed transaction, including, as applicable, Offered Shares shall offer to sell the number or amount and description portion 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 such Offered Shares that would 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 constituted “Holder Offeree Shares” had 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 complied with 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 10.2 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 each Holder on terms no less favorable to the Company Holder than those applicable to Sponsor, using a process substantially similar to that set forth in the Issuance Notice (except that the number or amount of securities to be issued or sold by the Company may be reducedSections 10.2(a); 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(c10.2(b) 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 has not sold such New Securities within said 90-day period, the Company shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without first again complying with the preemptive purchase right procedures provided for in this Section 4.110.2(c).
(f) The preemptive rights set forth in this Section 4.1 may be waived upon the written approval of the Minority Independent Director (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the Company.
Appears in 2 contracts
Samples: Investor Rights Agreement, Investor Rights Agreement (TAMINCO ACQUISITION Corp)
Preemptive Rights. (a) The Company hereby grants shall not issue or agree to issue Ordinary Shares, other Equity Securities or any other securities of the Company that are convertible into or exercisable or exchangeable for Ordinary Shares (such securities, “Preemptive Securities”), unless, in each current holder of case, the Company Securities, including Athens and its Affiliates and Subsidiaries except in connection with the issuance of any Debt Instrument, shall have first given written notice (the “Preemptive ParticipantsNotice”) 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 Preemptive 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 its Pro Rata Portion of New Securities that the Company may, from time acquire pursuant to time, propose to sell or issue or that relate to incurred indebtedness, Section 6(b) and as applicable. The number or amount of New Securities which set forth in the Preemptive Participants may purchase pursuant to this Section 4.1(a) shall be referred to as Notice (the “Offered Securities.” The preemptive ”) on the terms and conditions (including purchase right provided price) set forth in this Section 4.1(athe Preemptive Notice, which Preemptive Offer by its terms shall remain open and irrevocable for a period of twenty (20) shall apply at Business Days from the time of issuance or incurrence, as applicable, of any right, warrant or option or convertible or exchangeable security and not date it is delivered by the Company to the conversionShareholder (the “Preemptive Period”) and, exchange or exercise thereofto 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 Company Shareholder shall give written notice be entitled to participate in each Initial Issuance on a pro rata basis by purchasing a number of a proposed issuance, sale or incurrence described Offered Securities in Section 4.1(a) an amount equal to the product of (i) the total number of Preemptive Participants within five Securities to be issued in the Initial Issuance multiplied by (5ii) Business Days following a fraction in which the numerator is the number of Ordinary Shares Beneficially Owned by the Shareholder (excluding any meeting Ordinary Shares obtainable by the Shareholder on conversion of any Convertible Securities or exercise of any warrants held by the Board at which any Shareholder until such issuanceOrdinary Shares are actually issued) and the denominator is the aggregate number of Ordinary Shares outstanding, sale or incurrence is approved and at least fifteen (15) days in each case immediately prior to the proposed issuancesuch Initial Issuance and on a fully diluted basis (such fraction, sale or incurrence. Such notice (the such Shareholder’s “Issuance NoticePro Rata Portion”) 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 Notice of the 15-day period following Shareholder’s intention to accept a Preemptive Offer, in whole or in part, shall be evidenced by a writing signed by the receipt Shareholder and delivered to the Company prior to the end of an 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 Notice(which shall occur within twenty (20) Business Days after the end of the Preemptive Period, the Shareholder shall promptly purchase from the Company, and the Company shall issue to the Shareholder, the Offered Securities covered by the Shareholder’s Notice of Acceptance delivered to the Company by the Shareholder, on the terms and conditions (including purchase price) set forth in the Preemptive Participants Offer. The purchase by the Shareholder of any Offered Securities is subject in all cases to the execution and delivery by the Company and the Shareholder of a purchase agreement relating to such Offered Securities in customary form and reflecting the price, terms and conditions set forth in the Preemptive Offer.
(e) 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 elect irrevocably purchase the amount of Offered Securities necessary for the Shareholder to purchase their Beneficially Own its Pro Rata Portion of the number or amount 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 at 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 Issuance Notice and upon Preemptive Offer plus interest accruing at a rate of 2.0% per annum from 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 date of the consummation of the issuanceInitial Issuance up to, but excluding, the date of such sale or incurrence described in to the Issuance NoticeShareholder. The closing purchase by the Shareholder of any purchase by any Preemptive Participants may be extended beyond the closing of the transaction described Catch-Up Securities pursuant to this Section 6(e) is subject in the Issuance Notice all cases to the extent necessary to obtain required governmental approvals execution and other required approvalsdelivery by the Shareholder, and the Company shall use its commercially reasonable efforts of a purchase agreement relating to obtain such approvals.
securities in customary form and reflecting the price (d) Each Preemptive Participant exercising its right subject to purchase its respective portion of adjustment as contemplated by the Offered Securities in full (an “Exercising Holder”) shall have a right of over-allotment such that if any other securityholder fails proviso to exercise its right hereunder to purchase its full Pro Rata Portion of New Securities (a “Non-Purchasing Holder”the foregoing sentence), 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 and conditions 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 has not sold such New Securities within said 90-day period, the Company shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without first again complying with the preemptive purchase right procedures provided for in this Section 4.1Preemptive Offer.
(f) The preemptive rights set forth in this Section 4.1 may be waived 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 Company pursuant to the terms of the Convertible Notes, the Exchange Warrants, the Option and the Physical Delivery Forward Transaction;
(ii) the issuance of 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 written approval conversion, exercise, vesting or exchange of a Convertible Security that was issued or granted under a Company Equity Plan; or
(iv) the Minority Independent Director issuance of New Securities under a shareholder rights plan or other “poison pill” arrangement entered into or adopted by the Company (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiversubject to Section 3(a) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the Companyand 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) The Company hereby grants to each current holder For so long as the Investor Shares represent at least 5% or more of Company Securitiesthe Outstanding Stock, including Athens and its Affiliates and Subsidiaries except in connection with the issuance of any Debt InstrumentInvestor shall have, (the “Preemptive Participants”) the right to purchase purchase, in accordance with the procedures set forth herein, its Pro Rata Portion pro rata portion (calculated based solely on the Common Stock issued or issuable to the Investor upon conversion of the Convertible Notes as a percentage of the then-outstanding Common Stock prior to issuance of the New Securities that Shares) of any New Shares which the Company may, from time to time, propose to sell or and issue 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 (hereinafter referred to as the “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 thereofPreemptive Right”).
(b) The In the event that the Company proposes to issue and sell New Shares, the Company shall give written notice of a proposed issuance, sale or incurrence described notify the Investor 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 writing with respect to the proposed issuance, sale or incurrence. Such notice New Shares to be issued (the “Issuance New Shares Notice”) ). Each New Shares Notice shall set forth the material terms and conditions of such proposed transaction, including, as applicable, forth: (i) the number or amount and description of the securities New Shares proposed to be issuedissued by the Company and their purchase price; (ii) the Investor’s pro rata portion (calculated based on the Common Stock issued or issuable to the Investor upon conversion of 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 and, if known, the proposed issuance or incurrence expected date of consummation of the purchase and sale of the proposed purchase price per securityNew Shares.
(c) At any time during The Investor shall be entitled to exercise its right to purchase such New Shares by delivering an irrevocable written notice to the 15-day period following Company within 15 days from the date of receipt of an Issuance Notice, the Preemptive Participants shall have the right to elect irrevocably to purchase their Pro Rata Portion of any such New Shares Notice specifying the number or amount of New Shares to be subscribed, which in any event can be no greater than the Offered Securities Investor’s pro rata portion (calculated as provided above) of such New Shares at the purchase price set forth in and on 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 New Shares 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 If the Offered Securities in full (an “Exercising Holder”) shall have a right of over-allotment such that if any other securityholder fails Investor does not elect within the applicable notice period described above to exercise its right hereunder preemptive rights with respect to purchase its full Pro Rata Portion any of the New Securities (a “Non-Purchasing Holder”), such Exercising Holder may purchase all or any part of such securities Shares proposed to be sold by giving written notice to the Company, within the 15-day Company shall have 90 days after expiration of all such notice period following to sell or to enter into an agreement to sell such unsubscribed New Shares proposed to be sold by the receipt of an Issuance NoticeCompany, of its interest in purchasing at a specified amount of New Securities as price and on terms no more favorable to which any Non-Purchasing Holders has failed the purchaser than those offered 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)Investor.
(e) If The Investor shall take up and pay for any New Shares pursuant to the Preemptive Participants or Exercising Holders fail to exercise fully their preemptive purchase right hereunder within Right upon closing of the periods described above, the Company shall be free to complete the proposed issuance, sale or incurrence issuance of the New Securities described in the Issuance Notice with respect Shares, and shall have no right 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 has not sold acquire such New Securities within said 90-day period, Shares if the Company issuance thereof shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without first again complying with the preemptive purchase right procedures provided for in this Section 4.1be consummated.
(f) The preemptive rights set forth in this Section 4.1 may be waived upon the written approval of the Minority Independent Director (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the Company.
Appears in 2 contracts
Samples: Shareholder Agreement (Deerfield Capital Corp.), Shareholder Agreement (Deerfield Capital Corp.)
Preemptive Rights. (a) The Until the consummation of an Initial Public Offering, the Company hereby grants to each current holder of Company Securities, including Athens and its Affiliates and Subsidiaries except in connection with the issuance of any Debt Instrument, Member that is not a Defaulting Member (the “Preemptive Participants”) the right to purchase (the “Equity Purchase Right”) up to its Pro Rata Preemptive Portion (calculated in accordance with Section 11.01(c)) of New Securities 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 or issue or that relate to incurred indebtedness(all such securities, as applicablethe “Preemptive Units”). 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 “Offered Securities.” The preemptive purchase right Equity Purchase Right provided in this Section 4.1(a11.01(a) shall apply at the time of issuance or incurrence, as applicable, of any right, warrant or option or convertible or exchangeable security security, and not to the conversion, conversion or exchange pursuant to its terms 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”) 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, as applicable, including (i) the number or amount and description of the securities Preemptive Units proposed to be sold or issued, (ii) the proposed sale or issuance or incurrence date and date, (iii) the proposed purchase price per securityPreemptive 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 1530-day period following the receipt of an Issuance Notice, the Preemptive Participants shall have the right to elect irrevocably to purchase up to their Pro Rata Preemptive Portion of the number or amount of the Offered Securities 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 the following sentenceSection 11.01(d), such purchase shall be consummated concurrently with the consummation of the issuance, issuance or 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 Preemptive Portion of the Offered Securities Preemptive Units in full (an “Exercising HolderMember”) shall also have a right of over-allotment such that if any other securityholder Member fails to exercise its right hereunder to purchase its full Pro Rata Preemptive Portion of New Securities the Preemptive Units (a “Non-Purchasing HolderMember”), such Exercising Holder Member may purchase all or any part portion of such securities by giving written notice to the Company, Company within ten (10) days from the 15-day period following date that the receipt Company provides written notice of an Issuance Notice, of its interest in purchasing a specified the amount of New Securities Preemptive Units as to which any such Non-Purchasing Holders has Members have failed to exercise their preemptive purchase right Equity Purchase Rights hereunder; provided that in the event there are two or more such Exercising Holders Members that choose to exercise the last-mentioned such option for a total number of remaining securities Preemptive Units in excess of the number available, the remaining securities Units available for purchase under this Section 4.1(d11.01(d) shall be allocated among such Exercising Holders Members pro rata based on the number of New Securities Preemptive Units such Exercising Holders Members elected to purchase pursuant to Section 4.1(c11.01(c).
(e) If the any Preemptive Participants or Exercising Holders Members fail to exercise fully their preemptive purchase right hereunder 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, issuance or sale or incurrence of the New Securities remaining Preemptive Units described in the Issuance Notice with respect to which Exercising Holders Members failed to exercise the option set forth in this Section 4.1 11.01, 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 provided, that (xi) such issuance, issuance or sale or incurrence is closed within ninety sixty (9060) days after the expiration of the 1510-day period described in Section 4.1(c11.01(d) and (yii) the price at which the New Securities remaining Preemptive Units are Transferred issued must be equal to or higher than the purchase price described in the Issuance Notice. Such periods within which such issuance, issuance or 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 has not sold such New Securities remaining Preemptive Units within said 9060-day period, the Company shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicablePreemptive Units, without first again complying with offering such securities to the preemptive purchase right procedures Members in the manner provided for in this Section 4.111.01.
(f) The preemptive rights set forth in this Section 4.1 may be waived upon the written approval of the Minority Independent Director (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the Company.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Zugel Christian), Limited Liability Company Agreement (Zugel Christian)
Preemptive Rights. (a) The If following the Offering Termination Date, the Company hereby grants intends to each current holder of Company Securitiesissue any additional Units (collectively, including Athens and its Affiliates and Subsidiaries except in connection with “Additional Units”), then prior to the issuance of any Debt Instrumentthereof (the “Proposed Offeree(s)”), each then-current Member shall have the right to purchase in such issuance (the “Preemptive ParticipantsRight”) ), on the right to purchase its Pro Rata Portion of New Securities that the Company may, from time to time, propose to sell or issue 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 “Offered Securities.” The preemptive purchase right provided in this Section 4.1(a) shall apply same terms and at the time same purchase price of issuance or incurrence, as applicable, of any right, warrant or option or convertible or exchangeable security and not such Additional Units offered to the conversionProposed Offeree(s), exchange or exercise thereofthat pro rata portion of the Additional Units as is equal to each such Member’s then-current Percentage Interest.
(b) The In connection with any Preemptive Right, the Company shall give shall, by 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 Preemptive Notice”), 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 include the applicable purchase price 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 (which shall be no less than seven (7) shall set forth days from the date of such notice) and any other material terms and conditions of such proposed transaction, including, as applicable, the number or amount and description offer. Within five (5) days from the date of receipt 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 Preemptive Notice, any Member wishing to exercise its Preemptive Right shall deliver notice to the Company setting forth the Additional Units which such Member commits to purchase (which Additional Units may be all or any portion of such Additional Units offered to such Member in the Preemptive Participants Notice). Each Member so exercising its rights under this Section 2.10 shall have the right to elect irrevocably be entitled and obligated to purchase their Pro Rata Portion of that Additional Units specified in the number or amount of Member’s notice on the Offered Securities at the purchase price terms and conditions set forth in the Issuance Notice and upon Preemptive Notice. Any Additional Units not accepted for purchase by the other Members pursuant to this Section 2.10 shall be offered to the Proposed Offeree(s) on the same terms and conditions specified in the Issuance Notice by delivering a written notice to the Company. Except price per Additional Unit 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 Preemptive Notice; provided, however, if such Proposed Offeree(s) does not (except that or do not) consummate the number or amount purchase of securities to be issued or sold by the Company may be reduced); provided that such Additional Unit within thirty (x) such issuance, sale or incurrence is closed within ninety (9030) days after the expiration following delivery of the 15-day period described in Section 4.1(c) and (y) the price at which the New Securities are Transferred must Preemptive Notice, any subsequent proposed issuance of Additional Units shall once again 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 subject 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 has not sold such New Securities within said 90-day period, the Company shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without first again complying with the preemptive purchase right procedures provided for in terms of this Section 4.12.10.
(f) The preemptive rights set forth in this Section 4.1 may be waived upon the written approval of the Minority Independent Director (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the Company.
Appears in 2 contracts
Samples: Limited Liability Company Agreement, Limited Liability Company Agreement
Preemptive Rights. (a) The Company hereby grants to each current holder of Company Securities, including Athens and its Affiliates and Subsidiaries except in connection with In the issuance of any Debt Instrument, (the “Preemptive Participants”) the right to purchase its Pro Rata Portion of New Securities that the Company mayevent that, from time to timetime following the date hereof, propose the Partnership proposes to sell or issue New Units to any Person, each then-existing Member shall have the right (a “Preemptive Right”) to purchase a pro rata portion of the New Units proposed to be sold or that relate issued equal to incurred indebtedness, 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 applicable. The number such New Units are proposed to be sold or amount of New Securities which issued by the Preemptive Participants may purchase Company pursuant to this Section 4.1(a) shall be referred to as the “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 thereof10.03.
(b) The Company Prior to the sale or issuance of any New Units to any Person, the Partnership shall give cause to be given to each Limited Partner written notice of a proposed issuance, the Partnership’s intention to make such 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 issuance (the “Issuance 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 proposed transaction, including, as applicable, sale or issuance. Each Limited Partner shall have thirty (30) Business Days (the number or amount and description “Preemptive Notice Window”) from the date of receipt of the securities proposed Preemptive Notice 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 agree to purchase their Pro Rata Portion up his or her pro rata portion of the number or amount of New Units offered to such Limited Partner by the Offered Securities at Partnership pursuant to this Section 10.03 for the purchase price set forth in the Issuance Notice and upon the other terms and conditions specified in the Issuance Preemptive 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 CompanyCompany 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, within an “Exercising Member”), the 15-day period following Partnership shall sell to such Exercising Member, and such Exercising Member shall purchase from the receipt of an Issuance NoticePartnership, 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 for the consideration and on the terms set forth 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 Preemptive Notice the number of New Securities Units that such Exercising Holders Member has elected to purchase pursuant to Section 4.1(c)on the same day the Partnership sells or issues (or would have sold or issued) the Units described in the Preemptive Notice.
(ec) If In the event that any Limited Partner fails to exercise in full 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 Rights set forth in this Section 4.1 on 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 less more favorable to the Company purchasers than those set forth specified 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 Preemptive 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 has not sold such New Securities Units within said 90-day such subsequent thirty (30) Business Day period, the Company Partnership shall not thereafter sell or issue or sell any New Securities or incur new indebtedness, as applicable, Units without first again complying with offering such New Units in the preemptive purchase right procedures manner provided for in this Section 4.110.03.
(f) The preemptive rights set forth in this Section 4.1 may be waived upon the written approval of the Minority Independent Director (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the Company.
Appears in 2 contracts
Samples: Limited Partnership Agreement, Limited Partnership Agreement (Institutional Financial Markets, Inc.)
Preemptive Rights. (a) The In the event that the Company hereby grants proposes to each current holder of issue any Additional Securities in a Covered Transaction, the Company Securities, including Athens and its Affiliates and Subsidiaries except will offer in connection with the issuance of any Debt Instrument, writing (the “Preemptive ParticipantsPre-emptive Notice”) to each Investor, at least 15 Business Days prior to the consummation of such transaction (“Pre-emptive Notice Time”), the right to purchase its Pro Rata Portion share of New such Additional Securities that on the Company may, from time same terms as such Additional Securities are to time, propose to sell or issue 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 issued (each such right a “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 thereofPre-emptive Right”).
(b) The Pre-emptive Notice shall specify (i) the number of 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 shall give written notice of a proposed issuance, sale or incurrence described in Section 4.1(a) pursuant to the Preemptive Participants within five issuance or sale of Additional Securities, (5ii) Business Days following any meeting of the Board at which any such issuance, sale or incurrence is approved price and at least fifteen (15) days prior to the proposed issuance, sale or incurrence. Such notice (the “Issuance Notice”) shall set forth the other 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 sale, (iii) the number of such Additional Securities which such Investor is entitled to purchase (determined as provided in Section 6.3(a)), and (iv) the proposed period during which such Investor may elect to purchase price per security.
(c) At any time during the 15-day such Additional Securities, which period shall extend for at least 15 days following the receipt by such Investor of an Issuance Notice, the Pre-emptive Notice (the “Pre-emptive Acceptance Period”). Each Investor who desires to purchase Additional Securities shall notify the Company within the Preemptive Participants shall have the right to elect irrevocably to purchase their Pro Rata Portion Acceptance Period of the number or amount of Additional Securities such Investor wishes to purchase, which number shall not exceed its then-applicable Pro Rata share (the Offered Securities at the purchase price “Pre-emptive Acceptance Notice”). A Preemptive Acceptance Notice shall be binding and irrevocable, except as set forth in Section 6.3(d). The purchase price for 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 Additional Securities shall be consummated concurrently paid in cash contemporaneously 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 which gave rise to the extent necessary to obtain required governmental approvals and other required approvals, Pre-emptive Notice 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 terms 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 otherwise 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 and conditions not less favorable to the Company than those set forth in the Issuance Notice Pre-emptive Notice.
(except that c) The rights contained in this Section 6.3 are personal to the number or amount of securities to be issued or sold by the Company may be reduced); provided that (x) Investors who have such issuance, sale or incurrence is closed within ninety (90) days after the expiration rights as of the 15-day period described in Section 4.1(cClosing and may not be transferred or assigned or delegated to another Person, except as otherwise provided herein and each Investor may assign any of its rights under this Agreement to any of its Affiliates.
(d) 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 has not sold such New Securities within said 90subject transaction of a Pre-day periodEmptive Notice is terminated, the Company no purchase of securities shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without first again complying with the preemptive purchase right procedures provided for in occur pursuant to this Section 4.16.3, and the applicable notices shall be cancelled.
(f) The preemptive rights set forth in this Section 4.1 may be waived upon the written approval of the Minority Independent Director (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the Company.
Appears in 2 contracts
Samples: Investor's Rights Agreement (Apax Europe VI-1 LP), Investor's Rights Agreement (SouFun Holdings LTD)
Preemptive Rights. (a) The Subject to and without limiting Section 5.15, the Company hereby grants to each current holder Member who is part of Company Securitiesa Founder Member Group (a “PR Holder”), including Athens and its Affiliates and Subsidiaries except in connection with the issuance of any Debt Instrument, (the “Preemptive Participants”) each PR Holder shall have the right to purchase its Pro Rata Portion purchase, in accordance with the procedures set forth herein, up to such PR Holder’s pro rata portion (based on Percentage Interest of Units immediately prior to the time of sale) of any New Securities Interests that the Company may, from time to time, propose to issue and sell or issue 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 (hereinafter referred to as the “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 thereofPreemptive Rights”).
(b) The If the Company proposes to issue and sell New Interests, the Company shall give written notice of a proposed issuance, sale or incurrence described notify each PR Holder 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 writing with respect to the proposed issuance, sale or incurrence. Such notice New Interests to be issued and sold (the “Issuance New Interests Notice”) ). Each New Interests Notice shall set forth forth: (i) the number of New Interests proposed to be issued and sold by the Company and their purchase price; (ii) each PR Holder’s pro rata portion of New Interests and (iii) any other material terms and conditions of such proposed transactionconditions, includingincluding any applicable regulatory requirements, as applicableand, if known, the number or amount and description expected date of consummation of the securities proposed to issuance and sale of the New Interests (which date, in any event shall be issued, no earlier than forty-five (45) days following the proposed issuance or incurrence date and of delivery of the proposed purchase price per securityNew Interests Notice).
(c) At any time during Each PR Holder shall be entitled to exercise its Preemptive Right to purchase such New Interests by delivering an irrevocable written notice to the 15-day period following Company within thirty (30) days from the date of receipt of an Issuance Notice, the Preemptive Participants shall have the right to elect irrevocably to purchase their Pro Rata Portion of any New Interests Notice specifying the number or amount of the Offered Securities New Interests to be subscribed, which in any event can be no greater than such PR Holder’s pro rata portion of such New Interests, at the purchase price set forth in and on 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 New Interests 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 PR Holder exercising its right to purchase its respective entire pro rata portion of the Offered Securities in full New Interests being issued (an each, a “Exercising HolderSubscribing 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 other securityholder PR Holder that fails to exercise its right hereunder to purchase its full Pro Rata Portion entire pro rata share of Remaining New Securities (a “Non-Purchasing Holder”Interests, as described below), such Exercising Holder Subscribing Member may purchase all or any part its pro rata share, based on the relative percentage ownership of such securities 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 (the “Remaining New Interests”) by giving written notice to the Company, Company within three (3) Business Days from the 15-day period following date that the receipt Company provides written notice of an Issuance Notice, of its interest in purchasing a specified the amount of New Securities Interests as to which any such Non-Purchasing Holders has Subscribing Members have 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)rights thereunder.
(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 has not sold such New Securities within said 90-day period, the Company shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without first again complying with the preemptive purchase right procedures provided for in this Section 4.1.
(f) The preemptive rights set forth in this Section 4.1 may be waived upon the written approval of the Minority Independent Director (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the Company.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Exco Resources Inc), Limited Liability Company Agreement (Exco Resources Inc)
Preemptive Rights. (a) The Company hereby grants For as long as the OEP Stockholders have a right to designate two (2) or more Investor Designees under Section 2.1(a)(ii), each current holder of Company Securities, including Athens and its Affiliates and Subsidiaries except in connection with the issuance of any Debt Instrument, (the “Preemptive Participants”) OEP Stockholder shall have the right to purchase purchase, in accordance with the procedures set forth herein, its pro rata portion, calculated based on the percentage of the total issued and outstanding voting Shares owned by such OEP Stockholder immediately prior to issuance of the New Shares (“Pro Rata Portion Portion”) of any New Securities Shares that the Company may, from time to time, propose to sell or and issue 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 (hereinafter referred to as the “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 thereofPreemptive Right”).
(b) The In the event that the Company proposes to issue and sell New Shares, the Company shall give written notice of a proposed issuance, sale or incurrence described notify the OEP Stockholders 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 writing with respect to the proposed issuance, sale or incurrence. Such notice New Shares to be issued (the “Issuance New Shares Notice”) ). Each New Shares Notice shall set forth the material terms and conditions of such proposed transaction, including, as applicable, forth: (i) the number or amount and description of the securities New Shares proposed to be issuedissued by the Company and the purchase price therefor; (ii) each OEP Stockholder’s Pro Rata Portion of such New Shares; and (iii) any other material term (including, if known, the proposed issuance or incurrence expected date of consummation of the purchase and sale of the proposed purchase price per securityNew Shares).
(c) At any time during The OEP Stockholders shall be entitled to exercise their right to purchase New Shares by delivering an irrevocable written notice to the 15-day period following Company within twenty (20) days from the date of receipt of an Issuance Noticeany such New Shares Notice specifying the number of New Shares to be subscribed, the Preemptive Participants shall have the right to elect irrevocably to purchase their which in any event can be no greater than each OEP Stockholder’s Pro Rata Portion of the number or amount of the Offered Securities such New Shares at the purchase price set forth in and on 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 New Shares 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 If any OEP Stockholder does not elect within the Offered Securities in full (an “Exercising Holder”) shall have a right of over-allotment such that if any other securityholder fails applicable notice period described above to exercise its right hereunder Preemptive Rights with respect to purchase its full Pro Rata Portion any of the New Securities (a “Non-Purchasing Holder”), such Exercising Holder may purchase all or any part of such securities Shares proposed to be sold 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 have one hundred twenty (120) days after expiration of such notice period to sell such unsubscribed New Shares proposed to be free to complete sold by the proposed issuanceCompany, 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 at a price and on terms no less more favorable to the Company purchaser than those set forth in the Issuance 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 one hundred twenty (except that the number or amount of securities to be issued or sold by 120)-day period, then 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 has not sold such New Securities within said 90-day period, the Company shall not thereafter issue or sell any such New Securities or incur Shares unless it sends a new indebtedness, as applicable, without first New Shares Notice and once again complying complies with the preemptive purchase right procedures provided for in provisions of this Section 4.15.1 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.
(fe) The preemptive rights set forth in this Section 4.1 may be waived Each OEP Stockholder shall take up and pay for any New Shares that such OEP Stockholder has elected to purchase pursuant to the Preemptive Right upon the written approval closing of the Minority Independent Director (or a majority issuance of the Directors on New Shares, and shall have no right to acquire such New Shares if the Board who are Independent Directors if there issuance thereof is no Minority Independent Director at the time of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the Companynot consummated.
Appears in 2 contracts
Samples: Principal Stockholders Agreement (Sonus Networks, Inc.), Merger Agreement (Sonus Networks Inc)
Preemptive Rights. (a) If the Corporation proposes to sell New Securities to any Person, the Corporation shall, before such sale, deliver to the Series C Investors, the 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 in this Section. The Company hereby grants Offer shall state that the Corporation proposes to each current holder issue New Securities and specify their number and terms (including purchase price). The Offer shall remain open and irrevocable for a period of Company Securities, including Athens and its Affiliates and Subsidiaries except in connection with the issuance of any Debt Instrument, thirty (30) days (the “Preemptive ParticipantsPeriod”) from the right to purchase date of its Pro Rata Portion of New Securities that the Company may, from time to time, propose to sell or issue 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 “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 thereofdelivery.
(b) The Company shall give written notice Each Schedule 3.6 Stockholder may accept the Offer for up to its Pro Rata Amount of a proposed issuance, sale or incurrence described in Section 4.1(a) New Securities by delivering 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 Corporation a notice (the “Issuance Purchase Notice”) within the Preemptive Period. The Purchase Notice shall set forth the material terms and conditions of such proposed transaction, including, as applicable, state the number or amount and description (the “Preemptive Number”) of the securities proposed New Securities such Schedule 3.6 Stockholder desires to be issuedpurchase, the proposed issuance or incurrence date and the proposed purchase price per securityup to but not exceeding its Pro Rata Amount.
(c) At any time during The issuance of New Securities to the 15-day period following Schedule 3.6 Stockholders who delivered a Purchase Notice shall be made on a business day, as designated by the receipt Corporation, not less than five (5) and not more than thirty (30) days after expiration 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 Period on those 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 approvalsOffer not inconsistent with this Section.
(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 If the number of New Securities such Exercising Holders elected to purchase pursuant to Section 4.1(c).
(e) If exceeds the sum of all Preemptive Participants or Exercising Holders fail to exercise fully their preemptive purchase right hereunder within the periods described aboveNumbers, the Company shall be free to complete Corporation may issue such excess or any portion thereof on the proposed issuance, sale or incurrence terms and conditions of the New Securities described in the Issuance Notice with respect Offer 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 any Person within ninety (90) days after the expiration of the 15-day period described in Section 4.1(cPreemptive Period. If such issuance is not made within such ninety (90) 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 has not sold such New Securities within said 90-day period, the Company shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without first again complying with the preemptive purchase right procedures restrictions provided for in this Section 4.1shall again become effective.
(fe) The preemptive rights set forth in this Section 4.1 3.6 may be waived upon by the vote or the written approval consent of the Minority Independent Director holders of at least (or i) a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiverthen outstanding Series C Preferred Shares, (ii) if such waiver is deemed by such Minority Independent Director, or a majority of the Independent Directors, as applicable, to be in the best interest then outstanding Series A Preferred Shares and (iii) a majority of the Companyshares held by Schedule 3.6 Stockholders.
Appears in 2 contracts
Samples: Stockholders Agreement (Nexsan Corp), Stockholders’ Agreement (Nexsan Corp)
Preemptive Rights. (a) The Company hereby grants to each current holder of Company SecuritiesIf, including Athens and its Affiliates and Subsidiaries except in connection with the issuance of at any Debt Instrument, (the “Preemptive Participants”) the right to purchase its Pro Rata Portion of New Securities that the Company may, from time to time, propose to sell or issue 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 “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 proposes 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 has not sold such New Securities within said 90-day period, the Company shall not thereafter issue or sell any New Securities to any Person, whether or incur new indebtednessnot 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 give notice thereof (“Preemptive Rights Notice”) to each Member who holds Interests (individually, “Participating Member,” and collectively, “Participating Members”). Each Preemptive Rights Notice shall:
VII.1.1. Specify in reasonable detail (i) the number and type of New Securities which the Company proposes to issue or sell, and (ii) the time within which, the price at which, and all other material terms and conditions upon which, the Company proposes to issue or sell such New 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 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 form attached hereto as applicable, without first again complying Exhibit C) filed with the preemptive purchase right procedures provided for 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 4.1Article 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 (fas defined below) The preemptive rights set forth of such New Securities as described in this Section 4.1 may be waived upon 7.1 above. As used herein, the written approval term “Preemptive Rights Pro Rata Amount,” as applied to any Participating Member on any date, shall mean a fraction (expressed as a percentage), the numerator of which is the Interest of the Minority Independent Director (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed Company then held by such Minority Independent Director, or majority Participating Member and the denominator of which is the Independent Directors, as applicable, to be in the best interest outstanding Interests of the Company, in each case, excluding the New Securities to be issued.
Appears in 2 contracts
Samples: Operating Agreement, Operating Agreement
Preemptive Rights. (a) The Company hereby grants Subject to Section 6(b) below, if the Partnership or any of its Subsidiaries proposes to issue any Equity Security, the Partnership will (or will cause such Subsidiary to) offer to sell to each current holder Partner holding Common Units a number of such securities (“Offered Units”) as is equal to such Partner’s pro rata share, based on the ratio of (i) the number of Common Units owned by such Partner divided by (ii) the 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 Vested Incentive Units held by such Partner at the time of such calculation. 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 on the same terms (including, if more than one type of security is issued, the same proportionate mix of such securities) as the securities are issued by delivery of irrevocable written notice (the “Election Notice”) to the Partnership of such election within thirty (30) days after receipt of the Issuance Notice (the “Preemptive Period”). If any Partner has elected to purchase any Offered Units, the sale of such units shall be consummated as soon as practical (but in any event within twenty (20) days, unless the Company Securitiesabandons or withdraws its offering of the Offered Units) after the delivery of the Election Notice to the Partnership. To the extent the Partners do not elect to, including Athens or are not entitled to, purchase all of the Offered Units, then the Partnership or such Subsidiary may issue the remaining Offered Units at a price and its Affiliates and Subsidiaries except on terms no more favorable to the transferee(s) thereof specified in connection with the Issuance Notice during the 120-day period following the Preemptive Period. Notwithstanding anything in this Section 6 to the contrary, the Partnership shall not be deemed to have breached this Section 6 if, within 30 days following the issuance of any Debt InstrumentEquity Securities in contravention of this Section 6, the Partnership or the Subsidiary in question (as applicable) offers to sell the “Preemptive Participants”) 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 its Pro Rata Portion or subscribe for securities in a manner consistent with the allocation provided in the initial sentence of New Securities that the Company may, from time to time, propose to sell or issue 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 6(a); provided that no merger or consolidation or sale of all or substantially all of the “Offered Securities.” The preemptive purchase right provided in this Section 4.1(a) shall apply at the time assets of, transfer of Equity Securities or issuance or incurrence, as applicable, sale of additional Equity Securities of the Partnership or any right, warrant Subsidiary may be approved or option effected or convertible any distribution under the Partnership Agreement may be approved or exchangeable security and not occur prior to the conversion, exchange or exercise thereofconsummation of such subsequent offer.
(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 rights contained in this Section 4.1 on terms no less favorable 6 shall not apply to (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) 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 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, (vi) any issuance of Class A Common Units pursuant to the Company than those set forth in the Issuance Notice Recapitalization Agreement, or (except that the number or amount vii) any issuance 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 Equity Securities of a Subsidiary 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 Partnership to the extent necessary Partnership or to obtain required governmental approvals and any other required approvals and the Company shall use its commercially reasonable efforts to obtain such approvals. In the event that the Company has not sold such New Securities within said 90-day period, the Company shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without first again complying with the preemptive purchase right procedures provided for in this Section 4.1.
(f) The preemptive rights set forth in this Section 4.1 may be waived upon the written approval Subsidiary of the Minority Independent Director (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the CompanyPartnership.
Appears in 2 contracts
Samples: Partnership Agreement (Grande Communications Holdings, Inc.), Recapitalization Agreement (Grande Communications Holdings, Inc.)
Preemptive Rights. (a) The If the Company hereby grants proposes to each current holder issue or sell any Units (including any securities exchangeable or exercisable for, or convertible into, Units), which proposal has been approved by the Board of Managers and Members of the Company Securitiespursuant to the provisions hereof, including Athens and the Company shall first deliver written notice of its Affiliates and Subsidiaries except in connection with the issuance of any Debt Instrument, proposal to do so (the “Preemptive ParticipantsPurchase Right Notice”) to each of the right Members. The Purchase Right Notice must: (i) identify the name and address of each Person (if known) to purchase its Pro Rata Portion which the Company proposes to issue or sell the Units, (ii) specify the number of New Securities Units that the Company may, from time proposes to time, propose to sell or issue or that relate to incurred indebtednesssell (the “Issued Units”), (iii) describe the consideration per Unit for the Issued Units (expressed as applicable. The number or amount of New Securities a value in cash, the “Issued Price”), (iv) describe the material terms and conditions upon which the Preemptive Participants may purchase pursuant Company proposes to issue or sell the 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 4.1(a) shall be referred to as the “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 thereof10.5.
(b) The Company Each Member shall give written notice have an option, exercisable for a period of a proposed issuance, sale or incurrence described in Section 4.1(a) to 30 days from the Preemptive Participants within five (5) Business Days following any meeting date of delivery 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 Purchase Right Notice (the “Issuance NoticePurchase 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 the material terms and conditions of under this Section 10.5(b) shall constitute an irrevocable commitment by such proposed transaction, including, as applicable, Purchasing Member to purchase the number or amount of Issued Units specified in such written notice in accordance with the Purchase Right Notice and description of the securities proposed to be issued, the proposed issuance or incurrence date and the proposed purchase price per securitythis Section 10.5.
(c) At any time If a Member does not exercise its Purchase Right during the 15-day period following the receipt of an Issuance NoticePurchase Period, the Preemptive Participants then such Member’s Purchase Right with respect to such Issued Units 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 approvalsterminate.
(d) Each Preemptive Participant exercising its right to Purchasing Member shall 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 from the Company, within and the 15-day period following the receipt of an Issuance NoticeCompany shall issue or sell to such Purchasing Member, 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 Issued Units that such Exercising Holders Purchasing Member elected to purchase in accordance with this Section 10.5 for the Issued Price and on the Issued Terms on (i) the date of the closing of the issuance of the Issued Units described in the Purchase Right Notice delivered by the Company pursuant to Section 4.1(c10.5(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 mutually agreed upon by the Company and the 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) delivery of written notices to the Company from all the Members indicating their intent, in the aggregate, to purchase less than all of the Issued Units (the date of such earlier occurrence, the “Ending Date”), the Company shall have the right, exercisable for a period of 120 days from the Ending Date (the “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”) to any Person for a price per Unit that is not less than the Issued Price and on terms 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 Preemptive Participants Company wishes to issue or Exercising Holders fail 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 exercise fully their preemptive purchase right hereunder within the periods described abovepurchaser than the Issued Terms, or if the Company wishes to issue or sell the Remaining Issued Units following the expiration of the Issuance Period, the Company shall be free required to complete the proposed issuance, sale or incurrence of the New Securities described in the Issuance Notice first comply 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 has not sold such New Securities within said 90-day period, the Company shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without first again complying with the preemptive purchase right procedures provided for in this Section 4.110.5 anew.
(f) The preemptive rights set forth in Notwithstanding anything to the contrary contained herein, the Purchase Rights established by this Section 4.1 may 10.5 shall not be waived upon the written approval of the Minority Independent Director (applicable to any Unit split, dividend or division, or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed recapitalization by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the Company, pursuant to which all holders of Units are treated similarly.
Appears in 2 contracts
Samples: Operating Agreement (BBX Capital Corp), Operating Agreement (BFC Financial Corp)
Preemptive Rights. (a) The If at any time the Company hereby grants determines to issue additional Units (or other equity interests) in the Company, exclusive of the Company'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 current holder other Member of Company Securities, including Athens and its Affiliates and Subsidiaries except in connection with such proposed issuance (the "PREEMPTIVE NOTICE"). The Preemptive Notice shall contain (i) the proposed issuance of any Debt Instrumentprice, (the “Preemptive Participants”ii) the right total number of Units proposed to purchase its Pro Rata Portion be issued, (iii) the identity of New Securities that the Company mayPurchasing Member, from time to time, propose to sell or issue or that relate to incurred indebtedness, as applicable. The number or amount and (iv) any other material terms and conditions of New Securities which the Preemptive Participants may purchase pursuant to this Section 4.1(a) shall be referred to as the “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 thereofissuance.
(b) The Company Each other Member shall give have the right, exercisable upon written notice of a proposed issuance, sale or incurrence described in Section 4.1(a) to the Preemptive Participants Company 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 after receipt of the proposed issuance, sale or incurrence. Such notice Preemptive Notice (the “Issuance Notice”) shall set forth "PREEMPTIVE RIGHTS NOTICE PERIOD"), to purchase, on the material terms and conditions of such proposed transaction, including, as applicable, set forth in the number Preemptive Notice the Units (or amount and description of the securities other equity interests) proposed to be issued, issued on a pro rata basis based on the proposed issuance or incurrence date 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 proposed purchase price per securityPurchasing Member within sixty (60) days following the date of the Preemptive Notice on substantially similar terms and conditions as described in the Preemptive Notice.
(c) At any time during If no other Member exercises the 15-day period following Preemptive Right within the receipt of an Issuance NoticePreemptive Rights Notice Period, the Preemptive Participants shall have the right to elect irrevocably to purchase their Pro Rata Portion Company may, not later than sixty (60) days following expiration of the number Preemptive Rights, conclude the issuance of Units (or amount of other equity interests) to the Offered Securities at Purchasing Member on the purchase price set forth in same economic terms and substantially the Issuance Notice and upon the other same 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 Preemptive Notice. The closing Any proposed issuance of any purchase by any Preemptive Participants may be extended beyond the closing of the transaction Units (or other equity interests) to a Purchasing Member on terms and conditions materially different from those described in the Issuance Preemptive Notice or any proposed issuance more than sixty (60) days following the expiration of the Preemptive Right, shall again be subject 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 Right 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 Members 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) 7.10 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 has not sold such New Securities within said 90-day period, the Company shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without first again complying require compliance with the preemptive purchase right procedures provided for as described in this Section 4.17.10.
(f) The preemptive rights set forth in this Section 4.1 may be waived upon the written approval of the Minority Independent Director (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the Company.
Appears in 2 contracts
Samples: Annual Report, Operating Agreement (Autobytel Com Inc)
Preemptive Rights. (a) The Company hereby grants Except to each current holder of Company Securitiesthe extent the right to receive such offer has been waived in writing by the Subscriber, including Athens and its Affiliates and Subsidiaries except in connection with 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 Debt Instrumentshare 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 “Preemptive Participants”) the right Subscriber to purchase its Pro Rata Portion proportionate share of such New Securities that Securities, based on its proportionate share holdings in the share capital of the Company mayresulting solely from this offering, from time to timeon an as if converted and exercised basis, propose to sell or issue 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 “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 prior to the conversionissuance of the New Securities, exchange or exercise thereofin accordance with the provisions of subsection (b) below.
(b) The In the event the Company undertakes an issuance of New Securities, it shall give the Subscriber written notice of a proposed issuancethereof, sale or incurrence described in Section 4.1(ano less than two (2) 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) business days prior to the proposed such issuance, sale or incurrence. Such notice (of offer shall state the “Issuance Notice”) shall set forth price and other terms of the material terms proposed allotment, and conditions offer to the Subscriber such number of New Securities, at such proposed transaction, includingprice and on such other terms, as applicable, is necessary for the number or amount and description Subscriber to retain the proportion of the securities proposed Company's share capital resulting solely from this offering which it held immediately prior to be issued, the proposed such issuance or incurrence date (on an as if converted 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 approvalsif exercised basis), and the Company shall use its commercially reasonable efforts Subscriber may accept such offer, as 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 the shares so offered to it, by giving the Company written notice to of acceptance within fourteen (14) days after being served with such notice of offer (the Company“Offer Period”). For avoidance of doubt, within the 15-day period following Company and the receipt Subscriber agree and acknowledge that the closing of an Issuance Notice, of its interest in purchasing a specified amount the issuance of New Securities as to which any Non-Purchasing Holders has failed the proposed purchaser may take place prior to exercise their preemptive purchase right hereunder; provided that in the end of the Offer Period. In the event there are two or more such Exercising Holders that choose the Subscriber accepts the offer to exercise participate in accordance with this Section 3.4(b), the last-mentioned option for a total number of remaining securities in excess closing 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 additional issuance to the Company than those set forth in the Issuance Notice Subscriber shall take place within seven (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 (907) days after the expiration end 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 has not sold such New Securities within said 90-day period, the Company shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without first again complying with the preemptive purchase right procedures provided for in this Section 4.1Offer Period.
(f) The preemptive rights set forth in this Section 4.1 may be waived upon the written approval of the Minority Independent Director (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the Company.
Appears in 2 contracts
Samples: Subscription Agreement (SuperCom Ltd.), Subscription Agreement (SuperCom Ltd.)
Preemptive Rights. (a) The For so long as at least 50% of the originally 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 securities, other than Excluded Shares, are referred to collectively herein as "Additional Securities"), the Company hereby grants shall first give to each current holder Holder holding shares of Company Securities, including Athens and its Affiliates and Subsidiaries except in connection with Series B Stock the issuance of any Debt Instrument, opportunity (the “Preemptive Participants”) the right to purchase its Pro Rata Portion of New Securities that the Company may, from time to time, propose to sell or issue 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 such opportunity being herein referred to as the “Offered Securities.” The preemptive "Preemptive Right") to purchase right provided in this Section 4.1(a(on the same terms as such Additional Securities are proposed to be sold) shall apply at the time same percentage of issuance or incurrence, such Additional Securities proposed to be sold by the Company as applicable, of any right, warrant or option or convertible or exchangeable security and not equals the percentage equal to the conversionquotient of (i) the number of shares of Common Stock into which the shares held by such Holder of Series B Stock could be converted, exchange or exercise thereofdivided 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) The 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 a 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 issuanceto be issued or sold, sale (iv) the price and other terms of their proposed issuance or incurrence described sale, (v) the number of such Additional Securities which such Holder is entitled to purchase (determined as provided in Section 4.1(a4.3(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 Participants within five (5) Business Days following any meeting of Right are not subscribed for by 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 other Holders (the “Issuance "Preemptive Acceptance 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 In the event a Holder declines to subscribe for all or any time part of its pro rata portion of any Additional Securities which are subject to the Preemptive Right (the "Declining Preemptive Purchaser") during the 15-day period following Preemptive Acceptance Period, then the receipt of an Issuance Notice, the Preemptive Participants other Holders shall have the right to elect irrevocably subscribe for all (or any declined part) of such Declining Preemptive Purchaser's pro rata portion of such Additional Securities (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 be divided among the other terms and conditions specified in Holders desiring to exercise such right on a ratable basis) (the Issuance Notice by delivering a written notice to the Company"Overallotment Right"). Except as provided in the following sentenceEach Holder's Overallotment Right, such purchase if any, shall be consummated concurrently with deemed to be exercised on the consummation of date 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 Acceptance 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 approvalsis given.
(d) Each Preemptive Participant exercising its right to purchase its respective portion After the conclusion of the Offered Preemptive Acceptance Period, any Additional Securities, less any Additional 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”)for which Preemptive Rights or Overallotment Rights are exercised, such Exercising Holder may purchase all or any part of such securities be sold by giving written notice to the Company, within a period of 4 months after 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 expiration of the number availablePreemptive Acceptance Period, to any other Person or Persons at not less than 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 price and upon other terms no and conditions not 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 Preemptive 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 has not sold such New Securities within said 90-day period, the Company shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without first again complying with the preemptive purchase right procedures provided for in this Section 4.1.
(fe) The preemptive Notwithstanding anything to the contrary contained herein, if the Company issues, pursuant to a rights set forth in this Section 4.1 may offering, rights to acquire shares of Common Stock or other securities to holders of Common Stock, then the Holders of Series B Stock shall be waived 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 the written approval conversion of its Series B Stock as of the Minority Independent Director date a record is taken of the holders of Common Stock for the purpose of receiving such distribution (or a majority if no such record is taken, the earlier of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time date of such waiver) if such waiver is deemed by such Minority Independent Directordeclaration, payment or majority of the Independent Directors, as applicable, to be in the best interest of the Companyother 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) The Company hereby grants shall not issue, sell or exchange, agree to issue, sell or exchange, or reserve or set aside for issuance, sale or exchange, any Preemptive Securities (as defined below) of the Company to any Person unless, in each case, the Company shall have first offered to sell to each current holder Common Holder and the holders of Company any Class F-2 Preferred Stock (each a “Preemptive Holder”) such Preemptive Holder’s Preemptive Share of the Preemptive Securities, including Athens at a price and its Affiliates and Subsidiaries except on such other terms as shall have been specified by the Company in connection with the issuance of any Debt Instrument, writing delivered to each such Preemptive Holder (the “Preemptive ParticipantsOffer”) ), which Preemptive Offer shall by its terms remain open and irrevocable for a period of at least ten calendar days from the right date it is delivered by the Company (the “Preemptive Offer Period”). Each Preemptive Holder may elect to purchase its Pro Rata Portion all or any portion of New such Preemptive Holder’s Preemptive Share of the Preemptive Securities that 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 may, from time to time, propose to sell or issue or that relate to incurred indebtedness, as applicable. The number or amount of New Securities which soon as practical but in any event within the Preemptive Participants may 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 4.1(a) shall be referred to as 10.3 must purchase the “Offered Securities.” The preemptive purchase right provided in this Section 4.1(a) shall apply at the time same proportionate mix of issuance or incurrence, as applicable, all of any right, warrant or option or convertible or exchangeable security and not such securities. Notwithstanding anything 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 contrary set forth in the Issuance Notice and upon the other terms and conditions specified in the Issuance Notice by delivering Charter or these Bylaws, a written notice to the Company. Except as provided in the following sentence, such purchase shall be consummated concurrently with the consummation Preemptive Holder may assign all or any portion 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 acquire Preemptive Securities to its respective portion direct or indirect equityholders, and upon any such assignment, each such equityholder shall be deemed a Preemptive Holder for the purposes 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)10.3.
(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 has not sold such New Securities within said 90-day period, the Company shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without first again complying with the preemptive purchase right procedures provided for in this Section 4.1.
(f) The preemptive rights set forth in this Section 4.1 may be waived upon the written approval of the Minority Independent Director (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the Company.
Appears in 2 contracts
Samples: Securities Purchase and Exchange Agreement, Securities Purchase and Exchange Agreement (Gmac Inc.)
Preemptive Rights. (a) Notwithstanding anything contained in Section 3, 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 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 same price as that offered to the other purchasers of such New Securities; provided, that such Investor shall not be entitled to acquire any New Securities pursuant to this Section 4 to the extent the issuance of such New Securities to such Investor would require approval of the stockholders of the Company 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, in which case the Company may consummate the proposed issuance of New Securities to other Persons prior to obtaining approval of the stockholders of the Company (subject to compliance by the Company with Section 4(e) below).
(b) If the Company proposes to 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 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 hereby grants 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 Securities 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 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 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 offering described in the 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 (subject 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) business day following the date on which such Investor has notified the Company that it has elected to purchase New Securities pursuant to this Section 4, then each current holder Investor shall purchase such New Securities within twenty (20) business days following the date of the related issuance. If the proposed issuance by the Company Securitiesof 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 by the Investors in respect thereof shall be promptly refunded in full.
(d) In the case of the offering of securities for consideration in whole or in part other than cash, including Athens 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 Affiliates receipt of the written notice of such issuance to the Investors pursuant to this Section 4, at the Investor’s election, (i) consider and Subsidiaries except 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 Debt Instrument, New Securities to the Investors.
(f) If the “Preemptive Participants”) the right Investors do not elect to purchase its Pro Rata Portion their respective Preemptive Election Share of the New Securities that the Company may, from time to time, propose to sell or issue 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 “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 above4, the Company shall be free to complete the proposed issuance, sale or incurrence may sell such portion of the New Securities described on terms and conditions that are not materially more favorable 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 aggregate to the Company applicable purchaser(s) than those set forth in the Issuance Notice (except that written notice of such offer. If such sale is not consummated within 120 days of the number or amount date upon which the written notice of securities to such offer was given, then no issuance of such New Securities may be issued or sold made thereafter by the Company may be reduced); provided that (x) such issuance, sale or incurrence is closed within ninety (90) days after without again offering 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 same to the extent necessary Investors in accordance with this Section 4. The election by any Investor to obtain required governmental approvals and other required approvals and the Company shall use not exercise its commercially reasonable efforts to obtain such approvals. In the event that the Company has not sold such New Securities within said 90-day period, the Company subscription rights under this Section 4 in any one instance shall not thereafter issue or sell affect its right as to any New Securities or incur new indebtedness, as applicable, without first again complying with the preemptive purchase right procedures provided for in this Section 4.1subsequent proposed issuance.
(fg) The preemptive Company and the Investors shall cooperate in good faith to facilitate the exercise of the Investors’ rights set forth in pursuant to this Section 4.1 may be waived upon 4, including securing any required approvals or consents.
(h) For purposes of this Section 4, the written approval of following terms have the Minority Independent Director (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the Company.following meanings:
Appears in 2 contracts
Samples: Investor Rights Agreement (Act III Holdings LLC), Investor Rights Agreement (BJs RESTAURANTS INC)
Preemptive Rights. (ai) The In the event that, in accordance with the terms set forth in this Agreement, the Board determines to cause the Company hereby grants to issue equity interests in the Company or other securities or interests exercisable for or convertible into equity securities of the Company (“New Shares”), in each current holder case other than with respect to (A) the issuance of Company Securities, including Athens and its Affiliates and Subsidiaries except New Shares in connection with the issuance granting or exercise of any Debt Instrument, (employee share options or other share incentives pursuant to the “Preemptive Participants”) the right to purchase its Pro Rata Portion of New Securities that the Company may, Company’s share incentive plans and employment arrangements as in effect from time to time, propose to sell time or issue or that relate to incurred indebtedness, as applicable. The number or amount the issuance of New Securities which the Preemptive Participants may purchase Shares pursuant to this Section 4.1(athe 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 be referred cause the Company to as the “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 provide written notice of (a proposed issuance, sale or incurrence described in Section 4.1(a“Preemptive Rights Notice”) thereof 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 each Investor at least fifteen twenty (1520) days prior to the proposed estimated date of such issuance, sale or incurrence. Such notice (the “Issuance Notice”) The Preemptive Rights Notice shall set forth a summary of the material terms and conditions of such proposed transactionNew Shares, including, as applicable, including the number or estimated amount and description of the securities proposed New Shares to be issued, the proposed issuance or incurrence date estimated purchase price therefor and the proposed purchase price per security.
(c) At any time during the 15-day period following the receipt estimated date of an Issuance Notice, the Preemptive Participants issuance of such New Shares. Each Investor shall have the right to elect irrevocably (a “Preemptive Right”) 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 New Shares equal to exercise its right hereunder up 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 Shares proposed to be issued multiplied by the percentage of equity ownership of such Exercising Holders elected to purchase pursuant to Section 4.1(c)Investor in the Company as of the date of delivery of the Preemptive Rights Notice.
(eii) If Each Investor that desires to exercise its Preemptive Rights hereunder must exercise such Preemptive Right within twenty (20) days after receipt of the Preemptive Participants or Exercising Holders fail Rights Notice from the Company, and any failure to exercise fully their preemptive purchase right hereunder such Preemptive Right within the periods described above, the Company such time period shall be free to complete deemed a waiver of the proposed issuance, sale or incurrence Preemptive Right in respect of the New Securities described Shares referred to 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 related Preemptive Rights 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 has not sold such New Securities within said 90-day period, the Company shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without first again complying with the preemptive purchase right procedures provided for in this Section 4.1.
(fiii) The preemptive rights set forth in election by an Investor not to exercise such Investor’s Preemptive Rights under this Section 4.1 may 3(d) in any one instance shall not affect such Investor’s right as to any subsequent proposed issuance subject to this Section 3(d), provided that such Investor continues to be waived upon the written approval an Investor as of the Minority Independent Director (or a majority date of delivery of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time Preemptive Right Notice in respect of any such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the Companysubsequent proposed issuance.
Appears in 2 contracts
Samples: Shareholders Agreement (Third Point Reinsurance Ltd.), Shareholder Agreement (Third Point Reinsurance Ltd.)
Preemptive Rights. Except for Excluded Issuances, if the Company (aor any subsidiary of the Company) The 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 Security” and together, the “New Securities”) prior to the consummation of a Public Offering Event, then the Company hereby grants shall also offer such New Securities to each current holder of Company Securitiesthe GEI Parties (with respect to any offer pursuant clause (ii) above, including Athens other than to any GEI Party previously offered such New Security), the Roll-Over Investors and its Affiliates and Subsidiaries except in connection with the issuance of any Debt Instrument, Mezzanine Investors (a “Stockholder”) by sending written notice (the “Preemptive ParticipantsNew Issuance Notice”) the right to purchase its Pro Rata Portion of New Securities that the Company may, from time to time, propose to sell or issue 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 “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 Persons at least fifteen (15) days prior to the proposed issuanceissuance and sale of the New Securities. The New Issuance Notice shall state (a) the number of shares, sale notes or incurrence. Such notice (the “Issuance Notice”) shall set forth the material terms and conditions of such proposed transaction, includingother securities, as applicable, the number or amount and description of the securities New Securities proposed to be issuedissued and sold and the terms of such New Securities, the proposed issuance or incurrence date and (b) the proposed purchase price per share, note or other 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 sentenceapplicable, 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 that the Company than those set forth in is willing to accept (the Issuance Notice (except that “Proposed Price”) and 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 terms and conditions of the 15-day period described in Section 4.1(c) and purchase of such New Securities, (yc) the price at proposed date on which the New Securities are Transferred must will be equal sold (the “New Issuance Closing Date”), and (d) each Stockholder’s Proportionate Percentage. For purposes hereof, each Stockholder’s “Proportionate Percentage” means, with respect to or higher than any Stockholder, the purchase price described in percentage of 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 has not sold such New Securities within said 90-day period, the Company shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without first again complying with the preemptive purchase right procedures provided for in this Section 4.1.
(f) The preemptive rights set forth in this Section 4.1 may be waived upon the written approval of the Minority Independent Director (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of allocated to such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, Stockholder to be in the best interest of the Company.determined as follows:
Appears in 2 contracts
Samples: Stockholders Agreement (Container Store Group, Inc.), Stockholders Agreement (Container Store Group, Inc.)
Preemptive Rights. (ai) The Company hereby grants Until the QIPO, the provisions of this Article 14 shall apply:
(1) Any Additional Securities (as defined in Article 9 above) to each current holder of Company Securities, including Athens and its Affiliates and Subsidiaries except in connection with the issuance of any Debt Instrument, (the “Preemptive Participants”) the right to purchase its Pro Rata Portion of New Securities that be issued by the Company may, from time to time, propose to sell or issue 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 “Offered Securities.” The preemptive purchase right provided in this Section 4.1(a”) shall apply at first be offered by the time Board of issuance or incurrenceDirectors by written notice to each Major Holder and Founder, for as long as such Founder holds shares in the 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) the denominator of which is the total number of outstanding Ordinary Shares of the Company (on an as-converted basis), as applicable, of any right, warrant or option or convertible or exchangeable security and not determined prior to the conversion, exchange or exercise thereofoffer made pursuant to this Article 14.
(b2) The Company shall give written notice provide each Offeree with a Notice (the “Notice of a proposed issuance, sale or incurrence described in Section 4.1(aOffer”) specifying the number of Offered Securities he is entitled to purchase and which shall state the Preemptive Participants within five (5) Business Days following any meeting terms 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 any such proposed transaction, includingOfferee may accept such offer, 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 the Offered Securities so offered to him, by giving the Company written notice to the Company, of acceptance 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).
twenty (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 (9020) days after being served with such Notice of Offer; provided, however, that the expiration 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 obligated to consummate the purchase of such Offered Securities only if the Company consummates the sale of the 15-day period balance of the Offered Securities pursuant to the terms 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 has not sold such New Securities within said 90-day period, the Company shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without first again complying with the preemptive purchase right procedures provided for in this Section 4.1.Notice of Offer
(f3) The preemptive Any and all preemption rights set forth in this Section 4.1 Article 14, may be waived upon exercised by a Permitted Transferee of a Major Holder instead of by such Major Holder if such Major Holder so notifies the written approval Company in writing.
(j) Any Offered Securities not subscribed for by the Offered as aforesaid, shall be under the control of the Minority Independent Director (or a majority Board of Directors and may be issued without regard to this Article 14, except to the extent that said Offered Securities may not be allotted on terms more favorable to the purchaser than those offered pursuant to this Article 14. In the event the Offered Securities are not acquired by the expiration of 120 days from the date of expiration of the Directors on twenty (20) day period referred to in Article 14(a)(2), they may not be issued except by compliance with the Board who are Independent Directors if there is no Minority Independent Director at the time provisions of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the CompanyArticle 14.
Appears in 2 contracts
Samples: Preferred Share Purchase Agreement (Negevtech Ltd.), Preferred Share Purchase Agreement (Negevtech Ltd.)
Preemptive Rights. (a) The In the event (and on each occasion) that, after the date hereof, the Company hereby grants shall decide to each current holder of Company Securities, including Athens and its Affiliates and Subsidiaries except in connection with the undertake an issuance of additional shares of Common Stock or any Debt Instrumentrights, (the “Preemptive Participants”) the right warrants or options to purchase its Pro Rata Portion Common Stock or any securities convertible into Common Stock ("New Securities") which would not result in an adjustment pursuant to Section 4 of New Securities that the Attached Warrants, other than a Permitted Issuance (as defined below), the Company mayshall give each Purchaser written notice (an "Offer Notice") of the Company's decision, from time to time, propose to sell or issue or that relate to incurred indebtedness, as applicable. The number or describing the type and amount of New Securities which the Preemptive Participants may purchase pursuant to this Section 4.1(a) shall be referred to as the “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 price per share at which the New Securities are to be issued, and the proposed 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 Securities for the price per security.
share and upon the general terms specified in the Offer Notice, and in compliance with paragraph (c) At any time during the 15-day period following the receipt of an Issuance Noticethis Section 5.06, 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 Company and stating therein the 15-day period following the receipt of an Issuance Notice, of its interest in purchasing a specified amount quantity of New Securities as to which be purchased by such Purchaser. If, in connection with such a proposed issuance of New Securities, such Purchaser shall for any Non-Purchasing Holders has failed reason fail or refuse to exercise their preemptive give such written notice to the Company within such period of thirty (30) days, such Purchaser shall, for all purposes of this Section 5.06, be deemed to have refused (in that particular instance only) to purchase right hereunder; provided any of such New Securities and to have waived (in that in the event there are two or more particular instance only) all rights of 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 Purchaser 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 5.06 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 any 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 has not sold such New Securities within said 90-day period, the Company shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without first again complying with the preemptive purchase right procedures provided for in this Section 4.1Securities.
(f) The preemptive rights set forth in this Section 4.1 may be waived upon the written approval of the Minority Independent Director (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the Company.
Appears in 2 contracts
Samples: Unit Purchase Agreement (Code Alarm Inc), Unit Purchase Agreement (Pegasus Investors L P)
Preemptive Rights. (a) The Company hereby grants to each current holder of Company Securities, including Athens and its Affiliates and Subsidiaries except in connection with the issuance of any Debt Instrument, (the “Preemptive Participants”) Class A Shareholders the right to purchase its Pro Rata Portion additional shares of New Securities that the Company may, Company’s equity securities (or rights to acquire such equity securities) (the “Purchase Right”) in connection with any issuance from time to timetime by the Company of equity securities after the Closing Date, propose 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 following provisions:
(a) In the event the Company determines to sell or issue or that relate Covered Securities, it shall deliver 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 each Class A Shareholder a written notice (the “Offered Transaction Notice”) stating (i) its bona fide intention to sell Covered Securities.” The preemptive purchase right provided in this Section 4.1(a, (ii) shall apply the identity of the proposed transferee and the material terms of the transaction and (iii) the Per Share Price (as defined below) at the time of issuance or incurrence, as applicable, of any right, warrant or option or convertible or exchangeable security and not which it intends to the conversion, exchange or exercise thereofissue such Covered Securities.
(b) The Company shall give written notice No later than ten (10) days after delivery to each Class A Shareholder of a proposed issuanceTransaction Notice (or, sale or incurrence if later, five days following the date the independent qualified appraiser described in Section 4.1(a) the definition of Per Share Price delivers its determination to the Class A Shareholders), each Class A Shareholder may elect to purchase from the Company such number of shares of Covered Securities (“Preemptive Participants within five Shares”) as will maintain its percentage ownership in the Company on a fully diluted basis (5) Business Days following any meeting after giving effect to the sale of the Board at which any such issuance, Covered Securities described in the Transaction Notice and the sale or incurrence is approved and at least fifteen (15) days prior of the Common Stock pursuant to the proposed issuance, sale or incurrence. Such Purchase Right) at a price per share equal to the Per Share Price by delivery to the Company of an election notice (the “Issuance Election Notice”) shall set forth the material terms and conditions of stating 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 Class A Shareholder’s intention 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)Purchase Right.
(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 has not sold such New Securities within said 90-day period, the Company shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without first again complying with the preemptive purchase right procedures provided for in this Section 4.1.
(f) The preemptive rights set forth in this Section 4.1 may be waived upon the written approval of the Minority Independent Director (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the Company.
Appears in 1 contract
Preemptive Rights. (a) The Company hereby grants For so long as the Permitted Holders own in the aggregate at least 50% of the Preferred Stock issued on the Issue Date, before any issuance by the Corporation of any Voting Stock (other than Excluded Stock) at a price less than $4.00 per share (subject to adjustment for stock dividends, subdivisions, reclassifications, combinations or similar type events), the Corporation shall give written notice (a “Preemptive Notice”) thereof to each current holder Holder. The Preemptive Notice shall:
(i) specify the material terms of Company Securities, including Athens and its Affiliates and Subsidiaries except in connection with the issuance of any Debt Instrument, security or securities to be issued (the “Preemptive ParticipantsShares”), the proposed purchasers, the date of issuance (which date shall not be less than ten (10) nor more than twenty (20) Business Days after the right to purchase its Pro Rata Portion date of New Securities delivery of the Preemptive Notice), the consideration that the Company may, from time to time, propose Corporation will receive therefor and any other material term or condition of such issuance; and
(ii) contain an offer to sell or issue or that relate to incurred indebtedness, as applicable. The number or amount of New Securities which the each Holder Preemptive Participants may purchase pursuant to this Section 4.1(a) shall be referred to as the “Offered Securities.” The preemptive purchase right provided in this Section 4.1(a) shall apply Shares at the time same price and for the same consideration to be paid by the purchaser, in an amount so that each such Holder shall maintain its fully diluted percentage interest in the total voting power 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 thereofCorporation.
(b) The Company Each such Holder shall give be entitled, by written notice of a proposed issuance, sale or incurrence described in Section 4.1(a) to the Preemptive Participants within five Corporation not less than three (53) 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 date of issuance, sale to elect to purchase all or incurrence. Such notice (part of the “Issuance Notice”) shall set forth Preemptive Shares offered to such Holder in the material Preemptive Notice on the terms and conditions of set forth therein. In the event that any such proposed transaction, including, as applicableoffer is accepted by any Holder, the number or amount Corporation shall sell to such Holder, and description of such Holder shall purchase from the Corporation for the consideration and on the terms set forth in the Preemptive Notice the securities proposed that such Holder has elected to be purchase on the same day it issues (or would have issued, ) the proposed issuance or incurrence date and the proposed purchase price per securityPreemptive Shares.
(c) At any time during If the 15-day period following Corporation does not proceed with the receipt proposed issuance of an Issuance Notice, capital stock specified in the Preemptive Participants shall have Notice on 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 set forth therein, then the provisions of this paragraph 7 shall again be 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 effect 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 any subsequent 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 has not sold such New Securities within said 90-day period, the Company shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without first again complying with the preemptive purchase right procedures provided for in this Section 4.1.
(f) The preemptive rights set forth in this Section 4.1 may be waived upon the written approval of the Minority Independent Director (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the Company.
Appears in 1 contract
Preemptive Rights. 3.1. Prior to the consummation of an IPO, if the Company proposes to issue or sell any New Securities (a) The as defined below), the Company hereby grants shall grant, prior to each current holder of Company Securitiessuch issuance, including Athens to the New Shareholder and its Affiliates and Subsidiaries except in connection with the issuance of any Debt Instrument, Original Shareholders (the “Preemptive Participants”) "PREEMPTIVE SHAREHOLDERS"), the right to purchase its Pro Rata Portion pro-rata share in the Company of the New Securities, thereafter maintaining its proportionate equity ownership in the Company. A Shareholder's pro-rata share, for purposes of this Section, is the ratio of the number of shares held by such Shareholder immediately prior to the issuance of the New Securities (on an as converted basis) in relation to the total number of Ordinary Shares issued and outstanding immediately prior to the issuance of New Securities that the Company may, from time to time, propose to sell or issue or that relate to incurred indebtedness, (on an as applicableconverted basis). 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 “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”) Shareholder shall have a right of over-allotment such that if any other securityholder Preemptive Shareholder declines or fails to exercise its right hereunder to purchase its full Pro Rata Portion pro-rata share of the New Securities, each other Preemptive Shareholder exercising its preemptive right hereunder may purchase such declining Preemptive Shareholder's portion, on a pro-rata basis to those Preemptive Shareholders exercising their right of over-allotment.
3.2. In the event the Company proposes to issue New Securities, it shall give each Preemptive Shareholder written notice of its intention, describing the type of New Securities Securities, their price and the general terms upon which the Company proposes to issue the same. Each Preemptive Shareholder shall have twenty-one (a “Non-Purchasing Holder”), 21) days after such Exercising Holder may notice is mailed or delivered to elect to purchase all or any part its pro rata share of such securities New Securities and any additional shares as may be available for over-allotment, upon the terms and conditions specified in the notice, by giving written notice to the Company, within Company and stating therein the 15-day period following the receipt of an Issuance Notice, of its interest in purchasing a specified maximum 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 approvalspurchased. In the event that a written notice of any Preemptive Shareholder is not received by the Company within the period mentioned above, then such Preemptive Shareholder shall be deemed to have waived its preemptive right under this Section 3.2. In the event the Preemptive Shareholders fail to fully exercise the preemptive right within the said twenty-one (21) day period, the Company shall have one hundred twenty (120) days thereafter to sell, or enter into an agreement to sell, to any third party, the remainder of the New Securities with respect to which the Preemptive Shareholders' preemptive right was not exercised, at a price and upon terms no more favorable to the purchasers thereof than specified in the Company's notice to the Preemptive Shareholders. In the event the Company has not sold such sold, or entered into an agreement to sell, the New Securities within said 90-the one hundred twenty (120) day period, the Company shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without first again complying with the preemptive purchase right procedures provided for in provisions of this Section.
3.3. For the purpose of this Section 4.1.
"NEW SECURITIES" shall mean any equity interest in the Company, whether now authorized or not, and rights, options or warrants to purchase such equity interests, and securities of any type whatsoever that are convertible into equity interests; provided, however, that the term "New Securities" does not include: (fi) The preemptive rights set forth in this Section 4.1 may be waived securities issued upon the written approval conversion of any preferred shares, as shall be hereafter authorized; (ii) securities issued from the Minority Independent Director Pool (as such term is defined in the Share Purchase Agreement between the Company and the New Shareholder that is being executed simultaneously herewith); (iii) securities issued in connection with stock splits, bonus shares or a majority of the Directors other similar recapitalization events on the Board who are Independent Directors if there is no Minority Independent Director at the time basis of such waiver) if such waiver is deemed by such Minority Independent Director, or majority a Shareholder's pro-rata share of the Independent Directors, as applicable, to be in the best interest all outstanding shares of the Company, on an as converted basis.
Appears in 1 contract
Samples: Shareholders Agreement (Synova Healthcare Group Inc)
Preemptive Rights. (a) The Except as provided in Section 2.07(g) or Section 2.07(h), if the Company hereby grants wishes to each current holder of Company issue any Equity Securities to any Person or Persons (all such Equity Securities, including Athens and its Affiliates and Subsidiaries except in connection with collectively, the issuance “New Securities”), then the Company shall promptly deliver a written notice of any Debt Instrument, intention to sell (the “Preemptive ParticipantsRights Notice”) to each holder of Preemptive Shares setting forth a description of the New Securities to be sold, the 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 the Preemptive Rights Notice, up to the number of New Securities equal to the product of (i) such holder’s Preemptive Proportion, multiplied by (ii) the aggregate number of New Securities to 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 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 debt financing undertaken by the Company or any of its Subsidiaries and to which preemptive rights otherwise apply pursuant to this Section 2.07, then any Class A-1 Member, Class D Member, Class E Member, Class F Preferred Member, or Class G Preferred Member who elects to purchase such New Securities pursuant to this Section 2.07 must, to be eligible to receive such New Securities, participate in the underlying debt instrument for such financing (A) with and on the same terms as the other lenders thereunder and (B) in the same percentage as their Preemptive Proportion of New Securities that such Member wishes to purchase pursuant to this Section 2.07.
(b) If one or more holders of Preemptive Shares do not elect to purchase their entire share of the New Securities (such aggregate portion of New Securities that has not been so elected, the “Excess New Securities”), then the Company will offer, by written notice (the “Supplemental Preemptive Rights Notice”), to each holder of Preemptive Shares who has elected to purchase his, her or its entire proportion of the New Securities allocated to such holder pursuant to Section 2.07(a) (the “Overallotment Investors”) the right to purchase its Pro Rata Portion 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 “First Overallotment Process”); and
(ii) following completion of the First Overallotment Process, up to such Overallotment Investor’s Remaining Preemptive Proportion of such Excess New Securities that remain available for purchase following the Company may, from time to time, propose to sell or issue 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 “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 thereofFirst Overallotment Process.
(bc) The Company shall give All elections under Section 2.07(a) and Section 2.07(b) must be made by written notice of a proposed issuance, sale or incurrence described in Section 4.1(a) to the Preemptive Participants Company 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 (or such later date determined by the proposed issuance, sale Board of Directors) after receipt by such holder of Preemptive Shares of (as applicable) the Preemptive Rights Notice or incurrence. Such notice the Supplemental Preemptive Rights Notice (the “Issuance NoticeAcceptance Period”) 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 If the holders of Preemptive Participant exercising its right to purchase its respective portion of the Offered Securities in full (an “Exercising Holder”) shall Shares 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 not 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 all 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 a Preemptive Rights Notice, then the Company than those set forth in may, at its election, during the Issuance Notice (except that the number or amount period 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 immediately following the expiration of the 15-day period described in Section 4.1(c) Acceptance Period therefor (or the expiration of the Acceptance Period relating to the Supplemental Preemptive Rights Notice, if the same is issued), sell and (y) the price at which issue any of the New Securities are Transferred must be equal not elected for purchase pursuant to or higher than the purchase Section 2.07(a) and Section 2.07(b) to any Person(s) at a price described and upon terms and conditions no more favorable, in the Issuance aggregate, to such Person(s) than those stated in the Preemptive Rights 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. .
(e) In the event that the Company has not sold such the New Securities to be issued within said such ninety (90-) day period, the Company shall not thereafter issue or sell any such New Securities or incur new indebtedness, as applicable, without first once again complying with offering such securities to each holder of Preemptive Shares in the preemptive purchase right procedures manner provided for in this Section 4.12.07(a) and Section 2.07(b).
(f) The 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 comply with the provisions of this Section 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 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 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 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 date of issuance) of such Equity Securities issued by the Company pursuant to the exemption set forth in this Section 4.1 may be waived upon 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 written approval event such $250,000,000 cap is exceeded in any given calendar year, the preemptive rights contained in this Section 2.07 will apply (subject to the other limitations set forth in this Agreement) solely with respect to that portion of the Minority Independent Director (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time Equity Securities issued in excess of such waiver) if cap in such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the Companycalendar year).
Appears in 1 contract
Samples: Limited Liability Company Agreement (General Motors Co)
Preemptive Rights. Subject to the terms and conditions of this Section 9.3 and applicable securities laws, if the Company issues, offers or sells any new Securities (the “Issuance”) to a Person, the Company shall offer such Securities to the Members in accordance with their respective Common Percentage Interests and the following provisions:
(a) The Not fewer than ten calendar days prior to the Company’s closing and consummation of the Issuance, the Company hereby grants to each current holder of Company Securities, including Athens and its Affiliates and Subsidiaries except in connection with the issuance of any Debt Instrument, shall give written notice (the “Preemptive ParticipantsOffer Notice”) to each Member stating (i) the right number of new Securities issued, offered, sold or to purchase its Pro Rata Portion be issued, offered or sold (the “New Securities”) and (ii) the price, terms, preferences and rights, if any, upon which it proposes to issue, offer or sell such Securities. For the avoidance of doubt, nothing shall prevent the Company from offering such New Securities to the Members promptly following the issuance or grant of such New Securities; provided, that the Company may, from time to time, propose to sell or issue or that relate to incurred indebtedness, as applicable. The number or amount of any New Securities which the Preemptive Participants may purchase pursuant to this Section 4.1(a) issued or sold in connection with such issuance shall be referred disregarded for purposes of calculating each Member’s Common Percentage Interest at such time (but not for subsequent determinations) so as to achieve the same economic effect as the “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 if such offer would have been made prior to the conversion, exchange or exercise thereofsuch sale.
(b) The Company shall give By written notice of a proposed issuance, sale or incurrence described in Section 4.1(a) notification to the Preemptive Participants Company 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) ten calendar 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, after the Preemptive Participants shall have the right to Offer Notice is delivered, each Member may elect irrevocably to purchase their Pro Rata Portion of the number or amount of the Offered Securities otherwise acquire, at the purchase price set forth in and on the Issuance Notice and upon the other terms and conditions specified in the Issuance Notice by delivering a written notice Preemptive Offer Notice, up to the Company. Except as provided in the following sentence, such purchase shall be consummated concurrently with the consummation Member’s Common Percentage Interest of the issuance, sale or incurrence described in New Securities. In the Issuance Notice. The closing event any Member does not purchase all of any purchase by any Preemptive Participants may be extended beyond the closing its Common Percentage Interest 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 HolderParticipating Member”), such Exercising Holder the Class A Members shall have the right to purchase the New Securities not purchased by the Non-Participating Member on a pro-rata basis based on their respective ownership of the Class A Common Units or in any other manner they may purchase all unanimously agree upon. The closing of any sale pursuant to this Section 9.3 shall occur before the later of (i) 15 days of the date that the Preemptive Offer Notice is given and (ii) the date of initial issuance, offer or any part sale of such securities by giving written notice to the CompanyNew Securities.
(c) The Company may, within during the 15120-day period following the receipt expiration of an Issuance Noticethe five calendar day period provided in Section 9.3(b), issue, offer or sell to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Preemptive Offer Notice (i) such portion of its interest in purchasing a specified amount of the New Securities as to which any Non-Purchasing Holders has failed to exercise their preemptive purchase a Member does not have the 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 this Section 4.1(c).
9.3 and (eii) any New Securities that a Member does not elect to purchase pursuant to this Section 9.3. If the Preemptive Participants Company does not consummate such issuance 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) within 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 has not sold such New Securities within said 90120-day period, the Company preemptive rights provided pursuant to this Section 9.3 shall be deemed to be revived and such New Securities shall not thereafter issue be issued, offered or sell any New Securities or incur new indebtedness, as applicable, without sold unless first again complying reoffered to the Members in accordance with the preemptive purchase right procedures provided for in this Section 4.19.3.
(fd) The preemptive rights set forth in this Section 4.1 may 9.3 shall not be waived upon applicable to (and for the written approval avoidance of any doubt, New Securities shall not include) (i) Securities issued to third-party lenders in connection with any arms’-length transaction approved by the Board of Managers and providing debt financing for the Company, or (ii) Securities issued in connection with a bona fide acquisition by the Company of another Person that is not an Affiliate of the Minority Independent Director (Company or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the Companyany Member.
Appears in 1 contract
Preemptive Rights. If the Company proposes to issue or sell any Common Stock, or any other class of capital stock, or any warrants, options or rights to acquire, convertible into or exchangeable for any shares of capital stock of the Company, or any security having a direct or indirect equity participation in the Company (afor purposes hereof, "New Securities"), other than (i) The Company hereby grants in a public offering registered under the Securities Act, (ii) pursuant to each current holder a stock split, dividend or other recapitalization, or the issuance of Company SecuritiesCommon Stock upon the conversion of the Series A Preferred Stock or Series B Preferred Stock, including Athens and its Affiliates and Subsidiaries except (iii) pursuant to the Employee Stock Option Plan or in connection with the issuance exercise of any Debt Instrumentcurrently outstanding warrants (or warrants issued in exchange therefor with like terms for a like number of shares of Common Stock but with an exercise price greater than the exercise price of the original warrant) or currently outstanding options or options received pursuant to the Employee Stock Option Plan or (iv) with the consent of holders of at least 66 2/3% of the outstanding Series A Preferred Stock and holders of at least 66 2/3% of the outstanding Series B Preferred Stock, (the “Preemptive Participants”) the right to purchase its Pro Rata Portion of New Securities that then the Company mayshall deliver written notice thereof to each of the Stockholders setting forth the number, from time to timeterms and purchase consideration (or if such purchase consideration is not expressed in cash, propose to sell or issue or that relate to incurred indebtedness, as applicable. The number or amount the fair market value cash equivalent thereof determined in good faith by the Board of Directors of the Company) of the New Securities which the Preemptive Participants may purchase pursuant Company proposes to this Section 4.1(a) issue. Each such Stockholder shall be referred to as thereupon have the “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 unless otherwise agreed in writing by such Stockholder in advance, to elect to purchase on 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 same terms and conditions (including consideration or the cash equivalent thereof) as those offered to any third party that number of such proposed transaction, including, as applicable, the number or amount and description of the securities New 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 issued as would maintain such Stockholder's relative proportional equity interest in the Issuance Notice and upon the other terms and conditions specified in the Issuance Notice Company. Such Stockholder may make such election by delivering a written notice to the Company. Except as provided in the following sentence, such purchase shall be consummated concurrently with the consummation Company within twenty (20) days of the issuance, sale or incurrence described in the Issuance Notice. The closing receipt of notice of any purchase by any Preemptive Participants may be extended beyond the closing proposed issuance 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 New Securities. If a Stockholder does not elect to purchase its respective pro rata 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 within twenty (a “Non-Purchasing Holder”20) days of the date of the foregoing notice (the "Preemptive Notice Period"), 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 this pro rata purchase right hereunder; provided that in the event there are two or more such Exercising Holders that choose shall terminate with respect 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 written notice delivered to that party (but not with respect to which Exercising Holders failed to exercise any future proposed sales of New Securities by the option set forth in this Section 4.1 on terms no less favorable to Company), and the Company than those set forth may, in the Issuance Notice (except that the number or amount of securities its sole discretion, sell to be issued or sold by the Company may be reduced); provided that (x) such issuance, sale or incurrence is closed third parties within ninety (90) days after such Stockholder's receipt of the notice of the proposed issuance of New Securities any or all of the New Securities described in such written notice with respect to which the purchase right was not exercised, but only on the terms and conditions set forth in such written notice to the Stockholders. Subject to the Company's rights under the preceding sentence, in which case any purchases by existing Stockholders would be made at the closing and upon the terms of the sale of New Securities to the third party permitted by the preceding sentence, the closing of the purchase of the New Securities by the Stockholders shall take place at the principal office of the Company on the thirtieth (30th) business day after the expiration of the 15-day period described Preemptive Notice Period (or after the receipt of any required governmental consents or approvals). At such closing, the Stockholders desiring to purchase New Securities shall deliver a certified check or checks in Section 4.1(c) and (y) the price at which appropriate amount to the Company against delivery of certificates representing the New Securities are Transferred must be equal to or higher than the purchase price described in the Issuance Noticeso purchased. 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 has not sold such New Securities within said 90-day period, the The Company shall not thereafter issue or sell any New Securities or incur new indebtednessto any Person unless such Person agrees, as applicable, without first again complying with in form and substance reasonably satisfactory to the preemptive purchase right procedures provided for in this Section 4.1.
(f) The preemptive rights set forth in this Section 4.1 may be waived upon the written approval of the Minority Independent Director (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicableStockholders, to be in bound by the best interest of the Companyterms hereof as a Stockholder.
Appears in 1 contract
Preemptive Rights. (a) Subject to Section 8(b) below, if the Company proposes to issue any Common Units, any Option or any Convertible Security, the Company will offer to sell to each Member and Option Holder a number of such securities (“Offered Units”) equal to the product of (i) the quotient determined by dividing (A) the percentage of Points (on a fully-diluted basis) represented by the Member Interests owned by such Member or Option Holder by (B) the aggregate percentage of all Points outstanding immediately prior to the proposed issuance (on a fully-diluted basis), and (ii) the Offered Units; provided that for the purpose of calculating Offered Units with respect to any Management Member, the “Member Interests owned by such Member” shall mean such Member’s Class B Common Units and all Vested Incentive Units held by such Member at the time of such calculation; and provided, further, that, if the Company offers any Offered Units at any time during the six months following the date of this Agreement, the first $4.5 million in purchase or subscription price of such Offered Units will be offered exclusively to the Oak Hill Purchasers (to be allocated among them as OHCP may designate), and will be offered to other Members and Option Holders only to the extent that the Oak Hill Purchasers do not elect to purchase or subscribe for them. The Company hereby grants shall give each Member and Option Holder 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”). Each Member and Option Holder will be entitled to each current holder purchase such securities at the same price and on the same terms (including, if more than one type of security is issued, the same proportionate mix of such securities) as the securities are issued by delivery of irrevocable written notice (the “Election Notice”) to the Company Securitiesof such election within thirty (30) days after delivery of the Issuance Notice (the “Preemptive Period”). If any Member or Option Holder has elected to purchase any Offered Units, including Athens the sale of such units shall be consummated as soon as practical (but in any event within twenty (20) days) after the delivery of the Election Notice. To the extent the Members and its Affiliates Option Holders do not elect to, or are not entitled to, purchase all of the Offered Units, then the Company may issue the remaining Offered Units at a price and Subsidiaries except on terms no more favorable to the transferee(s) thereof specified in connection with the Issuance Notice during the 120-day period following the Preemptive Period. Notwithstanding anything in this Section 8 to the contrary, the Company shall not be deemed to have breached this Section 8 if, within 30 days following the issuance of any Debt InstrumentUnits, (Option or Convertible Securities in contravention of this Section 8, the “Preemptive Participants”) Company or the Transferee of such Units, Options or Convertible Securities offers to sell a portion of such Units, Options or Convertible Securities or additional Units, Options or Convertible Securities to each Member and Option Holder so that, taking into account such previously-issued securities and any such additional securities, each Member and Option Holder will have had the right to purchase its Pro Rata Portion or subscribe for securities in a manner consistent with the allocation provided in the initial sentence of New Securities that the Company may, from time to time, propose to sell or issue 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 “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 thereof8(a).
(b) The Company rights contained in this Section 8 shall give written notice not apply to (i) the issuance of Common Units (including any Option or Convertible Security) as a proposed issuance, sale dividend or incurrence described in Section 4.1(aupon any subdivision or Unit split of outstanding Common Units; (ii) to the Preemptive Participants within five (5) Business Days following any meeting issuance 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 Equity 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 conversion of any purchase by Convertible Securities or the exercise of any Preemptive Participants may be extended beyond Option; (iii) the closing issuance of Common Units pursuant to Options, or the transaction described in the Issuance Notice grant of Options to the extent necessary subscribe for Common Units, to obtain required governmental approvals officers, directors 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 employees or independent contractors 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 approved by, or pursuant to arrangements approved by, a Majority of the 15-day period following Board, (iv) the receipt issuance of an Issuance NoticeCommon Units pursuant to any underwritten public offering, (vi) the issuance of any Common Unit (including any Option or Convertible Security) as consideration for the acquisition of any Person or business or unit or division thereof or any other asset or other property to be used in the operations of the Company or any of its interest in purchasing a specified amount Subsidiaries or (vii) the issuance 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 Class B Common Unit 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 5 of the New Investor 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 has not sold such New Securities within said 90-day period, the Company shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without first again complying with the preemptive purchase right procedures provided for in this Section 4.1Purchase Agreement.
(f) The preemptive rights set forth in this Section 4.1 may be waived upon the written approval of the Minority Independent Director (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the Company.
Appears in 1 contract
Samples: Members Agreement (Atlantic Broadband Management, LLC)
Preemptive Rights. (a) The Subject to the terms and conditions specified in this Section 7.03, the Company hereby grants to each current holder Purchaser a right to purchase up to the number of Company Securities, including Athens and its Affiliates and Subsidiaries except Additional Shares (as defined below) in connection with any Transaction (as defined below) undertaken by the issuance of any Debt InstrumentCompany; provided, (the “Preemptive Participants”) the right to purchase its Pro Rata Portion of New Securities however, that the Company may, from time to time, propose to sell or issue 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 “Offered Securities.” The preemptive purchase right provided rights set forth in this Section 4.1(a7.03 shall only apply to WC so long as WC holds at least five percent (5%) of the Originally Issued Shares and shall only apply to CHA so long as CHA holds at least twenty-five percent (25%) of 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 thereofOriginally Issued Shares.
(b) The Subject to the terms and conditions specified in this Section 7.03, each time the Company proposes to offer, sell or otherwise issue any New Shares in a public or private transaction (a "Transaction"), the Company shall give written notice of deliver 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 to each Purchaser stating (i) the material terms and conditions of Company's bona fide intention to undertake such proposed transactionTransaction, including, as applicable, (ii) the number or amount and description of the securities proposed New Shares to be issuedoffered in the Transaction (the "Transaction Shares"), (iii) the proposed issuance number of Additional Shares up to which such Purchaser may elect to purchase in such Transaction (which would be added to the Transaction Shares) and (iv) the price and terms, if any, upon which it proposes to offer, sell or incurrence date and otherwise issue New Shares in the proposed purchase price per securityTransaction.
(c) At any time during Within 7 days after receipt by such Purchaser of the 15-day period following the receipt of an Issuance Notice, such Purchaser may elect to purchase, at the Preemptive Participants shall have price and on the right terms specified in the Notice, up to elect irrevocably to purchase their Pro Rata Portion of the number or amount of the Offered Securities at the purchase price Additional Shares 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 number of any New Shares ("Additional Shares") that the Purchaser may elect to purchase by any Preemptive Participants may and include in the Transaction shall be extended beyond calculated as follows: Additional Shares = Transaction Shares -- Transaction Shares ------------------ 1-- X% X% represents the closing percentage (stated as a decimal) of the transaction described in outstanding shares of Common Stock then held by such Purchaser (assuming the Issuance Notice conversion, exercise or exchange of all New Shares then held by such Purchaser and acquired pursuant 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 approvalsthis Section 7.03).
(d) Each Preemptive Participant exercising its right In the event that the price or terms upon which the Company proposes 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 offer, sell or otherwise issue 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 Shares in the event there are two Transaction 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 Transaction Shares to be included in such Transaction changes for any reason (other than including the Additional Shares) after the Notice is delivered to 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 case, the Company shall promptly provide a revised Notice to each Purchaser reflecting any such recalculated Additional Shares and any change to such price or terms. If the Company proposes to offer, sell or issue any New Securities Shares for consideration other than cash, each Purchaser may exercise the right set forth in this Section 7.03 and purchase Additional Shares for cash at a per share purchase price equal to (i)(A) the face amount of any cash received for such Exercising Holders elected to purchase pursuant to Section 4.1(cNew Shares 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) 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 The rights of the New Securities described in the Issuance Notice with respect to which Exercising Holders failed to exercise the option Purchasers set forth in this Section 4.1 on terms no less favorable 7.03 shall not be applicable to (i) shares of Common Stock issued as a 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 than those set forth of another entity or business by merger or such other transaction as would result in the Issuance Notice 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, (except iii) shares of Common Stock or Rights that the number or amount of securities to be issued or are sold by the Company may be reduced)pursuant to a bona fide public offering pursuant to a registration statement filed under the 1933 Act; provided that (xiv) 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 issuance, sale or incurrence is closed within ninety (90) days after stock option plans as approved by the expiration stockholders of the 15-day period described in 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 4.1(c7.03; (vi) up to an aggregate of 70,000 shares of Common Stock or Rights issued to Silicon Valley Bank; and (yvii) the price at which the New Securities are Transferred must be equal up to aggregate of 50,000 shares of Common Stock 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 Rights issued 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 has not sold such New Securities within said 90-day period, the Company shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without first again complying with the preemptive purchase right procedures provided for in this Section 4.1Xxxxxxx Xxxx.
(f) The preemptive rights set forth in and obligations of the Purchasers under this Section 4.1 7.03 shall not be assignable, except that the right to purchase any Additional Shares may be waived upon the written approval assigned by each Purchaser to any of the Minority Independent Director (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, its Affiliates that agrees in writing to be in bound by the best interest provisions of the Companythis Section 7.03.
Appears in 1 contract
Preemptive Rights. (a) The 2.1 If at any time the Company hereby grants wishes to each current holder issue any Equity Equivalents to any Person or Persons, the Company shall promptly deliver a notice of Company Securities, including Athens and its Affiliates and Subsidiaries except in connection with the issuance of any Debt Instrument, intention to sell (the “Preemptive Participants”) the right to purchase its Pro Rata Portion of New Securities that the Company may, from time to time, propose to sell or issue 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 “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"COMPANY'S NOTICE OF INTENTION TO SELL") 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 Investors setting forth the material terms and conditions of such proposed transaction, including, as applicable, the number or amount and a description of the securities proposed Equity Equivalents to be issuedsold, the proposed issuance or incurrence date and the proposed purchase price per security.
(c) At any time during the 15-day period following the thereof and terms of sale. Upon receipt of an Issuance Noticethe Company's Notice of Intention to Sell, the Preemptive Participants Investors shall have the right to elect irrevocably purchase, at the price and on the terms stated in the Company's Notice of Intention to purchase their Pro Rata Portion Sell, a number of the Equity Equivalents equal to the product of (i) a fraction, the numerator of which is the Investors' aggregate ownership of Equity Equivalents (calculated on an as converted and fully-diluted basis) and the denominator of which is the number or amount of the Offered Securities at Company's total issued and outstanding Equity Equivalents, multiplied by (ii) the purchase price set forth in number of Equity Equivalents to be issued. Such election is to be made by the Issuance Notice and upon the other terms and conditions specified in the Issuance Notice Investors by delivering a written notice to the Company. Except as provided in Company within thirty (30) calendar days after receipt by the following sentence, such purchase shall be consummated concurrently with the consummation Investors of the issuance, sale or incurrence described in Company's Notice of Intention to Sell (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"ACCEPTANCE PERIOD FOR EQUITY EQUIVALENTS").
(d) Each Preemptive Participant exercising its right to purchase its respective portion of the Offered Securities in full (an “Exercising Holder”) 2.2 If effective acceptances 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 not be allocated among such Exercising Holders pro rata based on the number of New Securities such Exercising Holders elected to purchase received pursuant to Section 4.1(c).
(e) If 2.1 above in respect of all the Preemptive Participants or Exercising Holders fail Equity Equivalents which are the subject of the Company's Notice of Intention to exercise fully their preemptive purchase right hereunder within the periods described aboveSell, then the Company shall be free to complete the proposed issuancemay, sale or incurrence at its election, during a period 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 sixty (except that the number or amount of securities to be issued or sold by the Company may be reduced); provided that (x60) such issuance, sale or incurrence is closed within ninety (90) calendar days after following the expiration of the 15-day period described in Section 4.1(c) Acceptance Period for Equity Equivalents, sell and (y) issue the remaining Equity Equivalents to another Person or Persons at a price at which the New Securities are Transferred must be equal and upon terms not more favorable to or higher such Person than the purchase price described those stated in the Issuance Notice. Such periods within which Company's Notice of Intention to Sell; provided, however, that in each case such issuance, sale or incurrence must Person shall agree in writing with the parties hereto to be closed shall be extended bound by and to comply with all applicable provisions of this Agreement by executing a form of Deed of Adherence substantially in 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. form attached hereto as Exhibit A. In the event that the Company has not sold the Equity Equivalents, or entered into an agreement to sell the Equity Equivalents, within such New Securities within said 90-sixty (60) calendar day period, the Company shall not thereafter issue or sell any New Securities Equity Equivalents without first offering such securities to the Investors in the manner provided in Section 2.1 hereof. Failure by the Investors to exercise their preemptive rights under this Article 2 with respect to any sale and issuance of Equity Equivalents shall not affect their right to exercise such rights with respect to any subsequent sale and issuance of Equity Equivalents.
2.3 If the Investor gives the Company notices pursuant to the provisions of this Article 2 that the Investor desires to purchase all or incur new indebtednessany of the Equity Equivalents it is entitled to purchase, payment therefor shall be made by check or wire transfer, against issuance of such Equity Equivalents at the executive offices of the Company, within thirty (30) calendar days after such notice is delivered to the Company. In the event that the Company's Notice of Intention to Sell specifies that consideration other than cash is to be paid in connection with any issuance of Equity Equivalents, in lieu of such other consideration, the Investors will be entitled to pay the cash equivalent of such other consideration, as applicable, without first again complying with the preemptive purchase right procedures provided for determined in this Section 4.1.
(f) The preemptive rights set forth in this Section 4.1 may be waived upon the written approval of the Minority Independent Director (or a majority of the Directors on good faith by the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the Company.
2.4 The preemptive rights contained in this Article 2 shall not apply to any of the following: (a) any Series A Preferred Shares issued pursuant to the Subscription Agreement, or (b) any Ordinary Shares or Equity Equivalents issued (i) as a share dividend to holders of Ordinary Shares or Series A Preferred Shares or upon any subdivision or combination of Ordinary Shares, (ii) upon the conversion of any equity security or debt security of the Company duly issued on or prior to the date hereof, in each case, convertible into Ordinary Shares, (iii) 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, (iv) upon the conversion of any Series A Preferred Shares, (v) in connection with a business combination, including the Company's acquisition of another company by merger, consolidation, scheme of arrangement or asset purchase or other reorganization, provided such transactions shall have been approved in accordance with Article 8 hereof; or (vi) pursuant to a Qualified IPO.
2.5 Notwithstanding anything contained herein to the contrary, the Company shall not issue any Equity Equivalent prior to the Qualified IPO unless otherwise approved by the Shareholders.
Appears in 1 contract
Samples: Shareholders Agreement (E-House (China) Holdings LTD)
Preemptive Rights. (a) The Until the earlier of (i) the termination of this Agreement pursuant to Article IV hereunder or (ii) January 2, 2010, if the Company hereby grants 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 “Additional Securities”), the Company shall first give to each current holder Investor (and, only with respect to preferred shares, to any Holders) holding shares of Company Securities, including Athens and its Affiliates and Subsidiaries except in connection with Series B-1 Stock the issuance of any Debt Instrument, opportunity (the “Preemptive Participants”) the right to purchase its Pro Rata Portion of New Securities that the Company may, from time to time, propose to sell or issue 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 such opportunity being herein referred to as the “Offered Preemptive Right”) to purchase (on the same terms as such Additional Securities are proposed to be sold) the same percentage of such Additional Securities proposed to be sold by the Company as equals the percentage equal to the quotient of (i) the number of 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 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 right (determined as provided in this Section 4.1(a3.2(a)), and (vi) the period during which such Investor may elect to purchase such Additional Securities, which period shall apply extend for at least 20 days following the time of issuance receipt by such Investor or incurrenceHolder, as applicable, of any rightthe 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, warrant or option or convertible or exchangeable security and not as well as the number, if any, of extra Additional Securities (“Extra Additional Securities”) he would be willing to purchase in the conversion, exchange or exercise thereof.
(b) The Company shall give written notice event that all of a proposed issuance, sale or incurrence described in Section 4.1(a) the Additional Securities subject to the Preemptive Participants within five (5) Business Days following any meeting of Right are not subscribed for by the Board at which any such issuance, sale or incurrence is approved other Investors and at least fifteen (15) days prior to the proposed issuance, sale or incurrence. Such notice Holders (the “Issuance Preemptive Acceptance 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 In the event an Investor or Holder, as applicable, declines to subscribe for all or any time part of its pro rata portion of any Additional Securities which are subject to the Preemptive Right (the “Declining Preemptive Purchaser”) during the 15-day period following Preemptive Acceptance Period, then the receipt of an Issuance Noticeother Investors or Holders, the Preemptive Participants as applicable, shall have the right to elect irrevocably subscribe for all (or any declined part) of such Declining Preemptive Purchaser’s pro rata portion of such Additional Securities (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 be divided among the other terms and conditions specified in Investors desiring to exercise such right on a ratable basis) (the Issuance Notice by delivering a written notice to the Company“Overallotment Right”). Except as provided in the following sentenceEach Investor’s Overallotment Right, such purchase if any, shall be consummated concurrently with deemed to be exercised on the consummation of date 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 Acceptance 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 approvalsis given.
(d) Each Preemptive Participant exercising its right to purchase its respective portion After the conclusion of the Offered Preemptive Acceptance Period, Additional Securities, less any Additional 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”)for which Preemptive Rights or Overallotment Rights are exercised, such Exercising Holder may purchase all or any part of such securities be sold by giving written notice to the Company, within a period of 4 months after 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 expiration of the number availablePreemptive Acceptance Period, to any other Person or Persons at not less than 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 price and upon other terms no and conditions not 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 Preemptive 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 has not sold such New Securities within said 90-day period, the Company shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without first again complying with the preemptive purchase right procedures provided for in this Section 4.1.
(f) The preemptive rights set forth in this Section 4.1 may be waived upon the written approval of the Minority Independent Director (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the Company.
Appears in 1 contract
Samples: Investors’ Rights Agreement (First Union Real Estate Equity & Mortgage Investments)
Preemptive Rights. (a) The Company hereby grants If at any time prior to each current holder the consummation of Company Securities, including Athens and its Affiliates and Subsidiaries except in connection with the issuance of any Debt Instrument, (the “Preemptive Participants”) the right to purchase its Pro Rata Portion of New Securities that a Qualified Public Offering the Company maywishes to issue any Common Stock or any options, from time warrants or other rights to time, propose to sell acquire Common Stock or issue any notes 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 “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 other securities convertible or exchangeable security into Common Stock (all such Common Stock and not other rights and securities, collectively, the "Equity Equivalents") to any Person or Persons, the conversion, exchange or exercise thereof.
(b) The Company shall give written promptly deliver a notice of a proposed issuance, sale or incurrence described in Section 4.1(aintention to sell (the "Company's Notice of Intention to Sell") to each Investor setting forth a description and the Preemptive Participants within five (5) Business Days following any meeting number 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 Equity Equivalents proposed to be issued, the proposed issuance or incurrence date issued and the proposed purchase price per security.
(c) At any time during the 15-day period following the and terms of sale. Upon receipt of an Issuance Noticethe Company's Notice of Intention to Sell, the Preemptive Participants each Investor shall have the right to elect irrevocably to purchase their Pro Rata Portion purchase, at the price and on the terms stated in the Company's Notice of Intention to Sell, a number of the number or amount Equity Equivalents equal to the product of (i) such Investor's proportionate ownership of the Offered Securities at outstanding shares of Common Stock (calculated on a fully-diluted basis assuming all holders of then outstanding warrants, options and convertible securities of the purchase price set forth Company which are in the Issuance Notice and upon money had converted such convertible securities or exercised such warrants or options immediately prior to the other terms and conditions specified taking of the record of the holders of Common Stock for the purpose of determining whether they are entitled to receive such offer) held by all Persons multiplied by (ii) the number of Equity Equivalents proposed to be issued (as described in the Issuance applicable Company's Notice of Intention to Sell). Such election shall be made by delivering a the electing Investor by written notice to the Company within fifteen (15) business days after receipt by such Investor of the Company's Notice of Intention to Sell (the "Acceptance Period"). Except In the event that any Equity Equivalents proposed to be issued at any time as contemplated by this Section 9 are either voting securities or securities which are convertible, exercisable or exchangeable for voting securities and for any reason one or more of the Investors determines in its sole discretion that it would be detrimental to such Investor or its Affiliates to purchase such Equity Equivalents as provided in the following sentencehereby, 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 then the Company shall use its commercially reasonable efforts make available to obtain any such approvals.
(d) Each Preemptive Participant exercising its right Investor an amount of alternative securities equal 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 amount 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 Equity Equivalents as to which any Non-Purchasing Holders such Investor 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)the terms hereof which are identical to such Equity Equivalents in all respects except for the fact that such alternate securities shall be non-voting securities or convertible, exercisable or otherwise exchangeable for non-voting securities (the "Alternative Securities") upon such terms and conditions as such Investor may request.
(eb) If To the Preemptive Participants or Exercising Holders fail extent an effective election to exercise fully their preemptive purchase right hereunder within has not been received from an Investor pursuant to subsection (a) above in respect of the periods described aboveEquity Equivalents proposed to be issued pursuant to the applicable Company's Notice of Intention to Sell, the Company shall be free to complete the proposed issuancemay, sale or incurrence at its election, during a period 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 one hundred and twenty (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 (90120) days after following the expiration of the 15-day period described in Section 4.1(c) applicable Acceptance Period, issue and (y) sell the remaining Equity Equivalents to be issued and sold to any Person at a price at which the New Securities are Transferred must be equal and upon terms not more favorable to or higher such Person than the purchase price described those stated in the Issuance Notice. Such periods within which such issuanceapplicable Company's Notice of Intention to Sell; provided, however, that failure by an Investor to exercise its option to purchase with respect to one issuance and sale of Equity Equivalents shall not affect its option to purchase Equity Equivalents in any subsequent offering, 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 approvalspurchase. In the event that the Company has not sold any Equity Equivalents covered by a Company's Notice of Intention to Sell, or entered into a binding agreement to sell such New Securities Equity Equivalents, within said 90-such one hundred and twenty (120) day period, the Company shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicablesuch Equity Equivalents, without first again complying with offering such Equity Equivalents to each Investor in the preemptive purchase right procedures manner provided for in this Section 4.19.
(fc) If an Investor gives the Company notice, pursuant to the provisions of this Section 9, that such Investor desires to purchase any Equity Equivalents or Alternative Securities, payment therefor shall be by check or wire transfer of immediately available funds, against delivery of the securities (which securities shall be issued free and clear of any liens or encumbrances) at the executive offices of the Company at the closing dated fixed by the Company for the sale of all such Equity Equivalents. In the event that any proposed sale is for a consideration other than cash, such Investors may pay cash in lieu of all (but not part) of such other consideration, in the amount determined reasonably and in good faith by the Board to represent the fair value of such consideration other than cash.
(d) The preemptive rights set forth contained in this Section 4.1 may be waived 9 shall not apply to (i) the issuance of shares or units of Equity Equivalents as a stock dividend or upon any subdivision, split or combination of the outstanding shares of Common Stock; (ii) the issuance of Equity Equivalents upon conversion, exchange or redemption of any outstanding convertible or exchangeable securities; (iii) the issuance of Equity Equivalents upon exercise of any outstanding options or warrants; or (iv) the issuance of Equity Equivalents to any employee or director of the Company or any of its subsidiaries.
(e) The provisions of this Section 9 shall terminate upon the written approval consummation of the Minority Independent Director (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the CompanyQualified Public Offering.
Appears in 1 contract
Samples: Shareholders Agreement (McMS Inc)
Preemptive Rights. (a) The In the event that the Company hereby grants intends to consummate any Equity Issuance, the Company shall provide each current holder of Company Securities, including Athens and its Affiliates and Subsidiaries except in connection the Investors with the issuance a right of any Debt Instrument, (the “Preemptive Participants”) the right first refusal to purchase its Pro Rata Portion or his pro rata portion of New Securities that such Capital Stock, on the Company mayterms and conditions offered by the Company. For purposes of this Section 3.5, from time each of the Investor’s pro rata portion is equal to time, propose the ratio of (a) the number of shares of Capital Stock held by it or him immediately prior to sell such issuance to (b) the aggregate number of shares of Capital Stock held by all of the Investors immediately prior to such issuance. For purposes of making any determination or issue or that relate to incurred indebtedness, as applicable. The number or amount of New Securities which the Preemptive Participants may purchase calculation pursuant to this Section 4.1(a) 3.5(a), but for such purposes only, as of any date of determination or calculation, all of the Capital Stock of the Company that is then convertible or exercisable into or exchangeable for Common Stock shall be referred deemed to have been so converted, exercised or exchanged in full as the “Offered Securities.” The preemptive purchase right provided in this Section 4.1(a) shall apply at the time of issuance such date of determination or incurrence, as applicable, of any right, warrant or option or convertible or exchangeable security and not to the conversion, exchange or exercise thereofcalculation.
(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) provide each Investor not less than 30 days prior to the proposed issuance, sale or incurrence. Such written notice (the “Issuance Offer Notice”) shall set forth the material terms and conditions of such proposed Equity Issuance, together with the details and terms of such intended transaction. Each Investor shall respond to the Company within 10 days of receiving the Offer Notice notifying the Company whether or not it or he desires to purchase in such Equity Issuance, including, as applicable, and stating the number of shares of such Capital Stock it or amount and description of the securities proposed he desires to be issued, the proposed issuance or incurrence date and the proposed purchase price per securitypurchase.
(c) At any In the event that the Investors fail to exercise the right of first refusal for all of the Capital Stock offered in the Equity Issuance within the applicable time during period, then, with respect to the 15-day period following issuance of such unsubscribed shares of the receipt of an Issuance NoticeCapital Stock, the Preemptive Participants shall have the right to elect irrevocably to purchase their Pro Rata Portion rights 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 Investors under this Section 3.5 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, expire and the Company shall use its commercially reasonable efforts have 90 days thereafter to obtain sell 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 Capital Stock at 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 price and upon general terms not 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 purchasers thereof than those set forth specified 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 Offer 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 has not sold such New Securities Capital Stock within said 90-such 90 day period, then the Company shall not thereafter issue or sell any New Securities or incur new indebtednesssuch Capital Stock without again first offering them to the Investors pursuant to this Section 3.5.
(d) For the avoidance of doubt, as applicableand notwithstanding anything contained herein to the contrary, without first again complying with to the preemptive purchase right procedures provided for extent a subsidiary of the Company is engaging in an Equity Issuance, each reference to the Company in this Section 4.1.
(f) The preemptive rights set forth in 3.5 shall be deemed to include such subsidiary, and the Company shall cause such subsidiary to comply with the provisions of this Section 4.1 may be waived upon 3.5 as if it were the written approval of the Minority Independent Director (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the CompanyCompany hereunder.
Appears in 1 contract
Samples: Stockholders Agreement (Nascent Wine Company, Inc.)
Preemptive Rights. (a) The Company hereby grants to each current holder of Company Securities, including Athens and its Affiliates and Subsidiaries except in connection with the issuance of any Debt Instrument, (the “Preemptive Participants”) the right to purchase its Pro Rata Portion of New Securities that If the Company may, at any time or from time to time, propose time proposes to sell or issue or that relate sell New Shares (as defined in Section 6.8(e) below), each Stockholder shall first be offered the opportunity to incurred indebtednessacquire from the Company for the same price and on the same terms as such securities are proposed to be offered to others, as applicable. The number or up to the amount of New Securities Shares determined by multiplying (x) the total number of such offered New Shares (or, in the case of options, warrants or other rights obligating the Company to issue New Shares or other equity interests, the total number of such shares covered by such options, warrants or rights), by (y) a fraction, the numerator of which is the Preemptive Participants may purchase pursuant to this Section 4.1(a) shall be referred to as the “Offered Securities.” The preemptive purchase right provided in this Section 4.1(a) shall apply at the time total number of issuance shares of Common Stock (including Common Stock issuable upon exercise, conversion, or incurrence, as applicable, exchange of any rightPreferred Stock, warrant options, warrants, or option other rights to purchase or convertible or exchangeable security acquire shares of Common Stock) held by such Stockholder on the Offering Notice Date (as defined below), and not to the conversion, exchange or exercise thereofdenominator of which is the total number of outstanding shares of Fully Diluted Common Stock on the Offering Notice Date.
(b) The In the event the Company proposes to offer New Shares, it shall give each Stockholder a written notice of a proposed issuanceits intention, sale or incurrence described describing the type of New Shares to be offered, and the price and other terms upon which the Company proposes to offer the same (the date such notice is given being referred to as the "Offering Notice Date"). Each Stockholder shall have fourteen (14) days from the date of receipt of any such notice to notify the Company in Section 4.1(a) writing that it intends to exercise such preemptive rights and as to the Preemptive Participants within five (5) Business Days following any meeting amount of the Board at which any New Shares such issuanceStockholder desires to purchase, sale or incurrence is approved and at least fifteen (15) days prior up to the proposed issuance, sale or incurrencemaximum amount calculated pursuant to Section 6.8(a). Such notice (shall constitute an agreement of such Stockholder to purchase the “Issuance Notice”) shall amount of New Shares so specified upon the price and other terms set forth in the material terms and conditions of such proposed transaction, including, as applicable, the number or amount and description of the securities proposed Company's notice to be issued, the proposed issuance or incurrence date and the proposed purchase price per securityit.
(c) At If any time during the 15-day period following the receipt of an Issuance NoticeStockholder exercises its preemptive right hereunder, 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 purchase of the New Shares with respect to which such right has been exercised shall take place within thirty (30) days after the giving of notice of such exercise, which period of time shall be extended for a maximum of sixty (60) days in the Issuance Notice order to the extent necessary comply with applicable Legal Requirements. The Company and each Stockholder agrees to obtain required governmental approvals and other required approvals, and the Company shall use its commercially reasonable efforts to obtain secure any regulatory approvals or other consents, and to comply with any Legal Requirement in connection with the offer, Sale, and purchase of such approvalsNew Shares.
(d) Each Preemptive Participant exercising its right to purchase its respective portion of In the Offered Securities in full (an “Exercising Holder”) shall have event a right of over-allotment such that if any other securityholder Stockholder fails to exercise its right hereunder to purchase its full Pro Rata Portion of New Securities preemptive rights provided in this Section 6.8 within said fourteen (a “Non-Purchasing Holder”)14) day period or, if so exercised, such Exercising Holder may Stockholder is unable to consummate such purchase all or any part of such securities by giving written notice to the Company, within the 15-day time period following the receipt of an Issuance Notice, of its interest specified 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(d6.8(c) 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 thereafter be free to complete entitled during the proposed issuance, sale or incurrence period of one hundred eighty (180) days following the conclusion of the applicable period to Sell or enter into an agreement (pursuant to which the Sale of New Securities described Shares covered thereby shall be consummated, if at all, within thirty (30) days from the date of said agreement) to Sell the New Shares not elected to be purchased pursuant to this Section 6.8, at a price no more favorable to the purchasers of such securities than were specified in the Issuance Notice Company's notice to the 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 seven (7) days after all such approvals have been obtained or waiting periods expired, but in no event shall such time period exceed sixty (60) days from the date of the applicable agreement 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 approvalsSale. In the event that the Company has not sold such Sold the New Securities Shares or entered into an agreement to Sell the New Shares within said 90-one hundred eighty (180) day periodperiod (or Sold or issued New Shares in accordance with the foregoing within thirty (30) days (or sixty (60) days, as applicable) from the date of said agreement, the Company shall not thereafter offer, issue or sell any Sell such New Securities or incur new indebtedness, as applicable, Shares without first again complying with offering such securities to the preemptive purchase right procedures Stockholders in the manner provided for in this Section 4.1above.
(fe) The preemptive rights set forth in this Section 4.1 may be waived upon the written approval As used herein, "New Shares" means any equity securities of the Minority Independent Director Company which the Company proposes to offer, issue or Sell following the date of this Agreement (including any options, warrants or a majority other rights to purchase shares of Capital Stock of the Directors on Company or obligating the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed by such Minority Independent DirectorCompany to issue equity securities or other equity interests, or majority any securities convertible into or exchangeable for shares of the Independent Directors, as applicable, to be in the best interest Capital Stock of the Company, including Preferred Stock), provided, however, that the following shall be excluded from the definition of "New Shares": (i) securities to be issued pursuant to any public offering by the Company registered with the Securities and Exchange Commission; (ii) securities to be issued pursuant to any incentive stock option or purchase plan or other plan, arrangement, or agreement of the Company approved by the Board of Directors for the benefit of the employees, directors, agents, or consultants of the Company or its Subsidiaries, including any securities issuable pursuant to the exercise of any options, warrants or other rights issued pursuant to such plans or agreements; (iii) securities to be issued by the Company in connection with any merger, consolidation, share exchange, or acquisition by the Company of the Capital Stock of any Entity in a transaction approved by the Board of Directors pursuant to which all or part of the consideration payable in connection with such acquisition consists of securities of the Company; (iv) securities issued in connection with a strategic transaction, joint venture or other business combination approved by the Board of Directors, (v) shares of Capital Stock issued upon exercise of any options, warrants, or other rights to purchase shares of Capital Stock of the Company or obligating the Company to issue equity securities or other equity interests, or upon conversion or exchange of securities convertible into or exchangeable for shares of Capital Stock of the Company, (vi) equity securities (or options, warrants, or other rights to purchase equity securities) issued in connection with any bona fide transaction effected by the Company the primary purpose of which is to obtain debt financing, lease property or license Intellectual Property or other assets, and (vii) Shares issued pursuant to the Contribution Agreement or the Recapitalization Agreement.
Appears in 1 contract
Preemptive Rights. From and after the date hereof until such time as the Investors, together with any of their Affiliates, Beneficially Own less than 9,700,000 shares of Common Stock (including any Warrant Shares) in the aggregate:
(a) The Company hereby grants If the Issuer proposes to each current holder of Company Securitiesissue any (i) equity securities or (ii) securities convertible into or exercisable or exchangeable for equity securities, including Athens and its Affiliates and Subsidiaries except in connection with the issuance of other than Warrant Shares or any Debt Instrument, Excluded Securities (the “Preemptive ParticipantsDilutive Securities”) ), the right Issuer shall deliver to purchase its Pro Rata Portion of New Securities that the Company may, from time to time, propose to sell or issue 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 “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 each Investor a 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, state the number or amount and description of the securities Dilutive Securities proposed to be issued, the purchase price thereof and any other material terms or conditions of the proposed Dilutive Securities and of their issuance, including any linked or grouped securities which comprise Dilutive Securities) of such issuance (the “Preemptive Offer Notice”) at least 5 Business Days prior to the date of the proposed issuance or incurrence (such period beginning on the date that the Preemptive Offer Notice is delivered to the Investors and the proposed purchase price per security5 Business Days following such date being the “Preemptive Offer Period”).
(cb) At Each Investor shall have the option, exercisable 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 Offer Period 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 Issuer (a “Non-Purchasing HolderPreemptive Offer Acceptance Notice”), such Exercising Holder may purchase all or any part to subscribe for up to a number of such securities by giving written notice Dilutive Securities, equal to the Companynumber of such Dilutive Securities proposed to be offered multiplied by a fraction, within the 15-day period following numerator of which is 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 shares of Common Stock beneficially owned by such Investor and any of its Affiliates (including any Warrant Shares) at the time the Issuer proposes to issue any Offer Securities and the denominator of which is the total number of shares of Common Stock issued and outstanding at such time (“Pro Rata Portion”); provided, however, that, if the issuance of any Dilutive Securities results 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 an increase in the number of New Securities such Exercising Holders elected to purchase Warrant Shares 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 aboveWarrant’s anti-dilution provisions, the Company shall be free to complete total number of shares of Common Stock beneficially owned by such Investor and any of its Affiliates in the proposed issuance, sale or incurrence calculation 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 numerator set forth in the Issuance Notice preceding sentence shall be reduced by the number of any such additional Warrant Shares (except such that the number or amount of securities to be issued or sold Investor’s Pro Rata Portion is unaffected by the Company may be reduced); provided that (x) any 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 increase 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 number of its commercially reasonable efforts to obtain such approvals. In the event that the Company has not sold such New Securities within said 90-day period, the Company shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without first again complying with the preemptive purchase right procedures provided for in this Section 4.1Warrant Shares).
(f) The preemptive rights set forth in this Section 4.1 may be waived upon the written approval of the Minority Independent Director (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the Company.
Appears in 1 contract
Preemptive Rights. (a) The Notwithstanding any other provision hereof, for so long as the Common Stock is not Actively Publicly Traded, the Company hereby grants shall not issue any (a) capital stock of the Company, (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 current holder of Company Securitiesthe Odyssey Holders, including Athens Koch Holders, PF Telecom Holders, the Odyssey Co-Investor Holders, txx Xisco Co-Investor Holders and its Affiliates and Subsidiaries except in connection with the issuance of any Debt InstrumentCisco Holders (collectively, (the “Preemptive Participants”) "PREEMPTIVE HOLDERS"), the right to purchase its Pro Rata Portion or subscribe for up to that number of New 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, (A) the numerator of which is the number of 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 all Preemptive Holders and all other Persons that have similar pre-emptive rights (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 be issued or issue or that relate sold to incurred indebtedness, as applicable. The number or amount of New Securities which Persons other than the Preemptive Participants may purchase pursuant to Holders); provided that the provisions of this Section 4.1(a) 14 shall be referred not apply to as the “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 thereofExempt Issuance.
(b) The 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 give send a 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”"PREEMPTIVE NOTICE") shall set to each Preemptive Holder setting forth the material terms and conditions number of such proposed transaction, including, as applicableParticipation Securities that the Company proposes to sell or issue, the number price (before any commission or amount and description of the discount) at which such securities are proposed to be issuedissued (or, in the case of an underwritten or privately placed offering in which the price is not known at the time the Preemptive Notice is given, the proposed issuance 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 incurrence date and subscribe for Participation Securities as provided for in this Section 14, by so informing the Company in writing (an "EXERCISE NOTICE"). Each Exercise Notice shall state the percentage of the proposed sale or issuance that each Preemptive Holder elects to purchase price per security(up to all the Participation Securities that could be purchased by all Preemptive Holders and all other Persons that have similar preemptive rights).
(c) At To the extent that any time during Preemptive Holder has indicated that it will not fully subscribe for its Pro Rata Share of the 15-day period following the receipt of an Issuance NoticeParticipation Securities, the Company shall allocate all such Participation Securities not subscribed for to the Preemptive Participants shall Holders who have the right to elect irrevocably to purchase subscribed for more Participation Securities than their Pro Rata Portion of Share (the "FULLY PARTICIPATING PREEMPTIVE HOLDERS") in the proportion that the number or amount of Equivalent Shares represented by the Offered Securities at each owns bears to the purchase price set forth 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 the Issuance Notice and upon the other terms and conditions specified in the Issuance Notice by delivering a written its notice to the Company. Except as provided Company it is willing to subscribe for, then the Company shall allocate any excess over such maximum among all Fully Participating Preemptive Holders who have subscribed for a maximum number of Participation Securities which exceeds the number of Participation Securities allocated to them pursuant to the preceding sentence, 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 proportion that their respective holdings bear to the extent necessary to obtain required governmental approvals and other required approvalstotal number of Equivalent Shares represented by the Securities owned by all such Fully Participating Preemptive Holders, 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 follow this procedure, if necessary, until all Participation 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 by the Preemptive Participants or Exercising Holders fail have been allocated 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 has not sold such New Securities within said 90-day period, the Company shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without first again complying with the preemptive purchase right procedures provided for in this Section 4.1them.
(f) The preemptive rights set forth in this Section 4.1 may be waived upon the written approval of the Minority Independent Director (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the Company.
Appears in 1 contract
Preemptive Rights. (a) The If, following the Closing Date, the Company hereby grants proposes to each current holder of issue New Company SecuritiesShares, including Athens and its Affiliates and Subsidiaries except in connection with the issuance of any Debt Instrument, Company shall provide written notice (the “"Preemptive Participants”Rights Notice") the right to purchase its Pro Rata Portion of New Securities that the Company may, from time to time, propose to sell or issue 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 “Offered Securities.” The preemptive purchase right provided in this Section 4.1(a) shall apply at the time of such anticipated 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.
Investor (band any of its Permitted Transferees) 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 no later than twenty (520) 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 incurrenceanticipated issuance date. Such notice (the “Issuance Notice”) The Preemptive Rights Notice shall set forth the material terms and conditions of such proposed transactionthe issuance, including, as applicable, the number or amount and description of the securities proposed to be issued, the proposed issuance or incurrence date and including the proposed purchase price per security.
(c) At any time during for the 15-day period following the receipt of an Issuance Notice, the Preemptive Participants New Company Shares. The Investor and its Permitted Transferees shall have the right to elect irrevocably purchase up to purchase their Pro Rata Portion of the number or amount of the Offered Securities such New Company Shares at the purchase price set forth in and on the Issuance Notice and upon the other terms and conditions specified in the Issuance Preemptive Rights Notice by delivering a an irrevocable written notice to the CompanyCompany no later than three (3) Business Days before the anticipated issuance date (the "Election Date") setting forth the number of such New Company Shares for which the right is exercised. Except as provided in In the following sentence, such purchase shall be consummated concurrently with event the consummation Investor or any 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 Permitted Transferees elects not 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 aboveCompany Shares, the Company shall be free 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 complete purchase Company Shares in excess of their respective Pro Rata Portions.
(b) In the proposed issuance, sale event the Investor or incurrence of its Permitted Transferees does not purchase all such New Company Shares in accordance with the New Securities described in the Issuance Notice with respect to which Exercising Holders failed to exercise the option procedures 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 3.01(a) by the Company may be reduced); provided that (x) such issuanceElection Date, 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 have sixty (60) days from the Election Date to obtain such approvalssell to other Persons the remaining New Company Shares at the price and on the terms and conditions specified in the Preemptive Rights Notice. In the event that If the Company has not sold fails to sell such New Securities Company Shares within said 90-day periodsixty (60) days of the Election Date, the Company shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, Company Shares without first again complying with offering such New Company Shares to the preemptive purchase right procedures provided for in this Section 4.1.
(f) The preemptive rights set forth in this Section 4.1 may be waived upon the written approval of the Minority Independent Director (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be Investor and its Permitted Transferees in the best interest of the Companymanner provided in Section 3.01(a).
Appears in 1 contract
Samples: Investor Rights Agreement (Biltmore Surgery Center Holdings Inc)
Preemptive Rights. (ai) The In the event that the Company, at the direction of the Management Board, proposes to sell any Additional Units, the Company hereby grants shall first give each Member a notice setting forth in reasonable detail the price and other terms on which such Additional Units are proposed to each current holder be issued or sold, the terms of Company Securities, including Athens such Additional Units and its Affiliates and Subsidiaries except in connection with the issuance of any Debt Instrument, amount thereof proposed to be sold (the a “Preemptive ParticipantsRight Notice”). Each Member shall thereafter have the preemptive right, exercisable by written notice to the Company no later than twenty (20) days following receipt of the Preemptive Right Notice, to purchase the portion of the Additional Units as shall be equal to (A) the right aggregate Additional Units multiplied by (B) such Member’s Percentage Interest. The portion of such Additional Units such Member is entitled to purchase its Pro Rata Portion of New Securities that the Company may, from time to time, propose to sell or issue or that relate to incurred indebtedness, as applicable. The number or amount of New Securities which the Preemptive Participants may purchase pursuant to under this Section 4.1(a2.2(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 “Offered Securities.” The preemptive right to purchase right provided in Additional Units pursuant to this Section 4.1(a2.2(e)(i) shall apply constitute an irrevocable commitment to purchase from the Company the Additional Units set forth in such notice. If, as contemplated by clause (ii) of 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 incurrencesale 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 date, no less than ten (10) and no more than thirty (30) days after the expiration of the twenty (20) day period referred to above, as applicable, of any right, warrant or option or convertible or exchangeable security and not to the conversion, exchange or exercise thereofManagement Board may select.
(bii) The Company shall give written notice In the event of a proposed issuance, sale or incurrence described in Section 4.1(a) to the Preemptive Participants within five (5) Business Days following failure by 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 Member to purchase their all or any portion of its 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 Additional Units 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 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 be reduced); provided that 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 (x20) such issuance, sale or incurrence is closed within day period referred to in clause (e)(i) of this Section 2.2 and for a period of ninety (90) days after thereafter, the expiration Company, at the direction of the 15-day period described in Section 4.1(c) Management Board, may offer, issue and (y) sell to any Person, the price at which remaining Additional Units having the New Securities are Transferred must be equal to or higher than the purchase price described terms set forth in the Issuance Notice. Such periods within which such issuance, sale or incurrence must be closed shall be extended Preemptive Right Notice for a price and other terms no less favorable to the extent necessary to obtain required governmental approvals Company, and other required approvals including no less cash, than those set forth in the Preemptive Right Notice (without deduction for reasonable underwriting, sales agency and the Company shall use its commercially reasonable efforts to obtain such approvals. In the event similar fees payable in connection therewith); provided, however, that the Company has may not sold such New Securities within said 90-day period, the Company shall not thereafter issue or sell any New Securities Additional Units in an amount greater than the amount set forth in the Preemptive Right Notice minus the amount purchased or incur new indebtedness, as applicable, without first again complying with committed to be purchased by the Members upon exercise of their preemptive purchase right procedures provided for in this Section 4.1rights.
(fiii) The preemptive rights set forth in For purposes of this Section 4.1 may be waived upon 2.2(e), “Additional Units” means all Units sold by the written approval of Company after the Minority Independent Director (date hereof, whether or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed not subsequently reacquired or retired by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the Company, other than Units granted or issued upon conversion of any securities then outstanding convertible for or exchangeable into Units.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Albertsons Companies, Inc.)
Preemptive Rights. If the Company or any subsidiary of the Company proposes to issue any shares of capital stock or other equity securities (aother than (i) The issuances by a subsidiary of the Company hereby grants to each current holder the Company, (ii) issuances to persons that are not Affiliates of Company Securitiesthe Company, including Athens and its Affiliates and Subsidiaries except (iii) issuances to a third party lender in connection with a debt financing from such lender, (iv) issuances pursuant to the issuance 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 Debt Instrumentsuch 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 “Preemptive Participants”) 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; 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 Stockholders shall be entitled to pay such value in cash. A Stockholder may exercise its Pro Rata Portion right of New Securities that first refusal by delivery of an irrevocable written notice to the Company may, from time to time, propose to sell or issue or that relate to incurred indebtedness, as applicablenot more than 20 days after delivery of the Company's notice. The number or amount obligation of New Securities which the Preemptive Participants may purchase Stockholders exercising their rights pursuant to this Section 4.1(a) 8 to purchase and pay for securities shall be referred to as the “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 conditioned 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 proposed issuance 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 has not sold such New Securities within said 90-day period, the Company shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without first again complying with the preemptive purchase right procedures provided for in this Section 4.1.
(f) The preemptive rights set forth in this Section 4.1 may be waived upon the written approval of the Minority Independent Director (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the Company.
Appears in 1 contract
Preemptive Rights. (a) The Company hereby grants preemptive rights to each current holder of NantWorks, Verizon, Celgene, BlackBerry, NHealth, KHealth, Blackstone and Allscripts (together, the “Preemptive Right Holders”) as provided in this Section 2.2. If the Company proposes to issue additional shares of Common Stock, Preferred Stock or Convertible Securities (such shares of Common Stock, Preferred Stock or Convertible Securities, including Athens and its Affiliates and Subsidiaries except in connection with “Subsequent Equity”), then the issuance of any Debt Instrument, Company shall deliver to each Preemptive Right Holder a written notice (the “Preemptive ParticipantsNotice”) the right to purchase its Pro Rata Portion of New Securities that the Company may, from time to time, propose to sell or issue 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 “Offered Securities.” The preemptive purchase right provided in this Section 4.1(a) shall apply at the time of such proposed 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 date of the issuance (the “Issuance NoticeSubscription Period”) 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 ). Each Preemptive Participants Right Holder shall have the right to elect irrevocably to purchase their Pro Rata Portion option, exercisable at any time within the period of thirty (30) days after delivery of the number or amount of Preemptive Notice (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 “Preemptive Acceptance Period”), by delivering a written notice to the Company. Except Company (a “Subscription Acceptance”) and on the same terms (on a per share basis) as provided those proposed for the issuance of such Subsequent Equity, to subscribe for (x) up to its pro rata share of any such Subsequent Equity and (y) any such Subsequent Equity not subscribed for by the other Preemptive Right Holders, as specified in the following sentencesubscribing holder’s Subscription Acceptance provided that, in the event that any such purchase Subsequent Equity is Preferred Stock, a Preemptive Right Holder’s respective pro rata share of such Subsequent Equity, for purposes of this Section 2.2, shall be consummated concurrently with a percentage equal to the consummation greater of (a) such Preemptive Right Holder’s pro rata share of Common Stock and Convertible Securities and (b) such Preemptive Right Holder’s pro rata share of such Preferred Stock. Notwithstanding anything herein to the contrary, the Company may close the issuance of Subsequent Equity, in whole or in part, prior to the expiration of the issuance, sale or incurrence described in Preemptive Acceptance Period provided above as long as each Preemptive Right Holder is given 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 Acceptance Period 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 elect to purchase its respective portion pro rata share of the Offered Securities in full (an “Exercising Holder”) shall have a right of over-allotment such applicable Subsequent Equity. Any Subsequent Equity 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 is not purchased by the Preemptive Rights Holders may purchase all or any part of such securities be sold 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 but only on terms no less and conditions not more favorable to the Company purchaser than those set forth in the Issuance Notice (except that Preemptive Notice, at any time within 90 days following 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 termination of the 15-day period described in Section 4.1(c) Preemptive Acceptance Period, but may not be sold to any Person on terms and (y) conditions, including price, that are more favorable to the price at which the New Securities are Transferred must be equal to or higher purchaser than the purchase price described those set forth in the Issuance Notice. Such periods within which Preemptive Notice or after 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 has not sold such New Securities within said 90-day period, in each case without renewed compliance with this Section 2.2. The preemptive rights granted pursuant to this Section 2.2 shall not be applicable to:
(a) the issuance of shares of Common Stock in connection with a conversion under Section 8.7.2 of the Ninth Restated Agreement;
(b) the issuance of shares of Common Stock as a dividend or distribution to all or substantially all holders of Common Stock, or a subdivision or combination of shares of Common Stock or a reclassification of (or similar action with respect to) shares of Common Stock into a greater or lesser number of shares of Common Stock;
(c) the issuance of Common Stock or Convertible Securities to employees, consultants and contractors of the Company shall not thereafter issue for compensatory purposes;
(d) the issuance of shares of Common Stock upon the exercise or sell any New Securities or incur new indebtedness, as applicable, without first again complying with exchange of Convertible Securities;
(e) the preemptive purchase right procedures provided for issuance of shares of Common Stock in this Section 4.1.the Company in a Qualified IPO; and
(f) The preemptive rights set forth the issuance of shares of Common Stock to the selling parties in this Section 4.1 may be waived upon a bona fide business acquisition by the written approval Company or any of its subsidiaries, whether by merger, consolidation, sale of assets, sale or exchange of equity or otherwise, each as approved by the Minority Independent Director (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the CompanyBoard.
Appears in 1 contract
Preemptive Rights. (a) The Company hereby grants shall not issue or sell shares of its Common Stock (“Shares”) (other than (i) as provided in the Subscription Agreement, (ii) up to each current holder 75,000 Class A Shares that may be issued to Wxxx Xxxxxx and Lxxxxx Xxxxxxx Xxxxxxxx in consideration for services rendered on behalf of Company Securitiesthe Company, including Athens and its Affiliates and Subsidiaries except (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 the issuance acquisitions or business combinations with third parties that are not affiliates of any Debt Instrumentshareholder of the Company, or (the “Preemptive Participants”v) sales or transfers of Shares or securities convertible into or giving the right to purchase its Pro Rata Portion Shares in connection with financing transactions for borrowed money with third parties that are not affiliates of New Securities that any shareholder of the Company), unless prior to the 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 may, from time as (A) the number of Shares of the Company held of record by such Shareholder bears to time, propose to sell or issue or (B) all of the issued and outstanding Shares of the Company on 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 “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 thereofday.
(b) The Prior to the issuance or sale by the Company of any Shares, 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 thereof (the “Issuance Notice”) to each Shareholder, which Notice shall set forth the material terms and conditions of such proposed transaction, including, as applicable, specify the number or amount and description of the securities Shares proposed to be issued, the price and other terms of their proposed issuance or incurrence date issuance, the number of Shares that each Shareholder is entitled to purchase, and the proposed period during which such Shareholder may elect to purchase price per securitysuch Shares (which period shall not be less than ten (10) calendar days following the delivery of the Notice).
(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 Each Shareholder who desires to purchase their Pro Rata Portion Shares hereunder shall notify the Company in writing within the specified period that number of Shares he wishes to purchase. The Company may sell any remaining Shares that are not purchased by the Shareholders hereunder within ninety (90) calendar days after the expiration of the number or amount of time for electing to purchase such Shares at not less than 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 not 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 has not sold such New Securities within said 90-day period, the Company shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without first again complying with the preemptive purchase right procedures provided for in this Section 4.1.
(f) The preemptive rights set forth in this Section 4.1 may be waived upon the written approval of the Minority Independent Director (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the Company.
Appears in 1 contract
Preemptive Rights. (a) The Subject to Section 4.04(e), until the earlier of a Qualified IPO and a Change of Control, if the Company hereby grants or any of its Subsidiaries proposes to each current holder of Company issue any additional Units or other Equity Securities, including Athens and its Affiliates and Subsidiaries except in connection with or any rights to subscribe for, or option to purchase, or otherwise acquire, any of the issuance of foregoing (collectively, “Additional Securities”), to any Debt InstrumentPerson(s), (the “Preemptive ParticipantsProposed Offeree(s)”) or enter into any contract relating to the issuance of such Additional Securities through a private issuance or private placement, then each Class A Member shall have the right to purchase its Pro Rata Portion of New Securities that (“Preemptive Right”), on the Company may, from time to time, propose to sell or issue 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 “Offered Securities.” The preemptive purchase right provided in this Section 4.1(a) shall apply same terms and at the time same purchase price per share or other unit of issuance or incurrence, as applicable, of any right, warrant or option or convertible or exchangeable security and not such Additional Securities offered to the conversionProposed Offeree(s), exchange or exercise thereofthat 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) The In connection with any Preemptive Right, the Company shall give shall, by written notice (the “Preemptive Notice”), provide an offer to sell to each Class A Member that number of a proposed issuanceAdditional Securities in accordance with Section 4.04(a), sale which Preemptive Notice shall include the applicable purchase price per share or incurrence described in Section 4.1(a) other unit, aggregate amount of Additional Securities offered, number or amount of Additional Securities offered to such Member based on the Preemptive Participants within five (5) Business Days following any meeting respective Percentage Interests of the Board at which any Class A Members immediately prior to such issuance, sale or incurrence is approved name of Proposed Offeree(s) (if then known), proposed closing date, place and at least time for the issuance thereof (which shall be no less than thirty (30) days from the date of such notice), and any other material terms and conditions of the offer. Within fifteen (15) days prior from the date of receipt of the Preemptive Notice, any Class A Member wishing to exercise its Preemptive Right concerning such Additional Securities shall deliver notice to the proposed issuance, sale Company setting forth the number of Additional Securities which such Member commits to purchase (which may be for all or incurrenceany portion of such Additional Securities offered to such Class A Member in the Preemptive Notice). Such notice Each Class A Member shall have the additional right (the “Issuance NoticeAdditional 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 set forth be deemed to have been offered to and accepted by the material 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 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 Preemptive Notice. Any Additional Securities not accepted for purchase by the other Class A Members pursuant to this Section 4.04 shall be offered to the Proposed Offeree on the same terms and conditions specified in the Issuance Notice by delivering a written notice to the Company. Except price per share or other unit 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 Preemptive Notice; provided, however, if such Proposed Offeree does not consummate the number or amount purchase of securities to be issued or sold by the Company may be reduced); provided that (x) such issuance, sale or incurrence is closed Additional Securities within ninety (90) days after the expiration following delivery of the 15-day period described in Section 4.1(c) and (y) the price at which the New Preemptive Notice, any subsequent proposed issuance of Additional Securities are Transferred must shall once again 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 subject 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 has not sold such New Securities within said 90-day period, the Company shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without first again complying with the preemptive purchase right procedures provided for in terms of this Section 4.14.04.
(fc) The preemptive rights set forth Notwithstanding anything to the contrary in this Section 4.1 may be waived upon 7.04(b), no issuance of Additional Securities by the written approval Company to any Class A Member pursuant to the exercise by such Class A Member of its Preemptive Rights shall require Disinterested Manager Approval if all of the Minority Independent Director (or a majority of the Directors on the Board who other Class A Members are Independent Directors if there is no Minority Independent Director at the time of entitled to Preemptive Rights in connection with such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the Companyissuance.
Appears in 1 contract
Samples: Transaction Agreement (Apollo Global Management LLC)
Preemptive Rights. (a) The Company hereby grants to each current holder of Company Securities, including Athens and its Affiliates and Subsidiaries except in connection with In the issuance of any Debt Instrument, (the “Preemptive Participants”) the right to purchase its Pro Rata Portion of New Securities that the Company mayevent that, from time to timetime following the date hereof, propose the Company proposes to sell or issue New Units to any Person, each then-existing Member shall have the right (a “Preemptive Right”) to purchase a pro rata portion of the New Units proposed to be sold or that relate issued equal to incurred indebtedness, the percentage determined by dividing (x) the Units held by each such Member at the time of such proposed sale or issuance by (y) the aggregate Units in the Company at the time of such proposed sale or issuance. Each Member will be entitled to purchase all or part of such New Units at the same price and on the same terms as applicable. The number such New Units are proposed to be sold or amount of New Securities which issued by the Preemptive Participants may purchase Company pursuant to this Section 4.1(a) shall be referred to as the “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 thereof10.03.
(b) The Prior to the sale or issuance of any New Units to any Person, the Company shall give cause to be given to each Member written notice of a proposed issuance, the Company’s intention to make such 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 issuance (the “Issuance 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 proposed transaction, including, as applicable, sale or issuance. Each Member shall have thirty (30) Business Days (the number or amount and description “Preemptive Notice Window”) from the date of receipt of the securities proposed Preemptive Notice 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 agree to purchase their Pro Rata Portion up his or her pro rata portion of the number or amount of New Units offered to such Member by the Offered Securities at Company pursuant to this Section 10.03 for the purchase price set forth in the Issuance Notice and upon the other terms and conditions specified in the Issuance Preemptive 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 Company and stating therein the 15-day period following quantity of such New Units such Member elects to purchase (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 “Preemptive Reply”). In the event there are two or more that a Member delivers a Preemptive Reply (such Member, an “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(cMember”).
(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 sell to complete such Exercising Member, and such Exercising Member shall purchase from the proposed issuanceCompany, sale 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 Company sells or incurrence of issues (or would have sold or issued) the New Securities Units described in the Issuance Notice with respect to which Exercising Holders failed Preemptive Notice.
(c) In the event that any Member fails to exercise in full the option Preemptive Rights set forth in this Section 4.1 on 10.03 within the Preemptive Notice Window, the Company 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 less more favorable to the Company purchasers than those set forth specified 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 Preemptive 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 has not sold such New Securities Units within said 90-day such subsequent thirty (30) Business Day period, the Company shall not thereafter sell or issue or sell any New Securities or incur new indebtedness, as applicable, Units without first again complying with offering such New Units in the preemptive purchase right procedures manner provided for in this Section 4.110.03.
(f) The preemptive rights set forth in this Section 4.1 may be waived upon the written approval of the Minority Independent Director (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the Company.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Institutional Financial Markets, Inc.)
Preemptive Rights. (a1) The Company hereby grants to each current holder of Company Securities, including Athens and its Affiliates and Subsidiaries except in connection with the issuance of any Debt Instrument, (the “Preemptive Participants”) the right to purchase its Pro Rata Portion of New Securities that In case the Company may, from proposes at any time to time, propose to sell or issue or that relate to incurred indebtedness, as applicable. The number sell any shares of equity securities of the Company (or amount of New Securities which the Preemptive Participants may purchase pursuant to this Section 4.1(a) shall be referred to as the “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 securities 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 for equity securities of the Board at which any such issuanceCompany) issued by the Company after the date hereof (collectively, sale or incurrence is approved and at least fifteen the "Company Offered Securities"), the Company shall, no later than twenty (1520) days prior to the proposed issuanceconsummation of such transaction (a "Preemptive Rights Transaction"), sale or incurrence. Such give notice in writing (the “Issuance "Preemptive Rights Offer Notice”") shall set forth to Xxxxxxxx, the material terms Other Stockholders and conditions their respective Permitted Transferees of such Preemptive Rights Transaction. The Preemptive Rights Offer Notice shall describe the proposed transactionPreemptive Rights Transaction, includingidentify the proposed purchaser or purchasers, as applicableand contain an offer (the "Preemptive Rights Offer") to sell Xxxxxxxx, the number or amount Other Stockholders and description of their respective Permitted Transferees, at the securities proposed same price and for the same consideration to be issuedpaid by the proposed purchaser (provided, that, in the event any of such consideration is non-cash consideration, at the election of Xxxxxxxx, the proposed issuance Other Stockholders or incurrence date and their respective Permitted Transferees to whom the proposed purchase price per security.
(c) At any time during the 15-day period following the receipt of an Issuance NoticePreemptive Rights Offer is made, Xxxxxxxx, the Preemptive Participants shall have the right to elect irrevocably to purchase Other Stockholders and 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 respective Permitted Transferees may pay cash equal to the Company. Except as provided in the following sentence, value of 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 overnon-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”cash consideration), such Exercising Holder may purchase all or any part of Xxxxxxxx', the Other Stockholders' and their respective Permitted Transferees' pro rata portion of the Company Offered Securities (which shall be a fraction of the Company Offered Securities determined by dividing the number of shares of outstanding Voting Stock owned by Xxxxxxxx, the Other Stockholders or such securities of their Permitted Transferees, as the case may be, by giving written notice the total number of outstanding shares of Voting Stock). If Xxxxxxxx, the Other Stockholders or their respective Permitted Transferees to whom a 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 Preemptive Rights Offer Notice, such Non-Responding Holders shall have no further rights with respect to the proposed Preemptive Rights Transaction and the Company may proceed with the proposed Preemptive Rights Transaction, free of any right on the part of such Non-Responding Holders, as the case may be, under this Section 6 in respect thereof.
(2) The parties hereto agree that preemptive rights granted pursuant to paragraph (a) of this Section 6.1 shall not be effective for issuances of shares of Common Stock pursuant to the Company's 2000 Employee Stock Purchase Plan, within in accordance with the 15-day period following terms of such plan as in effect on the receipt date hereof and without giving effect to any amendment, alteration or repeal 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 terms of such Exercising Holders pro rata based on plan or any increase in the number of New Securities shares of Common Stock reserved for issuance under such Exercising Holders elected to purchase pursuant to Section 4.1(cplan. (1).
(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 has not sold such New Securities within said 90-day period, the Company shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without first again complying with the preemptive purchase right procedures provided for in this Section 4.1.
(f) The preemptive rights set forth in this Section 4.1 may be waived upon the written approval of the Minority Independent Director (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the Company.
Appears in 1 contract
Samples: Stockholders Agreement (Allen & Co Inc/Allen Holding Inc)
Preemptive Rights. (a) The After the Equalization Date, prior to the Company hereby grants issuing any Interests or options or rights to each current holder of Company Securitiesacquire Interests (other than (i) any equity issuance associated with an acquisition previously approved by NGPMR, including Athens and its Affiliates and Subsidiaries except (ii) Interests issued in connection with any split, distribution or recapitalization of the issuance of any Debt InstrumentCompany, (iii) Interests issued in any initial public offering registration statement filed under the “Preemptive Participants”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(c) that was not fully funded by the Members; provided, however, that any 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 (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 the right to purchase its Pro Rata Portion a portion of the New Securities that the Company may, from time to time, propose to sell or issue or that relate to incurred indebtedness, as applicable. The number or amount of New Securities which the Preemptive Participants may purchase pursuant to Interests in accordance with this Section 4.1(a) shall be referred to as the “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 thereof5.7.
(b) The Company shall give each Eligible Member prior 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 "First Notice”") of any proposed issuance of New Interests, which shall set forth in reasonable detail the material 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 date of such proposed transaction, including, as applicable, the number or amount and description notice) of the securities New Interests, on the same terms and conditions and at the same time as the New Interests are proposed to be issuedissued by the 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 proposed issuance or incurrence date and Eligible Member's receipt of the proposed First Notice (the "Election Period") setting forth the dollar amount of the New 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 price per securityin 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) At If the Eligible Members do not subscribe for all of the New Interests, the Company shall have 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 15-day period 90 days following the receipt of an Issuance Notice, the Preemptive Participants shall have the right to elect irrevocably to purchase their Pro Rata Portion end of the number or amount of the Offered Securities Election Period, at the purchase same price and pursuant to the terms and conditions 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 First Notice. The Board may, in its reasonable discretion, impose such other reasonable and customary terms and procedures such as setting a closing of date and requiring customary closing deliveries in connection with 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 approvalsrights offering. In the event that any Electing Member refuses to purchase the New Interests for which it subscribed pursuant to this Section 5.7, then in addition to any other rights the Company has not sold may have at law or in equity, such New Securities within said 90-day period, the Company Electing Member and any transferee thereof shall not thereafter issue or sell be considered an Eligible Member for any New Securities or incur new indebtedness, as applicable, without first again complying with the preemptive purchase right procedures provided for in future rights granted under this Section 4.1.
(f) The preemptive rights set forth in this Section 4.1 may be waived upon the written approval of the Minority Independent Director (or a majority of the Directors on 5.7 unless the Board who are Independent Directors if there is no Minority Independent Director expressly designates otherwise (which the Board may, in its sole discretion, do on an offer-by-offer basis or not at the time of such waiverall) if such waiver is and shall be deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the Companya Defaulting Member under Section 4.2.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Markwest Energy Partners L P)
Preemptive Rights. (a) The So long as Xxxxxxx and its controlled Affiliates beneficially own in excess of 20% of the shares of New Common Stock then outstanding, and subject to the terms and conditions of Section 11(b), the Company hereby shall not issue additional Equity Securities (an “Issuance”) unless, prior to such Issuance, the Company notifies Xxxxxxx in writing of the proposed Issuance and grants to each current holder Xxxxxxx, or at Xxxxxxx’x election, one or more of Company Securitiesits Affiliates, including Athens the right (the “Right”) to subscribe for and its Affiliates purchase in whole or in part, at the same price and Subsidiaries except upon the same terms and conditions as set forth in connection with 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 any Debt Instrument, (the “Preemptive Participants”) the right to purchase its Pro Rata Portion shares of New Securities that the Company may, from time to time, propose to sell or issue 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 “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 Common Stock upon conversion, exchange or exercise thereofof any Equity Security issued in the Issuance and subject to the Right), the shares of New Common Stock that Xxxxxxx and its Affiliates beneficially own (rounded to the nearest whole share) shall represent the same percentage of the aggregate number of shares of New Common Stock outstanding as was beneficially owned by Xxxxxxx and its Affiliates immediately prior to the Issuance. In the event Equity Securities are issued as part of a unit with other securities, the Right will apply to such unit and not separately to any component of such unit.
(b) The Company shall give Right may be exercised by Xxxxxxx, or, at Xxxxxxx’x election, one or more of its Affiliates, as the case may be, provided that the Person exercising the Right must (i) be an Accredited Investor and (ii) deliver 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 Company of such exercise of the Board at Right which any such issuance, is received by the Company within 20 business days after the date on which Xxxxxxx receives notice from the Company of the proposed Issuance. The closing of the purchase and sale or incurrence is approved and at least fifteen (15) days prior pursuant 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 exercise of the securities proposed to Right shall occur on the date scheduled by the Company for the Issuance, which may not be issued, earlier than ten business days and no later than 60 business days after the proposed issuance or incurrence date and Company receives notice of the proposed purchase price per securityexercise of the Right.
(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 Nothing in this Section 4.1 11 shall be deemed to prevent any Person from purchasing for cash or the Company from issuing any additional Equity Securities without first complying with the provisions of this Section 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 than those set forth in the Issuance Notice aggregate than such purchase is available on a no less timely basis, and (except that c) the delay caused by compliance with 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 investment as soon as practicable, and in any event at least five business days prior to the consummation of such investment; and (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’ beneficial ownership of outstanding Equity Securities relative to the total number or amount of securities outstanding Equity Securities, in each case prior to be issued or sold the issuance 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 Equity 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 has not sold such New Securities within said 90-day period, the Company shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without first again complying with the preemptive purchase right procedures provided for in transaction contemplated by this Section 4.111(c).
(f) The preemptive rights set forth in this Section 4.1 may be waived upon the written approval of the Minority Independent Director (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the Company.
Appears in 1 contract
Preemptive Rights. (a) The Company hereby grants to each current holder of Company Securities, including Athens and its Affiliates and Subsidiaries except in connection with the issuance of any Debt Instrument, following preemptive rights (the “Preemptive ParticipantsRights”) to the right Class A Stockholders and the Class C Stockholders (but not to purchase its Pro Rata Portion of New Securities that the Company mayClass B Stockholders, who shall have no Preemptive Rights hereunder):
(a) If the Company, at any time or from time to timetime prior to the Company’s Initial Public Offering, propose to sell or issue or that relate to incurred indebtedness, as applicable. The number or amount makes any offering of New Securities which Shares (as defined in Section 4.3(f) below), the Preemptive Participants may purchase pursuant Class A Stockholders and the Class C Stockholders shall each first be offered the opportunity to this Section 4.1(a) shall acquire from the Company for the same price and on the same terms as such securities are proposed to be referred offered to as others a pro rata portion of the New Shares (the “Offered Securities.” The preemptive purchase right provided Basic Amount”) determined by multiplying (i) the total number of such offered New Shares (or, in this Section 4.1(athe case of options, warrants or other rights obligating the Company to issue Shares or other equity interests, the total number of such New Shares or other equity interests covered by such options, warrants or rights) shall apply at by (ii) 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 thereofStockholder’s Percentage Interest.
(b) The In the event that the Company proposes to offer New Shares, it shall give each Class A Stockholder and Class C Stockholder written notice of a proposed issuanceits intention, sale or incurrence described in Section 4.1(a) describing the type of New Shares to be offered, and the Preemptive Participants within five (5) Business Days following any meeting of price and other terms upon which the Board at which any such issuance, sale or incurrence is approved Company proposes to offer the same. Each Class A Stockholder and at least Class C Stockholder shall have fifteen (15) days prior 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 proposed issuanceamount of New Shares such Stockholder desires to purchase, sale or incurrenceup 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 promptly give notice (the “Issuance Undersubscription Notice”) shall set forth of the material terms Unsubscribed Amount to the Stockholders that exercised their preemptive rights for their full Basic Amount (the “Fully Subscribing Stockholders”). Each Fully Subscribing Stockholder will have the right, exercisable by giving notice to the Company and conditions the other Class A Stockholders and Class C Stockholders within fifteen (15) 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 Fully Subscribing Stockholder that elects to acquire more than its Basic Amount will be entitled to acquire its pro rata share of such proposed transaction, including, as applicable, the Unsubscribed Amount (based on 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 securityFully Subscribing Stockholders’ then existing Shares).
(c) At any time during If the 15-day period following Company proposes to sell the receipt of an Issuance NoticeNew Shares for 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 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 sentenceRights, such purchase shall be consummated concurrently with determined by the consummation of the issuanceBoard.
(d) If any Class A Stockholder or Class C Stockholder exercises its Preemptive Rights hereunder, 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 purchase of the Issuance Notice New Shares with respect to which such rights have been exercised shall take place within forty (40) days after the extent necessary to obtain required governmental approvals and other required approvals, and Company’s initial offer has been given. Each of the Company shall and any Stockholder which has agreed to purchase New Shares agrees to use its commercially reasonable efforts to obtain such approvals.
(d) Each Preemptive Participant exercising its right secure any regulatory approvals or other consents, and to comply with any law or regulation necessary in connection with the offer, Sale and 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)Shares.
(e) If In the event that no Stockholder exercises its Preemptive Participants Rights provided in this Section 4.3 (or Exercising Holders fail to exercise fully their preemptive purchase right hereunder such Preemptive Rights are only exercised in part) within the periods described abovefifteen (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 failure to obtain any required regulatory consent or approval, the Company shall thereafter be free to complete entitled during the proposed issuance, sale or incurrence period 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 following the conclusion of the applicable period to Sell or enter into an agreement (pursuant to which the Sale of New Shares covered thereby shall be consummated, if at all, within thirty (30) days from the date of said agreement) to Sell the New Shares not elected to be purchased pursuant to this Section 4.3 or which the Stockholder is unable to purchase because of such failure to obtain any such consent or approval, at a price and upon 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 15-day period described in Section 4.1(c) and (y) date of the price at which the New Securities are Transferred must be equal applicable agreement with respect 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 approvalsSale. In the event that the Company has not sold such Sold the New Securities Shares or entered into an agreement to Sell the New Shares within said ninety (90-) day periodperiod (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)), the Company shall not thereafter offer, issue or sell any Sell such New Securities or incur new indebtedness, as applicable, Shares without first again complying with offering such securities to the preemptive purchase right procedures Class A Stockholders and Class C Stockholders in the manner provided for in this Section 4.1above.
(f) The preemptive rights set forth in this Section 4.1 may be waived upon the written approval As used herein, “New Shares” means Shares of the Minority Independent Director (Company or a majority other equity securities of the Directors on Company or any Subsidiary which the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed by such Minority Independent DirectorCompany proposes to offer, issue or majority of the Independent Directors, as applicable, sell prior to be in the best interest of 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 be excluded from the definition of “New Shares”:
Appears in 1 contract
Preemptive Rights. (a) The If the Company hereby grants shall issue any shares of Common Stock, rights, options, or warrants to each current holder purchase shares of Company SecuritiesCommon Stock, including Athens and its Affiliates and Subsidiaries except in connection with the issuance or securities of any Debt Instrumenttype whatsoever that are, or may become, convertible into shares of Common Stock, other than the shares issued or issuable as set forth on Exhibit "B" attached hereto, (the “Preemptive Participants”collectively, "New Securities") the right Holder of this Warrant shall be entitled to purchase its Pro Rata Portion pro rata share of New Securities that the Company may, from time to time, propose to sell or issue 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 “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 New Securities as provided in this Section 6. For purposes of this Section 6, the term "pro rata share" shall mean such share as would be necessary to permit the Holder to maintain a percentage interest in the Company (determined on a fully diluted basis assuming the exercise of any and all outstanding options or warrants and the conversion of any securities convertible into shares of Common Stock) equal to the Holder's percentage interest in the Company immediately prior to such issuance of New Securities (determined on a fully diluted basis). In the event the Company proposes to undertake an issuance of New Securities, it shall give the Holder written notice of its intention, describing the type of New Securities and the price and terms upon which the Company proposes to issue the same. The Holder shall have ten business days from the date of receipt of any such notice to agree to purchase up to its pro rata share of such New Securities for the price and upon the terms specified in the notice by giving written notice to the Company, within Company and stating therein the 15-day period following the receipt of an Issuance Notice, of its interest in purchasing a specified amount quantity of New Securities as to which any Non-Purchasing Holders has failed be purchased. In the event the Holder fails to exercise their preemptive such right of 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 abovesaid ten business day period, the Company shall be free have 90 days thereafter to complete the proposed issuance, sale or incurrence of the New Securities described in at the Issuance Notice with respect to which Exercising Holders failed to exercise the option set forth in this Section 4.1 on price and upon terms no less more favorable to the Company purchasers of such New Securities than those set forth specified 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 Company's 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 approvalsHolder. In the event that the Company has not sold such the New Securities within said such 90-day period, the Company shall not thereafter issue or sell any of such New Securities without first complying with the terms of this Section 6. Notwithstanding anything to the contrary contained herein, should the existence of the preemptive rights in favor of the Holder pursuant to this paragraph have a material adverse effect on the ability of the Company to consummate the sale of New Securities, then the Company shall so advise the Holder in writing and the Holder agrees to waive the preemptive rights granted pursuant to this Section 6; provided, however, that the Company shall use commercially reasonable best efforts to attempt to persuade any purchaser of New Securities or incur new indebtedness, as applicable, without first again complying with underwriter involved in selling such New Securities to permit the Holder to retain such preemptive purchase right procedures provided for in this Section 4.1.
(f) The rights. In the event that the Holder fails to exercise its preemptive rights set forth in under this Section 4.1 may be waived paragraph on two separate occasions, then the Holder's rights under this paragraph shall terminate upon the written approval occurrence of the Minority Independent Director (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of second such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the Companyfailure.
Appears in 1 contract
Samples: Warrant Agreement (Gexa Corp)
Preemptive Rights. 2.1 Except as provided in Section 2.6, the Company shall not issue or sell any of its equity securities (aincluding securities convertible into equity securities) The Company hereby grants (collectively, the "Future Shares") to any person without first providing each current holder of Company Securities, including Athens and its Affiliates and Subsidiaries except in connection with the issuance of any Debt Instrument, Investor (the “Preemptive Participants”each a "Holder") the right to purchase subscribe for its Pro Rata Portion Proportionate Percentage (as defined in Section 2.4) of New Securities such Future Shares at the same price and on the same terms (including the method of purchase; provided, however, that the Holders shall have the option of purchasing Future Shares with cash, regardless of the method of purchase offered to such person) as shall be offered to such third party and which shall have been specified by the Company may, from time in a writing delivered to time, propose to sell or issue or that relate to incurred indebtedness, as applicableeach Holder (the "Proposal"). The number or amount Proposal by its terms shall remain open and irrevocable for a period of New Securities which the Preemptive Participants may purchase pursuant to this Section 4.1(a) shall be referred to as the “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 from the date it is delivered by the Company to each Holder (the "Future Shares Exercise Period"). The Proposal shall also certify that the Company has either (a) received a firm offer from a prospective purchaser, who shall be identified in such certification, so that the Company in good faith believes a binding agreement of sale is obtainable for consideration having a fair market, cash equivalent or present value set forth in such certification; or (b) intends in good faith to make an offering of its securities at the price and on the terms set forth in such certification.
2.2 Notice of each Holder's acceptance, in whole or in part, of the Proposal made pursuant to Section 2.1 hereof shall be evidenced by a writing signed by such Holder delivered to the Company 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 end 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 Future Shares Exercise Period setting 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 that 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 Future Shares, as the case may be, which the Holder elects to purchase its full Pro Rata Portion (the "Notice of New Securities (Purchase"). If a “Non-Purchasing Holder”)Holder does not deliver such written notice within the Future Shares Exercise Period, such Exercising Holder may shall be deemed to have elected not to 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 Future Shares.
2.3 In the event there are two or more such Exercising that the 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 elect not 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 aboveall of such Future Shares, the Company shall be free to complete have 120 days from the proposed issuance, sale or incurrence expiration of the New Securities described Future Shares Exercise Period to offer and sell any part of such Future Shares not elected to be purchased by the Holders (the "Refused Future Shares") to any other person(s), but only upon terms and conditions in the Issuance Notice with respect all respects (including, without limitation, price, seniority, dividends and liquidation, redemption and conversion rights) which are no more favorable to which Exercising Holders failed to exercise the option set forth in this Section 4.1 on terms no such other person(s) or less favorable to the Company than those set forth in the Issuance Notice (except Proposal; provided, -------- however, that such sale be to the number same person(s) 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 their affiliates identified ------- in the Issuance Notice. Such periods within which such issuanceProposal, sale or incurrence must be closed shall be extended if so identified pursuant 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 approvalsSection 2.1. In the event that the Company has so sells the Refused Future Shares to such other person(s), the sale to each Holder of the Future Shares in respect of which a Notice of Purchase was delivered to the Company by such Holder shall occur upon the closing of the sale to such other person(s) of Refused Future Shares (which closing shall include full payment to the Company). If there are no Refused Future Shares, the sale to such Holder of such Future Shares shall occur within 20 days of the expiration of the Future Shares Exercise Period. In any event, the sale to such Holder of such Future Shares shall be on the terms specified in the Proposal. Any Refused Future Shares not sold purchased by such New Securities other person(s) within said 90a 120-day period, the Company period shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without first again complying with the preemptive purchase right procedures provided for in remain subject to this Section 4.12.
(f) The preemptive rights set forth in this Section 4.1 may be waived upon the written approval of the Minority Independent Director (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the Company.
Appears in 1 contract
Preemptive Rights. (a) The Subject to Section 5.1(b), if the Company hereby grants proposes to issue 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 deliver to each current holder of Company Securities, including Athens and its Affiliates and Subsidiaries except in connection with the issuance of any Debt Instrument, Investor a written notice (the “Preemptive ParticipantsRights Notice”) the right to purchase its Pro Rata Portion of New Securities that the Company may, from time to time, propose to sell or issue 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 “Offered Securities.” The preemptive purchase right provided in this Section 4.1(a) shall apply at the time of such proposed 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) 20 days prior to the date of the proposed issuance, sale or incurrence. Such which notice shall include (i) the “Issuance Notice”proposed issuance date, (ii) 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, (iii) the proposed issuance or incurrence date and the proposed purchase issue price per security.
security and (civ) At any time during the 15-day period following material terms and conditions of the receipt of an Issuance Noticeissuance. Subject to Section 5.1(b), the Preemptive Participants each Investor shall have the right to elect irrevocably to purchase their Pro Rata Portion option, exercisable within 10 days following delivery 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 Preemptive Rights 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 delivery 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 subscribe for not more than such Exercising Holders that choose to exercise the last-mentioned option for a total number of remaining securities in excess Investor’s Percentage Interest of the number available, securities to be issued at 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 price per security set forth in this Section 4.1 the Preemptive Rights Notice and on terms no less favorable beneficial to the Company purchaser 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 Preemptive Rights 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 has any Investor does not sold elect to acquire its aggregate Percentage Interest of such New Securities within said 90-day periodsecurities, the Company shall deliver a second notice, not thereafter issue 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 sell prior to the 20th day following the delivery of the Preemptive Rights Notice, elect to acquire any New Securities or incur new indebtednessall 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, as applicable, without first again complying with which securities shall be allocated among the preemptive purchase right procedures provided for in this Section 4.1Participating Investors based on their relative Percentage Interests.
(fb) The preemptive rights set forth in this Section 4.1 may be waived upon 5.1(a) shall not apply to (i) the written approval issuance or grant of the Minority Independent Director (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest 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 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 this Section 5.1 or that are outstanding as of October 27, 2005; and (iv) the issuance of Common Stock in connection with the Qualified IPO.
Appears in 1 contract
Preemptive Rights. (a) The Company hereby grants to each current holder of Company Securities, including Athens and its Affiliates and Subsidiaries except in connection with the issuance of any Debt Instrument, (the “Preemptive Participants”) the right to purchase its Pro Rata Portion of New Securities that the Company may, from time to time, propose to sell or issue 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 “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 Buyer 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 has not sold such New Securities within said 90-day period, the Company shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without first again complying with the preemptive purchase right procedures provided for in this Section 4.1.
(f) The preemptive rights set forth in this Section 4.1 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 6.5. Absent an express assignment of the rights of Buyer under this Section 6.5, 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 the case of the 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 or any stock or securities convertible into or exchangeable for Company Stock (including, without limitation, interests in the Operating Partnership) (such 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 occurrence on or before November 31, 1997, of an underwritten widely distributed offering of Company Common Stock at a price per share to the 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 Company Stock, options, warrants or convertible securities, or any of the foregoing, the Company shall 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 Company describing the same, the price and the specific terms (or in the context of an offering of Company Stock, convertible securities, warrants or options to the public, a range of price and terms) upon which the Company proposes to issue the same. Buyer shall 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 pro rata share to be 19.9% (or, in the event of the widely distributed public offering on the schedule, at the price and in the 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. (or such lesser percentage as may reflect the beneficial ownership of Buyer of such shares or securities or Company Stock, options, warrants or convertible securities, warrants or any of the 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 offered for sale to others, less, in the event 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 may sell the unsold Company Stock, convertible securities, warrants or options at any time within 180 days (60 days in the case of a public offering) thereafter at a price and upon terms no more favorable to the purchasers thereof than specified in the Company Notice; provided, that the Company shall not sell or grant, or permit conversion under, any Company Stock, convertible securities, warrants or Options, or any of the foregoing, after such 180-day period (or 60-day period in 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 procedural requirements hereunder (i.e., timing of notices, etc.) would otherwise materially impede the consummation of such public offering, the parties agree to take such further action as may be waived upon the written approval reasonably necessary to effectuate such offering while preserving Buyer's substantive preemptive right hereunder.
(c) The provisions of this Section 6.5 shall not apply to any shares of any class of the Minority Independent Director 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 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 a majority any group of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time holders with which such Buyer may be affiliated or may be deemed to be affiliated) of such waiver) if such waiver is deemed by such Minority Independent Directorany thereof, whether under applicable Delaware law, or majority the Amended Company By-laws, or by reason of the Independent Directors, as applicable, to be in the best interest 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 preemptive 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) The rights of Buyer set forth in this Section 6.5 shall commence on the date hereof and shall expire on the fifth anniversary of the date hereof, except as to purchases as to which Buyer may make on a deferred basis under Section 6.5(d) which shall continue without time restriction.
Appears in 1 contract
Samples: Stock Purchase Agreement (Berkshire Realty Co Inc /De)
Preemptive Rights. (a) The Subject to the exceptions set forth in Section 2.02(d), the Company hereby grants shall:
(i) not issue, sell or exchange, agree or obligate itself to issue, sell or exchange, or reserve or set aside for issuance, sale or exchange any Equity Interests of the Company unless the Company shall have first offered to sell such securities (the “New Issue Securities”) to each current holder Stockholder (in each case, a “Preemptive Offeree”) in accordance with this Section 2.02; and
(ii) offer to sell each Preemptive Offeree all or any portion of its Preemptive Share of any proposed issuance of New Issue Securities at the same price and on the same terms at which the Company proposes to sell such New Issue Securities, including Athens which shall have been specified by the Company in a written offer delivered to the Preemptive Offerees setting forth all of the terms and its Affiliates and Subsidiaries except in connection with conditions of the issuance offering of any Debt Instrument, the New Issue Securities (the “Preemptive ParticipantsRight Notice”), which offer by its terms shall remain open and irrevocable for a period of 15 Business Days from receipt of the Preemptive Right Notice. The offer of the Company to sell the New Issue Securities shall expire after such 15-Business Day period. “Preemptive Share” shall equal (i) the right to purchase its Pro Rata Portion number of shares of New Issue Securities multiplied by (ii) a fraction (A) the numerator of which is equal to the number of Fully Diluted Common Shares that the Company may, from time to time, propose to sell or issue 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 would be referred to as the “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 owned by such Stockholder assuming the conversion, exercise or exchange or exercise thereof.
of all Equity Interests of the Company owned by such Stockholder and (bB) The Company shall give written notice the denominator of a proposed issuance, sale or incurrence described in Section 4.1(a) which is equal 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 securityFully Diluted Common Shares.
(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 has not sold such New Securities within said 90-day period, the Company shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without first again complying with the preemptive purchase right procedures provided for in this Section 4.1.
(f) The preemptive rights set forth in this Section 4.1 may be waived upon the written approval of the Minority Independent Director (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the Company.
Appears in 1 contract
Samples: Stockholders Agreement (Talecris Biotherapeutics Holdings Corp.)
Preemptive Rights. (a) The If the Company hereby grants at any time or from time to time prior to the consummation of a Qualified IPO proposes to issue any shares of Capital Stock to Greenwich, other than pursuant to the exceptions specified in paragraph (d) below, the Company shall, no later than 30 days prior to the consummation of such issuance give written notice thereof to each current holder Investor. Such notice shall contain the amount of Capital Stock to be issued and any other pertinent terms of the proposed issuance (including the terms of such Capital Stock) and shall also contain an irrevocable offer to each Investor to purchase, at the purchase price at which the Company Securitiesinitially proposed to issue such Capital Stock, including Athens and its Affiliates and Subsidiaries except in connection with the issuance of any Debt Instrument, (the “Preemptive Participants”) the right to purchase its Pro Rata Portion of New Securities that such Capital Stock. At any time within 30 days after receipt of the notice provided for in the previous sentence an Investor may accept the offer made to it in such notice, and may elect to purchase up to its Pro Rata Portion of any additional Capital Stock to be issued but not purchased by the other Investors on the same terms, by furnishing notice thereof to the Company. If an Investor shall fail to respond to the Company maywithin 30 days of receipt of the Company's notice to Investors of the proposed issuance described above, from time such failure shall be regarded as a rejection of such Investor's right to time, propose exercise such Investor's preemptive rights provided in this Article IV. Any Capital Stock to sell or issue or be issued that relate to incurred indebtedness, as applicable. The number or amount of New Securities which the Preemptive Participants may purchase is not purchased pursuant to this Section 4.1(a) shall be referred deemed to as be accepted for purchase by each Investor so electing to purchase additional Capital Stock not purchased by other Investors, in each case in the “Offered Securities.” The preemptive purchase right provided amount indicated in this Section 4.1(a) shall apply at such electing Investor's acceptance notice but in no event greater than its Pro Rata Portion of such Capital Stock or 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 thereofmaximum amount indicated in such Investor's notice.
(b) The Company shall give written notice If at the end of a proposed issuance, sale or incurrence described the 30 day period referred to in Section 4.1(a) to the Preemptive Participants within five (5) Business Days following any meeting less than all of the Board at which any such issuanceCapital Stock to be issued is accepted for purchase pursuant to Section 4.1(a), sale or incurrence is approved and at least fifteen (15) days prior Greenwich, in addition to its portion of the Capital Stock accepted for purchase pursuant to Section 4.1(a), may purchase that portion of the proposed issuanceissuance that was not accepted for purchase pursuant to Section 4.1(a), sale or incurrence. Such notice (on the “Issuance Notice”) shall set forth the material same terms and conditions of such proposed transaction, including, as applicable, set forth in the number or amount and description of the securities proposed notices sent to be issued, the proposed issuance or incurrence date and the proposed purchase price per securityInvestors pursuant to Section 4.1(a).
(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 the 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 Capital Stock accepted 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(c4.1(a) and (yb) shall take place at such time and place upon which the parties who have accepted for purchase Capital Stock as provided in this Article IV may agree. Such purchase shall be at the price at which the New Securities are Transferred must be equal to or higher than the purchase price described specified in the Issuance Notice. Such periods within which such issuance, sale or incurrence must be closed shall be extended notices sent to the extent necessary Investors pursuant 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 has not sold such New Securities within said 90-day period, the Company shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without first again complying with the preemptive purchase right procedures provided for in this Section 4.1.
(f4.1(a) The preemptive rights set forth in this Section 4.1 may be waived upon the written approval paid by delivery of the Minority Independent Director (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be certified check in the best interest appropriate amount or other consideration as indicated in such notice against delivery of certificates or other instruments representing the CompanyCapital Stock so purchased.
Appears in 1 contract
Preemptive Rights. (a) The Subject to Section 3.03(c), until the earlier of the occurrence of an IPO or a Change of Control, if the Company hereby grants proposes, in a single transaction or a series of related transactions, to each current holder of Company issue any additional Stock or other Equity Securities, including Athens or any rights to subscribe for, or option to purchase, or otherwise acquire, any of the foregoing (collectively, “Additional Securities”), to any Affiliate(s) or stockholder(s) of the Company holding in the aggregate at least 10% of the issued and its Affiliates and Subsidiaries except in connection with outstanding Shares (the “Proposed Offeree(s)”), or enter into any contract relating to the issuance of any Debt Instrumentsuch Additional Securities through a private issuance or private placement to such Person(s), then each Stockholder, together with its Affiliates, owning at least five percent (5%) collectively of the then-issued and outstanding Shares (each, a “Preemptive Rightholder”, and collectively, the “Preemptive ParticipantsRightholders”) shall have the right to purchase its (“Preemptive Right”), on the same terms and at the same purchase price per share of Stock or other unit of such Additional Securities offered to the Proposed Offeree(s), that number of Additional Securities so that such Stockholder would, in the aggregate, after the issuance of all such Additional Securities, hold a number of such Additional Securities equal to, as a percentage of the total number of such Additional Securities issued, such Stockholder’s Pro Rata Portion as of New Securities that the Company may, from time immediately prior to time, propose to sell or issue or that relate to incurred indebtedness, as applicable. The number or amount such issuance of New Securities which the Preemptive Participants may purchase pursuant to this Section 4.1(a) shall be referred to as the “Offered Additional 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 In connection with any Preemptive Right, the Company shall give shall, by written notice (the “Preemptive Notice”), provide an offer to sell to each Preemptive Rightholder that number of a proposed issuanceAdditional Securities in accordance with Section 3.03(a), sale which Preemptive Notice shall include the applicable purchase price per share of stock or incurrence described in Section 4.1(a) other unit, aggregate number of Additional Securities offered, number of Additional Securities offered to such Preemptive Rightholder based on the Preemptive Participants within five (5) Business Days following any meeting respective Pro Rata Portions of the Board at Stockholders immediately prior to such issuance of Additional Securities, name of Proposed Offeree(s) (if then known), proposed closing date, place and time for the issuance thereof (which shall be no less than thirty (30) days from the date of such notice), and any such issuance, sale or incurrence is approved other material terms and at least conditions of the offer and the Additional Securities. Within fifteen (15) days prior from the date of receipt of the Preemptive Notice, any Preemptive Rightholder wishing to exercise its Preemptive Right concerning such Additional Securities shall deliver notice to the proposed issuance, sale Company setting forth the number of Additional Securities which such Stockholder commits to purchase (which may be for all or incurrenceany portion of such Additional Securities offered to such Stockholder in the Preemptive Notice). Such notice Each Preemptive Rightholder shall have the additional right (the “Issuance NoticeAdditional 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 Preemptive Rightholder, in which event such Additional Securities not accepted by any other Preemptive Rightholder shall set forth be deemed to have been offered to and accepted by the material Preemptive Rightholders exercising such Additional Purchase Right in proportion to their respective Pro Rata Portions immediately prior to such issuance of Additional Securities on the same terms and at the same price per share of Stock or other unit as those specified in the Preemptive Notice, but in no event shall any Preemptive Rightholder exercising its Additional Purchase Right be allocated a number of Additional Securities in excess of the maximum number such Preemptive Rightholder has offered to purchase in its notice of exercise. Each Preemptive Rightholder so exercising its right under this Section 3.03 shall be entitled and obligated to purchase that number of Additional Securities specified in such Preemptive Rightholder’s notice on the 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 Preemptive Notice. Any Additional Securities not accepted for purchase by the other Preemptive Rightholders pursuant to this Section 3.03 shall be offered to the Proposed Offeree on the same terms and conditions specified in the Issuance Notice by delivering a written notice to the Company. Except price per share of Stock or other unit 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 Preemptive Notice; provided, however, if such Proposed Offeree does not consummate the number or amount purchase of securities to be issued or sold by the Company may be reduced); provided that (x) such issuance, sale or incurrence is closed Additional Securities within ninety (90) days after the expiration following delivery of the 15-day period described in Section 4.1(c) and (y) Preemptive Notice, such issuance to 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 Proposed Offeree shall be extended cancelled and terminated, and any subsequent proposed issuance of Additional Securities shall once again be subject 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 has not sold such New Securities within said 90-day period, the Company shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without first again complying with the preemptive purchase right procedures provided for in terms of this Section 4.13.03.
(fc) The preemptive rights set forth in provisions of this Section 4.1 may be waived 3.03 shall not apply to issuances of Additional Securities by the Company as follows:
(i) any issuance of Additional Securities upon the written approval exchange, exercise or conversion of the Minority Independent Director (any units, options, warrants, debentures or a majority of the Directors other convertible securities in accordance with their terms that are outstanding on the Board who are Independent Directors if there is no Minority Independent Director at date hereof or issued after the time date hereof in a transaction that complies with the provisions of such waiverthis Section 3.03;
(ii) if such waiver is deemed by such Minority Independent Director, or majority any issuance of the Independent Directors, as applicable, to be in the best interest Equity Securities of the Company, including options, warrants or convertible securities, to Directors, officers, employees, managers or consultants of the Company or any of its Subsidiaries in connection with such Person’s employment or consulting arrangement(s) with the Company or its Subsidiaries;
(iii) any issuance of Equity Securities of the Company, including options, warrants or convertible securities, in connection with (A) any direct or indirect merger, consolidation, business combination or other acquisition transaction involving the Company or any of its Subsidiaries (whether through merger, recapitalization, acquisition of stock or assets or otherwise) or (B) any joint venture or strategic partnership entered into primarily for purposes other than raising capital (as determined by the Board in its sole discretion);
(iv) any issuance of Additional Securities in connection with any Stock split, Stock dividend or similar distribution or recapitalization; or
(v) any issuance of Equity Securities of the Company, including options, warrants or convertible securities, pursuant to a registered public offering.
Appears in 1 contract
Preemptive Rights. (a) The In the event (and on each occasion) that the Company hereby grants shall decide to each current holder undertake an issuance of Company New Securities, including Athens the Company will give to the Investor written notice (an "OFFER NOTICE") of the Company's decision, describing the type of New Securities, the price, and its Affiliates and Subsidiaries except the general terms upon which the Company has decided to issue the New Securities. The Investor shall have fourteen (14) days from the date on which the Company shall give the written Offer Notice to the Investor (in connection with this Article IX called the issuance of any Debt Instrument, (the “Preemptive Participants”"OFFER DATE") the right to agree to purchase its Pro Rata Portion Share of such New Securities that for the Company may, from time to time, propose to sell or issue 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 “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 general terms and conditions specified in the Issuance Offer Notice by delivering a written notice to the Company. Except as provided and in the following sentencecompliance with this sec.9.02, 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 Company and stating therein the 15-day period following the receipt of an Issuance Notice, portion of its interest in purchasing a specified amount Pro Rata Share of New Securities as to which be purchased by the Investor. If, in connection with such a proposed issuance of New Securities, the Investor shall for any Non-Purchasing Holders has failed reason fail or refuse to exercise their preemptive give such written notice to the Company within such period of fourteen (14) days, the Investor shall, for all purposes of this Article IX, be deemed to have refused (in that particular instance only) to purchase right hereunder; provided any of such New Securities and to have waived (in 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 particular instance only) all rights of the number available, the remaining securities available for purchase Investor 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 Article IX to purchase pursuant to Section 4.1(c)any of such New Securities.
(eb) If In the Preemptive Participants event that the Investor shall fail or Exercising Holders fail refuse to exercise fully their preemptive purchase right hereunder in full its rights of first refusal within the periods described abovesaid fourteen (14) day period, 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 have ninety (90) days after thereafter to sell the expiration quantity of the 15-day period described in Section 4.1(c) and (y) the price at New Securities which the New Securities are Transferred must be equal Investor did not agree to or higher purchase, at a price and upon general terms no more favorable to the purchasers thereof than the purchase price described specified in the Issuance Notice. Such periods within which such issuance, sale or incurrence must be closed shall be extended Company's Offer 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 approvalsInvestor. In the event that the Company has not sold such New Securities within said period of ninety (90-day period) days, the Company shall will not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without first again complying with offering to the preemptive purchase right procedures Investor its Pro Rata Share of such New Securities in the manner provided for in by the foregoing provisions of this Section 4.1Article IX.
(fc) The Investor may designate any Permitted Transferee of the Investor to exercise any preemptive rights set forth in this Section 4.1 may be waived upon the written approval of the Minority Independent Director (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the CompanyInvestor under this Article IX.
Appears in 1 contract
Samples: Securities Purchase Agreement (Xionics Document Technologies Inc)
Preemptive Rights. (a) The In the event of a proposed issuance of, or a proposed granting by the Company hereby grants to each current holder of, Common Stock or other equity securities of Company Securitiesthe Company, including Athens and its Affiliates and Subsidiaries except securities convertible into or exchangeable for Common Stock, other than: (i) in connection with a Public Offering Event; (ii) in any acquisition of the Company by, or any merger of the Company with, a third party in a bona fide arms' length transaction; (iii) the issuance of stock options (or any Debt Instrumentexercise thereof) to employees, directors and consultants of the Company or the issuance of Common Stock upon the exercise of any Warrants; (the “Preemptive Participants”iv) the right issuance of Common Stock pursuant to purchase its Pro Rata Portion the exercise of New Securities that any convertible securities of the Company; (v) any stock split, reverse stock split, recapitalization, or similar reorganization or reclassification; and (vi) the issuance of equity securities (including securities convertible into, or exchangeable or exercisable for, equity securities) to banks, financial institutions or similar entities in transactions approved by the Board of Directors, the principal purpose of which is other than the raising of capital through the sale of equity securities of the Company may, from time to time, propose to sell or issue 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 “Offered Securities.” The preemptive purchase right provided in this Section 4.1(a) shall apply at the time of (each proposed issuance or incurrencegrant other than those described in clauses (i) though (vi) hereof, as applicablea "PROPOSED ISSUANCE"), 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 provide written notice of a proposed issuance, sale or incurrence described in Section 4.1(a) such Proposed Issuance to the Preemptive Participants within five each Stockholder no less than thirty (5) Business Days following any meeting of the Board at which any such issuance, sale or incurrence is approved and at least fifteen (1530) 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 date of the securities proposed to be issuedProposed Issuance, 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 each Stockholder shall have the right to elect irrevocably to purchase their Pro Rata Portion right, on the same terms as those of the number or amount of Proposed Issuance and during a reasonable time no less than thirty (30) days after 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 Company has given such written notice to the Company. Except each Stockholder, to purchase that proportion of such Common Stock or other securities as provided is necessary to maintain such Stockholder's fully-diluted percentage equity interest in the following sentence, Company on a record date not more than thirty (30) days prior to the Proposed Issuance (the "PROPOSED ISSUANCE RECORD DATE"). The price or prices for such purchase Common Stock or other securities 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 each Stockholder than the Company than those set forth in the Issuance Notice (except that the number price or amount of prices at which such Common Stock or other securities are proposed to be issued offered for sale or sold granted to others, after deduction of the compensation for the sale, underwriting or purchase of such Common Stock or other securities by the Company underwriters, dealers or other purchasers as 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 has not sold such New Securities within said 90-day period, the Company shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without first again complying with the preemptive purchase right procedures provided for in this Section 4.1.
(f) The preemptive rights set forth in this Section 4.1 may be waived upon the written approval of the Minority Independent Director (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed paid by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the Company.
Appears in 1 contract
Samples: Stockholders Agreement (Veterinary Centers of America Inc)
Preemptive Rights. (a) The Except as provided in Section 8(f), the Company hereby grants shall not issue or sell any of its equity securities (including securities convertible into equity securities) (collectively, the “Future Shares”) to any Person without first providing each current holder of Company Securities, including Athens and its Affiliates and Subsidiaries except in connection with the issuance of any Debt Instrument, Preferred Stock (the each a “Preemptive ParticipantsHolder”) the right to subscribe for its Proportionate Percentage (as defined in Section 8(d)) of such Future Shares at the same price and on the same terms (including the method of purchase; provided, however, that the Holders shall have the option of purchasing Future Shares with cash, regardless of the method of purchase offered to such Person) as shall be offered to such third party and which shall have been specified by the Company in a writing delivered to each Holder (the “Proposal”). The Proposal by its Pro Rata Portion terms shall remain open and irrevocable for a period of New Securities 20 days from the date it is delivered by the Company to each Holder (the “Future Shares Exercise Period”). The Proposal shall also certify that the Company mayeither (a) has received a firm offer from a prospective purchaser, from time to time, propose to sell or issue 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) who shall be referred identified in such certification, so that the Company in good faith believes a binding agreement of sale is obtainable for consideration having a fair market, cash equivalent or present value set forth in such certification; or (b) intends in good faith to as the “Offered Securities.” The preemptive purchase right provided in this Section 4.1(a) shall apply make an offering of its securities at the time of issuance or incurrence, as applicable, of any right, warrant or option or convertible or exchangeable security price and not to on the conversion, exchange or exercise thereofterms set forth in such certification.
(b) The Company Notice of each Holder’s acceptance, in whole or in part, of the Proposal made pursuant to Section 8(a) hereof shall give written notice of be evidenced by a proposed issuance, sale or incurrence described in Section 4.1(a) writing signed by such Holder delivered 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 Company prior to the proposed issuanceend of the Future Shares Exercise Period setting forth that portion of the Future Shares, sale or incurrence. Such notice as the case may be, which the Holder elects to purchase (the “Issuance NoticeNotice of Purchase”) shall set forth the material terms and conditions of ). If a Holder does not deliver 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 within the Company. Except as provided in the following sentenceFuture Shares Exercise Period, such purchase Holder 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 deemed to the extent necessary have elected not 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)Future Shares.
(ec) If In the Preemptive Participants or Exercising event that the Holders fail elect not to exercise fully their preemptive purchase right hereunder within all of the periods described aboveFuture Shares available to them during a particular Future Shares Exercise Period, the Company shall be free to complete have 120 days from the proposed issuance, sale or incurrence expiration of the New Securities described Future Shares Exercise Period to offer and sell any part of such Future Shares available but not elected to be purchased by the Holders (the “Refused Future Shares”) and that portion of the Future Shares not subject to purchase by the Holders (collectively with the Refused Future Shares, the “Remaining Future Shares”) to any other Person(s), but only upon terms and conditions in the Issuance Notice with respect all respects (including, without limitation, price, seniority, dividends and liquidation, redemption and conversion rights) which are no more favorable to which Exercising Holders failed to exercise the option set forth in this Section 4.1 on terms no such other Person(s) or less favorable to the Company than those set forth in the Issuance Notice (except Proposal; provided, however, that such sale be to the number same Person(s) 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 their affiliates identified in the Issuance Notice. Such periods within which such issuanceProposal, sale or incurrence must be closed shall be extended if so identified pursuant 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 approvalsSection 8(a). In the event that the Company has so sells the Remaining Future Shares to such other Person(s), the sale to each Holder of the Future Shares in respect of which a Notice of Purchase was delivered to the Company by such Holder shall occur upon the closing of the sale to such other Person(s) of Remaining Future Shares (which closing shall include full payment to the Company). If there are no Refused Future Shares, the sale of such Future Shares to such Holder and the sale of Remaining Shares to any other Persons shall occur within 20 days of the expiration of the Future Shares Exercise Period. In any event, the sale to such Holder of such Future Shares shall be on the terms specified in the Proposal. Any Remaining Future Shares not sold purchased by such New Securities other Person(s) within said 90such 120-day period, the Company period shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without first again complying with the preemptive purchase right procedures provided for in remain subject to this Section 4.18.
(fd) The preemptive rights set forth in this Section 4.1 may be waived upon term “Proportionate Percentage” shall mean, as to any Holder, that percentage figure which expresses the written approval ratio which (i) the aggregate number of the Minority Independent Director shares of Common Stock then (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waivera) if such waiver is deemed outstanding and owned by such Minority Independent DirectorHolder and (b) issuable upon conversion or exercise of securities which are convertible into or exercisable for Common Stock outstanding and owned by such Holder bears to (ii) the aggregate number of shares of Common Stock (a) outstanding and owned by all stockholders and (b) issuable upon conversion or exercise of options, warrants, other securities and other rights which are convertible into or majority of the Independent Directors, as applicable, to be in the best interest of the Companyexercisable for Common Stock outstanding and owned by all holders.
Appears in 1 contract
Preemptive Rights. (ai) The Company hereby grants If at any time on or prior to each current holder the consummation of Company Securitiesan initial Public Offering, including Athens and its Affiliates and Subsidiaries except in connection with the issuance of any Debt Instrument, (the “Preemptive Participants”) the right to purchase its Pro Rata Portion of New Securities that the Company maywishes to issue any equity securities (whether preferred stock or Common Stock) or any options, from time warrants or other rights to time, propose to sell acquire equity securities or issue any notes 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 “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 other securities convertible or exchangeable security into equity securities (all such equity securities and not other rights and securities, collectively, the "Equity Equivalents") to Xxxx Fund V, ------------------ Xxxx Fund V-B, BCIP and/or BCIP Trust or any of their respective Affiliates (collectively, the conversion"Xxxx Entities"), exchange or exercise thereof.
(b) The the Company shall give written promptly deliver a notice ------------- of a proposed issuance, sale or incurrence described in Section 4.1(aintention to sell (the "Xxxx Issuance Notice") to each Stockholder (other -------------------- than the Preemptive Participants within five Xxxx Entities) (5the "Non-Xxxx Stockholders") Business Days following any meeting setting forth a --------------------- description and the number 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 Equity Equivalents proposed to be issued, issued to the proposed issuance or incurrence date Xxxx Entities and the proposed purchase price per security.
(c) At any time during the 15-day period following the and terms of sale. Upon receipt of an the Xxxx Issuance Notice, the Preemptive Participants each Non-Xxxx Stockholder shall have the right to elect irrevocably to purchase their Pro Rata Portion purchase, at the price and on the terms stated in the Xxxx Issuance Notice, a number of the number or amount Equity Equivalents equal to the product of (A) such Non-Xxxx Stockholder's proportionate ownership (expressed as a fraction) of the Offered Securities at aggregate Stockholder Shares held by all Stockholders multiplied by (B) the purchase price set forth number of Equity Equivalents proposed to be issued to the Xxxx Entities (as described in the applicable Xxxx Issuance Notice and upon Notice). Such election shall be made by the other terms and conditions specified in the Issuance Notice electing Non-Xxxx Stockholder by delivering a written notice to the CompanyCompany within ten (10) business days after receipt by such Non-Xxxx Stockholder of the Xxxx Issuance Notice (the "Issuance Acceptance Period"). Except as provided in --------------------------
(ii) To the following sentence, such extent an effective election to purchase shall not be consummated concurrently with the consummation received from a Non-Bain Stockholder pursuant to paragraph (a)(i) above in respect of the issuance, sale or incurrence described in the Issuance Notice. The closing of any purchase by any Preemptive Participants may Equity Equivalents proposed to be extended beyond the closing of the transaction described in the Issuance Notice issued 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 Bain Entities pursuant to the Company, within the 15-day period following the receipt of an applicable Bain 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 issuancemay, sale or incurrence at its election, during a period 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 following the expiration of the 15-day period described applicable Issuance Acceptance Period, issue and sell the remaining Equity Equivalents to be issued and sold to any Bain Entity at a price and upon terms not more favorable to such Bain Entity than those stated in Section 4.1(c) and the applicable Bain Issuance Notice (y) provided that the price at which number of Equity Equivalents to be issued to the New Securities are Transferred must Bain Entities in compliance with the foregoing shall not exceed the number of Equity Equivalents proposed to be equal issued to or higher than the purchase price Bain Entities (as described in the applicable Bain Issuance Notice. Such periods within which ) less the number of Equity Equivalents to ---- be issued to Non-Bain Shareholders pursuant to an effective election to purchase by 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 approvalsNon-Bain Stockholders hereunder). In the event that the Company has not sold any Equity Equivalents covered by a Bain Issuance Notice to a Bain Entity, or entered into a binding agreement to sell such New Securities Equity Equivalents to a Bain Entity, within said such ninety (90-) day period, the Company shall not thereafter issue or sell such Equity Equivalents to any New Securities or incur new indebtedness, as applicable, Bain Entity without first again complying with offering such Equity Equivalents to the preemptive purchase right procedures Non-Bain Stockholders in the manner provided for in this Section 4.1paragraph (a)(i) above.
(fb) If a Non-Bain Stockholder gives the Company notice, pursuant to the provisions of this Section 9, that such Non-Bain Stockholder desires to purchase Equity Equivalents offered by the Company, payment therefor shall be made by check or wire transfer of immediately available funds, against delivery of the securities (which securities shall be registered in the name of such Non- Bain Stockholder and shall be issued free and clear of any liens or encumbrances) at the executive offices of the Company at the closing date fixed by the Company for the sale of all such Equity Equivalents (including to any Bain Entity). In the event that the proposed sale is for consideration other than cash, the Non-Bain Stockholders may pay cash in lieu of all (but not part) of such other consideration, in the amount determined reasonably and in good faith by the Board to represent the fair value of such consideration other than cash.
(c) The preemptive rights set forth contained in this Section 4.1 may be waived 9 shall not apply to (i) the issuance of shares of Equity Equivalents as a stock dividend or upon the written approval any subdivision, split or combination of the Minority Independent Director outstanding shares of Common Stock; (ii) the issuance of Equity Equivalents upon conversion, exchange or a majority redemption of any outstanding convertible or exchangeable securities; (iii) the Directors on issuance of Equity Equivalents upon exercise of any outstanding options or warrants; or (iv) the Board who are Independent Directors if there is no Minority Independent Director at issuance of Equity Equivalents pursuant to an offering registered under the time of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the CompanySecurities Act.
Appears in 1 contract
Samples: Stockholders Agreement (Ohio Sealy Mattress Manufacturing Co Houston)
Preemptive Rights. (a) The Subject to the terms and conditions of this Section 4.05 and applicable securities laws, if the Company hereby grants or any subsidiary of the Company proposes to issue or sell any shares of its Capital Stock (“Additional Stock”) pursuant to an Eligible Offering, the Company shall deliver a written notice thereof (a “Preemptive Notice”) to each current holder Stockholder that is an accredited investor within the meaning of Company SecuritiesRegulation D under the 1933 Act at least 15 days prior to the consummation of such Eligible Offering. The Preemptive Notice shall:
(i) state the number, including Athens class and its Affiliates type of such Additional Stock to be offered;
(ii) state the price and Subsidiaries except terms upon which it proposes to offer such Additional Stock; and
(iii) contain an offer to sell to such Stockholder at the same price, for the same form of consideration to be paid by purchasers in the Eligible Offering and otherwise on the same terms and conditions, such Stockholder’s Pro Rata Portion of the Additional Stock.
(b) For a period of 10 days following the delivery of such Preemptive Notice, each such Stockholder shall be entitled, by written notice to the Company, to irrevocably elect to purchase all or part of the securities described therein.
(c) Notwithstanding anything to the contrary contained herein, if in connection with an Eligible Offering the issuance Board (i) pursuant to a Required Approval, determines that compliance with the procedures set forth in Sections 4.05(a) and (b) would be detrimental to the Company and its subsidiaries, taken as a whole or (ii) determines in good faith that (x) it is necessary, desirable or appropriate to issue or sell Additional Stock to (A) satisfy a liquidity shortfall (as a result of insufficient working capital) or (B) avoid a default under any Debt Instrumentcontract to which the Company or any of its subsidiaries is a party, and (y) compliance with the procedures set forth in Sections 4.05(a) and (b) would not be practicable or advisable, the Company may issue or sell all or a portion of the Additional Stock to purchasers in the Eligible Offering (the “Preemptive ParticipantsProposed Purchasers”) without complying with the right provisions of this Section 4.05, if prior to such issuance or sale, either (1) the Proposed Purchasers agree to offer shares of Additional Stock at the same price, for the same consideration as issued or sold to the Proposed Purchasers and otherwise on the same terms and conditions in a manner that provides such Stockholder with the opportunity to purchase their Pro Rata Portion of such Additional Stock in a manner substantially similar to that set forth in Section 4.05(b) (subject to the timing set forth in this Section 4.05) or (2) the Company agrees to effect such other series of transactions that would allow such Stockholder to be in the same position (economic and otherwise) as if such Stockholder had the opportunity to purchase such Additional Stock pursuant to the Preemptive Notice, in each case, within 30 days after the closing of the issuance or sale of the Additional Stock to the Proposed Purchasers.
(d) Each Major Stockholder shall be entitled to purchase its Pro Rata Portion of New Securities that the Company may, from time to time, propose to sell any debt securities or issue 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 “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 other indebtedness to be issued, sold or incurred by the proposed issuance Company or incurrence date and any of its subsidiaries to the proposed purchase price per security.
(c) At any time during the 15-day period following the receipt of an Issuance Noticeother Major Stockholder, the Preemptive Participants shall have the right pursuant to elect irrevocably procedures substantially identical to purchase their Pro Rata Portion of the number or amount of the Offered Securities at the purchase price those set forth in the Issuance Notice clauses (a) 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 (b) 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)4.05.
(e) If the Preemptive Participants or Exercising Holders fail to exercise fully their preemptive purchase right hereunder within the periods described above, the Company The Stockholders shall be free to complete the proposed issuance, sale or incurrence in respect 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 any issuance of securities required to be issued or sold by pursuant to, and that are issued in accordance with, this Section 4.05 take all such actions required to amend the certificate of incorporation of the Company to provide for such increases in the authorized Capital Stock of the Company as may be reduced); provided that (x) necessary to permit such issuance, sale or incurrence is closed within ninety (90) days after the expiration . The Company shall comply with any applicable securities laws before issuing any securities pursuant to this Section 4.05 and shall not be in violation 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 has not sold such New Securities within said 90-day period, the Company shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without first again complying with the preemptive purchase right procedures provided for in this Section 4.1.
(f) The preemptive rights set forth in this Section 4.1 may be waived upon the written approval of the Minority Independent Director (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time provisions hereof by reason of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the Companycompliance.
Appears in 1 contract
Preemptive Rights. (a) The Company hereby grants to each current holder Until the earlier of Company Securitiesa Qualified IPO (as defined below) and 3 years after the date hereof, including Athens and its Affiliates and Subsidiaries except in connection with for Excluded Securities (as hereinafter defined), the issuance of any Debt InstrumentCorporation shall not issue, (the “Preemptive Participants”) the right to purchase its Pro Rata Portion of New Securities that the Company may, from time to time, propose to sell or issue exchange, or that relate agree to incurred indebtednessissue, as applicable. The number sell or amount of New Securities which the Preemptive Participants may purchase pursuant to this Section 4.1(a) shall be referred to as the “Offered Securities.” The preemptive purchase right provided in this Section 4.1(a) shall apply at the time of issuance or incurrenceexchange (collectively, as applicable, of "Issue," and 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 exchange resulting therefrom, an "Issuance")
(i) any shares of the Corporation's capital stock, (ii) any other equity security of the Corporation, including, without limitation, any options, warrants or other rights to subscribe for, purchase or otherwise acquire any capital stock or other equity security of the Corporation or (iii) any other security of the Corporation that is convertible into or exchangeable for any equity security of the Corporation (collectively, an "Equity Security") unless, in each case, the Corporation shall have first given written notice (the "Offer Notice") to each Investor which shall (a) state the Corporation's intention to sell any of the securities described in Section 4.1(a(i), (ii) and (iii) above, the amount to be issued, sold or exchanged, the Preemptive Participants within five (5) Business Days following any meeting terms of such securities, the purchase price therefor and a summary of the Board at which any such issuance, sale or incurrence is approved and at least fifteen (15) days prior to other material terms of the proposed issuance, sale or incurrence. Such notice exchange and (b) offer (a "Preemptive Offer") to Issue to each Investor and its affiliates such Investor's Pro Rata Share (as defined below) of such securities (with respect to each Investor, the “Issuance Notice”"Offered Securities") shall set forth upon the material terms and subject to the 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 Offer Notice, which Preemptive Offer by its terms shall remain open and upon irrevocable for a period of 30 days from the other terms and conditions specified in date it is delivered by the Issuance Notice by delivering a written notice Corporation to the Company. Except as provided in Investor (and, to the following sentenceextent the Preemptive Offer is accepted during such 30-day period, 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 until the closing of the transaction described sales contemplated by the Preemptive Offer). "Pro Rata Share" for the purposes of this Section shall mean, the quotient of the number of shares of Common Stock beneficially owned by (i) GSCP together with all GSCP Affiliates (as defined in Section 15) (collectively, the "GSCP Parties"), in the Issuance Notice to case of GSCP, or KP together with all KP Affiliates (as defined in Section 15) (collectively, the extent necessary to obtain required governmental approvals and other required approvals"KP Parties"; together with the GSCP Parties, 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”"Investor Parties"), 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 case of KP, divided by (ii) the last-mentioned option for a total number of remaining securities in excess shares of Common Stock issued and outstanding on the date of the number availablePreemptive Offer (treating for purposes of this calculation all Common Stock Equivalents as having been converted, 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(cexchanged or exercised).
(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 has not sold such New Securities within said 90-day period, the Company shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without first again complying with the preemptive purchase right procedures provided for in this Section 4.1.
(f) The preemptive rights set forth in this Section 4.1 may be waived upon the written approval of the Minority Independent Director (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the Company.
Appears in 1 contract
Samples: Preferred Stock and Warrant Purchase Agreement (Concentric Network Corp)
Preemptive Rights. Subject to the terms and conditions of this Section 10.7 and applicable securities laws, if, during the eighteen (18) month period immediately following the Closing, the Purchaser proposes to offer or sell any New Securities, the Company shall first offer a pro-rata share of such New Securities to each Seller.
(a) The Company hereby grants to each current holder of Company Securities, including Athens and its Affiliates and Subsidiaries except in connection with the issuance of any Debt Instrument, Purchaser shall give notice (the “Preemptive ParticipantsOffer Notice”) to each Seller, stating (i) its bona fide intention to offer such New Securities, (ii) the right number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification to the Purchaser within twenty (20) days after the Offer Notice is given, each Seller may elect to purchase its Pro Rata Portion or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities set aside by the Purchaser’s board of directors for purchase by existing investors which equals the proportion that the Company may, from time to time, propose to sell Common Stock issued and held by such Seller or issue issuable (directly 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(aindirectly) shall be referred to as the “Offered Securities.” The preemptive purchase right provided in this Section 4.1(a) shall apply at the time of issuance or incurrenceupon conversion and/or exercise, as applicable, of any right, warrant or option or convertible or exchangeable security and not Derivative Securities held by such Seller bears to the conversion, exchange total Purchaser Common Stock issued and held or exercise thereof.
issuable (bdirectly or indirectly) 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, includingupon conversion and/or exercise, 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 securityany Derivative Securities outstanding.
(c) At any time during If all New Securities referred to in the 15-day period following Offer Notice eligible to be purchased by the receipt of an Issuance NoticeSellers pursuant to this Section 10.7 are not elected to be purchased or acquired by the Sellers as provided in Section 10.7(b), the Preemptive Participants shall have Purchaser may offer and sell the right remaining unsubscribed portion of such New Securities to elect irrevocably to purchase their Pro Rata Portion of the number any Person or amount of the Offered Securities Persons at the purchase a price set forth in the Issuance Notice not less than, and upon terms no more favorable to the other terms and conditions offeree than, those specified in the Issuance Notice by delivering a written notice Offer Notice. If the Purchaser does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within sixty (60) 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 Company. Except as provided Sellers in the following sentence, such purchase shall be consummated concurrently accordance 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 approvalsthis Section 10.7.
(d) Each Preemptive Participant exercising its right to purchase its respective portion of the Offered Securities in full (an “Exercising Holder”) shall have a The 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 first offer 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) 10.7 shall not be allocated among such Exercising Holders pro rata based on the number of New Securities such Exercising Holders elected applicable to purchase pursuant to Section 4.1(c)Exempted Securities.
(e) If the Preemptive Participants or Exercising Holders fail to exercise fully their preemptive purchase The 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 first offer set forth in this Section 4.1 on terms no less favorable 10.7 shall terminate with respect to the Company than those set forth any Seller who fails to purchase, in the Issuance Notice (except that the number or any transaction subject to this Section 10.7, all of such Seller’s pro rata 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 allocated (or, if less than such Seller’s pro rata amount is offered by the Purchaser, such lesser amount so offered) 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 Seller pursuant 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 has not sold such New Securities within said 90-day period, the Company shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without first again complying with the preemptive purchase right procedures provided for in this Section 4.110.7.
(f) The preemptive rights set forth in this Section 4.1 may be waived upon the written approval of the Minority Independent Director (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the Company.
Appears in 1 contract
Samples: Stock Purchase Agreement (Horne International, Inc.)
Preemptive Rights. (a) The Prior to the Company hereby grants issuing (other than through (i) issuances of (i) Common Units pursuant to each current holder the conversion rights of Company Securitiesthe Series A Units, including Athens and its Affiliates and Subsidiaries except (ii) Series B Units, (iii) options to purchase Units pursuant to incentive equity plans approved by the Board, (iv) Units issued to any Person that is not a Member or an Affiliate thereof as consideration in any acquisition or other strategic transaction approved in accordance with this Agreement, (v) Units issued in connection with any split, distribution or recapitalization of the issuance of Company, and (v) any Debt InstrumentCapital Stock issued by the Company pursuant to a registration statement filed under the Securities Act and approved by the Board), any Units, warrants or options or other rights to acquire Units (collectively, the “New Units”) to a proposed purchaser (the “Preemptive ParticipantsProposed Purchaser”) ), each Eligible Purchaser shall have the right to purchase its Pro Rata Portion the number of New Securities that the Company may, from time to time, propose to sell or issue or that relate to incurred indebtedness, Units 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 “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 thereof7.7.
(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 each Eligible Purchaser at least fifteen (15) days 15 days’ prior to the proposed issuance, sale or incurrence. Such notice (the “Issuance First Notice”) of any proposed issuance of New Units, which notice shall set forth in reasonable detail the material proposed terms and conditions thereof and shall offer to each Eligible Purchaser the opportunity to purchase its Pro Rata Share (which Pro Rata Share shall be calculated as of the date of such proposed transaction, including, as applicable, the number or amount and description notice) of the securities New Units at the same price, on the same terms and conditions and at the same time as the New Units are proposed to be issuedissued by the Company. If any Eligible Purchaser wishes to exercise its preemptive rights, it must do so by delivering an irrevocable written notice to the proposed issuance or incurrence date Company within 15 days after delivery by the Company of the First Notice (the “Election Period”), which notice shall state the dollar amount of New Units such Eligible Purchaser (each a “Requesting Purchaser”) would like to purchase up to a maximum amount equal to such Eligible Purchaser’s Pro Rata Share of the total offering amount plus the additional dollar amount of New Units such Requesting Purchaser would like to purchase in excess of its Pro Rata Share (the “Over-Allotment Amount”), if any, if other Eligible Purchasers do not elect to purchase their full Pro Rata Share of the New Units. The rights of each Requesting Purchaser to purchase a dollar amount of New Units in excess of each such Requesting Purchaser’s Pro Rata Share of the New Units shall be based on the relative Pro Rata Share of the New Units of those Requesting Purchasers desiring Over-Allotment Amounts and not based on the proposed purchase price per securityRequesting Purchasers’ relative Over-Allotment Amounts.
(c) At If not all of the New Units are subscribed for by the Eligible Purchasers, the Company shall have the right, but shall not be required, to issue and sell the unsubscribed portion of the New Units to the Proposed Purchaser at any time during the 15-day period 90 days following the receipt of an Issuance Notice, the Preemptive Participants shall have the right to elect irrevocably to purchase their Pro Rata Portion termination of the number or amount of Election Period pursuant to the Offered Securities at the purchase price terms and conditions 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 First Notice. The Board may, in its reasonable discretion, impose such other reasonable and customary terms and procedures such as setting a closing date, rounding the number of any purchase Units covered by any Preemptive Participants may be extended beyond the closing of the transaction described in the Issuance Notice this Section 7.7 to the extent necessary to obtain required governmental approvals nearest whole Unit and other required approvals, and requiring customary closing deliveries in connection with any preemptive rights offering. In the Company shall use its commercially reasonable efforts to obtain such approvals.
(d) Each Preemptive Participant exercising its right event any Eligible Purchaser refuses 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 offered Units for which it subscribed pursuant to the Company, within the 15-day period following the receipt exercise 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 rights granted thereto 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 7.7, in addition 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 any other rights the Company may be reduced); provided that permitted to enforce at law or in equity, such Eligible Purchaser and any Permitted Transferee of such Eligible Purchaser shall not be considered an Eligible Purchaser for any future rights granted under this Section 7.7 unless the Board expressly designates such Person as an Eligible Purchaser (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 Board, in its sole discretion, may do on an offer-by-offer basis 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 has not sold such New Securities within said 90-day period, the Company shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without first again complying with the preemptive purchase right procedures provided for in this Section 4.1at all).
(f) The preemptive rights set forth in this Section 4.1 may be waived upon the written approval of the Minority Independent Director (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the Company.
Appears in 1 contract
Samples: Limited Liability Company Agreement (RoyaltyTraders LLC)
Preemptive Rights. Except for any issuance of Excluded Securities, if the Manager proposes to issue New Securities pursuant to Section 3.4(a), each of Dxxxx and the Firm (each an “Eligible Investor”) shall have the following preemptive rights with respect to each such issuance of New Securities:
a) The Company hereby grants to Manager shall give each current holder of Company Securities, including Athens and its Affiliates and Subsidiaries except in connection with the issuance of any Debt Instrument, Eligible Investor written notice (the “Preemptive ParticipantsNotice”) of the right Manager’s intention to have the Company issue New Securities. The Preemptive Notice shall describe (i) the series or class of such New Securities to be issued including, but not limited to, the designations, preferences and relative, participating, optional or other special rights, powers and duties of such New Securities, and (ii) the price and the general terms upon which the Manager proposes to have the Company issue such New Securities. So long as an Eligible Investor continues to be an “Accredited Investor” within the meaning of the Securities Act (and makes representations and warranties to that effect), then each such Eligible Investor shall have fifteen (15) Business Days from the date of receipt of any such Preemptive Notice to agree to purchase its Pro Rata Portion up to that portion of the New Securities to be issued by the Company equal to (i) the number of Common Units (determined on a Common Equivalent Basis) held by such Eligible Investor as of the date of the Preemptive Notice, divided by (ii) all of the Company’s Common Units outstanding as of the date of the Preemptive Notice (determined on a Common Equivalent Basis), for the price and upon the general terms specified in the Preemptive Notice by giving written notice to the Manager and stating therein the quantity of New Securities that to be purchased by such Eligible Investor. The Eligible Investors shall close on the purchase of the New Securities within thirty (30) days after the expiration of such 15-Business Day period.
b) If one, but not both of the Eligible Investors, does not exercise its rights under this Section 3.4(b) (in such capacity, a “Declining Investor”), the Company mayshall so advise the other Eligible Investor which is exercising its rights under this Section 3.4(b) (in such capacity, from time to time, propose to sell or issue or that relate to incurred indebtedness, as applicablea “Participating Investor”) by providing the Participating Investor with written notice (the “Participating Notice”) within ten (10) Business Days after the expiration of the fifteen (15) Business Day period in which such rights could have been exercised. The number or amount Participating Investor shall thereupon for a period of New Securities which the Preemptive Participants may purchase pursuant to this Section 4.1(a) shall be referred to as the “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 from 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 date of such proposed transaction, including, as applicable, the number or amount and description of the securities proposed to Participating Notice 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 entitled 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 share 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 could have been purchased by the Company may be reduced); provided that Declining Investor. The Participating Investor shall close on the purchase of the New Securities within thirty (x) such issuance, sale or incurrence is closed within ninety (9030) days after the expiration of the 155-day period described Business Day period.
c) The Company shall have one hundred twenty (120) days after the date of the Preemptive Notice 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 such agreement) to sell the remaining New Securities not purchased by the Eligible Investors or the Participating Investor, as the case may be, at a price no less and upon the same terms and conditions as those specified in Section 4.1(c) and (y) the Preemptive Notice. If the price at which of the New Securities are Transferred must be equal to decreases 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 terms and other required approvals and the Company shall use its commercially reasonable efforts to obtain such approvals. In the event that the Company has not sold such New Securities within said 90-day periodconditions change, the Company shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without first again complying with the preemptive purchase right procedures provided for in provisions of this Section 4.13.4(b) shall again apply de novo.
(f) The preemptive rights set forth in this Section 4.1 may be waived upon the written approval of the Minority Independent Director (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the Company.
Appears in 1 contract
Samples: Operating Agreement (Dolan Media CO)
Preemptive Rights. (a) The Company hereby grants In the event that the Corporation proposes to issue additional shares of its capital stock, whether or not currently authorized, as well as rights, options, or warrants to purchase any equity securities of the Corporation, 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 equity securities (“New Shares”) at a time when any Shareholder who has executed this Agreement continues to be an owner of Shares, the Corporation shall provide to each current holder of Company Securities, including Athens and its Affiliates and Subsidiaries except in connection with the issuance of any Debt Instrument, (the “Preemptive Participants”) the right such Shareholder a notice which shall constitute an offer to such Shareholder to purchase (for the price and on the terms established by the Corporation for all purchasers of New Shares as set forth in the notice) such 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 Shareholder’s “Pro Rata Portion”). Each such Shareholder shall inform the Corporation of his or her election to exercise its preemptive right under this Section 3.1 with respect to all or any portion of his or her Pro Rata Portion within fifteen (15) days of New Securities that receipt of the Company may, from time to time, propose to sell or issue 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 “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 thereofCorporation’s notice.
(b) The Company shall give written If all New Shares referred to in the Corporation’s notice of a proposed issuanceare not elected to be purchased or acquired by the Shareholders pursuant to Section 3.1(a), sale or incurrence described in Section 4.1(a) to the Preemptive Participants within five (5) Business Days Corporation may, following any meeting the expiration of the Board at which any such issuance, sale or incurrence is approved and at least fifteen (15) days prior day period provided in Section 4.1(a), offer and sell the remaining unsubscribed portion of such New Shares to any person or persons at a price not less than, and upon terms no more favorable to the proposed issuanceofferee than, 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 those specified in the Issuance Notice by delivering a written notice to the CompanyShareholders’ offer notices. 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 Corporation does not enter into an agreement for the periods described above, the Company shall be free to complete the proposed issuance, sale or incurrence of the New Securities described 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 the Issuance Notice accordance 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 has not sold such New Securities within said 90-day period, the Company shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without first again complying with the preemptive purchase right procedures provided for in this Section 4.13.1.
(f) The preemptive rights set forth in this Section 4.1 may be waived upon the written approval of the Minority Independent Director (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the Company.
Appears in 1 contract
Samples: Shareholder Agreement (Spherix Inc)
Preemptive Rights. Except for any issuance of Excluded Securities, if the Manager proposes to issue New Securities pursuant to Section 3.4(a), each of Xxxxx and the Minority Member (aeach an “Eligible Investor”) shall have the following preemptive rights with respect to each such issuance of New Securities:
(i) The Company hereby grants to Manager shall give each current holder of Company Securities, including Athens and its Affiliates and Subsidiaries except in connection with the issuance of any Debt Instrument, Eligible Investor written notice (the “Preemptive ParticipantsNotice”) of the right Manager’s intention to have the Company issue New Securities. The Preemptive Notice shall describe (i) the series or class of such New Securities to be issued including, but not limited to, the designations, preferences and relative, participating, optional or other special rights, powers and duties of such New Securities, and (ii) the price and the general terms upon which the Manager proposes to have the Company issue such New Securities. So long as an Eligible Investor continues to be an “Accredited Investor” within the meaning of the Securities Act (and makes representations and warranties to that effect), then each such Eligible Investor shall have fifteen (15) Business Days from the date of receipt of any such Preemptive Notice to agree to purchase its Pro Rata Portion up to that portion of the New Securities to be issued by the Company equal to (i) the number of Common Units (determined on a Common Equivalent Basis) held by such Eligible Investor as of the date of the Preemptive Notice, divided by (ii) all of the Company’s Common Units outstanding as of the date of the Preemptive Notice (determined on a Common Equivalent Basis), for the price and upon the general terms specified in the Preemptive Notice by giving written notice to the Manager and stating therein the quantity of New Securities that the Company may, from time to time, propose to sell or issue or that relate to incurred indebtedness, as applicablebe purchased by such Eligible Investor. The number or amount Eligible Investors shall close on the purchase of the New Securities which within thirty (30) days after the Preemptive Participants may purchase pursuant to this Section 4.1(a) shall be referred to as the “Offered Securities.” The preemptive purchase right provided in this Section 4.1(a) shall apply at the time expiration 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 thereofsuch 15-Business Day period.
(bii) The If one, but not both of the Eligible Investors, does not exercise its rights under this Section 3.4(b) (in such capacity, a “Declining Investor”), the Company shall give so advise the other Eligible Investor which is exercising its rights under this Section 3.4(b) (in such capacity, a “Participating Investor”) by providing the Participating Investor with written notice (the “Participating Notice”) within ten (10) Business Days after the expiration of the fifteen (15) Business Day period in which such rights could have been exercised. The Participating Investor shall thereupon for a proposed issuance, sale or incurrence described in Section 4.1(a) to the Preemptive Participants within period of five (5) Business Days following any meeting of from 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 date of such proposed transaction, including, as applicable, the number or amount and description of the securities proposed to Participating Notice 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 entitled 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 share 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 could have been purchased by the Company may be reduced); provided that Declining Investor. The Participating Investor shall close on the purchase of the New Securities within thirty (x) such issuance, sale or incurrence is closed within ninety (9030) days after the expiration of the 155-day period described Business Day period.
(iii) The Company shall have one hundred twenty (120) days after the date of the Preemptive Notice 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 such agreement) to sell the remaining New Securities not purchased by the Eligible Investors or the Participating Investor, as the case may be, at a price no less and upon the same terms and conditions as those specified in Section 4.1(c) and (y) the Preemptive Notice. If the price at which of the New Securities are Transferred must be equal to decreases 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 terms and other required approvals and the Company shall use its commercially reasonable efforts to obtain such approvals. In the event that the Company has not sold such New Securities within said 90-day periodconditions change, the Company shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without first again complying with the preemptive purchase right procedures provided for in provisions of this Section 4.13.4(b) shall again apply de novo.
(f) The preemptive rights set forth in this Section 4.1 may be waived upon the written approval of the Minority Independent Director (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the Company.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Dolan Media CO)
Preemptive Rights. (a) The Company hereby grants Prior to the Partnership issuing (other than through issuances of (i) Class AQ Units authorized as of the Effective Date as set forth in Article 3, (ii) Partnership Interests to any Person that is not a Partner or an Affiliate thereof as consideration in any acquisition or other strategic transaction (such as a joint venture, marketing or distribution arrangement, or technology transfer or development arrangement) approved in accordance with this Agreement, (iii) Junior Securities to any Person approved in accordance with this Agreement or (iv) Common Units and Subordinated Units issued pursuant to Section 6.6(a) (each current holder of Company Securitiessuch issuance, including Athens and its Affiliates and Subsidiaries except in connection with an “Excluded Unit Issuance”)) any Partnership Interests or options or other rights to acquire Partnership Interests, whether through exchange, conversion or otherwise (collectively, the issuance of any Debt Instrument, “New Units”) to a proposed purchaser (the “Preemptive ParticipantsProposed Purchaser”), each Eligible Purchaser shall have the right to purchase the number of New Units as provided in this Section 6.7. GPM PETROLEUM LP SECOND AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP
(b) The Partnership shall give each Eligible Purchaser at least 15 calendar days’ prior notice (the “First Notice”) of any proposed issuance of New Units, which notice shall set forth in reasonable detail the right proposed terms and conditions thereof and shall offer to each Eligible Purchaser the opportunity to purchase its Pro Rata Portion Share (which Pro Rata Share shall be calculated as of the date of such notice) of the New Securities that Units at the Company maysame price, from on the same terms and conditions and at the same time as the New Units are proposed to timebe issued by the Partnership. If any Eligible Purchaser wishes to exercise its preemptive rights, propose it must do so by delivering an irrevocable written notice to sell or issue or that relate to incurred indebtednessthe Partnership within 15 calendar days after delivery of the First Notice by the Partnership (the “Election Period”), as applicable. The number or which notice shall state the dollar amount of New Securities which the Preemptive Participants may Units such Eligible Purchaser (each a “Requesting Purchaser”) would like to purchase pursuant up to this Section 4.1(a) shall be referred a maximum amount equal to as the “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 such Eligible Purchaser’s Pro Rata Share of the Board at which any total offering amount plus the additional dollar amount of New Units such issuance, sale or incurrence is approved and at least fifteen (15) days prior Requesting Purchaser would like to the proposed issuance, sale or incurrence. Such notice purchase in excess of its Pro Rata Share (the “Issuance NoticeOver-Allotment Amount”) shall set forth the material terms and conditions of such proposed transaction), includingif any, as applicable, the number or amount and description if other Eligible Purchasers do not elect to purchase their full Pro Rata Share of the securities proposed New Units. The rights of each Requesting Purchaser to purchase a dollar amount of New Units in excess of each such Requesting Purchaser’s Pro Rata Share of the New Units shall be issued, based on the proposed issuance or incurrence date and relative Pro Rata Shares of the proposed purchase price per securityNew Units of those Requesting Purchasers desiring Over-Allotment Amounts.
(c) At If not all of the New Units are subscribed for by the Eligible Purchasers, the Partnership shall have the right, but shall not be required, to issue and sell the unsubscribed portion of the New Units to the Proposed Purchaser at any time during the 15-day period 90 days following the receipt of an Issuance Notice, the Preemptive Participants shall have the right to elect irrevocably to purchase their Pro Rata Portion termination of the number or amount of Election Period pursuant to the Offered Securities at the purchase price terms and conditions 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 First Notice. The General Partner may, in its reasonable discretion, impose such other reasonable and customary terms and procedures such as setting a closing date, rounding the number of Units covered by this Section 6.7 to the nearest whole Unit and requiring customary closing deliveries in connection with any preemptive rights offering. In the event any Eligible Purchaser refuses to purchase by offered New Units for which it subscribed pursuant to the exercise of preemptive rights granted thereto under this Section 6.7, in addition to any Preemptive Participants other rights the Partnership may be extended beyond permitted to enforce at law or in equity, such Eligible Purchaser and any Permitted Transferee of such Eligible Purchaser shall not be considered an Eligible Purchaser for any future rights granted under this Section 6.7 unless the closing of Partnership expressly designates such Person as an Eligible Purchaser (which 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 approvalsPartnership may do on an offer-by-offer basis or not at all).
(d) Each Preemptive Participant exercising its right Notwithstanding anything to purchase its respective portion the contrary in this Agreement, at any time after the 180th day following the consummation of the Offered Securities in full issuance of such New Units pursuant to this Section 6.7, the Partnership, with the approval of the General Partner, shall be entitled to waive, on behalf of each Eligible Purchaser, each former Eligible Purchaser and each of their respective Affiliates, successors and assigns and the members, partners, stockholders, directors, managers, officers, liquidators and employees of each of the foregoing (an collectively, the “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 HolderEligible Purchaser Persons”), any and all claims such Exercising Holder Eligible Purchaser Persons have, had or may purchase all have 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 have had with respect to which Exercising Holders failed to exercise the option set forth in GPM PETROLEUM LP SECOND AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP any non-compliance or violation of this Section 4.1 on terms no less favorable 6.7 by any Person with respect to the Company than those set forth in the Issuance Notice such proposed issuance of New Units (except that the number whether or amount of securities to be not any Partnership Interests were issued or sold by pursuant to this Section 6.7), other than any such claim that has been made in writing and delivered to the Company may be reduced); provided that (x) such issuance, sale or incurrence is closed within ninety (90) days after Partnership prior to 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 has not sold such New Securities within said 90180-day period, the Company shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without first again complying with the preemptive purchase right procedures provided for in this Section 4.1.
(f) The preemptive rights set forth in this Section 4.1 may be waived upon the written approval of the Minority Independent Director (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the Company.
Appears in 1 contract
Preemptive Rights. Subject to the terms and conditions specified in this Section 3.2 and for so long as the Investor hold shares representing at least forty percent (40%) of the shares of Common Stock purchased pursuant to the Stock Purchase Agreement, the Company hereby grants to the Investor a preemptive right to subscribe for future issuances and sales by the Company of its Additional Stock (as defined below). Each time the Company proposes to offer any shares of, or securities convertible into or exercisable or exchangeable for any shares of, any class or series of its capital stock ("ADDITIONAL STOCK"), other than (i) the issuance of any authorized but unissued options under the Option Plan, (ii) the issuance of the Life Quotes Options, (iii) any shares purchased by employees under the ESPP or (v) any offering of securities pursuant to an effective registration statement under the Securities Act, the Company shall first make an offering of such Additional Stock to the Investor in accordance with the following provisions:
(a) The Company hereby grants shall deliver a written notice by certified mail, postage prepaid ("NOTICE"), to each current holder of Company Securities, including Athens and the Investor stating (i) its Affiliates and Subsidiaries except in connection with the issuance of any Debt Instrumentbona fide intention to offer such Additional Stock, (the “Preemptive Participants”ii) the right number of shares of such Additional Stock to purchase its Pro Rata Portion of New Securities that be offered and (iii) the Company may, from time price and terms upon which it proposes to time, propose to sell or issue 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 “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 thereofoffer such Additional Stock.
(b) The Company shall give written notice Within thirty (30) days after receipt of a proposed issuancethe Notice, sale the Investor may elect to purchase or incurrence described obtain, at the price and on the terms specified in Section 4.1(a) the Notice, up to that portion of such Additional Stock which equals the proportion that the number of shares of Common Stock issued and held, or issuable upon conversion or exercise of any other security then held, by the Investor bears to the Preemptive Participants within five (5) Business Days following any meeting total number of shares of Common Stock 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 securityCompany then outstanding on a Fully Diluted Basis.
(c) At any time during If all Additional Stock which the 15-day period following the receipt of an Issuance Notice, the Preemptive Participants shall have the right Investor is entitled to elect irrevocably obtain pursuant 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 subsection 3.2(a) is not elected to the Company. Except be obtained 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.
(dsubsection 3.2(a) 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 abovehereof, the Company shall be free to complete may, during 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 thirty (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 30)-day period following the expiration of the 15-day period described provided in Section 4.1(csubsection 3.2(a) hereof, offer the remaining unsubscribed portion of such Additional Stock to any Person or Persons at a price not less than, and (y) upon terms no more favorable to the price at which the New Securities are Transferred must be equal to or higher than the purchase price described offeree than, those specified in the Issuance Notice. Such periods If the Company does not enter into an agreement for the sale of the Additional Stock within which such issuanceperiod, sale or incurrence must be closed if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be extended deemed to be revived and such Additional Stock shall not be offered unless first reoffered 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 has not sold such New Securities within said 90-day period, the Company shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without first again complying with the preemptive purchase right procedures provided for Investor in this Section 4.1accordance herewith.
(f) The preemptive rights set forth in this Section 4.1 may be waived upon the written approval of the Minority Independent Director (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the Company.
Appears in 1 contract
Preemptive Rights. In the event that the Company proposes to issue and sell additional shares of any equity security other than (ai) The Company hereby grants pursuant to each current holder a stock split, stock dividend or similar transaction, (ii) pursuant to the exercise of Company Securitiesany option, including Athens and its Affiliates and Subsidiaries except warrant or convertible security issued to employees, consultants, directors, equipment lessors, banks, investment banks or similar institutional credit financing sources, (iii) in connection with a merger or acquisition, (iv) in connection with a strategic partnering transaction approved by the issuance Board of any Debt InstrumentDirectors, which approval shall include the affirmative vote of both of the Series C Directors, or (v) upon conversion of Shares of Series A Preferred Stock, Series B Preferred Stock or Series C Preferred Stock, each Series A Stockholder, Series C Stockholder, JPI, Xxxx, 3i and TC (collectively, the “Preemptive Rights Stockholders”) shall have the right, prior to such sale of shares by the Company, to purchase a percentage of such shares equal to its proportionate beneficial interest in shares of Common Stock of the Company which would be outstanding upon exercise or conversion of all securities that are exercisable for or convertible into such shares (the “Preemptive ParticipantsPro Rata Amount”) at the proposed issuance price, which right shall be exercisable by written notice to the Company (a “Purchaser Notice”) given within ten (10) days after receipt by each Preemptive Rights Stockholder of written notice of such proposed issuance. If any such party shall fail to respond to the Company within the ten (10) day notice period, such failure shall be regarded as a rejection of its right to participate in the purchase of the shares. Each Preemptive Rights Stockholder may also indicate in its Purchaser Notice, if it so elects, its desire to participate in the purchase of the shares in excess of its Pro Rata Amount. If any such party declines to purchase its Pro Rata Portion Amount of New Securities that the Company may, from time to time, propose to sell or issue 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 shares (such Pro Rata Amount being hereinafter called the “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 HolderExcess Shares”), then the other such Exercising Holder may party or parties who have indicated in their or its Purchaser Notice a desire to participate in the purchase of such Excess Shares shall be deemed to have agreed to purchase the Excess Shares in proportion to its respective Pro Rata Amounts. Unless such Preemptive Rights Stockholders elect to 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 aboveShares, the Company shall be free to complete the proposed issuance, sale or incurrence may issue all (not less than all) of the New Securities described in shares which such parties have not elected to purchase, at 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 price specified by the Company may be reduced); in its notice to such parties, provided that such issuance is bona fide and made within one hundred twenty (x) such issuance, sale or incurrence is closed within ninety (90120) days after the expiration date of such notice. The rights under this Section 5.1 shall not apply to a firm commitment underwritten initial public offering of the 15-day period described Company with a nationally recognized underwriter that is pursuant to an effective registration statement under the Securities Act covering the offer and sale of Class B Common Stock for the account of the Company (other than pursuant to a registration on Form S-4 or Form S-8 or any similar or successor form) on either the New York Stock Exchange, London Stock Exchange, Deutsche Böurse or the Nasdaq National Market in Section 4.1(cwhich (x) the public offering price per share is no less than the Series C Issue Price (as adjusted for Stock Splits, Stock Combinations and recapitalizations) multiplied by one and one half (1.5) 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 gross cash proceeds to the extent necessary Company (before underwriting discounts, commissions and fees) are at least $50 million (a “Qualified IPO”), and such rights shall terminate immediately prior 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 has not sold such New Securities within said 90-day period, the Company shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without first again complying with the preemptive purchase right procedures provided for in this Section 4.1.
(f) The preemptive rights set forth in this Section 4.1 may be waived upon the written approval of the Minority Independent Director (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time consummation of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the CompanyQualified IPO.
Appears in 1 contract
Preemptive Rights. In the event that, prior to the consummation of a Qualified Public Offering, the Company seeks to sell shares (a) The other than shares issued pursuant to employee benefit and stock option plans of the Company hereby grants to each current holder of Company Securities, including Athens and its Affiliates and Subsidiaries except other than in connection with acquisitions or the exercise of any warrants issued in the Debt Financing) in a private or similar non-public placement, each of the Preferred Investor Common Stockholders and the Individual Investors shall be entitled to acquire, at the proposed offering price of such shares, that number of shares equal to the aggregate number of shares proposed to be so offered multiplied by a fraction, the numerator of which shall be the number of fully-diluted shares owned by each respective Stockholder and, without duplication, such Stockholder's Permitted Transferees (or, in the case of any Preferred Investor Common Stockholder, any transferee of such Preferred Investor Common Stockholder), and the denominator of which shall be the aggregate number of fully-diluted shares owned by all Stockholders and, without duplication, their Permitted Transferees (or, in the case of any Preferred Investor Common Stockholder, any transferee of such Preferred Investor Common Stockholder). In connection with any proposed issuance of any Debt Instrumentsuch shares, (the “Preemptive Participants”) the right to purchase its Pro Rata Portion of New Securities that the Company may, from time to time, propose to sell or issue 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 “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 to each Stockholder at least 15 days prior written notice of a proposed issuance, sale or incurrence described in Section 4.1(a) its intention to the Preemptive Participants within five (5) Business Days following any meeting of the Board at which any effect such issuance, sale or incurrence is approved and at least fifteen (15) days prior to the proposed issuance, sale or incurrence. Such specifying in 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 shares to be issuedsold, the proposed issuance or incurrence date and the proposed purchase offering price per security.
(c) At any time during the 15-day period following the receipt of an Issuance Notice, the Preemptive Participants share. Each Stockholder shall have the right right, exercisable within 10 days after receipt of such notice, 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 up to the Company. Except as provided in the following sentence, maximum number of shares to which such Stockholder is entitled to acquire hereunder with 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 being effected 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 Stockholder's payment to the Company, within on or before the 15-20th day period following the receipt after such notice, by wire transfer of immediately available funds, an Issuance Notice, of its interest in purchasing a specified amount of New Securities as equal 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 shares to be purchased by such Exercising Holders elected Stockholder, multiplied by the offering price per share, against delivery of certificates evidencing the number of shares so acquired, which will be issued in the name of such Stockholder. To the extent any shares proposed to purchase pursuant be sold in such private placement shall not have been subscribed 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 aboveby an existing Stockholder, the Company shall be free thereafter to complete the proposed issuancesell such shares by way of a private placement, 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 similar offering, at an offering price per share not less favorable to the Company than those that 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 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. In the event that the Company has not sold such New Securities within said 90-day period, the Company shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without first again complying with the preemptive purchase right procedures provided for in this Section 4.1Stockholders.
(f) The preemptive rights set forth in this Section 4.1 may be waived upon the written approval of the Minority Independent Director (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the Company.
Appears in 1 contract
Samples: Stockholders' Agreement (Imperial Group Holding Corp.-1)
Preemptive Rights. (a) The Company hereby grants to each current holder of Company Securities, including Athens and its Affiliates and Subsidiaries except in connection with the issuance of any Debt Instrument, (the “Preemptive Participants”) Holder the right to purchase its Pro Rata Portion Share of New Securities that which the Company may, from time to time, propose to sell or issue or that relate to incurred indebtednessand issue. A Holder's Pro Rata Share, as applicable. The for purposes of this purchase right, shall mean the total number or amount of New Securities to be issued times a fraction the numerator of which is the Preemptive Participants may purchase number of Common Stock Equivalents owned by such Holder immediately prior to the issuance of New Securities and the denominator of which is the total number Common Stock Equivalents outstanding immediately prior to the issuance of New Securities. The rights preemptive rights granted to each Holder pursuant to this Section 4.1(a) 7 shall be referred to as terminate upon the “Offered Securities.” The preemptive purchase right provided in this Section 4.1(a) shall apply at consummation of a public offering of 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 thereofCompany's Common Stock registered under th Securities Act.
(b) The In the event the Company proposes to undertake an issuance of New Securities, it shall give each Holder written notice of its intention (each a proposed issuance"Notice of Sale"), sale or incurrence described in Section 4.1(a) to describing the Preemptive Participants within five (5) Business Days following any meeting type 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 applicableNew Securities, the maximum number or amount and description of the securities proposed New Securities to be issued, the proposed issuance or incurrence date and the proposed purchase price per security.
(c) At any time during and the 15-day period following general terms upon which the receipt of an Issuance Notice, Company proposes to issue the Preemptive Participants same. Each Holder shall have the right twenty (20) days after such Notice of Sale is mailed or delivered to elect irrevocably agree to purchase their Pro Rata Portion such Holder's pro rata share of such New Securities for 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 Company and stating therein the 15-day period following the receipt of an Issuance Notice, of its interest in purchasing a specified amount quantity of New Securities to be purchased.
(c) The preemptive rights set forth in this Section 7 may be waived, before or after a Notice of Sale is delivered, (i) (A) as to which any Non-Purchasing Holders has failed to exercise their preemptive purchase right hereunder; provided that in the event there are two Common Stock, by vote or more such Exercising Holders that choose to exercise the last-mentioned option for written consent of holders of a total number of remaining securities in excess majority of the number availableCommon Stock having preemptive rights under this Agreement, voting as a separate class, (B) as to the Series B Stock, by vote or written consent of holders of at least two-thirds of the Series B Preferred Stock having preemptive rights under this Agreement, voting as a separate class; and (C) as to the Series A Stock, by vote or written consent of the holders of a majority of the Series A Stock having preemptive rights under this Agreement, voting as a separate class, or (ii) by affirmative vote of the board of directors of the Company in which a majority of the directors designated by each of the holders of Common Stock and Series A Stock, and all of the directors designated by the Series B Stockholders, agree.
(d) Notwithstanding the foregoing, the remaining securities available for purchase under provisions of this Section 4.1(d) 7 shall only be allocated among exercisable by Holders who are accredited investors (as such Exercising Holders pro rata based on term is defined under the number of New Securities such Exercising Holders elected to purchase pursuant to Section 4.1(cAct).
(e) If In the Preemptive Participants or Exercising event the Holders fail to exercise fully their preemptive the purchase right hereunder within the periods described abovesuch twenty (20)-day period, the Company shall have one hundred twenty (120) days thereafter to sell or enter into an agreement (pursuant to which the sale of New Securities covered thereby shall be free closed, if at all, within one hundred twenty (120) days from the date of such agreement) to complete the proposed issuance, sale or incurrence of sell the New Securities described in respecting which the Issuance Notice with respect to which Exercising Holders failed to exercise the option Holders' purchase right set forth in this Section 4.1 on 7 was not exercised, at a price and upon terms no less more favorable to the Company purchasers thereof than those set forth specified 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 approvalsSale. In the event that the Company has not sold within such 120-day period or entered into an agreement to sell the New Securities in accordance with the foregoing within said 90-day periodone hundred twenty (120) days from the date of such agreement, the Company shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicableSecurities, without first again complying with offering such securities to the preemptive purchase right procedures qualifying Holders in the manner provided for in this Section 4.17.
(f) The preemptive rights set forth in issuance of the New Securities to the Holders pursuant to this Section 4.1 may 7 above shall be waived made at the registered office of the Company upon the written approval latter of (i) the closing of the Minority Independent Director sale any New Securities to new investors in the Company pursuant to Section 7(e) hereof or (or ii) a majority mutually satisfactory date not later than thirty (30) days after the expiration of the Directors on applicable acceptance period provided for in Section 7(b) hereof. Delivery of a certificate for the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed by such Minority Independent Director, or majority New Securities shall be made against payment of the Independent Directors, as applicable, to be in the best interest of the Companysubscription price therefor.
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Preemptive Rights. (a) The Company hereby grants Except in the case of Excluded Units, the Partnership shall not issue any Equity Securities (other than Common Series C Units) after the Amendment Date (the “New Units”), unless the Partnership shall have first permitted the Common Series A Limited Partners and the Common Series B Limited Partners to each current holder of Company Securities, including Athens and its Affiliates and Subsidiaries except in connection with the issuance of any Debt Instrument, acquire such New Units (the “Preemptive ParticipantsOffer”) the right by delivery to purchase its Pro Rata Portion such Limited Partners of New Securities that the Company may, from time to time, propose to sell or issue 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 “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) such offer stating that the Partnership proposes to the Preemptive Participants within five issue such New Units (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 NoticeOffered Units”) 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 Units proposed to be sold, the proposed purchase price therefore (or, in the case of an offering in which the price is not known at the purchase time notice is given, the method of determining such price set forth in the Issuance Notice and upon the a good faith estimate thereof) and any other terms and conditions specified in of such offer. The Preemptive Offer shall by its terms remain open and irrevocable for a period of ten (10) days from the Issuance Notice date it is received from the Partnership (the “Preemptive Offer Period”).
(b) Each participating Common Series A Limited Partner and Common Series B Limited Partner shall have the option, exercisable at any time during the Preemptive Offer Period by delivering a written notice to the Company. Except as provided in the following sentencePartnership (a “Preemptive Offer Acceptance Notice”), such purchase shall be consummated concurrently with the consummation to subscribe for up to its Pro Rata Percentage of the issuance, sale or incurrence described in Offered Units.
(c) The Partnership shall notify each participating Limited Partner within five (5) days following the Issuance Notice. The closing of any purchase by any Preemptive Participants may be extended beyond the closing expiration of the transaction described Preemptive Offer Period of the number or amount of Offered Units which such participating Limited Partner has subscribed to acquire 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 connection with such approvalsPreemptive Offer.
(d) Each Preemptive Participant exercising its right to purchase its respective portion If less than all of the Offered Securities Units are subscribed for by the participating Common Series A Limited Partners and Common Series B Limited Partners in full (an “Exercising Holder”) accordance with this Section 9.5, the Partnership shall have a right one hundred eighty (180) days from the expiration of over-allotment such that if any other securityholder fails the Preemptive Offer Period to exercise its right hereunder to purchase its full Pro Rata Portion of New Securities (a “Non-Purchasing Holder”), such Exercising Holder may purchase sell all or any part of such securities by giving written notice the remainder of the Offered Units (the “Refused Units”) to any other Persons upon the Companyterms and conditions including price, within the 15-day period following the receipt of an Issuance Noticewhich are no more favorable, 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 aggregate, to such other Persons 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 Partnership than those set forth in the Issuance Notice Preemptive Offer.
(except that e) Upon the number or amount closing of securities the sale to be issued or sold such other Persons of all the Refused Units, the participating Common Series A Limited Partners and Common Series B Limited Partners shall acquire from the Partnership, and the Partnership shall sell to the participating Common Series A Limited Partners and Common Series B Limited Partners, the Offered Units subscribed for by the Company may be reduced); provided that (x) such issuanceparticipating Common Series A Limited Partners and Common Series B Limited Partners in accordance with this Section 9.5, sale or incurrence is closed within ninety (90) days after at 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 same terms specified 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 has not sold such New Securities within said 90-day period, the Company shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without first again complying with the preemptive purchase right procedures provided for in this Section 4.1Preemptive Offer.
(f) The preemptive rights set forth Nothing in this Section 4.1 may 9.5 shall be waived upon deemed to prevent the written approval Apax Holders or any Affiliate of the Minority Independent Director Apax Holders from purchasing for cash any New Units without first complying with the provisions of Section 9.5; provided that in connection with such purchase, (i) the Partnership (or applicable Subsidiary) gives prompt notice to the Common Series A Limited Partners and the Common Series B Limited Partners, which notice shall describe in reasonable detail the New Units being purchased by the Person making such purchase (the “Purchasing Holder”) and the purchase price thereof and (ii) the Purchasing Holder and the Partnership (or applicable Subsidiary), as soon as commercially reasonable following such purchase by the Purchasing Holder, take all steps necessary to enable the other Common Series A Limited Partners and the Common Series B Limited Partners to effectively exercise their respective rights under Section 9.5 with respect to their purchase of a majority Pro Rata Percentage of the Directors on New Units issued to the Board who are Independent Directors if there is no Minority Independent Director at the time of Purchasing Holder after such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the Companypurchase.
Appears in 1 contract
Samples: Limited Partnership Agreement (Epicor International Holdings, Inc.)
Preemptive Rights. (a) The Prior to the consummation of a Qualified IPO, if the Company hereby grants or any Subsidiary of the Company proposes to issue additional Equity Securities (the “Offered Interests”) to any Person other than to the Company or another Subsidiary of the Company, the Company shall deliver to each current holder of Company SecuritiesStockholder (each, including Athens and its Affiliates and Subsidiaries except in connection with the issuance of any Debt Instrument, a “Preemptive Participant”) a written notice (the “Preemptive ParticipantsNotice”) of such proposed issuance at least eighteen (18) Business Days prior to the right date of the proposed issuance (the period from the effectiveness (pursuant to purchase its Pro Rata Portion Section 8.9) of New Securities that such notice until the expiration of such fifteen (15) Business Day period, the “Subscription 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) Each Preemptive Participant shall have the option, exercisable at any time during the first fifteen (15) Business Days of the Subscription Period by delivering an irrevocable written notice to the Company may, from time to time, propose to sell or issue or that relate to incurred indebtedness, (except 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 “Offered Securities.” The preemptive purchase right otherwise provided in this Section 4.1(a4.1) shall apply at and on the time same terms and conditions as those of the proposed issuance of Offered Interests, to irrevocably subscribe to purchase up to such number or incurrenceamount, as applicable, of any right, warrant or option or convertible or exchangeable security and not Offered Interests as is equal to the conversion, exchange or exercise thereof.
product of (bA) 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 such Offered Interests (including securities exercisable for or convertible into Equity Securities) to be offered and (B) a fraction the Offered Securities at numerator of which is the purchase price set forth number of shares of Common Stock (determined on an As-Converted Basis as of the date of such proposed issuance) owned by such Preemptive Participant, and the denominator of which is the total number of shares of Common Stock (determined on an As-Converted Basis as of the date of such proposed issuance) owned by all Stockholders (such fraction, the “Participation Percentage”), in each case, on the Issuance Notice and upon the other same terms and conditions specified as are to be provided to the proposed purchaser in the Issuance Notice by delivering issuance in question. If a written notice to Preemptive Participant does not exercise such option in accordance with the Company. Except as provided in the following sentenceabove requirements, such purchase it shall be consummated concurrently deemed to have waived all of its rights with the consummation of the issuance, sale or incurrence respect to such issuance as described in the Issuance Preemptive Notice. The closing If fewer than all of any purchase by any the Preemptive Participants may be extended beyond the closing elect to purchase their respective Participation Percentages of the transaction described in the Issuance Notice to the extent necessary to obtain required governmental approvals and other required approvalsOffered Interests, and then the Company shall use its commercially reasonable efforts deliver a notice (a “Top-Up Notice”) to obtain such approvals.
(d) Each each Preemptive Participant exercising its right electing to purchase its respective portion Participation Percentage of the such Offered Securities in full Interests (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 (each a “NonFully-Purchasing Participating Holder”), such Exercising which Top-Up Notice shall include the number of Offered Interests that remain unsubscribed (the “Additional Offered Interests”). Each Fully-Participating Holder may purchase all or any part shall have the option, exercisable during the three (3) Business Day period immediately following the delivery of such securities the Top-Up Notice, by giving delivering an irrevocable written notice to the Company, within the 15-day period following the receipt of an Issuance Noticeto subscribe to purchase up to such number or amount, as applicable, of its interest in purchasing a specified Additional Offered Interests as is equal to the product of (A) the number or amount of New Securities 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 which any Non-Purchasing Holders has failed be provided to exercise their preemptive purchase right hereunder; provided that the proposed purchaser in the event there are two or more issuance in question.
(c) If at the end of the ninetieth (90th) day after the date of the effectiveness of the Preemptive Notice (as such Exercising Holders that choose period may be extended to exercise obtain any required regulatory approvals), the last-mentioned option 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 void, and (iii) it shall be necessary for a total number separate Preemptive Notice to be furnished, and the terms and provisions of remaining securities this Section 4.1 separately complied with, in excess order to consummate such issuance.
(d) In the 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 number availableCompany or the Preemptive Participants as a whole, require under applicable Law (i) the remaining registration or qualification of such securities available 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 purchase the issuance, or (ii) the provision to such Preemptive Participant of any specified information regarding the Company or any of its Subsidiaries or the securities to be issued that is not otherwise required under this Section 4.1(d) applicable Law to be provided for the issuance, such Preemptive Participant shall be allocated among such Exercising Holders pro rata based on not have the number of New Securities such Exercising Holders elected right to purchase pursuant to Section 4.1(c)participate in the issuance.
(e) If the Each Preemptive Participants Participant shall take 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 cause to be issued or sold by the Company taken all such reasonable actions as may be reduced); provided that (x) such issuance, sale necessary or incurrence is closed within ninety (90) days after the expiration of the 15-day period described reasonably desirable in Section 4.1(c) and (y) the price at which the New Securities are Transferred must be equal order 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 expeditiously consummate each issuance pursuant 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 has not sold such New Securities within said 90-day period, the Company shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without first again complying with the preemptive purchase right procedures provided for in this Section 4.1.
(f) The preemptive rights Notwithstanding the requirements of this Section 4.1, the Company may proceed with any issuance of Offered Interests that would otherwise be subject to this Section 4.1 prior to having complied with the provisions of this Section 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 Mountain 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.
(g) In the case of the issuance or sale of Offered Interests that are subject to this Section 4.1 may for a consideration in whole or in part other than cash, including securities acquired in exchange therefor (other than securities by their terms so exchangeable), the value of the consideration other than cash shall be waived deemed to be the Fair Market Value thereof.
(h) The provisions of this Section 4.1 shall not apply to issuances by the Company as follows:
(i) any issuance to the Company or any wholly owned Subsidiary of the Company;
(ii) the issuance of the Common Stock, the Convertible Preferred, the Series A Preferred and the Warrants on the date hereof, and 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 Section 5 of the Series A Certificate of Designations), or upon the written approval 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 Minority Independent Director 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 a majority an Affiliate thereof) of the Directors Company or its Subsidiaries in connection with such Person’s employment or consulting arrangements with the Company or its Subsidiaries or service on the Board who are Independent Directors if there is no Minority Independent Director at or the time board of such waivera 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) if such waiver is deemed any issuance of Equity Securities to the extent approved by such Minority Independent Directorthe 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 majority 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 Independent Directorsaffected class of Equity Securities (including, as applicableif the affected class is the Common Stock, to be in the best interest holders of the CompanyConvertible Preferred on an As-Converted Basis); or
(vii) any issuance of Equity Securities pursuant to the Advisory Agreement.
(i) The provisions of this Section 4.1 shall terminate upon the completion of the Qualified IPO.
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Preemptive Rights. If the Corporation proposes to sell additional equity securities other than (a) The Company hereby grants to each current holder employees of Company Securitiesthe Corporation pursuant to employee benefit plans and other employee compensation plans approved by the Board, including Athens and its Affiliates and Subsidiaries except (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 issuance of any Debt Instrument, (the “Preemptive Participants”) the right to purchase its Pro Rata Portion of New Securities that the Company may, from time to time, propose to sell or issue 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 “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 conversionexercise, exchange or exercise thereof.
(b) The Company shall give written notice conversion 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 securities 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 applicableCorporation, 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 Investor shall have the right to elect irrevocably purchase up to purchase their Pro Rata Portion such Shareholder's "pro rata share" of such additional securities. The Investor's "pro rata share" shall be that number of additional securities that would result in the Investor owning the same percentage of the number Corporation's fully diluted shares (assuming all convertible securities or amount instruments were converted into Common Shares or Non-Voting Common Shares) after the issuance of the Offered Securities at additional securities (the "ISSUANCE") as the Investor owned immediately prior to the Issuance. In the event of a proposed Issuance, the Corporation shall deliver to the Investor written notice describing the proposed Issuance, specifying the Investor's pro rata share and stating the purchase price set forth in for the Issuance Notice additional securities, and upon the other terms date, time and conditions specified in place of settlement for payment for the Issuance Notice additional securities (which shall be no sooner than twenty-five (25) Business Days following the date of the notice). For a period of twenty (20) Business Days following such notice, the Investor shall have the right to subscribe, at the offering price established by delivering a the Corporation, by written notice to the Company. Except as provided in the following sentenceCorporation, 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 all or any portion of the Offered Securities in full Investor's pro rata share of the additional securities. Following such twenty (an “Exercising Holder”20) Business Day period, the Corporation shall have be free for a right period of over-allotment such that if any other securityholder fails ninety (90) Business Days thereafter to exercise its right hereunder to purchase its full Pro Rata Portion of New Securities (a “Non-Purchasing Holder”), such Exercising Holder may purchase sell all or any part of the unsubscribed for additional securities and any Shares that have not been purchased as of the applicable Closing Date at a price no more favorable to such securities by giving written notice purchasers than the price offered 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 has not sold such New Securities within said 90-day period, the Company shall not thereafter issue or sell any New Securities or incur new indebtedness, as applicable, without first again complying with the preemptive purchase right procedures provided for in this Section 4.1.
(f) The preemptive rights set forth in this Section 4.1 may be waived upon the written approval of the Minority Independent Director (or a majority of the Directors on the Board who are Independent Directors if there is no Minority Independent Director at the time of such waiver) if such waiver is deemed by such Minority Independent Director, or majority of the Independent Directors, as applicable, to be in the best interest of the Company.Investor
Appears in 1 contract
