Right of First Offer. Subject to the terms and conditions specified in this Section 4.1, and applicable securities laws, in the event the Company proposes to offer or sell any New Securities, the Company shall first make an offering of such New Securities to each Major Investor in accordance with the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate. (a) The Company shall deliver a notice (the “Offer Notice”), in accordance with the provisions of Section 6.5 hereof, to each of the Major Investors stating (i) its bona fide intention to offer such New Securities, (ii) the 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 written notification received by the Company, within fifteen (15) calendar days after mailing of the Offer Notice, each of the Major Investors may elect to purchase or obtain, 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 number of shares of Registrable Securities then held by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares. (c) If all New Securities referred to in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, during the sixty (60) day period following the expiration of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) 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 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 Major Investors in accordance with this Section 4.1. (d) The right of first offer in this Section 4.1 shall not be applicable to any Excluded Securities. (e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round (f) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major Investors.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (ADESTO TECHNOLOGIES Corp), Investors’ Rights Agreement (ADESTO TECHNOLOGIES Corp)
Right of First Offer. Subject to the terms and conditions specified in this Section 4.1, and applicable securities laws, in the event the Company proposes to offer or sell any New Securities5.2 below, the Company shall first make an offering deliver to Banc of such New Securities to each Major Investor in accordance with the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
America Strategic Investments Corporation (a“BASIC”) The Company shall deliver a written notice (the “Offer Financing Notice”), in accordance with the provisions ) at least twenty (20) days prior to accepting an offer of Section 6.5 hereof, to each of the Major Investors stating (i) its bona fide intention to offer such New Securities, (ii) the 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 written notification received by the Company, within fifteen (15) calendar days after mailing of the Offer Notice, each of the Major Investors may elect to purchase or obtain, 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 number of shares of Registrable Securities then held by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, during the sixty (60) day period following the expiration of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) 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 Offer Notice. If the Company does not enter into an agreement for potential financing transaction involving the sale of the New Securities within such periodCompany’s securities for capital raising purposes ( “Proposed Financing”) with one or more of the entities listed on Exhibit E (each, or an “Enumerated Party”) if such agreement is not consummated within thirty (30) days Proposed Financing contemplates an Enumerated Party and/or one of its controlled affiliates purchasing an aggregate number of securities no less than the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Major Investors in accordance with this Section 4.1.
(d) The right of first offer in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with the terms greatest number of the Company’s Articles securities to be sold to any investor (or group of Incorporation affiliated investors) participating in effect at such Proposed Financing. The Financing Notice shall include a summary of the time of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and material terms of the New Securitiesoffer presented by such Enumerated Party. Each Major Investor BASIC shall have twenty (20) days from the date of following receipt of such notice Financing Notice (the “Response Period”) to elect to purchase up deliver to the number of New Securities that wouldCompany a written notice setting forth BASIC’s good faith, if purchased by such Major Investorcomparable, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect counterproposal to the issuance of such New Securities. The closing of such sale Proposed Financing (the “Financing Counterproposal”), which Financing Counterproposal shall occur within sixty (60) days of the date of notice be subject to the Major Investors’ right of participation set forth in Section 3 above, unless such right of participation is otherwise waived by the Major Investors. The Company and BASIC shall have ten (10) business days following the Company’s receipt of the Financing Counterproposal (the “Negotiation Period”) to mutually agree on the final terms **** Certain information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. of the financing transaction contemplated by the Financing Counterproposal and execute a term sheet or similar written agreement memorializing their mutual agreement on such terms (the “BASIC Term Sheet”). In the event BASIC does not deliver to the Company the Financing Counterproposal within the Response Period or the Company and BASIC are unable to mutually agree, after good faith negotiations by both parties, on the final terms of the financing transaction contemplated by the Financing Counterproposal and execute the BASIC Term Sheet within the Negotiation Period, the Company may proceed with the Proposed Financing with an Enumerated Party, or one of its affiliates, on the terms set forth in the Financing Notice; provided, that such terms are not materially adverse to the Company as compared to those set forth in the BASIC Term Sheet proposed to be executed by BASIC, and without limitation of the foregoing, which shall include economic terms and conditions resulting in an aggregate valuation of the Company’s outstanding capital stock that is not less favorable to the stockholders of the Company than the valuation set forth in the BASIC Term Sheet proposed to be executed by BASIC.
Appears in 2 contracts
Samples: Investors’ Rights Agreement, Investors’ Rights Agreement (Yodlee Inc)
Right of First Offer. Subject to the terms and conditions specified in this Section 4.19, and applicable securities laws, in the event the Company proposes to offer or sell any New Securities, the Company shall first make an offering of such New Securities to each Major Investor PBT or its designee in accordance with the following provisions of this Section 4.19. A Major Investor PBT or its designee shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates affiliates in such proportions as it deems appropriate.
(a) The Company shall deliver a notice (the “Offer Notice”)notice, in accordance with the provisions of Section 6.5 10(a) hereof, (the “Offer Notice”) to each of the Major Investors PBT stating (i) its bona fide intention to offer such New Securities, (ii) the 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 written notification received by the Company, within fifteen twenty (1520) calendar days after mailing of the Offer Notice, each of the Major Investors PBT or its designee may elect to purchase or obtain, 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 number of shares of Registrable Securities Common Stock issued and held, or issuable upon conversion of the Preferred Stock (and any other securities convertible into, or otherwise exercisable or exchangeable for, shares of Common Stock) then held held, by such Major Investor PBT bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrantssecurities); provided, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(bSection 9(b) hereof, the Company may, during the sixty (60) day period following the expiration of the period provided in subsection 4.1(bSection 9(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) 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 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 sixty (3060) days of following the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Major Investors PBT or its designee in accordance with this Section 4.19.
(d) The right of first offer in this Section 4.1 9 shall not be applicable to New Securities issued:
i. upon conversion of shares of Preferred Stock;
ii. to officers, directors, employees and consultants of the Company pursuant to stock incentive plans, or other stock arrangements that have been approved by the Board of Directors of the Company including the directors elected by the holders of a majority of the Preferred Stock (the “Series A Directors”);
iii. as a dividend or distribution on the Corporation’s Common Stock or Preferred Stock;
iv. upon the written consent of PBT that expressly states that the right of first offer in this Section 9 shall not apply to such New Securities;
v. upon the exercise or conversion of any Excluded Securitiesoptions or other convertible securities outstanding as of the date hereof;
vi. pursuant to a loan arrangement or debt financing from a bank, equipment lessor or similar financial institution approved by the Board of Directors, including the Series A Directors; or
vii. in connection with strategic transactions (but excluding any merger, consolidation, acquisition or similar business combination) that have been approved by the Board of Directors of the Corporation including the Series A Directors.
(e) The right of first offer set forth in this Section 4.1 9 may not be assigned or transferred except that (i) such right is assignable by each Major Investor PBT to any Affiliate affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major InvestorsPBT.
Appears in 2 contracts
Samples: Joint Venture Agreement (Winwin Gaming Inc), Registration Rights Agreement (Winwin Gaming Inc)
Right of First Offer. Subject to the terms and conditions specified in of this Section 4.1, Subsection 4.1 and applicable securities laws, in the event if the Company proposes to offer or sell any New Securities, the Company shall first make an offering of offer such New Securities to each Major Investor in accordance with the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion Investor, and then the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriateother Purchasers.
(a) The Company shall deliver a give notice (the “Offer Notice”)) to the Purchasers, in accordance with the provisions of Section 6.5 hereof, to each of the Major Investors stating (i) its bona fide intention to offer such New Securities, (ii) the 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 written notification received by to the Company, Company within fifteen twenty (1520) calendar days after mailing of the Offer NoticeNotice is given, each of the Major Investors Purchaser may elect to purchase or obtainotherwise 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 number Deemed Common Shares then attributable to such Purchaser based on Common Stock, Warrants or Series C Preferred Stock held of shares of Registrable Securities then held record by such Major Investor Purchaser bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise and/or exercise, as applicable, of all convertible or exercisable securities Series C Preferred Stock and exercise in full of all outstanding options and warrantsother Derivative Securities then outstanding); provided, however, that such Major Investor . Each Purchaser shall have no a right of over-allotment such that if any Purchaser fails to exercise its right hereunder to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time its share of the proposed issuance of such New Securities, an “accredited investor” the other Purchasers may purchase such non-purchasing Purchaser’s portion on a pro rata basis (or as defined in Regulation D under they may otherwise agree among themselves) within ten (10) days from the Securities Actdate such non-purchasing Purchaser fails to exercise its right to purchase. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) closing of any other Major Investor’s failure sale pursuant to do likewise. During this Subsection 4.1(b) shall occur within the fifteen later of ninety (1590) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion days of the date that the Offer Notice is given and the date of initial sale of New Securities for which Major Investors were entitled pursuant to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed sharesSubsection 4.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or obtained acquired as provided in subsection Subsection 4.1(b) hereof), the Company may, during the sixty one hundred (60180) day period following the expiration of the period periods provided in subsection Subsection 4.1(b) hereof), offer and sell the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) to any person Person or persons Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the 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 Major Investors Purchasers in accordance with this Section Subsection 4.1.
(d) The right of first offer in this Section Subsection 4.1 shall not be applicable to any Excluded Exempted Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major Investors.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (Torvec Inc), Investors' Rights Agreement (Torvec Inc)
Right of First Offer. Subject So long as TPG continues to satisfy the Two Director Threshold in terms and conditions specified in this Section 4.1of ownership of Common Stock, and applicable securities laws, in the event the Company proposes to offer or sell any New Securities, the Company shall first make an offering of such New Securities to each Major Investor in accordance with the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
(a) The Company shall deliver a notice if either Party (the “Offer NoticeSelling Shareholder”), in accordance with the provisions proposes to Transfer any or all of Section 6.5 hereofits Company Shares (including pursuant to a Business Combination), to each of the Major Investors stating other than (i) a Transfer to the Company or its bona fide intention Subsidiaries pursuant to a tender offer such New Securitiesnot involving a Business Combination, (ii) the number of such New Securities sale by a Tagging Shareholder pursuant to be offered, and Section 4.4; (iii) a Transfer to a Permitted Transferee; or (iv) a Transfer from the Trust of up to the number of reference shares under the Confirmation during the period of the Averaging Dates (as defined in the Confirmation) in the event of Cash Settlement pursuant to the Confirmation, the Selling Shareholder shall provide the other Shareholder with written notice (a “Transfer Notice”) of its intent to Transfer a specified number of its Company Shares at least twenty days prior to any Transfer which Transfer Notice shall also specify the price and terms, if any, upon other terms at which it proposes to make such Transfer. If the other Party makes an offer (the “Offer”) to acquire the number of Company Shares specified in such New Securities.
Transfer Notice from the Selling Shareholder at the price specified in such Transfer Notice and on other terms not materially less favorable to the Selling Shareholder (b) By written notification received as determined in good faith by the Company, within fifteen (15Selling Shareholder) on or prior to the fifteenth calendar days after mailing day following the receipt of the Offer Transfer Notice, each the Offer shall constitute a binding obligation of the Major Investors may elect Parties to purchase or obtain, and sell such Company Shares at the price and on the other terms specified set forth in the Offer Offer, in which case the Parties shall cooperate in good faith to promptly, and in no event any later than ten Business Days (or such longer period as required to obtain any required Xxxx-Xxxxx-Xxxxxx or other applicable regulatory clearance), to effect such Transfer provided that, if, as of the date of the Transfer Notice, up to that portion of such New Securities which equals the proportion that the number of shares of Registrable Securities then held by such Major Investor bears to the total number of shares being Transferred by the Selling Shareholder shall constitute two percent or less of the total issued and outstanding Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); providedduring any 180-days, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time Offer must be made within five calendar days following receipt of the proposed issuance Transfer Notice. If the other Party does not make a timely offer in response to a Transfer Notice from the Selling Shareholder, for a period of such New Securities, an “accredited investor” as defined in Regulation D under sixty days following the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion end of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, during the sixty (60) 20 day period following the expiration of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectivelyTransfer Notice, the “Refused Securities”) Selling Shareholder shall have the right to any person or persons sell the number of Company Shares specified in the Transfer Notice to a third party at a price at least equal to the price specified in the Transfer Notice and on other terms not materially less than, and upon terms no more favorable to the offeree than, Selling Shareholder than those specified in the Offer Transfer 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 TPG shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Major Investors in accordance with have no rights under this Section 4.1.
(d) The right of first offer 4.3 after it ceases to satisfy the Two Director Threshold in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with the terms of the Company’s Articles ownership of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major InvestorsCommon Stock.
Appears in 2 contracts
Samples: Shareholders' Agreement (TPG Advisors VI, Inc.), Purchase and Sale Agreement (TPG Advisors VI, Inc.)
Right of First Offer. Subject to Until the terms and conditions specified in this Section 4.1, and applicable securities laws, in the event the Company proposes to offer or sell any New Securities, the Company shall first make an offering later of such New Securities to each Major Investor in accordance with the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
(a) The Company shall deliver a notice (the “Offer Notice”), in accordance with the provisions of Section 6.5 hereof, to each of the Major Investors stating (i) its bona fide intention to offer such New Securities, two years after the date of this Agreement and (ii) the number date on which the value of such New Securities to be offered, and (iiiA) the volume weighted average price and terms, if any, upon which it proposes to offer such New Securities.
of a share of Common Stock for twenty consecutive trading days multiplied by (bB) By written notification received by the Company, within fifteen (15) calendar days after mailing of the Offer Notice, each of the Major Investors may elect to purchase or obtain, 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 number of shares of Registrable Securities then Common Stock held by such Major Investor bears stockholders other than the Tengram Stockholders, the GSO Stockholders, and each of their respective Affiliates, exceeds $400.0 million, prior to any transfer by one or more Stockholders, individually or as a group (the “Transferring Stockholder”), of all or any portion of its Common Stock constituting greater than ten percent (10%) of the total number of shares of Common Stock outstanding (the “Offered Shares”), in any transaction or series of related transactions, to any Person other than an Affiliate of such Transferring Stockholder (including any investment fund or other entity or separately managed account controlled or managed by, or under common control with, such Transferring Stockholder), such Transferring Stockholder must first comply with the provisions of this Section 2(d):
(i) The Transferring Stockholder shall first deliver to each other Stockholder (the “Offerees”) a written notice (the “Offer Notice”) that sets forth the number of Offered Shares, the amount per share that the Transferring Stockholder proposes to be paid for the Offered Shares (the “Sale Price”), the manner of payment and any other material terms of such offer or sale. The Offer Notice shall constitute an irrevocable offer by the Transferring Stockholder to sell to the Offerees the Offered Shares for cash at the Sale Price on the terms set forth in the Offer Notice.
(ii) Each Offeree shall have until the 10th Business Day (the “Offer Expiration Date”) following the delivery of the Company then outstanding Offer Notice (assuming full conversion the “Offer Period”) in which to notify the Transferring Stockholder and exercise the other Offerees that it accepts such offer as to all or any portion of the Offered Shares offered to such Offeree for the Sale Price and on the material terms set forth in the Offer Notice, which notice shall specify the maximum number of the Offered Shares it wishes to purchase.
(iii) If one or more Offerees accept such offer with respect to all convertible or exercisable securities and exercise in full a portion of all outstanding options and warrants); providedthe Offered Shares, however, that a closing of the purchase of such Major Investor Offered Shares (the “ROFO Closing”) shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, take place at the time principal office of the proposed issuance Corporation at 10:00 a.m. on the 20th Business Day after the date on which the Offering Notice was delivered unless the parties agree on a different place or time. At the ROFO Closing, the Sale Price shall be payable in accordance with the payment terms of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects Offer Notice.
(iv) If the Offerees do not elect to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities Offered Shares for which Major Investors were entitled the Sale Price prior to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, during the sixty (60) day period following the expiration of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectivelyOffer Period, the Transferring Stockholder shall have the right, subject to the other provisions of this Section 2 and the terms and conditions specified in Section 4 and Section 7, to sell the Offered Shares for a period of 120 days (the “Refused SecuritiesSale Period”) to any person or persons at a price not per share no less than, than the Sale Price and upon on other terms no more favorable to the offeree than, those specified transferees thereof than offered to the Offerees in the Offer Notice. If the Company an Offeree does not enter into an agreement for transfer the sale Offered Shares before the end of the New Securities within Sale Period, such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Major Investors in accordance with this Section 4.1.
(d) The right of first offer in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 Offeree may not be assigned or transferred except that (i) such right is assignable by each Major Investor to sell any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major InvestorOffered Shares without repeating the foregoing procedures. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 2(d) shall not be available apply to any Investor whose transfer or proposed transfer (i) of all of the outstanding Common Stock of the Corporation (whether by merger, consolidation, tender offer or otherwise); (ii) pursuant to an effective registration statement covering any such shares of Preferred Stock were mandatorily converted into Common Stock for failure Stock; or (iii) to participate in an equity financing round of the Company in accordance with the terms of the Company’s Articles of Incorporation in effect at the time Affiliates of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major InvestorsTransferring Stockholder.
Appears in 1 contract
Right of First Offer. Subject to the terms and conditions specified in of this Section 4.1, 7.1 and applicable securities laws, in the event if the Company proposes to offer or sell any New Securities, the Company shall first make an offering of offer such New Securities to each Major Investor SNI in accordance with the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate7.
(a) The Company shall deliver a give notice (the “Offer Notice”)) to SNI, in accordance with the provisions of Section 6.5 hereof, to each of the Major Investors stating (i) its bona fide intention to offer such New Securities, (ii) the 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 written notification received by to the Company, Company within fifteen thirty (1530) calendar days after mailing of the Offer NoticeNotice is given, each of the Major Investors SNI may elect to purchase or obtainotherwise 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 number of shares of Registrable Securities then held Shares Owned by such Major Investor SNI bears to the total number Shares outstanding. The closing of shares of Common Stock any sale pursuant to this Section 6.1(b) shall occur within ninety (90) days of the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion date that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed sharesOffer Notice is given.
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the The Company may, during the sixty ninety (6090) day period following the expiration of the period periods provided in subsection 4.1(b) hereofSection 6.1(b), offer and sell the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) to any person Person or persons Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the 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 Major Investors SNI in accordance with this Section 4.16.1.
(d) The right of first offer in this Section 4.1 6.1 shall not be applicable to (i) securities from time to time issued or deemed issued to employees or directors of, or consultants to, the Company or any Excluded Securitiesof its subsidiaries or event participants pursuant to a compensation plan or agreement approved by the Board of Directors of the Company, (ii) the issuance of securities pursuant to the conversion, exercise, or exchange of Derivative Securities outstanding on the date hereof; (iii) the issuance of securities in connection with a bona fide business acquisition by the Company, whether by merger, consolidation, purchase of assets, exchange of stock, or otherwise; (iv) securities from time to time issued in connection with any antidilution or price protection provisions; or (v) or pursuant to an underwritten public offering. Notwithstanding the foregoing, with respect to securities issued to a strategic investor or the Derivative Securities therefor, if the Company is unable to provide to SNI an Offer Notice in advance so that the SNI shall have sufficient time to respond as provided in subparagraph (b), the Company shall have the right to issue such securities subject to the right of SNI to purchase the New Securities after such issuance in accordance with subparagraph (b).
(e) The right purchase price for the New Securities which SNI elects to purchase (the “Purchase Price”) shall be paid in cash, or, at the option of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate of such Major InvestorSNI, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding for advertising at the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with the terms of the Company’s Articles of Incorporation in effect applicable rate card at the time of placement on such equity financing round
(f) In lieu media outlet or outlets owned by CBS Corporation or its subsidiaries, or a combination thereof, subject to the good faith negotiation between the parties as to the outlet, timing, placement, content and appearance of complying the advertising, provided, however, that unless otherwise expressly agreed to by the Company, the maximum amount of the Purchase Price payable in advertising with respect to New Securities for a particular Offer Notice shall be $1,000,000 with the provisions of this Section 4.1, the Company may elect remaining amount to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth be paid in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major Investorscash.
Appears in 1 contract
Right of First Offer. Subject to the terms and conditions specified in this Section 4.1, and applicable securities laws, in the event the Company proposes to offer or sell any New Securities, the Company shall first make an offering of such New Securities to each Major Investor in accordance with the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
(a) The Company shall deliver a notice (the “Offer Notice”), in accordance with the provisions of Section 6.5 hereof, to each of the Major Investors stating Except for (i) its bona fide intention shares of Common Stock issued or sold to offer such New Securitiesemployees or directors of the Company pursuant to an existing Benefit Plan or any new Benefit Plan adopted by the Company in good faith, (ii) the number of such New Securities to be offeredProposed Sale, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By written notification received a public offering of Common Stock by the Company, within fifteen Company or (15iv) calendar days after mailing of the Offer Notice, each of the Major Investors may elect to purchase issuance or obtain, 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 number of shares of Registrable Securities then held by such Major Investor bears to the total number transfer of shares of Common Stock to unaffiliated third parties in connection with licensing or similar arrangements consistent with past practice, in the event that the Company proposes to issue or sell any shares of Common Stock or securities convertible into or exercisable for shares of Common Stock and the purchase price for such shares of Common Stock, or the conversion price or exercise price for the shares of Common Stock into which such securities are convertible or for which such securities are exercisable, as the case may be, shall be less than the Market Value (as hereinafter defined) on the date notice is given pursuant to clause (i) below:
(i) the Company shall give each of the Company then outstanding (assuming full conversion Investors written notice of its intent to issue or sell such shares of Common Stock or other securities, specifying the number thereof to be sold, the purchase price and exercise of all convertible or exercisable securities the terms and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance conditions of such New Securitiessale and offering;
(ii) if, an “accredited investor” within 5 Business Days (as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”hereinafter defined) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of the notice given pursuant to clause (i) above one or more Investors shall not have accepted such informationoffer in writing with respect to any shares of Common Stock or other securities specified in such notice, each Fully-Exercising Investor then the Company shall be free to issue or sell to any third party such shares of Common Stock or other securities with respect to which such offer has not been accepted at a price equal to or above the purchase price and on other terms and conditions no less favorable to the Company than those specified in such notice at any time within 45 days of the expiration of such 5-Business Day period; provided that if such shares of Common Stock shall be sold to an officer, director or an affiliate of the Company, either (x) the material facts as to such officer's, director's or affiliate's relationship and as to the sale of Common Stock are disclosed or are known to the Board of Directors, and the Board of Directors in good faith authorizes the sale by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum, or (y) the material facts as to such officer's, director's or affiliate's relationship and as to the sale of Common Stock are disclosed or are known to the shareholders entitled to obtain that portion vote thereon, and the sale is specifically approved in good faith by vote of the New Securities for which Major Investors were entitled shareholders, or (z) the sale of Common Stock is fair to subscribe but which were not subscribed for the Company as of the time it is authorized, approved or ratified, by the Major Investors which is equal to Board of Directors or the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.shareholders;
(ciii) If all New Securities if the Company shall not have consummated such issuance or sale within the 45- day period referred to in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, during the sixty (60) day period following the expiration of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) 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 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 Major Investors in accordance with this Section 4.1.
(d) The right of first offer in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate of such Major Investor, and clause (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoingabove, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of then the Company in accordance with the terms of the Company’s Articles of Incorporation in effect at the time of may not thereafter sell such equity financing round
(f) In lieu of Shares or other securities without complying again with the provisions of this Section 4.14.2; and
(iv) if one or more Investors shall have accepted such offer in whole or in part within 5 Business Days after receipt of the notice given pursuant to clause (i) above, then such Investor or Investors shall purchase such shares of Common Stock and/or other securities as to which such offer has been accepted as promptly as is reasonably practicable.
(b) For purposes of this Section 4.2, "Market Value" means (1) if the Common Stock is quoted on the National Market System of the National Association of Securities Dealers, Inc. Automated Quotation System (the "National Market System") or is listed on one or more stock exchanges, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms average of the New Securities. Each Major Investor closing sales prices of a share of Common Stock on the National Market System if quoted thereon or on the primary national or regional stock exchange on which such shares are listed or (2) if the Common Stock is not so quoted or listed but is traded in the over-the-counter market (other than the National Market System), the average of the closing bid and asked prices of a share of Common Stock, in the case of clauses (1) and (2), for the 20 trading days (or such lesser number of trading days as the Common Stock shall have twenty (20been so listed, quoted or traded) days from next preceding the date of receipt measurement or (3) if the Common Stock is not so quoted or listed and is not traded in the over-the-counter market, the fair market value of such notice to elect to purchase up to a share of Common Stock shall be determined reasonably and in good faith by the number Board of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days Directors of the date Company. "Business Day" means a day on which federal or state chartered banking institutions located in the State of notice Connecticut are authorized by law to the Major Investorsclose.
Appears in 1 contract
Right of First Offer. Subject On and after the Transfer Restriction Date, if any Class A Member or Class B Member (a "Transferring Member") desires to Transfer all or any portion of its Class A Membership Interest or Class B Membership Interest, as applicable (the "Specified Interest"), to any Third Party Purchaser, such Transferring Member shall first give notice thereof (the "Offer Notice") to the other Class A Members and Class B Members (the "Non-Transferring Members"), specifying the price (the "Specified Price") and other terms (the "Specified Terms") at and conditions specified on which such Transferring Member is willing to sell the Specified Interest. The delivery of the Offer Notice by the Transferring Member to the Non-Transferring Members shall constitute an offer by the Transferring Member to negotiate in this Section 4.1good faith to sell to the Non-Transferring Members the Specified Interest at the Specified Price upon the Specified Terms. The Non-Transferring Members shall each have 30 Business Days (the "Acceptance Period") from and including the date it receives the Offer Notice to accept such offer, and applicable securities laws, which acceptance shall be in the event form of a written notice (the Company proposes "Acceptance Notice") to the Transferring Member. Each Non-Transferring Member wishing to accept such offer or sell any New Securities(each, the Company an "Accepting Member") shall first make an offering of such New Securities to each Major Investor thereafter negotiate in accordance good faith with the following provisions of this Section 4.1Transferring Member. A Major Investor If more than one Non-Transferring Member shall wish to purchase the Specified Interest, each such Non-Transferring Member shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
(a) The Company shall deliver purchase a notice (the “Offer Notice”), in accordance with the provisions of Section 6.5 hereof, to each proportionate share of the Major Investors stating (i) its bona fide intention to offer such New Securities, (ii) the 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 written notification received by the Company, within fifteen (15) calendar days after mailing of the Offer Notice, each of the Major Investors may elect to purchase or obtain, at the price and Specified Interest on the terms specified in the Offer Notice, up to that portion basis of such New Securities which equals the proportion that the number of shares of Registrable Securities then held by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, during the sixty (60) day period following the expiration of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) 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 Offer Noticeits Aggregate Percentage Interest. If the Company does not enter into an Accepting Member(s) and the Transferring Member fail to execute a definitive purchase agreement for within 30 Business Days following receipt by the Transferring Member of the applicable Acceptance Notice(s), or if the sale of the New Securities within such period, or if such agreement Specified Interest to the Non-Transferring Member(s) is not consummated within thirty (30) 60 days following such receipt of the execution thereofAcceptance Notice, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Major Investors in accordance with this Section 4.1.
(d) The right of first offer in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate of such Major Investor8.4 shall then automatically expire, and (ii) such right is assignable Transferring Member may Transfer the Specified Interest, subject to the other terms of this Agreement, for a price and on terms and conditions substantially no more favorable to the purchaser than those offered by the Transferring Member; provided however, that if the Transferring Member shall fail to sell the Specified Interest or any Major Investor portion thereof within 180 days from such expiration, the Specified Interest or such non-transferred portion of the Specified Interest shall again be subject to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth contained in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major Investors8.4.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Southern Union Co)
Right of First Offer. Subject to the terms and conditions specified in this Section 4.1, and applicable securities laws, in the event the Company proposes to offer or sell any New Securities, the Company shall first make an offering of such New Securities to each Major Investor in accordance with the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
(a) The If Sxxxx desires to sell any S-8 Shares, excluding the 600,000 shares issued upon execution of the Agreement, he shall first deliver to the Company shall deliver a written notice (the “"Offer Notice”"), in accordance with the provisions of Section 6.5 hereof, to each of the Major Investors stating which Offer Notice shall include: (i) its bona fide intention to offer such New Securities, (iiA) the number of such New Securities S-8 Shares to be offered, sold (the "Offered Stock"); (B) the purchase price for the shares of Offered Stock; and (iiiC) an offer to sell such Offered Stock to the Company (or its assignee or designee) in accordance with this Section 4, at the purchase price specified in such Offer Notice. The Company and/or its assignee(s) or designee(s) shall then have the first right and terms, option (but not the obligation) to purchase all or any of the Offered Stock at the purchase price stated in the Offer Notice. Such right and option may be exercised by the Company and/or its assignee or designee by giving written notice of such election (including the amount of Offered Stock the purchaser desires to purchase) to Sxxxx within three (3) days following receipt of the of the Offer Notice if any, upon which it proposes the purchase price is equal to offer such New Securitiesor less than $0.75 per share or within ten (10) days if the purchase price is greater than $0.75 per share (the "Acceptance Notice").
(b) By written notification received by Unless the Companyparties otherwise agree in writing, the closing of any purchase and sale of Offered Stock pursuant to this Section 4 shall take place on the tenth (10th) day following delivery of the Acceptance Notice (or the next succeeding business day if such day is not a business day). In the event the Company and/or its assignee or designee fails to deliver an Acceptance Notice with respect to all of the Offered Stock set forth in any Offer Notice within fifteen three (153) calendar days after mailing following receipt of the of the Offer Notice, each of Notice if the Major Investors may elect to purchase or obtain, 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 number of shares of Registrable Securities then held by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to or less than $0.75 or within ten (10) days if the proportion that purchase price is greater than $0.75, Sxxxx shall have the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears right to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, sell any remaining Offered Stock. Such sale shall close during the sixty (60) day period following the expiration calendar quarter in question. If Sxxxx does not consummate any such sale within such calendar quarter, then such sale may not be consummated without repetition of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) 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 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 Major Investors in accordance with this Section 4.1.
(d) The right of first offer in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer procedures set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major Investors4.
Appears in 1 contract
Right of First Offer. Subject to Until the terms and conditions specified later of 120 days after the actual effective date of the Registration Statement described in this Section 4.110.1(iv) hereof, and applicable securities lawsor one year after the Closing Date, in the event the Company proposes intends to offer issue any additional shares of Common Stock or sell other debt or equity securities of the Company, except (i) pursuant to options, warrants or other obligations to issue shares outstanding as of the Closing Date as disclosed in the Reports or Other Written Information; or (ii) any New Securitiesstock or stock options granted to employees or directors of the Company or consultants or vendors of the Company or any other issuance principally undertaken for other than capital raising purposes (these exceptions hereinafter refer to as the "Excepted Issuances"), the Company shall first make an offering give the Subscribers written notice of the kind and amount of securities intended to be issued and the material terms of such New Securities to each Major Investor in accordance with offering (the following provisions of this Section 4.1"Offer Notice"). A Major Investor The Subscribers shall be entitled to apportion have the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
during the ten (a10) The Company shall deliver a notice (the “Offer Notice”), in accordance with the provisions of Section 6.5 hereof, to each of the Major Investors stating (i) its bona fide intention to offer such New Securities, (ii) the 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 written notification received by the Company, within fifteen (15) calendar business days after mailing of following the Offer Notice, each of the Major Investors may elect Notice to agree to purchase or obtain, at the price and securities on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the number of shares of Registrable Securities then held by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) If all New Securities referred to set forth in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, during the sixty (60) day period following the expiration of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) 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 Offer Notice. If same proportion as being purchased in the Company does not enter into an agreement for the sale of the New Securities within such periodInitial Offering, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder which purchase shall be deemed to be revived and such New Securities shall completed not be offered unless first reoffered to the Major Investors in accordance with this Section 4.1.
(d) The right of first offer in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within later than thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms date of the New SecuritiesOffer Notice. Each Major Investor shall have twenty (20) days In the event that the Right of First Offer described in this Section is exercised by the Subscribers and the Company receives net proceeds from such exercise in substantially the date of receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as amount set forth in subsection 4.1(b) prior to giving effect the Offer Notice, the commissions and fees, if any, will be paid by the Company to the issuance Finders in the amount as would be payable in connection with the offering described in the Offer Notice. Payment for the securities may be made by the Subscriber by tender to the Company of such New Securities. The closing of such sale shall occur within sixty (60) days all or part of the date Note or Put Note and application towards the purchase price of notice the securities of any sums due or owing from the Company to the Major InvestorsSubscriber.
Appears in 1 contract
Right of First Offer. Subject Following the third anniversary of the date hereof, at least thirty days prior to the terms making any Transfer by any Quad-C Stockholder of any Stockholder Shares (other than pursuant to and conditions specified in this Section 4.1, and applicable securities laws, in the event the Company proposes to offer or sell any New Securities, the Company shall first make an offering of such New Securities to each Major Investor in accordance with the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
(a) The Company shall deliver a notice (the “Offer Notice”), in accordance with the provisions of Section 6.5 hereofSECTION 3, or a Public Sale or an Exempt Transfer), the transferring Quad-C Stockholder (the "TRANSFERRING STOCKHOLDER") shall deliver a written notice (an "OFFER NOTICE") to the Company and the other Stockholders (the "OTHER STOCKHOLDERS"). The Offer Notice shall disclose in reasonable detail the proposed number of each type or class of Stockholder Shares to be transferred, the proposed terms and conditions of the Transfer, including the proposed price by class or type of each of such Stockholder Shares to be transferred (which shall be payable in cash or notes), and the Major Investors stating identity of the prospective transferee(s) (if known). No Transfer shall be consummated prior to the earlier of (i) its bona fide intention the date on which the parties to offer such New Securities, the Transfer have been finally determined pursuant to this SECTION 2B and (ii) the number date of such New Securities expiration of the 30-day period (the "ELECTION PERIOD") following the delivery to be offered, the Company and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By written notification received by the Company, within fifteen (15) calendar days after mailing Other Stockholders of the Offer NoticeNotice applicable to such Transfer. First, each of the Major Investors Company may elect to purchase all or obtain, any portion of the Stockholder Shares specified in the Offer Notice at the price and on the terms specified in the Offer Notice, up to that portion therein by delivering written notice of such New Securities which equals the proportion that the number of shares of Registrable Securities then held by such Major Investor bears election to the total number Transferring Stockholder and the Other Stockholders within 20 days after the delivery of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, during the sixty (60) day period following the expiration of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) 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 Offer Notice. If the Company does has not enter into an agreement for the sale elected to purchase all of the New Securities within such periodStockholder Shares to be transferred, or if such agreement is the Other Stockholders may elect to purchase all (but not consummated within thirty (30less than all) days of the execution thereof, Stockholder Shares that the right provided hereunder shall be deemed Company has not elected to be revived purchase (the "AVAILABLE SHARES") upon the same terms and such New Securities shall not be offered unless first reoffered to the Major Investors in accordance with this Section 4.1.
(d) The right of first offer in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer conditions as those set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable 1the Offer Notice by each Major Investor to any Affiliate giving written notice of such Major Investorelection to such Transferring Stockholder within 30 days after the Offer Notice has been given to the Other Stockholder. If more than one Other Stockholder elects to purchase the Available Shares, with respect to each class of Available Shares, such Available Shares shall be allocated among the Other Stockholders pro rata on the basis of the number of Stockholder Shares of such class held by such Other Stockholder. If the Company and (iithe Other Stockholders do not elect to purchase in the aggregate all of the Stockholder Shares specified in the Offer Notice, the Transferring Stockholder may Transfer all of the Stockholder Shares specified in the Offer Notice at a price no less than 95% of the price per share set forth in the Offer Notice and on terms no more favorable to the transferee(s) thereof than specified in the Offer Notice during the 90-day period immediately following the end of the Election Period. Any Stockholder Shares not transferred within such right is assignable by 90-day period will be subject to the provisions of this SECTION 2B upon subsequent transfer. If the Company and the Other Stockholders have elected to purchase Stockholder Shares hereunder, the transfer of such Stockholder Shares shall be consummated as soon as practicable after the delivery of the election notice(s) to the Transferring Stockholder, but in any Major Investor to any other Major Investorevent within 20 days after such delivery. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 no event shall not be available any Quad-C Stockholder Transfer Stockholder Shares to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round a competitor of the Company in accordance with the terms or any of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major Investorsits Subsidiaries.
Appears in 1 contract
Right of First Offer. Subject Prior to the terms date of Buyer's initial public -------------------- offering, if any, pursuant to an effective registration statement under the Securities Act, covering the offer and conditions specified sale of Buyer Common Stock to the public (a "Buyer IPO") and except as set forth in this Section 4.14.5 (c), and applicable securities lawsbefore there can be a valid sale or transfer for consideration of any of the Shares by any holder thereof (each such holder, a "Selling Shareholder"), such Selling Shareholder shall first offer such Shares to Buyer in the event the Company proposes to offer or sell any New Securities, the Company shall first make an offering of such New Securities to each Major Investor in accordance with the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.manner:
(a) The Company Selling Shareholder shall deliver a notice in writing to Buyer (the “an "Offer Notice”)") stating the price, in accordance with the provisions terms, and conditions of Section 6.5 hereofsuch proposed sale or transfer, to each of the Major Investors stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities Shares to be offeredsold or transferred, and his or her intention to so sell or transfer such Shares. Within thirty (iii30) days thereafter, Buyer shall have the prior right to purchase all but not less than all of the Shares offered at the price and terms, if any, upon which the terms and conditions stated in such notice (it proposes to offer such New Securitiesbeing understood that Buyer may assign this right in its sole discretion).
(b) By written notification received by the Company, within fifteen (15) calendar days after mailing If all of the Shares in the Offer NoticeNotice are not purchased by Buyer (or an assignee of Buyer) within a thirty (30)-day period from the date the Offer Notice is delivered by a Selling Shareholder to Buyer, each of the Major Investors Selling Shareholder may elect sell or transfer to purchase any person or obtain, at the price and on the terms specified persons all Shares referred to in the Offer Notice, up but only within a period of sixty (60) days from the date the Offer Notice is delivered to that portion of such New Securities which equals the proportion that the number of shares of Registrable Securities then held by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants)Buyer; provided, however, that the Selling Shareholder shall not sell or transfer such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, during the sixty (60) day period following the expiration of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) to any person or persons Shares at a lower price not less than, and upon or on terms no more favorable to the offeree than, purchaser or transferee than those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such After said sixty (60)-day period, the foregoing procedure for first offering Shares to Buyer shall again apply if the proposed sale or if such agreement is transfer has not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Major Investors in accordance with this Section 4.1been completed.
(dc) The right Notwithstanding anything contained herein to the contrary, Seller and the Shareholders may transfer any of first offer the Shares to up to twelve (12) Permitted Transferees (as defined below) in addition to the Shareholders without complying with the requirements of this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except 4.5, provided that (i) such right transfer is assignable by each Major Investor to any Affiliate of such Major Investorotherwise effected in accordance with applicable securities laws, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days until six months after the issuance of New Securities. Such notice shall describe the typeClosing Date, price and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major Investors.transfer is for value no greater than $1.50 per Share,
Appears in 1 contract
Right of First Offer. Subject (i) At least 30 days prior to making any Transfer of five percent (5%) or more of any Founding Holder's Stockholder Shares (other than a Transfer to the Company), the transferring Founding Holder (the "TRANSFERRING OWNER") shall deliver a written notice (a "FIRST OFFER NOTICE") to the Company and to all Investors. No Founding Holder shall consummate any Transfer of any Stockholder Shares until 20 days after such delivery (the "FIRST OFFER ELECTION PERIOD"). The First Offer Notice shall disclose in reasonable detail the proposed number of Stockholder Shares to be transferred, the proposed terms and conditions specified in this Section 4.1, of the Transfer and applicable securities laws, in the event identity of the Company proposes to offer or sell any New Securitiesproposed transferee(s) (if known). First, the Company shall first make an offering may elect to purchase all or any portion of the Stockholder Shares specified in the First Offer Notice at the price and on the terms specified therein by delivering written notice of such New Securities election to each Major Investor the Transferring Owner as soon as practical but in accordance with any event within ten days after the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
(a) The Company shall deliver a notice (the “Offer Notice”), in accordance with the provisions of Section 6.5 hereof, to each delivery of the Major First Offer Notice to the Company. If the Company has not elected to purchase all of such Stockholder Shares within such ten-day period, it shall promptly (but in any event within such ten-day period) give notice to the Investors stating (i) its bona fide intention to offer such New Securities, (ii) of the number of such New Securities Stockholder Shares it has agreed to be offered, and (iii) the price and termspurchase, if any, upon which it proposes to offer such New Securities.
and the Investors (bother than the Transferring Owner) By written notification received by the Company, within fifteen (15) calendar days after mailing of the Offer Notice, each of the Major Investors may elect to purchase all or obtain, any portion of such Stockholder Shares at the price and on the terms specified in the First Offer Notice by delivering written notice of such election (which shall state the maximum number of Stockholder Shares such Stockholder desires to purchase) to the Transferring Owner as soon as practical, but in any event within 20 days after delivery of the First Offer Notice, up . If the Investors have in the aggregate elected to that portion of such New Securities which equals the proportion that purchase more than the number of Stockholder Shares being offered by the Transferring Owner and not being purchased by the Company, such Stockholder Shares shall be allocated among the Investors electing to purchase shares pro rata based upon the number of Registrable Securities then Stockholder Shares held by each such Major Investor bears to Investor, with such allocation process being repeated until either all such Stockholder Shares have been so allocated or all electing Investors have been allocated the total maximum number of shares of Common Stock of Stockholder Shares they have indicated a desire to purchase in their election notice. If the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor shall and/or the Investors have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects elected to purchase all of the shares available to it (eachStockholder Shares specified in the First Offer Notice from the Transferring Owner, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt Transfer of such information, each Fully-Exercising Investor securities shall be entitled to obtain that portion consummated as soon as practical after the delivery of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal election notice(s) to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) If all New Securities referred to Transferring Owner, but in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, during the sixty (60) day period following any event within 10 days after the expiration of the period provided in subsection 4.1(bFirst Offer Election Period.
(ii) hereofSubject to SECTION 3(c), offer to the remaining unsubscribed portion extent that the Company and/or the Investors have not elected to purchase all of such New Securities (collectivelythe Stockholder Shares being offered, the “Refused Securities”) to any person or persons Transferring Owner may, within 90 days after the expiration of the First Offer Election Period, Transfer such remaining Stockholder Shares at a price not no less than, than the price per share specified in the First Offer Notice and upon on other terms no more favorable to such transferees than those offered to the offeree than, those specified Company in the First Offer Notice. If the Company does Any Stockholder Shares 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 Major Investors Transferred in accordance with this Section 4.1.
(dSECTION 3(b) The right of first offer in this Section 4.1 within such 90-day period shall not be applicable reoffered to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with and the terms of Investors (other than the Company’s Articles of Incorporation in effect at the time of such equity financing round
(fTransferring Owner) In lieu of complying with the provisions of under this Section 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(bSECTION 3(b) prior to giving effect to the issuance of such New Securitiesany Transfer. The purchase price specified in any First Offer Notice shall be payable solely in cash at the closing of such sale shall occur within sixty (60) days of the date of notice to transaction or in installments over time, as specified in the Major InvestorsFirst Offer Notice.
Appears in 1 contract
Samples: Series B Convertible Preferred Stock Purchase Agreement (Corechange Inc)
Right of First Offer. Subject to the terms and conditions specified contained in this Section 4.1, and applicable securities laws, in the event the Company proposes to offer or sell any New Securities2.1, the Company shall first make an offering of such New Securities hereby grants to each Major Investor in accordance with the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself to purchase its Pro Rata Portion of any New Securities (as defined in subsection 2.1(b)) which the Company may, from time to time, propose to sell and its partners, members and Affiliates in such proportions as it deems appropriate.
issue. An Investor's "Pro Rata Portion" for purposes of this Section 2.1 is the ratio that (a) The Company shall deliver a notice (the “Offer Notice”), in accordance with the provisions of Section 6.5 hereof, to each of the Major Investors stating (i) its bona fide intention to offer such New Securities, (iix) the number sum 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 written notification received by the Company, within fifteen (15) calendar days after mailing of the Offer Notice, each of the Major Investors may elect to purchase or obtain, 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 number of shares of Registrable Securities the Company's Common Stock then held by such Major Investor and the number of shares of the Company's Common Stock issuable upon conversion of the Preferred Stock then held by such Investor bears to (y) the sum of the total number of shares of Company's Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities the Company's Common Stock issuable upon conversion of the then held by outstanding Preferred Stock. Each Series B Holder shall have a right of overallotment such Fully-Exercising Investor bears that if any Series B Holder fails to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish exercise its right to purchase such unsubscribed shares.
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, during the sixty (60) day period following the expiration of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed its total Pro Rata portion of such New Securities (collectively, the “Refused Securities”) 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 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 Major Investors in accordance with this Section 4.1.
(d) The right of first offer in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe , the type, price and terms of other Series B Holders may purchase the New Securities. Each Major Investor shall have twenty non-purchasing Series B Holder's portion on a pro rata basis within fifteen (2015) days from the date of receipt that the Company provides written notice of such notice failure. Each Series C Holder shall have a right of over-allotment such that if any Series C Holder fails to elect exercise its right to purchase up to the number its total Pro Rata Portion of New Securities Securities, the other Series C Holders may purchase the non-purchasing Series C Holder's portion on a pro rata basis within fifteen (15) days from the date that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance Company provides written notice of such failure. Each Series D Holder shall have a right of over-allotment such that if any Series D Holder fails to exercise its right to purchase its total Pro Rata Portion of New Securities. The closing , the other Series D Holders may purchase the non-purchasing Series D Holder's portion on a pro rata basis within fifteen (15) days from the date that the Company provides written notice of such sale failure. Each Series E Holder shall occur have a right of over-allotment such that if any Series E Holder fails to exercise its right to purchase its total Pro Rata Portion of New Securities, the other Series E Holders may purchase the non-purchasing Series E Holder's portion on a pro rata basis within sixty fifteen (6015) days of from the date that the Company provides written notice of notice to the Major Investorssuch failure.
Appears in 1 contract
Samples: Investor Rights Agreement (Lightspan Partnership Inc)
Right of First Offer. Subject As promptly as possible following the time that the occurrence of a Regulatory Event becomes known to a Non-Affiliate Member, a Non-Affiliate Member that proposes to Transfer a Membership Interest (a “Selling Non-Affiliate Member”) pursuant to Section 8.1(a)(ii) shall deliver written notice of such proposed Transfer to the Manager, specifying in reasonable detail the amount of the Membership Interest to be so Transferred, the proposed purchase price therefor and the other material terms and conditions of such proposed Transfer, including the date by which such Non-Affiliate Member is required to complete such Transfer as a result of such Regulatory Event (a “First Offer Notice”). The Manager and/or its Affiliates may elect to purchase all, but not less than all, of the Membership Interest to be Transferred, upon the terms and conditions specified in this Section 4.1, and applicable securities laws, set forth in the event the Company proposes to offer or sell any New Securities, the Company shall first make an offering of such New Securities to each Major Investor in accordance with the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
(a) The Company shall deliver a notice (the “Offer Notice”), in accordance with the provisions of Section 6.5 hereof, to each of the Major Investors stating (i) its bona fide intention to offer such New Securities, (ii) the 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 written notification received by the Company, within fifteen (15) calendar days after mailing of the First Offer Notice, each by delivering written notice of such election to the Selling Non-Affiliate Member within ten (10) Business Days after the First Offer Notice was delivered to the Manager or within such shorter period, as specified in the First Offer Notice and required to enable the Selling Non-Affiliate Member to complete the Transfer on or before the date required as a result of the Major Investors may Regulatory Event. If the Manager and/or its Affiliates does not elect to purchase or obtainall of the Membership Interest specified in the First Offer Notice, then the Selling Non-Affiliate Member may Transfer to any Person the amount of the Membership Interest set forth in the First Offer Notice at the price and on the terms specified and conditions in the Offer Notice, up to that portion of such New Securities which equals the proportion that the number of shares of Registrable Securities then held by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, during the sixty (60) day period following the expiration of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) to any person or persons at a price not less than, and upon terms aggregate no more favorable to the offeree than, Transferee than those specified in the First Offer Notice. If Notice at any time during the Company does not enter into an agreement for 90-day period immediately following the sale of date on which 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 First Offer Notice was delivered to the Major Investors in accordance with this Section 4.1.
(d) The right of first offer in this Section 4.1 shall Manager. Any Membership Interest not Transferred during such 90-day period will be applicable subject to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within thirty (308.1(b) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major Investorsupon subsequent Transfer.
Appears in 1 contract
Samples: Limited Liability Company Operating Agreement (Services International LLC)
Right of First Offer. Subject (a) For so long as CFSI LLC is the sole Class A Member, if CFSI LLC desires to Transfer all or a portion of any Class A Units held by it (the terms and conditions specified in this Section 4.1“CFSI Units”) to any Person other than a Permitted Transferee, and applicable securities lawsthen each Class B Member shall have a right of first offer to purchase all, in but not less than all, of the event the Company proposes to offer or sell any New SecuritiesCFSI Units, the Company shall first make an offering of such New Securities to each Major Investor all in accordance with the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.provisions:
(ai) The Company CFSI LLC shall deliver a send written notice (the “Offer CFSI Offering Notice”) to the Company and the Class B Members of its desire to Transfer all or a portion of the CFSI Units to a Person other than a Permitted Transferee, and the price and other terms and conditions of a sale that CFSI LLC believes is material and is willing to accept (the “CFSI Proposed Terms”). The CFSI Offering Notice shall be dated and delivered on that date to each party entitled thereto.
(ii) For a period of 30 calendar days after the date of the CFSI Offering Notice, the Class B Members shall have the exclusive right and option to purchase all, but not less than all, of the CFSI Units on the CFSI Proposed Terms. Each Class B Member that desires to exercise its option shall give CFSI LLC written notice to that effect within such 30-day period. If a Class B Member timely exercises its option, settlement will be consummated within 40 calendar days after the date of the CFSI Offering Notice and in accordance with the provisions of Section 6.5 hereofCFSI Proposed Terms. If more than one Class B Member shall exercise its option, to each of then the Major Investors stating (i) its bona fide intention to offer CFSI Units shall be allocated proportionately among such New Securities, (ii) the 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 written notification received by the Company, within fifteen (15) calendar days after mailing of the Offer Notice, each of the Major Investors may elect to purchase or obtain, at the price and on the terms specified Class B Members in the Offer Notice, up to that portion of such New Securities which equals the proportion ratio that the number of shares of Registrable Securities then held Class B Units owned by each such Major Investor Class B Member bears to the total number of shares of Common Stock Class B Units owned by all such Class B Members.
(iii) If and to the extent that the Class B Members fail to notify CFSI LLC or decline to purchase all of the Company CFSI Units within 30 days of the date of the CFSI Offering Notice, then outstanding (assuming full conversion CFSI LLC shall be free to Transfer the CFSI Units to any third party at a price that is no less than 90% of the price contained in the CFSI Offering Notice and exercise otherwise on terms and conditions no less favorable to CFSI LLC than the CFSI Proposed Terms for a period of 180 days thereafter. If a sale of the CFSI Units is not consummated by CFSI LLC within such 180-day period, then CFSI LLC shall again be subject to this Section 11.4(a) prior to a Transfer of all convertible or exercisable securities and exercise in full a portion of all outstanding options and warrants); providedits Class A Units to any Person other than a Permitted Transferee.
(b) Following a liquidation of CFSI LLC, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time one or more Persons holding 50% or more of the proposed issuance of such New Securitiesoutstanding Class A Units (each, an “accredited investor” as defined Offering Member”) desires to Transfer all or a portion of any Class A Units held by such Offering Members (the “Offered Units”) to any Person other than a Permitted Transferee, then the Company shall have a right of first offer to purchase all, but not less than all, of such Offered Units, all in Regulation D under accordance with the Securities Actfollowing provisions:
(i) The Offering Members shall send written notice (the “Offering Notice”) to the Company and each of the Class B Members of its desire to Transfer all or a portion of the Offered Units to a Person other than a Permitted Transferee, and the price and other terms and conditions of a sale that the Offering Members believe are material and are willing to accept (the “Proposed Terms”). The Offering Notice shall be dated and delivered on that date to each party entitled thereto.
(ii) For a period of 30 calendar days after the date of the Offering Notice, the Company shall promptlyhave the exclusive right and option to purchase all, but not less than all, of the Offered Units on the Proposed Terms. If the Company desires to purchase the Offered Units, it shall give the Offering Members written notice to that effect within such 30-day period. If the Company timely exercises its option, settlement shall be consummated within 40 calendar days after the date of the Offering Notice and in writing, inform each Major Investor accordance with the Proposed Terms. A majority of the Independent Directors shall determine whether the Company desires to purchase the Offered Units for purposes of this Section 11.4(b).
(iii) If and to the extent that elects the Company declines to purchase all of the shares available Offered Units or fails to it (eachtimely notify the Offering Members of its election, then the Class B Members shall have the exclusive right and option to purchase all, but not less than all, of the Offered Units in accordance with the Proposed Terms. Each Class B Member that desires to exercise its option to purchase the Offered Units shall deliver written notice to the Offering Members to that effect within 40 calendar days after the date of the Offering Notice. If a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such informationClass B Member timely exercises its option, each Fully-Exercising Investor settlement shall be entitled to obtain that portion consummated within 50 calendar days of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by date of the Major Investors which is equal to Offering Notice and in accordance with the proportion Proposed Terms. If more than one Class B Member shall exercise its option, then the Offered Units shall be allocated proportionately among such Class B Members in the ratio that the number of shares of Registrable Securities then held Units owned by each such Fully-Exercising Investor Class B Member bears to the total number of shares of Registrable Securities then held Units owned by all Fully-Exercising Investors who wish to purchase such unsubscribed sharesClass B Members.
(civ) If all New Securities referred and to in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, extent that the Company mayand the Class B Members, during as applicable, fail to timely notify the sixty (60) day period following the expiration Offering Members or decline to purchase all of the period provided in subsection 4.1(b) hereofOffered Units within the applicable notice periods specified above, offer then the remaining unsubscribed portion Offering Members shall be free to Transfer all, but not less than all, of such New Securities (collectively, the “Refused Securities”) Offered Units to any person or persons third party at a price not that is no less than, than 90% of the price terms contained in the Offering Notice and upon otherwise terms and conditions no more less favorable to the offeree than, those specified in Offering Members than the Offer NoticeProposed Terms for a period of 180 days thereafter. If the Company does not enter into an agreement for the a sale of the New Securities within such period, or if such agreement Offered Units is not consummated by the Offering Members within thirty (30) days of such 180-day period, then the execution thereof, the right provided hereunder Offering Members shall again be deemed to be revived and such New Securities shall not be offered unless first reoffered subject to the Major Investors in accordance with this Section 4.1.
(d) The right of first offer in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions procedures of this Section 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b11.4(b) prior to giving effect a Transfer all or a portion of any Class A Units held by the Offering Members to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major Investorsany Person other than a Permitted Transferee.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Stonemor Partners Lp)
Right of First Offer. Subject Prior to any offer or sale by the Company of any -------------------- Equity Securities (as defined below) during the period beginning on the Closing Date and ending on the twelve (12) month anniversary of the Closing Date, the Company must first deliver to the Purchaser, at least twenty (20) Trading Days prior to the issuance thereof, written notice describing the proposed issuance, including the terms and conditions specified in this Section 4.1thereof, and applicable securities laws, in the Purchaser shall have an option during the ten (10) Trading Day period following delivery of such notice to purchase all or any part of the Equity Securities being offered on the same terms as contemplated by such issuance (the "Right of First Offer"). In the -------------------- event that the Purchaser either does not give notice within such ten Trading Day period that it intends to exercise the foregoing option or informs the Company proposes in writing that it does not intend to offer participate in all or sell any New Securitiespart of such issuance, the Company shall first make an offering of such New may offer any Equity Securities that are not purchased by the Purchaser to each Major Investor in accordance with a third party on the following provisions of this Section 4.1same terms as were offered to the Purchaser. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
(a) The Company shall deliver a notice (the “Offer Notice”), in accordance with the provisions of Section 6.5 For purposes hereof, to each "Equity Security" shall mean Common Stock or any --------------- other equity security of the Major Investors stating Company, or any security convertible into, or exercisable or exchangeable for, Common Stock or any such equity security. The Right of First Offer will not apply to the issuance of Equity Securities pursuant to (i) its bona fide intention to offer such New Securitiesan employee stock option, purchase or benefit plan or program duly adopted by the Company, (ii) any options, warrant, convertible securities or rights or agreements to purchase securities of the number of such New Securities to be offered, and Company outstanding on the date hereof; (iii) any firm-commitment underwritten public offering of Equity Securities in an amount not less than $40,000,000, (iv) any securities issued for consideration other than cash pursuant to a merger, consolidation, acquisition or similar business combination with a third party, the price and termsprimary purpose of which is not the raising of capital, if any, upon which it proposes to offer such New Securities.
(bv) By written notification received by the Company, within fifteen (15) calendar days after mailing of the Offer Notice, each of the Major Investors may elect to purchase or obtain, 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 number of shares of Registrable Securities then held by such Major Investor bears to the total number of shares of Common Stock issued upon conversion of the Company then outstanding (assuming full conversion and Preferred Shares or exercise of all convertible the Warrant, (vi) any Equity Securities issued pursuant to any equipment leasing arrangement or exercisable securities debt financing from a bank or other financial institution, or (vii) any Equity Securities issued in connection with strategic transactions involving the Company and exercise in full third parties, including by way of all outstanding options and warrants); providedexample (A) joint ventures, howevermanufacturing, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it marketing or distribution arrangements or (B) technology transfer or development arrangements (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewisean "Exempt Transaction"). During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, during the sixty (60) day period following the expiration of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) 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 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 Major Investors in accordance with this Section 4.1.
(d) The right of first offer in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major Investors.------------------
Appears in 1 contract
Samples: Securities Purchase Agreement (Pilot Network Services Inc)
Right of First Offer. Subject Prior to offering (or accepting any offer) to issue or sell to any third party (a “Subsequent Financing”), (i) securities related to any additional equity or equity-related financing (including debt financing with an equity component) or (ii) Ordinary Shares or ADSs or any securities convertible, exercisable or exchangeable into Ordinary Shares or ADSs, including convertible debt securities (clauses (i) and (ii) are collectively referred to herein as the “Financing Securities”), and subject to the maximum amount permitted to be acquired by Buyer pursuant to Section 1(b)(ii), the Company covenants and agrees to offer in writing (a "Rights Notice”) to the Buyers the right to purchase (on a pro rata basis among the Buyers in accordance with their percentage of securities purchased hereunder) all (but not less than all) of the securities to be offered in such Subsequent Financing, on terms and conditions specified in this Section 4.1, and applicable securities laws, no less favorable to the Buyers as the terms to be offered in the event Subsequent Financing. If a Buyer elects to exercise its First Offer Rights, it shall do so in written notice of exercise signed by such Buyer and delivered to the Company proposes to offer or sell any New Securities, during the Company shall first make an offering seven business days beginning on the date of such New Securities to each Major Investor in accordance with delivery of the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
(a) The Company shall deliver a notice Rights Notice (the “Offer NoticeOption Period”), in accordance with which written notice shall also indicate whether such Buyer is electing to purchase any Financing Securities, (and if so, the provisions aggregate dollar value thereof) otherwise offered to any other Buyers and as to which such other Buyers do not exercise their First Offer Rights. Any such written notice of Section 6.5 hereofexercise shall represent an irrevocable and binding commitment by the Buyer to purchase such Financing Securities as to which the applicable Buyer is exercising its First Offer Rights, plus any additional Financing Securities pursuant to each the preceding sentence, and shall represent a commitment by the Company to sell such Financing Securities on a closing date no later than ten (10) Trading Days after the delivery of such notice of exercise. The First Offer Rights will expire upon the Major Investors stating earlier of (i) its bona fide intention to offer such New Securitiestime as the Buyers own in the aggregate less than 50% of the Preferred Stock sold hereunder (and Exchange Shares issued on exchange thereof), or (ii) the 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 written notification received purchase by the Company, within fifteen Buyers of an aggregate of two million dollars purchase price (15) calendar days after mailing of the Offer Notice, each of the Major Investors may elect to purchase or obtain, 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 number of shares of Registrable Securities then held by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”$2,000,000) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, during the sixty (60) day period following the expiration of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Financing Securities”) 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 Offer Notice. If the Company does not enter into an agreement for the sale receive notice of exercise of a Rights Option from any of the New Securities Buyers within such period, or if such agreement is not consummated within thirty (30) days of the execution thereofOption Period, the Company shall have the right provided hereunder shall to negotiate and close any Subsequent Financing with any third party. Subject to the requirements set forth in the first sentence of this Section 4.12, notwithstanding the Company has received notice of exercise of a Rights Option from a Buyer, it will be deemed permitted to be revived negotiate and such New Securities close a Subsequent Financing if the Company requires additional financing. For purposes of this Agreement, a Permitted Financing (as defined hereinafter) shall not be offered unless first reoffered to considered a Subsequent Financing. A “Permitted Financing” shall mean (1) shares of capital stock or other Financing Securities issued in connection with a strategic relationship, joint venture or investment in the Major Investors in accordance with this Section 4.1.
Company (d) The right of first offer in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that so long as (i) such right the main purpose of which is assignable by each Major Investor not to any Affiliate of such Major Investor, raise equity capital and (ii) the Company’s board of directors approves such right is assignable by any Major Investor issuance for strategic purposes); (2) shares of capital stock or other Financing Securities issued in connection with a strategic merger or acquisition, (3) ADSs issued to any other Major Investor. Notwithstanding Fusion Capital pursuant to the foregoingSecurities Subscription Agreement dated as of February 10, it is acknowledged 2005 (the “Fusion Subscription Agreement”); (4) shares of capital stock or the issuance of options to purchase shares of Common Stock to employees, officers, directors, consultants providing bona fide services to the Company that are not related to financing or capital raising activities and agreed that vendors in accordance with the right Company’s equity incentive policies; (5) shares of first offer set forth capital stock to be issued in this Section 4.1 shall not be available a public underwritten offering; (6) the conversion or exercise of convertible or exercisable securities issued or outstanding prior to any Investor whose the date hereof and (7) the issuance of additional shares of Preferred Stock were mandatorily converted into Common Stock for failure and Warrants pursuant to participate in an equity financing round of the Company in accordance with the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions of amendment to this Section 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major InvestorsAgreement.
Appears in 1 contract
Samples: Securities Subscription Agreement (Insignia Solutions PLC)
Right of First Offer. Subject to the terms and conditions specified (a) Except as provided in this Section 4.1, and applicable securities laws, in the event the Company proposes to offer or sell any New Securitiessubsection (b), the Company shall first make an offering shall, prior to any proposed issuance by the Company of any of its securities, offer to each Holder by written notice the right, for a period of 30 days, to purchase all or any part of such New Securities securities for cash at an amount equal to each Major Investor in accordance with the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in price or other consideration for which such proportions as it deems appropriate.
(a) The Company shall deliver a notice (the “Offer Notice”), in accordance with the provisions of Section 6.5 hereof, to each of the Major Investors stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities securities are proposed to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securitiesissued.
(b) By written notification received by Subsection (a) shall not apply (1) to debt securities that are neither Convertible Securities nor issued as part of a transaction that includes equity securities or Convertible Securities; or (2) to securities issued (A) pursuant to an Exempt Issuance, (B) as consideration for the Company, within fifteen (15) calendar days after mailing of the Offer Notice, each of the Major Investors may elect to purchase or obtain, 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 number of shares of Registrable Securities then held by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise acquisition from an unaffiliated third party of all convertible or exercisable securities and exercise part of another business (whether by purchase of stock or assets or otherwise), or (C) in full of all outstanding options and warrantsa transaction described in Section 12(a); provided, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) If all New Securities referred The Company's written notice to in the Offer Notice are not elected Holders shall describe the securities proposed to be purchased or obtained as provided in subsection 4.1(b) hereof, issued by the Company mayand specify the number, during price and payment terms. Each Holder may accept the sixty (60) day period following Company's offer as to the full number of securities offered or any lesser number, by written notice thereof given by it to the Company and to the other Holders prior to the expiration of the period provided aforesaid 30-day period, in subsection 4.1(b) hereofwhich event the Company shall promptly sell and each Holder shall buy, offer upon the remaining unsubscribed portion of such New Securities (collectivelyterms specified, the “Refused Securities”) number of securities agreed to be purchased by such Holder. The Company shall be free at any time prior to 90 days after the date of its notice of offer to the Holders, to offer and sell to any person third party or persons parties the securities not agreed by the Holders to be purchased by them, at a price not less than, and upon on payment terms no more less favorable to the offeree than, Company than those specified in such notice of offer to the Offer NoticeHolders. If the Company does not enter into an agreement for the sale of the New Securities within such periodHowever, or if such agreement is third party sale or sales are not consummated within thirty (30) days of the execution thereofsuch 90-day period, the right provided hereunder shall be deemed to be revived and such New Securities Company shall not be offered unless first reoffered to the Major Investors in accordance sell such securities as shall not have been purchased within such period without again complying with this Section 4.1Section.
(d) The right of first offer If the Holders in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of such notice to aggregate elect to purchase up more securities than the Company proposes to issue, each Holder shall purchase such securities (1) in the proportion that all electing Holders shall agree among themselves in writing, notice of which shall be given in writing to the number Company not later than one business day before the issuance, sale and purchase is scheduled to be completed, or (2) failing such agreement in the proportion that the amount of New Securities securities that would, if such Holder elects to purchase bears to the amount of securities elected to be purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major Investorsall Holders.
Appears in 1 contract
Samples: Warrant Agreement (Medical Technology Systems Inc /De/)
Right of First Offer. Subject to the terms and conditions specified in of this Section 4.1, 4(a) and applicable securities laws, in the event if the Company proposes to offer or sell any New SecuritiesSecurities (as defined below), the Company shall first make an offering of offer such New Securities to each Major Investor in accordance with all Shareholders. For the following provisions purpose of this Section 4.1. A Major Investor shall be entitled Agreement, “New Securities” means, collectively, equity securities of the Company, whether or not currently authorized, as well as rights, options, or warrants to apportion the right purchase such equity securities, or securities of first offer hereby granted it among itself and its partnersany type whatsoever that are, members and Affiliates in or may become, convertible or exchangeable into or exercisable for such proportions as it deems appropriateequity securities.
(a1) The Company shall deliver a give notice (the “Offer Notice”), in accordance with the provisions of Section 6.5 hereof, ) to each of the Major Investors Shareholders stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, terms upon which it proposes to offer such New Securities.
(b2) By written notification received by to the Company, Company within fifteen twenty (1520) calendar days after mailing of the Offer NoticeNotice is given, each of the Major Investors Shareholder may elect to purchase or obtainotherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which that equals the proportion that the number of shares of Registrable Securities Shares then held by such Major Investor Shareholder bears to the total number Shares then outstanding. The closing of shares any sale pursuant to this Section 4(a) shall occur within the later of Common Stock ninety (90) days of the Company then outstanding date that the Offer Notice is given and the date of initial sale of New Securities. Failure by MPU to give such notice within the abovementioned twenty (assuming full conversion and exercise 20) days period shall constitute an irrevocable waiver by MPU of all convertible or exercisable securities and exercise in full its right of all outstanding options and warrants); provided, however, that such Major Investor shall have no right first offer with respect to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c3) If all New Securities referred to in the Offer Notice are not elected to be purchased or obtained acquired as provided in subsection 4.1(b) hereofSection 4(a)(2), the Company may, during the sixty ninety (6090) day period following the expiration of the period periods provided in subsection 4.1(b) hereofSection 4(a)(2), offer and sell the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) to any person or persons Person at a price not less than, and upon terms no more favorable to the offeree than, those specified in the 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 or sold unless first reoffered to the Major Investors Shareholders in accordance with this Section 4.14(a).
(d4) The right of first offer in this Section 4.1 4(a) shall not be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that to: (i) such right is assignable the issuance of Ordinary Shares, or the issuance of any option to purchase Ordinary Shares, to employees, advisors, directors or consultants of the Company under any equity incentive plan of the Company approved by each Major Investor to any Affiliate of such Major Investor, and the Board; (ii) the issuance of Ordinary Shares actually issued upon the exercise of any option to purchase Ordinary Shares, in each case provided such right issuance is assignable by any Major Investor pursuant to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round
any option to purchase Ordinary Shares; (fiii) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the typeOrdinary Shares, price and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to or the issuance of such New Securities. The closing any option to purchase Ordinary Shares, issued as acquisition consideration pursuant to the acquisition of such sale shall occur within sixty (60) days another corporation by the Company by merger, purchase of substantially all of the date assets or other reorganization or to a joint venture agreement, provided that such issuances are approved by the Board; (iv) the issuance of notice shares in connection with a Public Offering; or (v) the issuance of Ordinary Shares, or the issuance of any option to purchase Ordinary Shares, issued to banks, equipment lessors or other financial institutions, or to real property lessors, pursuant to a debt financing, equipment leasing or real property leasing transaction approved by the Major InvestorsBoard.
Appears in 1 contract
Right of First Offer. Subject Any Stockholder holding any shares of Preferred Stock may Transfer its shares of Preferred Stock to the terms and conditions specified any Person; provided that other than in this Section 4.1, and applicable securities laws, in the event the Company proposes to offer or sell any New Securities, the Company shall first make an offering of such New Securities to each Major Investor connection with a Transfer in accordance with Section 3.01(a) or pursuant to or consequent upon the following provisions exercise of this Section 4.1. rights set forth in Sections 3.03 or 3.04 hereof, upon any such proposed Transfer of such shares of Preferred Stock by a Stockholder (any such Stockholder that is Transferring such shares of Preferred Stock, a “Transferring Stockholder”), each non-Transferring Stockholder holding shares of Preferred Stock (a “Non-Transferring A Major Investor Stockholder”) shall be entitled to apportion the have a right of first offer hereby granted it among itself and its partnersover such shares of Preferred Stock, members and Affiliates which shall be exercised in such proportions as it deems appropriatethe manner set forth in this Section 3.02.
(a) The Transferring Stockholder shall provide the Company shall deliver and each Non-Transferring A Stockholder with a written notice (the a “Offer Proposed Transfer Notice”), in accordance with the provisions ) of Section 6.5 hereof, its desire to each Transfer its shares of the Major Investors stating (i) its bona fide intention to offer such New Securities, (ii) Preferred Stock. The Proposed Transfer Notice shall specify the number of shares of Preferred Stock such New Securities Transferring Stockholder wishes to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New SecuritiesTransfer.
(b) By written notification received by the Company, within Each Non-Transferring A Stockholder shall have a period of fifteen (15) calendar days after mailing following the receipt of the Offer Notice, each of the Major Investors may elect Proposed Transfer Notice to purchase or obtain, 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 number of shares of Registrable Securities then held by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects offer irrevocably to purchase all the (but not less than all) of such shares available to it of Preferred Stock for cash consideration (each, a an “Fully-Exercising InvestorOffer”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal delivering to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish Transferring Stockholder a written notice stating its desire to purchase such unsubscribed sharesshares of Preferred Stock, its proposed cash purchase price for such shares of Preferred Stock and any other material terms and conditions of its proposed purchase.
(c) If all New Securities referred In the event that the Transferring Stockholder elects to in accept an Offer (provided, that the Transferring Stockholder may only accept the highest Offer, and, if more than one Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereofis the same, the Company mayTransferring Stockholder must accept such Offers on a pro rata basis), during the sixty (60) day period following Transferring Stockholder and the expiration Non-Transferring A Stockholders whose Offer is accepted shall take such action as may be necessary to enter into a definitive agreement, which will include the terms of the period provided Offer, within 30 days of the date of acceptance by the Transferring Stockholder(s). The Transferring Stockholder(s) will provide representations, warranties, covenants and indemnities in subsection 4.1(bits individual capacity in connection with such transaction, and such representations, warranties, covenants and indemnifications shall be limited to customary fundamental representations and warranties of (i) hereofsuch Stockholder’s brokers and finders, offer (ii) such Stockholder’s title to its shares of Preferred Stock, free of all liens and encumbrances (other than those arising under applicable securities laws), (iii) such Stockholder’s authority, power and right to enter into and consummate the remaining unsubscribed transaction without violating any other material agreement or Applicable Law, (iv) such Stockholder’s power and right to enter into and consummate the transaction without the consent of a Governmental Authority or Person and (v) the absence of any required consents for such Stockholder to enter into and consummate the transaction and the absence of any registration requirements in connection therewith. The Transferring Stockholder(s)’s liability under the definitive purchase agreement with respect to such transaction will not exceed the total purchase price paid by the Non-Transferring A Stockholder and received by such Transferring Stockholder(s) in such transaction except for liability resulting from fraud or knowing and intentional breach (it being further agreed that no such portion of such New Securities shall be subject to any escrow or holdback).
(collectivelyd) Subject to Section 3.03, if no Offer is made, the “Refused Securities”) Transferring Stockholder may Transfer such shares of Preferred Stock to any person or persons Person within four (4) months following such fifteen (15)-day period.
(e) If the Transferring Stockholder does not accept an Offer, the Transferring Stockholder may Transfer such shares of Preferred Stock to any Person at a price any time within four (4) months following such fifteen (15)-day period in exchange for cash consideration that is not less than, than the proposed purchase price and upon on terms and conditions no more favorable to the offeree than, purchaser than those specified in the 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 Major Investors in accordance with this Section 4.1any single Offer.
(d) The right of first offer in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major Investors.
Appears in 1 contract
Right of First Offer. Subject In the event that a Transfer Notice states that the Notifying Stockholder proposes to Transfer shares of Stock in a transaction that does not constitute an Intra-Group Transfer, then, not later than 5:00pm Central Time on the 30th calendar day following date on which such Transfer Notice is deemed delivered to each of MB, the Voting Representative and the Successor Voting Representative (such 30 calendar day period, the “Election Period”), MB (or MB’s designee specified in writing to the terms Notifying Shareholder (any such designee, “MB’s Designee”)), individually and conditions specified in this Section 4.1not as the Successor Voting Representative, and applicable securities laws, in the event the Company proposes to offer or sell any New Securities, the Company shall first make an offering of such New Securities to each Major Investor in accordance with the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
(a) The Company shall deliver a provide written notice (any such notice, the “Offer Election Notice”), in accordance with the provisions of Section 6.5 hereof, ) to each of the Major Investors stating Notifying Stockholder, the Voting Representative and the Successor Voting Representative that MB (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and termsor, if anyapplicable, upon which it proposes MB’s Designee) is electing to offer such New Securities.
purchase all or a portion (bas specified in the Election Notice) By written notification received of the shares of Stock covered by the Company, within fifteen (15) calendar days after mailing of the Offer Notice, each of the Major Investors may elect to purchase or obtain, Transfer Notice at the same per share price and on the other economic terms specified set forth in the Offer Transfer Notice. Thereafter, up and not later than 5:00pm Central Time on the 60th calendar day following the date on which such Election Notice is deemed delivered to each of the Notifying Stockholder, the Voting Representative and the Successor Voting Representative (or the first business day on which national banks in Dallas, Texas are open for the transaction of business in the event that portion of such New Securities which equals 60th calendar day is not such a business day), the proportion that Notifying Stockholder shall sell to MB (or, if applicable, MB’s Designee), and MB (or, if applicable, MB’s Designee) shall purchase from the Notifying Stockholder, the number of shares of Registrable Securities then held Stock specified in the Election Notice (which shares shall be sold by such Major Investor bears the Notifying Stockholder pursuant to customary share transfer documentation and shall be free and clear of any liens, security interests, pledges, mortgages or similar encumbrances) in exchange for the payment by MB (or, if applicable, MB’s Designee) to the total number of shares of Common Stock Notifying Stockholder of the Company then outstanding per share purchase price and on the other economic terms specified in the Transfer Notice applicable to the shares so purchased and sold. Any such shares so purchased by MB (assuming full conversion and or, if applicable, MB’s Designee) pursuant to this Paragraph 4.5 shall, upon the consummation of such purchase, no longer be subject to the terms of this Agreement, but such shares may become subject, if applicable, to the terms of the Additional Voting Agreement. In the event that MB (or, if applicable, MB’s Designee) does not exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor shall have no the right to purchase any such New Securities if such Investor cannot demonstrate shares of Stock covered by the Transfer Notice pursuant to this Paragraph 4.5, then the Company’s reasonable satisfaction that such Investor isNotifying Stockholder shall be permitted to effect the Transfer proposed in the Transfer Notice, on terms at the time least equal to 90% of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under per share purchase price and the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) If all New Securities referred to economic terms specified in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company mayTransfer Notice, during the sixty (60) 60 calendar day period following the expiration of the period provided in subsection 4.1(b) hereofElection Period. If, offer at the remaining unsubscribed portion end of such New Securities (collectively, the “Refused Securities”) 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 Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such 60 calendar day period, or if such agreement is not consummated within thirty (30) days any shares of Stock covered by the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities Transfer Notice shall not be offered unless first reoffered have been so Transferred by the Notifying Stockholder, then such shares shall once again remain subject to the Major Investors in accordance with this Section 4.1.
(d) The right of first offer in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major InvestorsParagraph 4.
Appears in 1 contract
Samples: Combination Agreement (Ashford Inc.)
Right of First Offer. Subject to (A) Any Partner (the terms and conditions specified in this Section 4.1"Sending Partner"), and applicable securities lawsat any time, in the event the Company proposes to offer or sell any New Securities, the Company shall first make an offering of such New Securities to each Major Investor in accordance with the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
(a) The Company shall deliver a may give notice (the “Offer "Selling Notice”), in accordance with the provisions of Section 6.5 hereof, to each of the Major Investors stating (i") its bona fide intention to offer such New Securities, (ii) the 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 written notification received by the Company, within fifteen (15) calendar days after mailing of the Offer Notice, each of the Major Investors may elect to purchase or obtain, 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 number of shares of Registrable Securities then held by such Major Investor bears to the total number of shares of Common Stock of other Partners (the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”"Receiving Partners") of its desire to sell its Partnership Interest. At any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, during the sixty (60) day period following the expiration of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) 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 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 Major Investors in accordance with this Section 4.1.
(d) The right of first offer in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days after receipt of the date of Selling Notice, the Receiving Partners each shall either:
(i) elect, by notice to the Major InvestorsSending Partner, to purchase or to cause its designee to purchase the Partnership Interest of the Sending Partner; or
(ii) elect not to purchase or to cause its designee to purchase the Partnership Interest of the Sending Partner.
(B) If one or more Receiving Partner shall elect to purchase the Partnership Interest of the Sending Partner, then:
(i) the purchase price (the "Purchase Price") of such interest shall be an amount equal to that which the Sending Partner would have been entitled to receive if the Property were sold at the Fair Market Value, all liabilities of the Partnership, including non-recourse liabilities with respect to the Property were to be satisfied and the Partnership were to be dis- 77 83 solaxx xxxuidated pursuant to the terms of Article X hereof;
(ii) the Purchase Price will be paid either in cash or, at the election of any of the Receiving Partners, by delivery of a purchase money note in the principal amount of the Purchase Price, which note will be secured by either a collateral assignment of leases and rents or a second mortgage, and which note shall have a term of three (3) years, prepayable in full at any time without penalty and with interest only payable during such term, at a rate computed and payable monthly on the basis of a fraction, the denominator of which is 360 and the numerator of which is the number of days in the billing period, equal to the Prime Rate in effect as of the first day of the month preceding the month in which an installment of interest is due; and
(iii) the Sending Partner shall be removed immediately from the Partnership and the Sending Partner shall not be entitled to receive any distributions in connection therewith.
(C) Upon determination of the Fair Market Value, each Receiving Partner shall have the option, to be exercised within ten (10) business days after determination of the Fair Market Value, to rescind its
Appears in 1 contract
Samples: Limited Partnership Agreement (Paine Webber Group Inc)
Right of First Offer. Subject With respect to any Shares that the terms and conditions specified in this Purchaser wishes to Transfer, other than pursuant to Section 4.14.3 hereof, and applicable securities laws, in the event the Company proposes to offer or sell any New Securities, the Company shall first make an offering of such New Securities to each Major Investor in accordance with the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriateapply.
(a) The Company If the Purchaser desires to Transfer any such Shares, the Purchaser shall deliver a notice (the “Offer Notice”), in accordance with the provisions of Section 6.5 hereof, to each of the Major Investors stating (i) its bona fide intention to offer such New Securities, (ii) the 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 written notification received by the Company, within fifteen (15) calendar the Principal Shareholders, and the Management Employees a written notice, which shall be irrevocable for a period of 60 days after mailing delivery, offering all of such Shares to the Company, and so long as the Principal Shareholders then own more than 50% of the Offer Notice, each Combined Voting Power of the Major Investors may elect to purchase or obtainthen outstanding shares of capital stock of the Company, the Principal Shareholders, and the Management Employees at the purchase price and on the terms specified in the Offer Noticewritten notice. The Company shall have the first right and option, up to that portion for a period of 30 days after delivery of such New Securities which equals written notice, to purchase all (but not part) of such Shares at the proportion that purchase price and on the number of shares of Registrable Securities then held terms specified in the notice. Such acceptance shall be made by such Major Investor bears delivering a written notice to the total number of shares of Common Stock Purchaser within such 30-day period.
(b) If the Company fails to accept such offer, then upon the earlier of the Company then outstanding (assuming full conversion and exercise expiration of all convertible such 30-day period or exercisable securities and exercise in full upon the receipt of all outstanding options and warrants); provideda written rejection of such offer from the Company, however, that such Major Investor the Principal Shareholders shall have no the second right and option, until 15 days after the expiration of the 30-day period, to purchase any all (but not part) of such New Securities if such Investor cannot demonstrate Shares offered at the purchase price and on the terms specified in the notice. Such acceptance shall be made by delivering a written notice to the Purchaser within the 15-day period.
(c) If the Principal Shareholders fail to accept such offer, then upon the earlier of the expiration of such 15-day period or upon the receipt of a written rejection of such offer from the Principal Shareholders, the Management Employees (as a group) shall have the third right and option, until 15 days after the expiration of the 15-day period, to purchase on a pro rata basis with all Management Employees so electing all (but not part) of such Shares offered at the purchase price and on the terms specified in the notice. Such acceptance shall be made by delivering a written notice to the Purchaser within the second 15-day period.
(d) If the Company’s reasonable satisfaction that , Principal Shareholders, and the Management Employees do not elect to purchase the Shares so offered, then the Purchaser may Transfer all (but not part) of such Investor isShares at a price not less than the price, and on terms not more favorable to the transferee of such Shares than the terms, stated in the original written notice of intention to sell, at any time within 15 days after the expiration of the period in which the Management Employees could elect to purchase such Shares. If such Shares are not sold by the Purchaser during such 15-day period, the right of the Purchaser to sell such Shares shall expire and the rights and obligations set forth in this Section 4.4 shall be reinstated with respect to such Shares.
(e) The rights of the Principal Shareholders under this Section 4.4 shall terminate if at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under Transfer the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to Principal Shareholders do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion not own more than 50% of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by Combined Voting Power of the Major Investors which is equal to the proportion that the number of then outstanding shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, during the sixty (60) day period following the expiration of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) 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 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 Major Investors in accordance with this Section 4.1.
(d) The right of first offer in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with the terms capital stock of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major Investors.
Appears in 1 contract
Samples: Securities Purchase and Stockholders' Agreement (Heafner Tire Group Inc)
Right of First Offer. Subject Notwithstanding anything to the terms contrary herein or in any Facility Document, in connection with any liquidation or disposition of the Collateral, including without limitation, upon the termination of the Commitments following the occurrence and conditions specified in this Section 4.1during the continuation of an Event of Default, the Fund and/or any of its Affiliates shall have the right to purchase all (but not less than all) the Collateral subject to such liquidation or at a purchase price at least equal to the sum of the then accrued and outstanding Obligations, as reasonably determined by the Administrative Agent. Any such party may exercise such right by delivering written notice to the Administrative Agent (an “Exercise Notice”) which shall include a proposed purchase price and be delivered not later than one (1) Business Day after the date on which the Borrower receives notice from the Administrative Agent of the occurrence of such Event of Default and termination of the Commitments, as applicable, and applicable securities lawsthe intent of the Administrative Agent to liquidate or dispose of the Collateral, in and which Exercise Notice shall set forth evidence reasonably satisfactory to the event Administrative Agent that the Company proposes Fund (or its Affiliates) has access to offer or sell any New Securities, the Company shall first make an offering of sufficient capital to consummate such New Securities to each Major Investor purchase in accordance with Section 7.03. Once an Exercise Notice is delivered to the following provisions of this Section 4.1. A Major Investor Administrative Agent, the delivering party (or its designated Affiliate or managed fund) shall be entitled to apportion the right of first offer hereby granted it among itself obligated, irrevocably and its partners, members and Affiliates in such proportions as it deems appropriate.
(a) The Company shall deliver a notice (the “Offer Notice”), in accordance with the provisions of Section 6.5 hereofunconditionally, to each of purchase the Major Investors stating (i) its bona fide intention to offer such New Securities, (ii) the 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 written notification received by the Company, within fifteen (15) calendar days after mailing of the Offer Notice, each of the Major Investors may elect to purchase or obtainCollateral, at the price and on referenced above, for settlement within the terms specified in normal settlement period for such Collateral. The cash purchase price must be received no later than five (5) Business Days following delivery of the Offer Exercise Notice. Neither the Collateral Agent, up the Administrative Agent nor any Lender shall cause the liquidation or disposition of the Loan Assets to that portion of such New Securities which equals occur during the proportion time that the number of shares of Registrable Securities then held by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion Fund and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be its Affiliates are entitled to obtain that portion of provide an Exercise Notice and purchase the New Securities for which Major Investors were entitled Collateral pursuant to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, during the sixty (60) day period following the expiration of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) 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 Offer Noticethis Section 7.03. 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 Nothing herein shall be deemed to be revived constitute a modification or waiver of any rights under the Sourcing and such New Securities shall not be offered unless first reoffered to the Major Investors in accordance with this Section 4.1Servicing Agreement.
(d) The right of first offer in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major Investors.
Appears in 1 contract
Samples: Loan and Security Agreement (Stepstone Private Credit Fund LLC)
Right of First Offer. Subject to the terms and conditions specified in this Section 4.1, and applicable securities laws, in the event the Company proposes to offer or sell any New Securities, the Company shall first make an offering of such New Securities to each Major Investor in accordance with the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
(a) The Company If at any time a Bidder (a "Seller") desires to effect a transfer of all or any portion of the Shares it holds (other than any Shares held by such Bidder as of December 22, 2005) to any person other than Holdco or an Affiliate of the Seller, the Seller shall deliver a notice (the “Offer Notice”), in accordance with the provisions of Section 6.5 hereof, to each of the Major Investors other Bidders (the "Eligible Bidders") a notice (an "Offer Notice") stating (i) its bona fide intention that the Seller desires to offer transfer such New Securities, (ii) Shares and the number of such New Securities Shares to be offeredso transferred (the "Offered Shares"), and which Offer Notice shall constitute an offer to such Eligible Bidders to sell such Offered Shares at a price of $15.00 per Share together with interest thereon at the Interest Rate (iii) the price and terms, if any, upon which it proposes to offer such New Securities"Offer Price").
(b) By written notification received by the Company, within fifteen (15) calendar days after mailing Upon receipt of the an Offer Notice, each of the Major Investors may elect Eligible Bidder shall be entitled to purchase or obtainfrom the Seller, at the price and on upon the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the a number of shares of Registrable Securities then held by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is Offered Shares equal to the proportion that sum of (i) (A) its Percentage (as defined below) of the number Offered Shares if there are two or more Eligible Bidders or (B) all of shares of Registrable Securities then held by such Fully-Exercising Investor bears the Offered Shares in the event there is one Eligible Bidder and (ii) if there are two or more Eligible Bidders, the Offered Shares offered to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish other Eligible Bidders in the event that such other Eligible Bidder does not elect to purchase such unsubscribed shares.
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, during the sixty (60) day period following the expiration of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) 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 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 Major Investors Offered Shares in accordance with this Section 4.1.
subsection 6.01(b). Each Eligible Bidder wishing to purchase Offered Shares shall provide a notice (dan "Acceptance Notice") The right to the Seller and to the other Eligible Bidders, if applicable, not later than 15 days following receipt by such Eligible Bidder of first offer an Offer Notice (such 15-day period being the "Offer Period"), specifying the number of Offered Shares it wishes to purchase (including, if applicable, the Offered Shares offered to each other Eligible Bidder in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned the event that one or transferred except that (i) such right is assignable by each Major Investor to any Affiliate more of such Major Investor, and (ii) other Eligible Bidders do not elect to purchase such right is assignable by any Major Investor to any other Major InvestorOffered Shares). Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions For purposes of this Section 4.16.01, any Eligible Bidder's "Percentage" means the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of such notice to elect to purchase up to fraction obtained by dividing the number of New Securities that would, if purchased equity interests in Holdco held by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth Eligible Bidder by the number of equity interests in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days Holdco held by all of the date of notice to the Major InvestorsEligible Bidders.
Appears in 1 contract
Right of First Offer. Subject to the terms and conditions specified in this Section 4.1, and applicable securities laws, in the event the Company proposes to offer or sell any New Securities, the Company shall first make an offering of such New Securities to each Major Investor in accordance with the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
(a) The If at any time a Member proposes to sell, assign, or otherwise dispose of all or any part of, or to solicit bids from any third party to purchase or otherwise acquire, all or any portion of its interest in the Company shall deliver a notice (other than sales or other dispositions to Affiliates of such Member), such Member (the “Offer Notice”), "Soliciting Member") shall first notify the other Member (the "Notified Member") in accordance with the provisions of Section 6.5 hereof, to each of the Major Investors stating (i) its bona fide intention to offer such New Securities, (ii) the number writing of such New Securities Soliciting Member's desire to be offered, and (iii) sell such interest in the price and terms, if any, upon which it proposes to offer such New SecuritiesCompany.
(b) By written notification The Notified Member shall have 10 days to make a first cash offer to purchase, and negotiate for the purchase of, the interest in the Company that the Soliciting Member desires to sell. If the Soliciting Member does not accept a bona fide first cash offer made by the Notified Member to purchase the Soliciting Member's interest in the Company, the Soliciting Member shall not sell, assign or otherwise dispose of, or enter into any binding agreement to sell, assign or otherwise dispose of all or any part of the Soliciting Member's interest in the Company during the 90-day period following such 10-day first offer period, unless the cash value of the consideration to be received by the CompanySoliciting Member from a third party purchaser is greater than the cash offer made by the Notified Member. If the Soliciting Member does not sell or enter into a binding agreement to sell its interest in the Company within such 90-day period, within fifteen (15) calendar days after mailing it shall again afford the Notified Member the opportunity to make a first offer with respect to proposed sales of the Offer Notice, each of the Major Investors may elect to purchase or obtain, at the price and on the terms specified Soliciting Member's interest in the Offer Notice, up to that portion of such New Securities which equals the proportion that the number of shares of Registrable Securities then held by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed sharesprovided above.
(c) If the Notified Member does not elect to make a first cash offer to purchase all New Securities referred to of the Company interest offered by the Soliciting Member during the 10-day period provided for in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereofSection 13.2(b), the Company may, during Soliciting Member may sell the sixty (60) day period following interest within 90 days after the expiration of the 10-day period provided for in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) 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 Offer NoticeSection 13.2(b). If the Company Soliciting Member does not sell or enter into an a binding agreement for to sell its interest in the sale Company within such 90-day period, it shall again afford the Notified Member the opportunity to make a first offer with respect to proposed sales 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 Major Investors Soliciting Member's interest in accordance with this Section 4.1.
(d) The right of first offer in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company as provided in accordance with the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major Investors13.2(a).
Appears in 1 contract
Right of First Offer. Subject (a) Except as otherwise provided in Section 2.01, any Transfer or voluntary or mandatory conversion (other than an Involuntary Conversion) of shares of Class B Stock will be subject to the terms and conditions specified in this Section 4.1, and applicable securities laws, in the event the Company proposes to offer or sell any New Securities, the Company shall first make an offering of such New Securities to each Major Investor in accordance with the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
(a) The Company shall deliver a notice (the “Offer Notice”), in accordance with the provisions of this Section 6.5 hereof, to each of the Major Investors stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities2.03.
(b) By written notification received by the Company, within fifteen Prior to effecting any Transfer or conversion (15other than an Involuntary Conversion) calendar days after mailing of the Offer Notice, each of the Major Investors may elect to purchase or obtain, 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 number of shares of Registrable Securities then held by such Major Investor bears Class B Stock, the transferring Stockholder shall deliver a written notice (the "Offer Notice") to each Principal Holder, which Offer Notice shall specify (i) the total number of shares of Common Stock intended to be Transferred or converted and (ii) if applicable, the Specified Price (as defined below). The Offer Notice shall constitute an irrevocable offer to such non-transferring Principal Holders, for the period of time described below, to sell to such non-transferring Principal Holders all (but not less than all) of such Common Stock (allocated among such non-transferring Principal Holders as they may agree, or if they shall not otherwise agree, allocated pro rata among such non-transferring Principal Holders based on the number of shares held of record) at (i) the price set by the transferring Stockholder in the Offer Notice (the "Specified Price"), in the case of a proposed private placement, (ii) the Current Market Value as of the Company then outstanding Specified Date (assuming full as defined in the Vulcan Stockholder Agreement), in the case of a mandatory conversion pursuant to Section 3.02(a) of the Vulcan Stockholder Agreement or (iii) the Current Market Value as of the date of the Offer Notice, in all other cases.
(c) If such non-transferring Principal Holders elect to purchase all of the offered Class B Stock at the price described in Section 2.03(b), they shall give joint irrevocable notice thereof to the transferring Stockholder within five Business Days of their receipt of the Offer Notice. If such non-transferring Principal Holders shall deliver such a notice, it shall constitute a binding obligation, subject to obtaining any governmental and exercise other similar required approvals, to purchase the offered Class B Stock, which notice shall include the date set for the closing of all convertible such purchase, which date shall be no later than 30 days following the delivery of such election notice, subject to extension to the extent necessary to obtain any required antitrust or exercisable securities other required governmental approvals, which the transferring Stockholder and exercise such non-transferring Principal Holders shall use their respective reasonable best efforts to obtain as promptly as practicable (the "Determination Date"). To the extent that the closing of any such purchase has not occurred by the Determination Date, the transferring Stockholder may terminate the relevant agreement to sell the Class B Stock to such non-transferring Principal Holders and sell the Class B Stock in full the form of all outstanding options and warrants)Class A Stock (with conversion effected immediately prior to Transfer) or convert the Class B Stock, as applicable.
(d) If such non-transferring Principal Holders do not respond to the Offer Notice within the required response time period or elect not to purchase the offered Class B Stock, the transferring Stockholder shall be free to Transfer the offered Class B Stock in the form of Class A Stock (with conversion effected immediately prior to Transfer) or convert the Class B Stock, as applicable; provided, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, during the sixty case of a Transfer (60) day period following the expiration of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) 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 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 Major Investors in accordance with this Section 4.1.
(d) The right of first offer in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that (ix) such right Transfer is assignable by each Major Investor to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors closed within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) 60 days from the date of receipt of such notice the Offer Notice, subject to elect to purchase up extension to the number extent necessary to obtain required governmental approvals and other required approvals, which the transferring Stockholder and such non-transferring Principal Holders shall use their respective reasonable best efforts to obtain as promptly as practicable and (y) the per share price at which the Class A Stock or Class B Stock, as applicable, is Transferred is equal to or higher than the Specified Price, in the case of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major Investorsa Private Placement.
Appears in 1 contract
Samples: Stockholder Agreement (DreamWorks Animation SKG, Inc.)
Right of First Offer. Subject If a Duke Shareholder or a Xxxxxxxx Shareholder (each, a "Shareholder") desires to Transfer all or any portion of its Corporation Interest (other than pursuant to a registered public offering) to a Person other than an Affiliate, then prior to effecting or making such Transfer, the Person desiring to make such Transfer (a "Transferring Entity") shall notify in writing the other Party or Parties that are not Affiliates of the Transferring Entity (whether one or more, the "Non-Transferring Entity") of the terms and conditions specified in this Section 4.1, and applicable securities laws, in the event the Company proposes to offer or sell any New Securities, the Company shall first make an offering of such New Securities to each Major Investor in accordance with the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
(a) The Company shall deliver a notice (the “Offer Notice”), in accordance with the provisions of Section 6.5 hereof, to each of the Major Investors stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer effect such New Securities.
Transfer (which notice shall be herein referred to as a "Transfer Notice" and shall include all material price and non-price terms and conditions). The Non-Transferring Entity shall have the right to acquire all (but not less than all) of the Corporation Interest that is the subject of the Transfer Notice on the same terms and conditions as are set forth in the Transfer Notice. The Non-Transferring Entity shall have 30 days following delivery of the Transfer Notice during which to notify the Transferring Entity whether or not it desires to exercise its right of first offer. If the Non-Transferring Entity does not respond during the applicable period set forth above for exercising its purchasing right under this Section 4.1, such Non-Transferring Entity shall be deemed to have waived such right. If the Non-Transferring Entity elects to purchase all, but not less than all, of the Corporation Interest that is the subject of the Transfer Notice, the closing of such purchase shall occur at the principal place of business of the Corporation on the tenth day following the first date on which all applicable conditions precedent have been satisfied or waived (but in no event shall such closing take place later than the date that is 60 days (subject to extension for regulatory approvals, but in no event more than 180 days) following the date on which the Non-Transferring Entity agrees to purchase all of the Corporation Interest that is the subject of the Transfer Notice). The Transferring Entity and the purchasing Non-Transferring Entity agree to use commercially reasonable efforts to cause any applicable conditions precedent to be satisfied as expeditiously as possible. At the closing, (a) the Transferring Entity shall execute and deliver to the purchasing Non-Transferring Entity (or, at the option of the Non-Transferring Entity, to an Affiliate of the Non-Transferring Entity designated by the Non-Transferring Entity not less than five days prior to the closing) (i) an assignment of the Corporation Interest described in the Transfer Notice, in form and substance reasonably acceptable to the purchasing Non-Transferring Entity (or such Affiliate) and (ii) any other instruments reasonably requested by the purchasing Non-Transferring Entity to give effect to the purchase; and (b) By written notification received by the Company, within fifteen (15) calendar days after mailing of purchasing Non-Transferring Entity shall deliver to the Offer Transferring Entity the purchase price specified in the Transfer Notice in immediately available funds or other consideration as specified in the Transfer Notice, each of . If the Major Investors may Non-Transferring Entity does not elect to purchase the Corporation Interest pursuant to this Section 4.1, or obtain, at the price and on the terms specified in the Offer Notice, up having elected to that portion of so purchase such New Securities which equals the proportion that the number of shares of Registrable Securities then held by such Major Investor bears Corporation Interests fails to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at do so within the time of period required by this Section 4.1, the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor Transferring Entity shall be entitled to obtain that portion free for a period of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, during the sixty (60) day period following 180 days after the expiration of the offer period provided in subsection 4.1(b) hereof, offer referred to above or the remaining unsubscribed portion date of such New Securities failure, as applicable, to enter into a definitive written agreement with an unaffiliated third party regarding the Transfer of its Corporation Interest on terms and conditions that satisfy the following criteria:
(collectively1) the amount of consideration to be paid by the purchasing party may not be less than the consideration set forth in the Transfer Notice;
(2) the form of consideration may not be materially different from that set forth in the Transfer Notice, except to the “Refused Securities”extent any change in the form of consideration makes the terms of the transaction less favorable from the purchaser's standpoint; and
(3) the terms and conditions set forth in such definitive written agreement, when considered together with the form and amount of consideration to be paid by such purchasing party, may not render the terms of such transaction, taken as a whole, materially inferior (to the Transferring Entity from an economic standpoint) to those set forth in the Transfer Notice (it being agreed that the granting by the Transferring Entity of representations, warranties and indemnities with respect to the business or properties of the Corporation, as applicable, or any person of its subsidiaries that are different from or persons at a price in addition to any such provisions referenced in the Transfer Notice shall not less than, and upon terms no be considered to be more favorable to the offeree than, those specified in the Offer Noticepurchaser for purposes of this clause (3)). If the Company does not enter such a definitive written agreement is entered into with an agreement for the sale of the New Securities unaffiliated third party within such time period, or if the Transferring Entity shall be free for a period of 270 days following the execution of such definitive written agreement to consummate the Transfer of its Corporation Interest in accordance with the terms thereof. If such Transfer is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Major Investors in accordance with this Section 4.1.
(d) The right of first offer in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company time period in accordance with the terms of such definitive written agreement, the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions requirements of this Section 4.1, 4.1 shall apply anew to any further efforts by the Company may elect Transferring Entity to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major InvestorsTransfer its Corporation Interest.
Appears in 1 contract
Right of First Offer. Subject to the terms and conditions specified in this Section 4.1, and applicable securities laws, in the event the Company proposes to offer or sell any New Securities, the The Company shall first make an offering of such New Securities to each Major Investor only issue Non- -------------------- Public Capital Stock in a Private Financing Transaction in accordance with the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.terms:
(a) The Company shall deliver not issue any Non-Public Capital Stock unless it first delivers to each Investor and Motient who is then an Eligible Purchaser (as defined below) (each such Person being referred to in this Section 7 as a "Buyer") a written notice (the “Offer Notice”"Notice of Proposed Issuance") specifying the ----- --------------------------- type and total number of such shares of Non-Public Capital Stock that the Company then intends to issue (the "Offered Non-Public Capital Stock"), all of -------------------------------- the material terms, including the price upon which the Company proposes to issue the Offered Non-Public Capital Stock and stating that the Buyers shall have the right to purchase the Offered Non-Public Capital Stock in the manner specified in this Section 7.2(a) for the same price per share and in accordance with the provisions same terms and conditions specified in such Notice of Section 6.5 hereof, to each of the Major Investors stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New SecuritiesProposed Issuance.
(b) By written notification received by the Company, within fifteen For a period of ten (1510) calendar days after mailing from the date the Company delivers to all of the Offer NoticeBuyers the Notice of Proposed Issuance (the "Ten Day ------- Period"), each of the Major Investors Buyers may elect to subscribe to purchase or obtain, all of the Offered Non- ------ Public Capital Stock at the same price per share and on upon the same terms and conditions specified in the Offer NoticeNotice of Proposed Issuance. Each Buyer electing to purchase Offered Non-Public Capital Stock must give written notice of its election to the Company prior to the expiration of the Ten Day Period. If the Offered Non-Public Capital Stock is being offered as part of an investment unit together with debt or other instruments, up any election by a Buyer to that purchase Offered Non-Public Capital Stock shall also constitute an election to purchase a like portion of such New Securities which equals debt or other instruments.
(c) Each Buyer shall have the proportion right to purchase that number of shares of the Offered Non-Public Capital Stock as shall be equal to the number of shares of Registrable Securities then held the Offered Non-Public Capital Stock multiplied by such Major Investor bears to a fraction, the total numerator of which shall be the number of shares of Common Stock then held by such Buyer plus all shares of the Company then outstanding (assuming full Common Stock issuable upon conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Convertible Securities then held by such FullyBuyer and the denominator of which shall be the aggregate number of shares of Common Stock Deemed Outstanding. The amount of such Offered Non-Exercising Investor bears Public Capital Stock that each Buyer is entitled to purchase under this Section 8 shall be referred to as its "Proportionate Share." -------------------
(d) Each Buyer shall have a right of oversubscription such that if any other Buyer fails to elect to purchase his or its full Proportionate Share of the Offered Non-Public Capital Stock, the other Buyer(s) shall, among them, have the right to purchase up to the balance of such Offered Non-Public Capital Stock not so purchased. The Buyers may exercise such right of oversubscription by electing to purchase more than their Proportionate Share of the Offered Non- Public Capital Stock by so indicating in their written notice given during the Ten Day Period. If, as a result thereof, such oversubscription elections exceed the total number of shares of Registrable Securities then held by all Fullythe Offered Non-Exercising Investors who wish Public Capital Stock available in respect to purchase such unsubscribed sharesoversubscription privilege, the oversubscribing Buyers shall be cut back with respect to oversubscriptions on a pro rata basis in accordance with their respective Proportionate Share or as they may otherwise agree among themselves.
(ce) If all New Securities referred of the Offered Non-Public Capital Stock has not been subscribed for by the Buyers pursuant to in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereofforegoing provisions, then the Company mayshall have the right, during until the sixty expiration of one-hundred eighty (60180) consecutive days commencing on the first day period immediately following the expiration of the period provided in subsection 4.1(b) hereofTen Day Period, offer to issue the remaining unsubscribed portion of such New Securities (collectively, Offered Non-Public Capital Stock not purchased by the “Refused Securities”) to any person or persons Buyers at a price not less than, and upon on terms no more favorable in any material respect to the offeree purchaser(s) thereof than, those the price and terms specified in the Offer NoticeNotice of Proposed Issuance. If the Company does such remaining Offered Non- Public Capital Stock is not enter into an agreement for the sale of the New Securities issued within such period, or if period and at such agreement is not consummated within thirty (30) days of the execution thereofprice and on such terms, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Major Investors issue in accordance with the Notice of Proposed Issuance shall expire and the provisions of this Section 4.1Agreement shall continue to be applicable to the Offered Non-Public Capital Stock.
(df) The right Company may proceed with the issuance of Non-Public Capital Stock without first offer in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except following the foregoing procedures provided that (i) such right is assignable by each Major Investor to any Affiliate purchaser of such Major InvestorNon- Public Capital Stock acquiring more than 5% of the Common Stock Deemed Outstanding agrees in writing to be bound by Section 7.1, and (ii) within ten (10) days following the issuance of such Non-Public Capital Stock, the Company or the purchaser of the Non-Public Capital Stock undertakes steps substantially similar to those described above to offer to all Buyers the right to purchase from such purchaser or from the Company such amount of such Non-Public Capital Stock at the same price and terms applicable to the purchaser's purchase thereof as is assignable by any Major Investor necessary for the Buyers to any other Major Investor. maintain the same ownership percentage of the Company on a fully diluted basis as existed prior to such issuance of Non-Public Capital Stock.
(g) Notwithstanding the foregoing, it is acknowledged and agreed that the right Right of first offer set forth First Offer described in this Section 4.1 7 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance apply with the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect respect to the issuance of Excluded Securities or to any Investor who is not an Eligible Purchaser. For purposes of this Section 7, any Investor or Motient shall be an "Eligible Purchaser" with respect to a proposed issuance of Non-Public Capital Stock if such New Securities. Investor or Motient meets the Company's reasonable requirements for investors generally (such as being an Accredited Investor or Qualified Institutional Buyer) to purchase Non-Public Capital Stock in the particular Private Financing Transaction.
(h) The closing Right of such sale First Offer described in this Section 7 shall occur within sixty terminate (60i) days as to any Investor who transfers more than 50% of its original Capital Stock to a Person other than an Affiliate, or (ii) upon the date Company achieving positive EBITDA for a period of notice to the Major Investorssix consecutive calendar months.
Appears in 1 contract
Samples: Shareholders Agreement (Xm Satellite Radio Holdings Inc)
Right of First Offer. Subject to During the terms and conditions specified First Offer Period, Holbxxx xxx/or its Affiliates (including AP Holdings) shall not engage in this Section 4.1, and applicable securities laws, in the event the Company proposes to offer a Control Transaction unless Holbxxx xxx/or sell any New Securities, the Company its Affiliates shall first make an offering offer to Doshxx xxx opportunity to acquire all, but not less than all, of Holbxxx'x xxx/or its Affiliates' Shares by giving a written notice to Doshxx xx such effect (a "First Offer Notice"). If within 60 days following the delivery of such New Securities to each Major Investor in accordance with the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
(a) The Company shall deliver a notice (the “Offer Notice”), in accordance with the provisions of Section 6.5 hereof, to each of the Major Investors stating (i) its bona fide intention to offer such New Securities, (ii) the 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 written notification received by the Company, within fifteen (15) calendar days after mailing of the First Offer Notice, each of the Major Investors may elect Doshxx xxxls to purchase or obtain, at the price and on the terms specified in the Offer Notice, up deliver to that portion of such New Securities which equals the proportion that the number of shares of Registrable Securities then held by such Major Investor bears Holbxxx x xritten offer to the total number of shares of Common Stock acquire all capital stock of the Company then outstanding which is not subject to any conditions not customary for stock purchase agreements relating to acquisitions of businesses such as the Company and which shall be irrevocable for 150 days from delivery, and which shall specify the cash price and other material terms upon which Doshxx xx prepared to make such acquisition (assuming full conversion and exercise of all convertible an "Doshxx Xxxst Offer") or exercisable securities and exercise in full of all outstanding options and warrants); providedDoshxx xxxivers an Doshxx Xxxst Offer to Holbxxx xxx such Doshxx Xxxst Offer is not accepted by Holbxxx, however, that such Major Investor shall have no right Xxlbxxx xxx enter into a definitive agreement respecting a Control Transaction with another party without prior notice to purchase any such New Securities if such Investor cannot demonstrate to Doshxx xxx 150 days after the Company’s reasonable satisfaction that such Investor is, at the time earlier of the proposed issuance expiration of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar60-day period commencing after receipt or the delivery of the Doshxx Xxxst Offer, provided that the terms of such information, each Fully-Exercising Investor definitive agreement shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, during the sixty (60) day period following the expiration of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) to any person or persons at a price not less than, and upon terms no more favorable to the offeree than, Holbxxx xxxn those specified offered in the Doshxx Xxxst Offer Noticeand such transaction must be consummated within 180 days after entering into a definitive agreement. If the Company does not enter no definitive agreement is entered into an agreement for the sale of the New Securities within such period, 150-day period or if such agreement the transaction is not consummated within thirty (30) 180 days of the execution thereofafter entering into a definitive agreement, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Major Investors in accordance with this Section 4.1.
(d) The right of first offer in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.14.1 shall apply again prior to Holbxxx xxx/or its Affiliates engaging in a Control Transaction. Each of Holbxxx, xxe Company and any other party to any intended transaction shall have the Company may elect right, in its sole discretion, at all times prior to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms consummation of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of such notice intended transaction to elect to purchase up to the number of New Securities that wouldabandon, if purchased by such Major Investorrescind, maintain such Major Investor’s percentage ownership positionannul, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major Investors.withdraw or
Appears in 1 contract
Right of First Offer. Subject The Bank hereby irrevocably and unconditionally undertakes to the terms and conditions specified in this Section 4.1, and applicable securities laws, Beneficiary that in the event that the Company proposes Bank enforces its pledge over, and wishes to offer Sell, any or sell all of the Pledged Shares, it shall not Sell any New Securitiessuch Pledged Shares before giving the Beneficiary, provided the Company shall first make an offering Beneficiary at the time owns at least 10% of such New Securities to each Major Investor in accordance with the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion the Shares, a right of first offer hereby granted it among itself and its partners, members and Affiliates in on the following terms:
(i) The Bank shall provide the Beneficiary with a written notice (“Offer Notice”) for such proportions as it deems appropriate.
intended Sale stating: (a) The Company shall deliver a notice the number of the Pledged Shares (“Offered Shares”); and (b) its price expectations per Pledged Share (the “Offer NoticePrice”), in accordance with ) which shall not be more than the provisions volume weighted average market price over the last 30 trading days on the Borsa Istanbul prior to the date of Section 6.5 hereof, to each of the Major Investors stating (i) its bona fide intention to offer such New Securities, (ii) the 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 written notification received by the Company, within fifteen (15) calendar days after mailing delivery of the Offer Notice, each . Within 15 (fifteen) Business Days of receipt of the Major Investors Offer Notice from the Bank, the Beneficiary may elect send a written notice if it wishes to purchase or obtain, at buy all of the price and Offered Shares (but not less than all) on such terms (the terms specified in “Acceptance Notice”) to the Offer Bank. Upon receipt of the Acceptance Notice, up to that portion the Bank shall Sell all of such New Securities which equals the proportion that the number of shares of Registrable Securities then held by such Major Investor bears Offered Shares to the total number of shares of Common Stock Beneficiary on such terms within 120 (one hundred and twenty) Business Days from the date of the Company then outstanding Acceptance Notice (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor shall have no right this period only being subject to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” extension as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall may be entitled reasonably necessary to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed sharesrequired governmental or regulatory approvals).
(cii) If all New Securities referred the Beneficiary fails to in respond to the Offer Notice are within the relevant period stipulated above or, at any time during this process, it informs the Bank that it elects not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, during the sixty (60) day period following the expiration of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) 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 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 Major Investors in accordance with this Section 4.1.
(d) The exercise its right of first offer in this Section 4.1 shall with respect to the Offered Shares (any such event being referred to as a “No Action Event”), then the Bank will be permitted to Sell all (but not be applicable less than all) the Offered Shares to any Excluded Securitiesthird person at any consideration.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major Investors.
Appears in 1 contract
Samples: Shareholder Agreement (Banco Bilbao Vizcaya Argentaria, S.A.)
Right of First Offer. Subject In addition to the terms and conditions specified in this Transfers permitted by Section 4.12.1, and applicable securities laws, in the event any Investor (a “Selling Investor”) may Transfer any of its Investor Securities if it first gives the Company proposes written notice of its intent to offer or sell any New Securities, the Company shall first make an offering of transfer such New Investor Securities to each Major Investor in accordance with the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
(a) The Company shall deliver a notice (the “Offer Notice”), in accordance with the provisions of Section 6.5 hereof, to each of the Major Investors stating (i) its bona fide intention to offer such New Securities, (ii) which notice shall set forth the number of such New Securities Shares to be offeredTransferred. The Company may offer to purchase all (but not less than all) of the Shares specified in the Offer Notice by delivery of a written offer (the “Offer”), and (iii) which Offer shall specify the price and terms, if any, upon terms on which it the Company proposes to offer such New Securities.
(b) By written notification received by purchase the CompanyShares, to the Selling Investor as soon as practical but in any event within fifteen (15) calendar 30 days after mailing the delivery of the Offer Notice, each . Upon receipt of the Major Investors Offer, the Selling Investor may elect (i) to purchase or obtain, sell to the Company all of the Shares specified in the Offer Notice at the price and on the terms specified in the Offer Notice, up or (ii) to that portion market and sell the Shares to other potential purchasers for a period of such New Securities which equals 90 days following the proportion that the number date of shares of Registrable Securities then held by such Major Investor bears to the total number of shares of Common Stock receipt of the Company then outstanding Offer (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrantsthe “Marketing Period”); provided, however, that such Major the Investor shall have no right not sell any of such Shares to purchase any such New Securities if such Investor cannot demonstrate other potential purchasers during the Marketing Period on terms that are equal to or less favorable to the Company’s reasonable satisfaction Investor than the terms set forth in the Offer and in no event will the Selling Investor sell such Shares to any Company Competitor. In the event that such the Selling Investor isdoes not Transfer the Shares within the Marketing Period, at then, the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Selling Investor shall not be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by Transfer such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, during the sixty (60) day period following the expiration of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) 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 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 Major Investors in accordance with this Section 4.1.
(d) The right of first offer in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of Shares until after again complying with the provisions of this Section 4.12.2. The purchase of the Shares by the Company shall occur at a closing on the date specified in the Offer, which date shall be no fewer than 15 nor more than 30 days after the date on which the Selling Investor receives the Offer. At the closing, the Company may elect to give notice shall pay the purchase price in the form and amount specified in the Offer to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms order of the New SecuritiesSelling Investor. Each Major Investor Certificates for the Shares to be purchased, duly endorsed or accompanied by duly executed stock powers, shall have twenty (20) days from be delivered at the date of receipt of such notice to elect to purchase up to closing by the number of New Securities that would, if purchased by such Major Selling Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major Investors.
Appears in 1 contract
Samples: Stockholders Agreement (Kenexa Corp)
Right of First Offer. Subject to the terms and conditions specified in this Section 4.1, and applicable securities laws, in In the event a Member desires to Transfer all or any part of its Interest, such Members (the Company proposes to offer or sell any New Securities, the Company “Selling Member”) shall first make an offering of such New Securities to each Major Investor in accordance with the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
(a) The Company shall deliver a written notice (the “Offer Section 11.1 Notice”), in accordance with the provisions of Section 6.5 hereof, to each of the Major Investors stating (i) its bona fide intention to offer such New Securities, (ii) the 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 written notification received by the Company, within fifteen (15) calendar days after mailing of the Offer Notice, each of the Major Investors may elect to purchase or obtain, 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 number of shares of Registrable Securities then held by such Major Investor bears to the total number of shares of Common Stock of other Member (the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising InvestorSecond Member”) of any other Major Investor’s failure to do likewise. During which notice shall specify the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) If all New Securities referred to in the Offer Notice are not elected Selling Member’s Interest to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, during the sixty sold (60) day period following the expiration of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused SecuritiesOffered Interest”) 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 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 Major Investors in accordance with this Section 4.1.
(d) The right of first offer in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within Within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms its receipt of the New Securities. Each Major Investor Section 11.1 Notice, the Second Member shall have twenty (20) days from the date of receipt of such notice right to elect offer to purchase up to (the number of New Securities that would“First Offer”) all, if purchased by but not less than all, the Offered Interest at a price payable only in cash (the “First Offer Price”) and on such Major Investor, maintain such Major Investor’s percentage ownership position, calculated other terms and conditions as shall be set forth in subsection 4.1(bthe First Offer. Within thirty (30) prior days after its receipt of the First Offer, the Selling Members shall either accept or reject the First Offer. If the Selling Member accepts the First Offer, the Selling Member shall sell, and the Second Member shall purchase, the Offered Interest at a closing to giving effect to the issuance of such New Securities. The closing of such sale shall occur within be held at a time not later than sixty (60) days (or such longer period, if any, pending any necessary Regulatory Approval or removal of Liens) after the Selling Member’s acceptance of the date First Offer and at such location as may be mutually agreed upon, at which time the Offered Interest shall be delivered, free and clear of notice all Liens which may have been imposed on the Offered Interest and are not connected with the financing or operation of the Company itself, against payment of the First Offer Price. In order to comply with applicable regulatory requirements, the purchasing Member may designate (i) a third party to purchase any portion of the Offered Interest which the purchasing Member has committed to purchase hereunder if the Offered Interest constitutes all of the Selling Member’s equity and debt interest in the Company, or (ii) a third party reasonably acceptable to the Major InvestorsSelling Member to purchase any portion of the Offered Interest which the purchasing Member has committed to purchase hereunder if the Offered Interest constitutes less than all of the Selling Member’s equity and debt interest in the Company. If the Selling Member rejects or does not timely accept the First Offer, then the Selling Member shall have one hundred and twenty (120) days (or such longer period, if any, required to obtain any necessary Regulatory Approval or to remove any Liens) following such rejection within which to consummate the sale of the Offered Interest at a price per share in cash greater than the First Offer Price and in all other respects upon terms and conditions no less favorable than those specified in the First Offer. If no such sale occurs within such 120-day period (or longer period as described above), the Offered Interest shall again be subject to all of the restrictions set forth in this Section 11.1(b).
Appears in 1 contract
Right of First Offer. Subject 2.1. If any Shareholder wishes to sell or otherwise transfer any or all of such Shareholder's shares in the Company (the "SELLING PARTY"), such Shareholder shall be required to first offer the shares that such Shareholder wishes to transfer (the "OFFERED SHARES") to the terms and conditions specified other Shareholder (the "OFFEREE"). The Selling Party shall send the Offeree a written offer in this Section 4.1, and applicable securities laws, in which the event the Company proposes to offer or sell any New Securities, the Company Selling Party shall first make an offering of such New Securities to each Major Investor in accordance with specify the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
(a) The Company shall deliver a notice information (the “Offer Notice”), in accordance with the provisions of Section 6.5 hereof, to each of the Major Investors stating "OFFER"): (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities Company shares that the Selling Party proposes to sell or transfer; (ii) a representation and warranty that the shares proposed to be offeredsold or transferred are free and clear of all pledges, debts, security interests and other third party interests; and (iii) the price that the Selling Party intends to receive in respect of the Offered Shares, which shall be stated in cash, and terms, if anythe requested terms of payment thereof.
2.2. The Offer shall constitute an irrevocable offer made by the Selling Party to sell to such Offeree the shares covered by the Offer, upon which it proposes to offer such New Securitiesthe terms specified in the Offer and as described below.
2.3. If the Offeree wishes to purchase the Offered Shares it shall notify the Selling Party of its agreement to purchase the Offered Shares as follows: (bi) By written notification received by in the event that the Offered Shares represent less than ten percent (10%) of the issued and outstanding share capital of the Company, within fifteen (15) calendar 6 business days after mailing of receipt of the Offer Notice, each Offer; (ii) in the event that the Offered Shares represent more than ten percent (10%) but less than twenty percent (20%) of the Major Investors may elect issued and outstanding share capital of the Company, within 14 business days of receipt of the Offer; and (iii) in the event that the Offered Shares represent more than twenty percent (20%) of the issued and outstanding share capital of the Company, within 21 business days of receipt of the Offer.
2.4. If the Offeree declines to purchase the Offered Shares upon the terms specified in the Offer or obtaindoes not respond to the Offer within the relevant number of days (specified in Section 2.3 above) of receipt of the Offer, the Selling Party may sell the Offered Shares to a third party, provided that such sale is consummated (i) in a bona fide transaction (ii) at a price that is not lower than that specified in the price Offer, (iii) upon payment terms that are no more favorable to the purchaser than those specified in the Offer, all within 90 days of the expiration of the relevant number of days (specified in Section 2.3 above), and (iv) subject to Section 3 below.
2.5. If the Offeree agrees to purchase the Offered Shares on the terms specified in the Offer NoticeOffer, up to that portion of such New Securities which equals the proportion that Offered Shares shall become the number of shares of Registrable Securities then held by such Major Investor bears to the total number of shares of Common Stock property of the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); providedOfferee, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time against payment of the proposed issuance of such New Securities, an “accredited investor” consideration as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, during the sixty (60) day period following the expiration of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) 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 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 Major Investors in accordance with this Section 4.1Offer.
(d) The right of first offer in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor2.6. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.12 and Section 3 below shall not apply to (i) the transfer of Company securities to a Permitted Transferee (as defined below), (ii) the Company may elect sale of up to give notice to an aggregate amount since the Major Investors within thirty (30) days after the issuance Closing Date of New Securities. Such notice shall describe the type, price and terms 10% of the New Securities. Each Major Investor shall have twenty Company's issued and outstanding share capital by each Shareholder by means of a market trade on a stock exchange, or (20iii) days from the date transfer of receipt shares in connection with the realization of such notice to elect to purchase up to the number of New Securities that woulda pledge, if purchased any, created by such Major the Investor for the benefit of a banking institution on the Company's shares held by the Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major Investors.
Appears in 1 contract
Right of First Offer. Subject The Remaining Shareholders, individually or collectively, will have the option (the "Right of First Offer"), but not the obligation, to submit a bona fide written firm offer (an "Offer") in writing to the terms and conditions specified in this Section 4.1, and applicable securities laws, in Initiating Shareholder to purchase all but not less than all of the Offered Securities on a pro-rata basis based on the Remaining Shareholders' ownership of the Common Stock (on a fully-diluted basis). In the event that any Remaining Shareholders elect to purchase less than their pro rata share of the Company proposes to offer or sell any New Offered Securities, the Company shall first make an offering of such New Securities to each Major Investor in accordance with the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
(a) The Company shall deliver a notice (the “Offer Notice”), in accordance with the provisions of Section 6.5 hereof, to each of the Major Investors stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and termsother Remaining Shareholders may purchase their pro rata portion, if anythere is more than one such Remaining Shareholder, upon which it proposes or all, if there are no other such Remaining Shareholders, of any Offered Securities any Remaining Shareholder has elected not to offer such New Securities.
(b) By written notification received by the Company, within fifteen (15) calendar days after mailing of the Offer Notice, each of the Major Investors may elect to purchase or obtain, 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 number of shares of Registrable Securities then held by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Actpurchase. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall Offer must be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, during the sixty (60) day period following the expiration of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) 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 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 submitted within thirty (30) days of the execution thereof, date the right provided hereunder shall be Transfer Notice is deemed to be revived and such New Securities shall not be offered unless first reoffered to the Major Investors effective in accordance with Section 12(b) by such Remaining Shareholder. Failure by the Remaining Shareholders to submit an Offer within such time period will be deemed an election not to exercise their option to submit an Offer. Within ten (10) days after receipt of an Offer, the Initiating Shareholder shall deliver written notice to the Remaining Shareholders indicating whether such Initiating Shareholder shall accept or reject such Offer. If the Initiating Shareholder accepts an Offer, the closing of the purchase and sale of the Offered Securities to the Remaining Shareholders will take place as soon as is reasonably practicable thereafter at such date, time, and place as the Initiating Shareholder and the Remaining Shareholders may reasonably determine. If the Remaining Shareholders do not elect to make an Offer, or if the Initiating Shareholder rejects the Offer, the Initiating Shareholder will thereafter be free, subject to the Co-Sale Rights discussed below, for a period of one hundred eighty (180) days after expiration of the thirty (30) day period referred to above, to consummate a Transfer to an unaffiliated third party (a "Third Party Sale"), at a per share price in excess of the price contained in the Offer, if any; provided, that, the Initiating Shareholder provides prior written notice (a "Sale Notice") of such Third Party Sale to the Remaining Shareholders, which Sale Notice shall contain a description of the material terms of such Third Party Sale; provided, further, that, prior to completing any Third Party Sale, such transferee(s) first execute(s) and deliver(s) to the Company a written agreement to be bound by all of the provisions of this Section 4.1.
(d) The right of first offer in this Section 4.1 shall not be Agreement applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate the Initiating Shareholder and naming the Shareholders as intended third-party beneficiaries of such Major Investoragreement. If a Third Party Sale is not consummated within such 180-day period, and (ii) such right is assignable by the Initiating Shareholder will not Transfer any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with the terms of the Company’s Articles of Incorporation in effect at the time of Offered Securities as have not been purchased within such equity financing round
(f) In lieu of period without again complying with all of the provisions of this Section 4.1, 3. A Third Party Sale that constitutes a Change of Control shall not be prohibited so long as the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the typeotherwise complies with Article 4, price and terms Part A, Section 3 of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major InvestorsAmended Charter.
Appears in 1 contract
Right of First Offer. Subject to the terms and conditions specified in this Section 4.1foregoing, and applicable securities laws, in the event the Company proposes to offer or sell any New Securities, the Company shall first make an offering of such New Securities to each Major Investor in accordance with the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
(a) The Company shall deliver if a notice (the “Offer Notice”), in accordance with the provisions of Section 6.5 hereof, to each of the Major Investors stating (i) its Member receives -------------------- a bona fide intention to offer such New Securities, (ii) the 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 written notification received by the Company, within fifteen (15) calendar days after mailing of the Offer Notice, each of the Major Investors may elect to purchase or obtain, 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 number of shares of Registrable Securities then held by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptlyoffer, in writing, inform each Major Investor that elects from an unaffiliated third party to purchase all its Interest and desires to sell its Interest on the shares available terms set forth in the offer, then prior to it transferring its interest, the transferring Member shall notify each other Member in writing of its proposed transfer and shall make an offer (eachthe "Offer") to sell its Interest to each other Member on the same terms as the third-party offer. Each Member which is not the transferring party, shall have a “Fully-Exercising Investor”right to accept the Offer, which acceptance must be made within five (5) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing Business Days after receipt delivery of such information, each Fullynotice. If any non-Exercising Investor shall be entitled to obtain that portion transferring Member timely notifies the transferring Member in writing of its acceptance of the New Securities for which Major Investors were entitled Offer, then such transferring Member shall sell such Interest to subscribe but which were not subscribed for such Member on the closing date specified by the Major Investors purchasing Member which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, during the sixty (60) day period following the expiration of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) to any person or persons at a price not less than, and upon terms closing date shall occur no more favorable to the offeree than, those specified in the 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 later than thirty (30) days Business Days after delivery of such notice of transfer. If more than one non-transferring Member timely notifies the transferring Member in writing of its acceptance of the execution thereofOffer, the right provided hereunder such transferring Member shall be deemed to be revived and conduct a private auction for such New Securities shall not be offered unless first reoffered to the Major Investors in accordance with this Section 4.1.
(d) The right of first offer in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with Interest having as a floor the terms of the Company’s Articles of Incorporation in effect at the time Offer and using a sealed bid procedure, which auction shall occur no later than ten (10) Business Days after delivery of such equity financing round
(f) In lieu notice of complying with transfer. If no non-transferring Member elects to timely accept the provisions of this Section 4.1Offer, the Company transferring Member may elect to give notice to the Major Investors sell its Interest within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt delivery of such notice to elect any Person on substantially the same terms as those contained in the Offer, such sale to be evidenced by a binding purchase up commitment of the Person purchasing. If no such binding commitment is obtained within such thirty (30) day period, or if the transferring Member desires to sell on materially different terms than those previously offered the other Member (e.g., price is lower than 98% of amount indicated in transferring member's notice, any change in ratio of cash to total purchase price or in terms of any securities contributed as a portion of the purchase price), the transferring Member must, in each such instance, again extend the rights described above to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major Investorsother Members.
Appears in 1 contract
Samples: Limited Liability Company Agreement (G&l Realty Corp)
Right of First Offer. Subject 2.2.1. If any Stockholder other than a Bear Stearns Stockholder who is not prohibited by Section 2.7 frox Xxxxxferring any of his Shares (a "Seller"), desires to Transfer any or all of the Shares (the "Transfer Stock") then owned by such Seller to any person other than pursuant to an Exempt Transfer (as defined in Section 2.4 below), such Seller shall reduce to writing the terms and conditions specified in this Section 4.1, and applicable securities laws, in the event the Company proposes pursuant to offer or sell any New Securities, the Company which such Seller desires to Transfer such Shares (a "Transfer Offer"). Such Transfer Offer shall first make an offering of such New Securities to each Major Investor in accordance with the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
(a) The Company shall deliver a notice (the “Offer Notice”), in accordance with the provisions of Section 6.5 hereof, to each of the Major Investors stating (i) its bona fide intention to offer such New Securities, (ii) identify the number of such New Securities to be offeredshares of Transfer Stock, and (iii) the price and termsof the Transfer Stock, the identity of any third party offeror, if any, and all the other material terms and conditions of such Transfer Offer. The Seller shall provide a written notice (the "Transfer Notice") of such Transfer Offer to the Company and the Company shall promptly, but in no event later than fifteen (15) business days following receipt of notice from the Seller, provide written notice of such Transfer Offer to the Bear Stearns Stockholders (the "Transfer Offerees"). The Transfer Xxxxxx shall contain an irrevocable offer (a "First Offer") to sell the Transfer Stock to the Transfer Offerees at a price equal to the price and upon substantially the same terms as the terms contained in such Transfer Offer. The Transfer Offerees shall have the irrevocable right and option (the "Right of First Offer"), exercisable as provided below, to accept the First Offer as to any or all Shares of the Transfer Stock (subject to the priorities, pro rata adjustments and other provisions set forth below). Each Transfer Offeree that desires to exercise such option with respect to a First Offer shall provide the Seller with an irrevocable written notice of acceptance specifying the number of Shares of the Transfer Stock which it proposes such Transfer Offeree is agreeing to offer purchase pursuant to such New Securities.
First Offer (b) By written notification received by including any number of Shares in excess of such Transfer Offeree's pro rata portion of the CompanyTransfer Stock (the "Excess Shares"), which shall be binding on said Transfer Offeree for the number of Shares in such notice of acceptance, or the lesser number of Shares if so allocated pursuant to Section 2.2.2 which notice of acceptance must be provided to the Seller within fifteen (15) calendar business days after mailing the date the Transfer Notice is given (the "Notice Period"), and a copy of the Offer Notice, each of the Major Investors may elect to purchase or obtain, 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 number of shares of Registrable Securities then held by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate simultaneously be provided to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, during the sixty (60) day period following the expiration of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) 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 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 Major Investors in accordance with this Section 4.1.
(d) The right of first offer in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of promptly distribute such notice of acceptance to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major Investorsall other Transfer Offerees.
Appears in 1 contract
Right of First Offer. Subject to the terms and conditions -------------------- specified in this Section 4.1, and applicable securities laws, in the event the Company proposes to offer or sell any New Securities9, the Company shall first make an offering of such New Securities hereby grants to each Major Investor in accordance a right of first offer with respect to future sales by the following provisions Company of its Equity Securities. For purposes of this Section 4.19, Investor includes any partners and other Affiliates of an Investor. A Major An Investor B-23. shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members partners and Affiliates in such proportions as it deems appropriate.. Each time the Company proposes to offer any Equity Securities, the Company shall first make an offering of such Equity Securities to each Investor in accordance with the following provisions:
(a) The Company shall deliver a written notice ("Notice") ------ to the “Offer Notice”), in accordance with the provisions of Section 6.5 hereof, to each of the Major Investors stating (i) its bona fide intention to offer such New Equity Securities, (ii) the number of such New Equity Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Equity Securities.
(b) By written notification received by the Company, within fifteen (15) Within 30 calendar days after mailing receipt of the Offer Notice, each of the Major Investors an Investor may elect to purchase or obtain, at the price and on the terms specified in the Offer Notice, up to that portion of such New Equity Securities which equals the proportion that the number of shares of Registrable Securities Common Stock issued and held, or issuable upon conversion of the Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and Series D Preferred Stock then held held, by such Major Investor bears to the total number of shares of Common Stock issued and held, or issuable upon conversion of the Company then outstanding (assuming full conversion Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation Series D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities Preferred Stock then held by all Fully-Exercising Investors who wish to purchase such unsubscribed sharesInvestors.
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the The Company mayshall, during the sixty (60) 10-day period following the expiration of the period provided in subsection 4.1(b9(b) hereof, offer the remaining unsubscribed portion of such New Equity Securities (collectivelywhich any Investor has not elected to purchase under subsection 9(b) hereof to the other Investors. During the 90-day period following the expiration of such 10-day period, the “Refused Securities”) Company may offer the remaining unsubscribed portion of such shares which the Investors have not elected to purchase to any person or persons at a price not less than, and upon the same terms no more favorable to the offeree than, and conditions as those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Equity Securities within such period, or if such agreement is not consummated within thirty (30) 90 days following the expiration of the execution thereofperiod provided in this Section 9(c), the right provided hereunder shall be deemed to be revived and such New Equity Securities shall not be offered unless first reoffered to the Major Investors in accordance with this Section 4.1herewith.
(d) The right of first offer in this Section 4.1 9 shall not be applicable (i) to the issuance or sale of shares of Common Stock reserved for issuance to employees and directors pursuant to stock plans approved by the Company's Board of Directors, (ii) to or after consummation of the Public Offering, (iii) to any Excluded SecuritiesCommon Stock issued upon conversion of the Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock or upon exercise of outstanding warrants, including the Warrants and the Series D Warrants or (iv) to the issuance of shares of Common Stock in connection with the acquisition of a business by the Company in a transaction or series of related transactions valued at less than $2 million or in a transaction B-24. approved by (i) the Series D Investor Directors and (ii) at least one of the Series A Investor Directors and the Series B Investor.
(e) The right of first offer set forth in this Section 4.1 may not be assigned To the extent that CVCA or transferred except that Xxxxx Capital purchases additional Equity Securities from the Company, the Company shall (i) if such right is assignable person purchases Equity Securities for consideration of $2,500,000 or more, make any filing required under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act ("HSR Act") in connection with such a purchase and pay any associated filing fees and reasonable costs of preparation thereof (including any filing fee and reasonable preparation costs required to be paid by each Major Investor to any Affiliate of such Major Investorperson), and or (ii) offer to sell to such right is assignable by any Major Investor to any person non-voting Equity Securities on the same terms as the other Major InvestorInvestors. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 The Company shall not be available to enter into any Investor whose shares more favorable agreements regarding reimbursement of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance HSR costs with the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price any Stockholder or prospective Stockholder without treating CVCA and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major InvestorsXxxxx Capital similarly.
Appears in 1 contract
Samples: Investors Rights Agreement (Restoration Hardware Inc)
Right of First Offer. Subject 7.2.1 In the event a Member (the “Offering Member”) receives from a third party which is not a Permitted Transferee a bona fide offer to purchase all or a portion of the Offering Member’s Percentage Interest, and the Offering Member proposes to Transfer all or any portion of his Percentage Interest to such third party, the Offering Member shall first offer his Percentage Interest (or applicable portion thereof) for purchase by each of the other Member(s) (the “Offeree Member”), as hereinafter provided, by submitting to such Member(s) an offer, setting forth the price at which the Offering Member proposes to Transfer his Percentage Interest, the name and address of the proposed transferee, the nature of the consideration to be paid, and all other terms and conditions specified in this Section 4.1of sale that may be reasonably expected to have a material impact on the value of the Transfer (including, without limitation, the permissibility of a financing contingency and applicable securities laws, any contingencies in the event of a higher offer for the Company proposes to offer or sell any New Securities, the Company shall first make an offering of such New Securities to each Major Investor in accordance with the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
(aPercentage Interest) The Company shall deliver a notice (the “Offer Notice”), in accordance with the provisions of Section 6.5 hereof, to each of the Major Investors stating (i) its bona fide intention to offer such New Securities, (ii) the 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 written notification received by the Company, within fifteen (15) calendar days after mailing of the Offer Notice, each of the Major Investors may elect to purchase or obtain, 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 number of shares of Registrable Securities then held by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, during the sixty (60) day period following the expiration of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused SecuritiesOffer Terms”) 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 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 Major Investors in accordance with this Section 4.1.
(d) The right of first offer in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities). Such notice shall describe the type, price and terms of the New Securities. Each Major Investor Offeree Member(s) shall have twenty (20) days from the date a period of receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days after receipt of such notice from the Offering Member within which to notify the Offering Member in writing that it elects to purchase the Percentage Interest (or applicable portion thereof) upon the Offer Terms (the “Right of First Offer”) or to invoke Paragraph 7.4. If such Offeree Member(s) elect not to purchase all of the date of Percentage Interest (or applicable portion thereof) or do not give notice to the Major InvestorsOffering Member during such 60-day period, the Offering Member shall be free to effect a Transfer of his Percentage Interest to the proposed transferee at a price that is at least 95% of the price set forth in the Offer Terms and upon other terms that are reasonably consistent with the Offer Terms, provided that a binding agreement with respect to such Transfer is entered into within 180 days after the expiration of such 60-day period, and that such sale is consummated within 270 days after the expiration of such 60-day period.
7.2.2 The election of an Offeree Member to purchase the Percentage Interest shall be irrevocable and binding on such Offeree Member, and the sale, purchase and transfer of (and payment for) the relevant Percentage Interests shall be completed within 120 days after delivery of the Member’s election (or after termination of such 120-day period, as the case may be).
7.2.3 Notwithstanding any other provision of this Paragraph 7.2, the closing shall not occur before such purchase and sale have received all necessary approvals, including, without limitation, approvals of any governmental authority or regulatory agency having jurisdiction.
7.2.4 In the event that the sum of the purchase offers of all Offering Members (the Offering Members making such offers being referred to herein as the “Purchasing Offeree Members”) exceeds the Offering Member’s Percentage Interests, then each Purchasing Offeree Member shall be entitled and obligated to purchase the portion of the Offering Member’s Percentage Interest constituting a fraction, the numerator of which is each Purchasing Offeree Member’s Percentage Interest in the Company and the denominator of which is the sum of all such Purchasing Offeree Members’ Percentage Interests in the Company.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Listerhill Total Maintenance Center LLC)
Right of First Offer. Subject to the terms and conditions specified in this Section 4.1, and applicable securities laws, in the event the Company proposes to offer or sell any New Securities, the Company shall first make an offering of such New Securities to each Major Investor in accordance with the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
(a) The Company shall deliver a notice non-Electing Members (the “Offer Notice”), in accordance with the provisions of Section 6.5 hereof, to each of the Major Investors stating (i) its bona fide intention to offer such New Securities, (ii) the 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 written notification received by the Company, within fifteen (15) calendar days after mailing of the Offer Notice, each of the Major Investors may elect to purchase or obtain, 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 number of shares of Registrable Securities then held by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising InvestorResponding Members”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such informationshall, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, during the sixty (60) day period following the expiration of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) 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 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) business days after the date of receipt of the execution thereofSale Notice, notify the Electing Members (the “Response Notice”) as to whether they (or any of their designees or Affiliates) wish to acquire the Property at a purchase price equal to the FMV Value. If the Responding Members (or their designees or Affiliates) elect to purchase the Property (or all of the interests of the Property Owner) from the Company, the right provided hereunder closing date of such purchase and sale under this Section 8(k)(ii) (the “Sale Closing Date”) shall be deemed to be revived a date mutually agreed upon by the Responding Members and such New Securities the Electing Members, but in no event later than the 90th day following the receipt of a Response Notice by the Electing Members. On the Sale Closing Date, the Company shall not be offered unless first reoffered deliver to the Major Investors purchaser appropriate instruments of transfer that shall convey to the purchaser all of the Company’s right, title and interest in accordance with this Section 4.1.
and to the Property (dor all of the Company’s right, title and interest in and to the Property Owner), free and clear of any lien, pledge or encumbrance, and the purchaser shall pay to the Company the purchase price for the Property (or Property Owner) The right of first offer in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that by wire transfer. Notwithstanding the foregoing, (i) such right is assignable the Members agree to reasonably cooperate with requests of the Responding Members (A) to facilitate the assumption of any outstanding loan secured by each Major Investor the Property and (B) to any Affiliate minimize the transfer tax consequences of such Major Investorsale, and (ii) in the event that an outstanding loan is assumed in connection with such right is assignable sale, then the purchase price of the Property shall be reduced by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed outstanding balance thereof; provided that the right foregoing shall not, in any manner, extend the time for the Sale Closing Date and/or reduce the aggregate proceeds otherwise distributable to the Electing Members on the Sale Closing Date. All costs and expenses associated with the purchase and sale of first offer set forth in the Property (or Property Owner) pursuant to this Section 4.1 8(k)(ii) (other than loan assumption fees and expenses and other costs incurred by the parties to comply with the requests of the Responding Members described in the preceding sentence; which costs and expenses shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of borne solely by the Responding Members) shall be borne by the Members and the Company in accordance with the terms a customary manner for a sale of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice real property similar to the Major Investors within thirty (30) days after Property in the issuance of New Securities. Such notice shall describe area in which the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major InvestorsProperty is located.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Carter Validus Mission Critical REIT, Inc.)
Right of First Offer. Subject The Company agrees that, for as long as the Notes or any other debt instrument payable to the terms and conditions specified in this Section 4.1Purchasers are outstanding, and applicable securities laws, in the event if the Company proposes contemplates either (i) securing financing pursuant to an offer and sale of any of its securities, whether debt, equity or sell any New Securitiescombination thereof, by way of a private placement or other private offering of securities (a “Private Securities Offering”) or (ii) entering into any transaction involving the purchase, assignment or other restructuring of outstanding indebtedness of the Company (a “Debt Restructuring Transaction”), prior to making any such Private Securities Offering or Debt Restructuring Transaction available to any other Person, the Company shall first make an offering offer the Purchasers the right, on a pro rata basis, based on the respective original principal amounts of such New Securities to each Major Investor in accordance with the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
(a) The Company shall deliver a notice (the “Offer Notice”), in accordance with the provisions of Section 6.5 hereoftheir Notes, to each of provide the Major Investors stating (i) its bona fide intention to offer such New Securities, (ii) the 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 written notification received financing contemplated by the Company, within fifteen (15) calendar days after mailing of pursuant to such Private Securities Offering, or consummate a Debt Restructuring Transaction, as applicable, upon terms provided by the Offer Notice, each of Company to the Major Investors may elect to purchase or obtain, at Purchasers. In the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion event that the number of shares of Registrable Securities then held by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor canPurchasers do not demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, during the sixty (60) day period following the expiration of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) 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 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 Major Investors in accordance with this Section 4.1.
(d) The right of first offer in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with accept the terms of the Company’s Articles of Incorporation in effect at the time of any such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1Private Securities Offering or Debt Restructuring Transaction, the Company may elect to give notice to the Major Investors within thirty (30) days after any such Private Securities Offering or Debt Restructuring Transaction is offered by the issuance Company to the Purchasers, in writing, then the Company shall have the right to offer such Private Securities Offering or Debt Restructuring Transaction to other Persons on the same terms as those offered to the Purchasers. In the event that such terms are materially different than those offered to the Purchasers, then the Company shall first offer the Purchasers the right to accept such Private Securities Offering or Debt Restructuring, upon such terms, within thirty (30) days after receipt of New Securities. Such written notice from the Company, which shall describe include all of the type, price and terms of such Private Securities Offering or Debt Restructuring Transaction. In the New Securities. Each Major Investor event that the Purchasers do not exercise any right of first offer hereunder, in connection with a Private Securities Offering, they shall have twenty (20) days from the date of receipt of right to participate in such notice to elect to purchase up Private Securities Offering, pursuant to the number provisions of New Securities that wouldSection 4.17 hereafter, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major Investorsextent applicable.
Appears in 1 contract
Right of First Offer. For the period of 180 days from the date of this Agreement, Stockholder may sell at the market price on the date of such sale up to 500,000 shares of the Owned Shares (the "Subject Shares"), in one or more sales, to any person, other than a person that Parent reasonably deems to be member of the medical device industry if such sale is pursuant to clause (b)(i) of this Section 7.03, subject to the following conditions (a "Third Party Sale"): (a) Stockholder shall first offer to sell the Subject Shares to Parent and Purchaser by written notice evidencing the terms and conditions specified in this Section 4.1of such offer before Stockholder effects any Third Party Sale, and applicable securities lawsif Parent or Purchaser accepts such offer within 5 business days of receipt thereof, in the event the Company proposes to offer Stockholder shall sell, and Parent or sell any New SecuritiesPurchaser shall purchase, the Company shall first make an offering of Subject Shares upon such New Securities to each Major Investor in accordance with terms and conditions as promptly as practicable after such acceptance, provided, if the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion market price for such Subject Shares declines by more than 5% after the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
(a) The Company shall deliver a notice (the “Offer Notice”), in accordance with the provisions of Section 6.5 hereof, to each date of the Major Investors stating notice and prior to purchase by Parent or Purchaser, Stockholder may rescind the offer and shall have no obligation to sell the Subject Shares to Parent or Purchaser pursuant to the offer, or (ib) its bona fide intention to if Parent or Purchaser does not accept such offer such New Securitieswithin 5 business days, (ii) the number of such New Securities to be offered, and (iii) Stockholder may effect a Third Party Sale so long as the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By written notification received by the Company, within fifteen (15) calendar days after mailing of the Offer Notice, each of the Major Investors may elect to purchase or obtain, at the price other terms and on the terms specified in the Offer Notice, up to that portion conditions of such New Securities which equals the proportion that the number of shares of Registrable Securities then held by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) If all New Securities referred to in the Offer Notice Third Party Sale are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, during the sixty (60) day period following the expiration of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) to any person or persons at a price not less than, and upon terms no more favorable to the offeree than, such person than those specified in the 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 offered to be revived Parent and such New Securities shall not be offered unless first reoffered to the Major Investors Purchaser in accordance with this Section 4.1.
clause (da) The right of first offer in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that above and either (i) such right is assignable by each Major Investor person has agreed to execute an agreement reasonably satisfactory to Parent pursuant to which such person shall participate in, vote for or otherwise support any Affiliate exercise of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company Option in accordance with the terms and conditions hereof or (ii) such Subject Shares are sold in a brokered transaction in the over-the-counter market for shares of Common Stock; provided, that, in each case, any Third Party Sale at the then current over-the-counter market price for the Subject Shares shall not be deemed to be more favorable to such person. Notwithstanding anything to the contrary in this Section 7.03, Stockholder shall not, in any event, sell any Owned Shares to any person if such Third Party Sale, alone or together with any other sales by the Controlling Stockholders, would cause the combined ownership of capital stock of the Company’s Articles of Incorporation in effect at Company by the time Controlling Stockholders, Parent and Purchaser to be less than 52% of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership positioncapital stock, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major Investorson a Fully Diluted Basis.
Appears in 1 contract
Right of First Offer. Subject to the terms and conditions specified in this Section 4.1, and applicable securities laws, in the event the Company proposes to offer or sell any New Securities, the Company shall first make an offering of such New Securities to each Major Investor in accordance with the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
(a) The Company Except as set forth in Section 4.1(b), 4.1(c) or 4.4(f), if a Shareholder proposes to Transfer all or any portion of its Shares (the “Publicly Offered Shares”) in a Public Offering or in Brokers Transactions, then such Transferring Shareholder shall deliver a give notice (the “Offer Public Sale Notice”), in accordance with ) of such intention to Transfer the provisions of Section 6.5 hereof, Publicly Offered Shares to each of the Major Investors stating Non-Transferring Shareholders. Such Public Sale Notice shall set forth: (i) its bona fide intention the number of Publicly Offered Shares proposed to offer such New Securities, be transferred; (ii) the number price per Share determined in good faith by the Transferring Shareholder on the date of such New Securities to be offeredthe Public Sale Notice (the “First Offer Price”), and (iii) the price planned date of such Transfer, and terms, if any, upon which it proposes to offer such New Securities(iv) any other material proposed terms of the Transfer.
(b) By written notification Upon receipt of the Public Sale Notice, the Non-Transferring Shareholders shall have the right, for a period of 60 days following the date such Public Sale Notice is received by (or if the CompanyKO Shareholders are the Non-Transferring Shareholders, within fifteen (15) calendar until 15 days after mailing the first meeting of the Offer KO Board of Directors which is held at least 30 days after the date on which the KO Shareholders receive the Public Sale Notice), each to notify the Transferring Shareholder of the Major Investors may elect election to purchase or obtain, the Publicly Offered Shares at the price and on First Offer Price (the “First Notice Period”). The Public Sale Notice shall constitute an offer to the Non-Transferring Shareholders, which shall be irrevocable during the First Notice Period, to sell to the Non-Transferring Shareholders the Publicly Offered Shares upon the terms specified provided in this Section 4.4 and the Offer Public Sale Notice, up to that portion of such New Securities which equals the proportion that the number of shares of Registrable Securities then held by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) If all New Securities referred the Non-Transferring Shareholders timely notify the Transferring Shareholder of the election to in exercise the Offer Notice are not elected right to be purchased or obtained as provided in subsection 4.1(b) hereofpurchase the Publicly Offered Shares, the Company maypurchase, during the sixty (60) day period following the expiration sale and transfer of the period provided in subsection 4.1(b) hereof, offer Publicly Offered Shares shall take place on a date fixed by the remaining unsubscribed portion Non-Transferring Shareholders which must be a date within 60 days after the delivery of the election to purchase such Publicly Offered Shares. The closing of such New Securities purchase shall be effected in accordance with Section 4.5.
(collectivelyd) If the Non-Transferring Shareholders fail to timely notify the Transferring Shareholder of the election to exercise the right to purchase the Publicly Offered Shares within the First Notice Period, or if, following notification, the “Refused Securities”Non-Transferring Shareholders shall fail to consummate the purchase of the Publicly Offered Shares within the time period set forth in paragraph (c) above (other than a failure to any person consummate a sale of the Publicly Offered Shares which results from the inability or persons failure of the Transferring Shareholder to transfer good and marketable title to such Publicly Offered Shares, a breach by the Transferring Shareholder of this Agreement or otherwise due to circumstances not reasonably within the control of the Non-Transferring Shareholders), then the Transferring Shareholder shall have the right for a period of 90 days after the termination of the First Notice Period (or after the earlier waiver by the Non-Transferring Shareholders of the right to purchase), to Transfer the Publicly Offered Shares at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale than 90 percent of the New Securities within such periodFirst Offer Price (x) in a Public Offering, subject to Section 4.4(e) or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Major Investors in accordance with this Section 4.1.
(d) The right of first offer in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major Investors.y)
Appears in 1 contract
Samples: Shareholder Agreement
Right of First Offer. Subject to the terms and conditions specified in this Section 4.1, and applicable securities laws, in the event the Company proposes to offer or sell any New Securities, the Company shall first make an offering of such New Securities to each Major Investor in accordance with the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
(a) The Company If any Investor proposes to sell (which term shall deliver a notice include any disposition) any Shares or any Warrant Shares (the “Offer Notice”"Securities") in a Covered Sale (as hereinafter defined), in accordance with such Investor will give written notice to the provisions Company (the "Transfer Notice") of Section 6.5 hereof, to each of the Major Investors stating (i) its bona fide intention to offer such New Securities, (ii) the number of Securities such New Securities Investor proposes to be offered, sell in Covered Sales during the 90-day period (the "Notice Period") commencing on the date of such Investor's delivery of the Transfer Notice (the "Delivery Date") and (iii) the price and terms, if any, upon per share at which it such Investor proposes to offer sell such New Securities.
(b) By written notification received by the Company, within fifteen (15) calendar days after mailing of the Offer Notice, each of the Major Investors may elect to purchase or obtain, 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 number of shares of Registrable Securities then held by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptlyhave the right, in writing, inform each Major Investor that elects to purchase all during the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar10-day period commencing after receipt on the Delivery Date, to purchase all, but not less than all, of the Securities described in the Transfer Notice at the price per share set forth in the Transfer Notice by delivery to such Investor of (i) the Company's written irrevocable agreement to purchase all of such information, each Fully-Exercising Investor Securities at such price per share and (ii) payment in immediately available funds of the aggregate purchase price for such Securities to such account or accounts as shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held designated by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) If all New Securities referred to Investor. The right described in the Offer Notice preceding sentence shall terminate if the agreement and purchase price described in the preceding sentence are not elected received by such Investor prior to be purchased or obtained as provided in subsection 4.1(b) hereof, 4:00 p.m. New York City time on the Company may, during the sixty (60) 10th day period immediately following the expiration of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) 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 Offer NoticeDelivery Date. If the Company does not enter into an agreement for the sale exercise its right as hereinabove set forth within such 10-day period, such Investor may sell all or any portion of the New Securities within such period, described in the Transfer Notice to any purchaser for a price per share equal to or if such agreement is not consummated within thirty (30) days in excess of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Major Investors in accordance with this Section 4.1.
(d) The right of first offer in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer price set forth in the Transfer Notice. If, at the end of the Notice Period, such Investor has not completed such sales, such Investor shall no longer be permitted to sell such Securities in a Covered Transaction without again complying with all of the provisions of this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major InvestorSection. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer such Investor may at any time amend, supplement or revise any information set forth in this Section 4.1 shall not be available any previously delivered Transfer Notice by delivering an amended Transfer Notice to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with the terms of the Company’s Articles of Incorporation , in effect at which event the time of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice 10- and 90- day periods described above shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) days recommence from the date of receipt Investor's delivery of such notice to elect to purchase up amended Transfer Notice to the number Company.
(b) As used in this Section, "Covered Sale" shall mean any sale of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(bInvestor other than (i) prior a sale to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days an Affiliate of the date of notice Investor or (ii) a transfer that is registered under the Securities Act or effected pursuant to Rule 144 under the Major InvestorsSecurities Act.
Appears in 1 contract
Right of First Offer. Subject (a) Commencing immediately after the consummation of the Distribution, and prior to the terms and conditions specified in this Section 4.1second anniversary of the Distribution Date, Harcourt General shall not, and applicable securities lawsshall not permit any Subsidiary to, sell, exchange or transfer ("Transfer"), other than to a direct or indirect wholly owned Subsidiary of Harcourt General, Neiman Marcus or pursuant to a bona fide merger, tender offer, exchange offer, consolidation or other similar transaction in which the event opportunity to Transfer shares is made available on the Company proposes same basis to offer all holders of Class A Common Stock, a number of shares of Class A Common Stock in any 60-day period representing 5% or sell any New more of the outstanding shares of Class A Common Stock and Class B Common Stock, taken together, unless Harcourt General shall have given to Neiman Marcus at least ten days' prior written notice (the "Right of First Offer") that it or its Subsidiary is considering effecting such a Transfer (a "Transferor's Notice"). Such notice shall state (i) the number of shares of Class A Common Stock that Harcourt General or its Subsidiary may Transfer (the "Offered Securities") and (ii) the price, if applicable, at which Harcourt General or its Subsidiary would be willing to Transfer the Offered Securities, other than in a "block trade" or other public offering (a "Public Sale"), including to a third party (the Company shall first make an offering "Private Price"), and/or if Harcourt General or its Subsidiary anticipates the possibility of a Transfer of such shares in a Public Sale, a statement to such effect. Upon receipt of the Transferor's Notice, Neiman Marcus, acting through its Board of Directors, shall have ten days (the "Offer Period") to elect to purchase the Offered Securities at a price in cash equal to (x) the Private Price or (y) if no Private Price has been stated by Harcourt General, the closing price on the New Securities York Stock Exchange Composite Transactions Tape (the "NYSE Tape") on the trading day immediately preceding the date of the Transferor's Notice. The foregoing Right of First Offer shall not apply to each Major Investor any Transfer for shares of stock or other property, so long as the transferee in accordance with any such Transfer shall agree in writing to be bound by the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
(a) The Company shall deliver a notice (the “Offer Notice”), in accordance with the provisions of Section 6.5 hereof, to each of the Major Investors stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities2.6.
(b) By written notification received by If Neiman Marcus does not exercise its Right of First Offer, then Harcourt General or its Subsidiary shall have the Companyright, within fifteen for a period ending upon the later of (15i) calendar 120 days after mailing from the expiration of the Offer NoticePeriod, each (ii) 45 days after such time as a registration statement filed with respect to such Offered Securities shall be declared effective by the Commission or (iii) 15 days after the expiration of such time as the parties to any transaction reasonably require to comply with applicable United States federal and state laws and regulations, to Transfer or, in the case of Harcourt General, cause its Subsidiary to Transfer all or any portion of the Major Investors may elect to purchase Offered Securities at a price no less than (i) if the Transferor's Notice sets forth a Private Price, the Private Price or obtain(ii) if the Transferor's Notice does not set forth a Private Price, at (A) in a Public Sale, 90% of the low sales price and on the terms specified NYSE Tape on the trading day on which such Transfer is made (as opposed to the settlement date of such Transfer) or (B) in a Transfer other than a Public Sale, the low sales price on the NYSE Tape on the trading day on which an agreement to Transfer is made. If Harcourt General or its Subsidiary does not Transfer or, in the Offer Noticecase of Harcourt General, up cause its Subsidiary to that Transfer all or any portion of such New the Offered Securities which equals within the proportion that time period provided for in this Section 2.6(b), the number Right of First Offer in this Section 2.6 shall again become applicable with respect to any Transfer of shares of Registrable Securities then held by such Major Investor bears to the total number of shares of Class A Common Stock by Harcourt General or its Subsidiary.
(c) If Neiman Marcus exercises its Right of First Offer, the closing of the Company then outstanding purchase of the Offered Securities with respect to which such right has been exercised shall take place on the 15th day after the later of (assuming full conversion i) the date Neiman Marcus gives notice of such exercise and (ii) the expiration of such time as the parties may reasonably require in order to comply with applicable United States federal and state laws and regulations, which in no event shall be more than 45 days after the date specified in clause (c)(i).
(d) Upon exercise by Neiman Marcus of its Right of First Offer under this Section 2.6, Neiman Marcus and Harcourt General or, if applicable, its Subsidary, shall be legally obligated to consummate the purchase contemplated thereby and shall use their respective reasonable best efforts to make all convertible or exercisable securities necessary filings and exercise to secure any approvals required and to comply as soon as practicable with all applicable United States federal and state laws and regulations in full of all outstanding options and warrants)connection therewith; provided, however, that such Major Investor shall have no right to purchase Harcourt General or its Subsidiary may determine, at any such New Securities if such Investor cannot demonstrate time prior to the Company’s reasonable satisfaction that such Investor isconsummation of a Transfer to Neiman Marcus, at not to Transfer or, in the time case of Harcourt General, cause its Subsidiary to Transfer the proposed issuance of such New Offered Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase which case all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, during the sixty (60) day period following the expiration of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) 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 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 Major Investors in accordance with this Section 4.1.
(d) The right of first offer in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1, the Company may elect 2.6 shall again become applicable with respect to give notice to the Major Investors within thirty (30) days after the issuance any Transfer of New Securities. Such notice shall describe the type, price and terms shares of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased Class A Common Stock by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major InvestorsHarcourt General or its Subsidiary.
Appears in 1 contract
Right of First Offer. Subject to the terms and conditions specified in this Section 4.1, and applicable securities laws, in the event the Company proposes to offer or sell any New Securities, the Company shall first make an offering of such New Securities to each Major Investor in accordance with the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.325596.v2 70
(a) The If at any time a Member proposes to sell, assign, or otherwise dispose of all or any part of, or to solicit bids from any third party to purchase or otherwise acquire, all or any portion of its interest in the Company shall deliver a notice (other than sales or other dispositions to Affiliates of such Member), such Member (the “Offer Notice”), "Soliciting Member") shall first notify the other Member (the "Notified Member") in accordance with the provisions of Section 6.5 hereof, to each of the Major Investors stating (i) its bona fide intention to offer such New Securities, (ii) the number writing of such New Securities Soliciting Member's desire to be offered, and (iii) sell such interest in the price and terms, if any, upon which it proposes to offer such New SecuritiesCompany.
(b) By written notification The Notified Member shall have 10 days to make a first cash offer to purchase, and negotiate for the purchase of, the interest in the Company that the Soliciting Member desires to sell. If the Soliciting Member does not accept a bona fide first cash offer made by the Notified Member to purchase the Soliciting Member's interest in the Company, the Soliciting Member shall not sell, assign or otherwise dispose of, or enter into any binding agreement to sell, assign or otherwise dispose of all or any part of the Soliciting Member's interest in the Company during the 90- day period following such 10-day first offer period, unless the cash value of the consideration to be received by the CompanySoliciting Member from a third party purchaser is greater than the cash offer made by the Notified Member. If the Soliciting Member does not sell or enter into a binding agreement to sell its interest in the Company within such 90- day period, within fifteen (15) calendar days after mailing it shall again afford the Notified Member the opportunity to make a first offer with respect to proposed sales of the Offer Notice, each of the Major Investors may elect to purchase or obtain, at the price and on the terms specified Soliciting Member's interest in the Offer Notice, up to that portion of such New Securities which equals the proportion that the number of shares of Registrable Securities then held by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed sharesprovided above.
(c) If the Notified Member does not elect to make a first cash offer to purchase all New Securities referred to of the Company interest offered by the Soliciting Member during the 10-day period provided for in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereofSection 13.2(b), the Company may, during Soliciting Member may sell the sixty (60) day period following interest within 90 days after the expiration of the 10-day period provided for in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) 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 Offer NoticeSection 13.2(b). If the Company Soliciting Member does not sell or enter into an a binding agreement for to sell its interest in the sale Company within such 90- day period, it shall again afford the Notified Member the opportunity to make a first offer with respect to proposed sales 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 Major Investors Soliciting Member's interest in accordance with this Section 4.1.
(d) The right of first offer in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company as provided in accordance with the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major Investors13.2(a).
Appears in 1 contract
Right of First Offer. Subject 28.01 During the subsistence of this Agreement, none of the parties shall sell, assign, or in any other manner dispose or attempt to dispose of all or any portion of its Interest except as provided in sections 12 or 27 and as hereinafter provided in this section 28. A party wishing to sell or dispose of all or a portion of its interest (in this section 28 called the ADisposing Party@) may:
(a) sell or dispose that Interest in the manner set out in subsection 28.02 to the Participants who elect to purchase the same, if more than one then in proportion to their respective Interests; or
(b) sell or dispose that Interest to an Affiliate of the Disposing Party; provided however, that the Disposing Party shall provide a guarantee to the other parties, in form reasonably satisfactory to counsel for the Operator, guaranteeing the obligations of the Affiliate under this Agreement and provided further, that the sale to the Affiliate shall be subject to the Affiliate entering into an agreement with the remaining Participants whereby it agrees to be bound by the provisions of this Agreement.
28.02 A Disposing Party will, prior to selling or disposing of the Interest other than to an Affiliate, first offer to sell the Interest to the Participants for cash consideration and upon such other terms and conditions specified as the Disposing Party deems fit. If, within 30 days of the Disposing Party=s offer to sell, the Participants elect not to purchase the Interest upon those terms and conditions the Disposing Party will be free to dispose of that Interest to a third party at any time within six months of the Participants= election but only for a cash consideration, or for some consideration other than cash, provided that the fair cash equivalent of any non-cash consideration be equal to or greater than the cash consideration stated in this Section 4.1the Disposing Party=s offer to sell to the Participants, and applicable securities lawsupon no more favourable terms and conditions as the offer to sell to the Participants, provided however, that the sale of the interest to the third party shall be subject to the third party entering into an agreement with the Participants whereby it agrees to be bound by the provisions of this Agreement. Any Interest not disposed of by the Disposing Party aforesaid will remain subject to the provisions of this subsection.
28.03 Upon the Participants or a third party acquiring all or a portion of the Disposing Party=s Interest, the Participants or the third party will be deemed to have acquired a corresponding portion of the Disposing Party=s Prior Exploration Costs, Exploration Costs and Mine Costs. The third party will be entitled to all the rights and benefits accruing, and be subject to the same duties and obligations attributable to the Interest which it has purchased from the Disposing Party, including without limiting the generality of the foregoing, the right to participate in any further Exploration Costs and Mine Costs and the right to have its Interest increased or reduced in the same manner as the Disposing Party in the event the Company proposes third party does not participate in Exploration Costs and Mine Costs.
28.04 Any dispute as to offer or sell the fair cash equivalent of any New Securities, the Company shall first make an offering of such New Securities to each Major Investor non-cash consideration contemplated in accordance with the following provisions of this Section 4.1. A Major Investor subsection 28.02 shall be entitled submitted to apportion arbitration in British Columbia by a board of three arbitrators one of whom is to be appointed by each party to the right dispute and the third of whom is to be appointed by the first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
(a) two arbitrators. The Company arbitration shall deliver a notice (the “Offer Notice”), be conducted in accordance with the provisions of Section 6.5 hereofthe Commercial Arbitration Act of British Columbia, as amended from time to each of the Major Investors stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securitiestime.
(b) By written notification received by the Company, within fifteen (15) calendar days after mailing of the Offer Notice, each of the Major Investors may elect to purchase or obtain, 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 number of shares of Registrable Securities then held by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, during the sixty (60) day period following the expiration of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) 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 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 Major Investors in accordance with this Section 4.1.
(d) The right of first offer in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major Investors.
Appears in 1 contract
Samples: Option Agreement
Right of First Offer. Subject In the event that the Indenture Trustee at any time permits the Lessor to sell, transfer, convey or otherwise alienate the Facility (which for so long as any Facility Notes are Outstanding the Lessor acknowledges can be done only with the consent of the Indenture Trustee acting at the direction of all of the Loan Participants and upon such terms as the Loan Participants may agree to in their sole discretion, unless such sale, transfer or conveyance is to a successor trustee or co-trustee permitted by the terms of the Trust Agreement and the Participation Agreement or to the terms and conditions specified in this purchaser of the Facility pursuant to Section 4.114), and applicable securities lawsprovided that no Event of Default shall have occurred and be continuing, before the Lessor may offer to sell, transfer, convey or otherwise alienate (other than any easement or other interest which the Lessor shall grant or convey pursuant to Section 23(a)) the Facility to a third Person (other than any Affiliate or designee of the Lessee) other than to any successor trustee or co-trustee permitted by the terms of the Trust Agreement and the Participation Agreement and other than to the purchaser of the Facility pursuant to Section 14, including in response to any unsolicited offer by a potential purchaser or potential transferee and prior to the acceptance of such offer or the making of a counteroffer, the Lessor shall offer, in writing, that interest in the event the Company proposes to offer or sell any New SecuritiesFacility, the Company shall first make an offering of such New Securities to each Major Investor in accordance with the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion the and does hereby grant a right of first offer hereby granted it among itself and its partnersto purchase that interest in the Facility, members and Affiliates in such proportions as it deems appropriate.
(a) The Company shall deliver to the Lessee for purchase at a notice price (the “Offer Notice”"Determined Price"), which Determined Price shall in accordance with any case never be less than all amounts due and owing by the provisions of Section 6.5 hereof, to each of Lessor under the Major Investors stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offeredIndenture, and upon terms (iiithe "Determined Terms") the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By written notification received specified by the Company, within fifteen (15) calendar days after mailing of the Offer Notice, each of the Major Investors Lessor. Such offer may elect to purchase or obtain, 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 number of shares of Registrable Securities then held by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for accepted by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, during the Lessee at any time within sixty (60) day period following days after the expiration date of receipt by the Lessee of the period provided in subsection 4.1(b) hereof, notice of the offer and the remaining unsubscribed portion Determined Price and Determined Terms by irrevocable written notice of the acceptance of such New Securities (collectively, offer specifying the “Refused Securities”) 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 Offer Notice. If the Company does not enter into an agreement closing date 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 purchase which shall not be offered unless first reoffered to the Major Investors in accordance with this Section 4.1.
(d) The right of first offer in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within more than thirty (30) days after the issuance date of New Securities. Such notice such written acceptance, and such purchase shall describe the typebe made in accordance with Section 22(d)(i) (substituting "Determined Price" and "Determined Date" for "EBO Price" and "EBO Date", price respectively) and terms Section 6.5 of the New SecuritiesIndenture. Each Major Investor shall have twenty (20) days from In the date of receipt of such notice to event that the Lessee does not elect to purchase up the Facility for the Determined Price and upon the Determined Terms, concurrently with the prepayment of all, but not less than all, of the Facility Notes pursuant to Section 6.4 of the Indenture and payment of all amounts due thereunder, the Facility may be sold by the Lessor at the Determined Price and upon the Determined Terms at any time during the period of two hundred seventy (270) days following the giving by the Lessee of a notice that it does not intend to exercise its right of first offer (or in the case of the deemed waiver by the Lessee of its right of first offer, during the period of 270 days following the expiration of the aforementioned 30-day period during which the Lessee shall have the right to accept the offer), without the need to offer the Facility to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect Lessee pursuant to the issuance provisions of such New Securitiesthis Section 21. The closing Facility shall not be sold (1) at any price or upon any terms materially more favorable to the purchaser than those contained in the offer to the Lessee or (2) at a time after such 270-day period, in each case without first having again complied with the provisions of such sale shall occur within sixty (60) days this Section 21. Any failure of the date of notice Lessee to the Major Investorsexercise its rights pursuant to this Section 21 shall in no event diminish, waive or extinguish its rights with respect to any subsequent proposed sale or transfer.
Appears in 1 contract
Right of First Offer. Subject to the terms and conditions specified in this Section 4.1, and applicable securities laws, in the event the Company proposes to offer or sell any New Securities, the Company shall first make an offering of such New Securities to each Major Investor in accordance with the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
(a) The Company In the event that MassMutual and/or any of its Controlled Affiliates intends to Transfer any shares of Series A Preferred Stock to any Person other than an Affiliate, prior to effecting or entering into any agreement to effect such Transfer, MassMutual shall deliver a provide written notice to Invesco (i) setting forth its and/or any of its Controlled Affiliate’s intent to effect such Transfer, the manner of effecting the Transfer, the number of Series A Preferred Stock to be transferred, and the proposed price per share of Series A Preferred Stock and (ii) irrevocably offering to Invesco the right to purchase any or all of such shares on the terms proposed (“Offer Transfer Notice”). Upon receipt of a Transfer Notice, in accordance with Invesco will have the provisions of Section 6.5 hereofright to purchase all, to each but not less than all, of the Major Investors stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities shares proposed to be offeredTransferred, and (iii) at the price and termsotherwise on the terms set forth in the Transfer Notice, if anyby delivery to MassMutual, upon which it proposes not more than ten (10) Business Days following receipt of the Transfer Notice, a written notice irrevocably electing to offer such New Securitiespurchase all, but not less than all, of the shares of Series A Preferred Stock on the terms proposed (“Acceptance Notice”).
(b) By written notification received The parties shall complete such sale as promptly as reasonably practical, and in any event not later than the fifteenth (15th) Business Day (or, if the aggregate purchase price to be paid by Invesco is more than $1,000,000,000, the Company, within fifteen thirtieth (1530th) calendar days after mailing Business Day) following the timely delivery of the Offer Acceptance Notice, each of the Major Investors may .
(c) If Invesco does not timely elect to purchase all of the Series A Preferred Stock covered by the Transfer Notice, or obtaintimely elects to purchase but does not consummate such sale within the time periods required pursuant to subsection (b), MassMutual or its Controlled Affiliate shall be free for a period of forty-five (45) days from the date of the Transfer Notice to sell, or enter into an agreement to sell, shares of Series A Preferred Stock at a price per share not less than 97.5% of the price and on the terms specified as set forth in the Offer Notice, up to that portion of such New Securities which equals the proportion that the number of shares of Registrable Securities then held by such Major Investor bears Transfer Notice and otherwise on other terms not materially more favorable to the total number of shares of Common Stock of purchaser, in the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise aggregate, than those set forth in full of all outstanding options and warrants)the Transfer Notice; provided, however, that such Major Investor prior to selling, or entering into an agreement to sell, shares of Series A Preferred Stock at a price per share less than 99% of the price set forth in the Transfer Notice, MassMutual or its Controlled Affiliate shall have no first provide a new Transfer Notice to Invesco irrevocably offering Invesco the right to purchase any all, but not less than all, of the shares proposed to be Transferred at such New Securities if such Investor cannot demonstrate price pursuant to the Company’s reasonable satisfaction same process set forth in Section 3.4(a), except that Invesco shall have only three (3) Business Days to provide its Acceptance Notice. Any such Investor is, at agreement to sell must provide for the time completion of the proposed issuance sale within ninety (90) days of such New Securities, the date of entry into the applicable agreement (subject to extension by up to an “accredited investor” as defined in Regulation D under additional ninety (90) days to the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled extent necessary to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed sharesany approvals or consents under Applicable Law).
(d) If MassMutual or its Controlled Affiliate has not sold the shares of Series A Preferred Stock covered by the Transfer Notice, or entered into a definitive agreement to sell shares of Series A Preferred Stock, in the manner permitted under subsection (c) If all New Securities referred to in within such forty-five (45) day period, or has so entered into such an agreement but has not consummated the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, during the sale of such Invesco Capital Stock within such sixty (60) day period following the expiration of the period provided in (subject to extension as permitted under subsection 4.1(b) hereof(c)), offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) 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 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 Major Investors in accordance with this Section 4.1.
(d) The right of first offer in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with then the provisions of this Section 4.1, the Company may elect 3.4 shall again apply to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major Investorsany proposed Transfer.
Appears in 1 contract
Samples: Shareholder Agreement (Invesco Ltd.)
Right of First Offer. Subject to From the terms and conditions specified in this Section 4.1, and applicable securities lawsdate hereof until the date that is the six (6) month anniversary of the date of the First Closing, in the event that the Company proposes desires to consummate a transaction with any Person with respect to a bona fide offer of capital or sell any New Securitiesfinancing, including without limitation, the issuance of Common Stock, Common Stock Equivalents or debt for cash consideration, Indebtedness or a combination of units thereof (a “ROFO Financing”), then the Company shall first make an offering of offer such New Securities opportunity to each Major Investor the Purchaser, in accordance with writing (a “ROFO Notice”). The ROFO Notice must be sent Purchaser pursuant to Section 5.4. Such ROFO Notice shall contain the following provisions of this Section 4.1. A Major Investor shall be entitled material economic terms that the Company would, in good faith, expect to apportion receive in the right of first offer hereby granted it among itself and its partners, members and Affiliates market for transactions similar in such proportions as it deems appropriate.
(a) The Company shall deliver a notice type to the ROFO Financing being sought (the “Offer NoticeMaterial Economic Terms”), in accordance with . If Purchaser is unwilling or unable to provide such ROFO Financing to the provisions of Section 6.5 hereof, to each Company within three (3) Trading Days from Purchaser’s receipt of the Major Investors stating ROFO Notice, then the Company may obtain such ROFO Financing from any other Person upon the exact same Material Economic Terms, which such ROFO Financing must be completed within ninety (i) its bona fide intention to offer such New Securities, (ii) the 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 written notification received by the Company, within fifteen (1590) calendar days after mailing the date of the Offer Notice, each of the Major Investors may elect to purchase or obtain, 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 number of shares of Registrable Securities then held by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, during the sixty (60) day period following the expiration of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) 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 Offer ROFO Notice. If the Company does not enter into an agreement for receive the sale of the New Securities ROFO Financing from such Person within such period, or if such agreement is not consummated within thirty ninety (3090) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Major Investors in accordance with this Section 4.1.
(d) The right of first offer in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within thirty (30) calendar days after the issuance of New Securities. Such notice shall describe the type, price and terms date of the New Securitiesrespective ROFO Notice, then the Company must again offer the ROFO Financing opportunity to Purchaser as described above, and the process detailed above shall be repeated. Each Major Investor shall have twenty Additionally, in the event that the Company proceeds to a ROFO Financing with another Person and then the Material Economic Terms are altered or modified in any way, then the Company must again offer the ROFO Financing opportunity (20on such altered or modified Material Economic Terms) days from the date of receipt of such notice to elect to purchase up to the number of New Securities that wouldPurchaser as described above, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to and the issuance of such New Securities. The closing of such sale process detailed above shall occur within sixty (60) days of the date of notice to the Major Investorsbe repeated.
Appears in 1 contract
Right of First Offer. Subject (a) If Sunoco decides to sell or otherwise transfer its ownership interest in all or any part of the Pipeline (except to an Affiliate), Sunoco shall provide a written notice to Motiva (the “First Offer Notice”) that specifies the interest being sold, terms, conditions and price for the sale. The THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST. REDACTED MATERIAL IS MARKED WITH [******] AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. First Offer Notice shall constitute an offer to sell the relevant ownership interest in the Pipeline to Motiva, for the price and under the terms and conditions specified in this Section 4.1, and applicable securities laws, in the event the Company proposes to offer or sell any New Securities, the Company shall first make an offering of such New Securities to each Major Investor in accordance with the following provisions of this Section 4.1therein. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
(a) The Company shall deliver a notice (the “Offer Notice”), in accordance with the provisions of Section 6.5 hereof, to each Upon receipt of the Major Investors stating (i) its bona fide intention to offer such New Securities, (ii) the 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 written notification received by the Company, within fifteen (15) calendar days after mailing of the First Offer Notice, each of the Major Investors may elect to purchase or obtain, 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 number of shares of Registrable Securities then held by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor Motiva shall have no right a term of sixty (60) days to purchase any such New Securities if such Investor cannot demonstrate give written notice to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” Sunoco advising as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that to whether Motiva elects to purchase all Sunoco’s interest in the shares available Pipeline or any part thereof. In the event that Motiva declines to it (eachexercise such right, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor Sunoco shall be entitled free to obtain that portion contract to sell or transfer the relevant interest in the Pipeline to a Third Party Purchaser at any time within six (6) months of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number expiration of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, during the sixty (60) day period following the expiration of the period provided in subsection 4.1(babove (unless waived by Motiva) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) to any person or persons at a price not less than, and upon terms no more favorable that is equal to or greater than the offeree than, those price specified in the First Offer Notice and under terms and conditions that, taken as a whole, are no more economically favorable than those described in the First Offer Notice. If .
(b) In the Company does not enter into an agreement for event of any permitted sale, assignment or other disposition of Sunoco’s interest in the sale of the New Securities within such period, Pipeline or if such agreement is not consummated within thirty (30) days of the execution any part thereof, the right provided hereunder shall be deemed party purchasing Sunoco’s interest shall, at the closing for any permitted transfer, assume in writing and agree to be revived and such New Securities shall not be offered unless first reoffered to the Major Investors in accordance with this Section 4.1.
(d) The right of first offer in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable bound by each Major Investor to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice Agreement (and any other associated agreements between Motiva and Sunoco that pertain to the Major Investors within thirty (30Pipeline) days after for all purposes. Without strict compliance with this Section 25, any transfer or attempted transfer of Sunoco’s interest in the issuance of New Securities. Such notice Nederland Terminal shall describe the type, price be null and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major Investorsvoid.
Appears in 1 contract
Right of First Offer. Subject to the terms and conditions specified in this Section 4.1, and applicable securities laws, in the event the Company proposes to offer or sell any New Securities, the Company shall first make an offering of such New Securities to each Major Investor in accordance with the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
(a) The Company Subject to Clause 11 (Restrictions on Transfer) above, except in the case of a Transfer of Equity Securities to a Permitted Transferee, if any Shareholder (other than IFC) (“Seller”) wishes to Transfer all or part of its Equity Securities (“Transfer Shares”) to any Person (“Proposed Share Transferee”), it shall deliver serve a written notice to each other Shareholder (“Non-Transferring Shareholder”) stipulating the number of Equity Securities it desires to Transfer (“Offer Transfer Notice”), in accordance with the provisions of Section 6.5 hereof, to each of the Major Investors stating (i) its bona fide intention to offer such New Securities, (ii) the 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 written notification received by If a Seller issues a Transfer Notice, the CompanyNon-Transferring Shareholders shall have the right (but not the obligation), exercisable within fifteen thirty (1530) calendar days after mailing from receipt of the Transfer Notice (“Offer Period”), to provide the Seller with a binding, written offer (“Purchase Offer”) to purchase all, but not less than all, of the Transfer Shares. A Purchase Offer, once delivered, shall be irrevocable and shall constitute a binding offer by the Non-Transferring Shareholder(s) to purchase the Transfer Shares. Any Purchase Offer must include, at a minimum, a purchase price (on a per Equity Share basis) for the Transfer Shares (“Offer Price”), a description of any material conditions applicable to the purchase thereof and the time period within which the Non-Transferring Shareholder is prepared to close such purchase (which shall be as soon as reasonably practicable, but in no event later than thirty (30) calendar days from the date of issue of the Purchase Offer). Upon receipt of a Purchase Offer from any Non-Transferring Shareholder, the Seller shall have the right, but not the obligation, to accept the same by delivering written notice (“Acceptance Notice”) to such Non-Transferring Shareholder, which Acceptance Notice shall constitute a legally binding contract between the Seller to sell, and such Non-Transferring Shareholder to purchase, the Transfer Shares on the terms and conditions described therein. If more than one Non-Transferring Shareholder issues a Purchase Offer to purchase the Transfer Shares on substantially identical terms and the Seller elects to accept either such Purchase Offer, the Transfer Shares will be sold to such Non-Transferring Shareholders in proportion to their ownership of the Share Capital on a Fully Diluted Basis.
(c) If an Acceptance Notice is issued, the Non-Transferring Shareholder(s) shall be obligated to purchase (either by itself and/or through any of its/their Affiliates or Transferee Trusts) all of the Transfer Shares, and the sale and purchase of such Transfer Shares in favor of the Non-Transferring Shareholder(s) or its/their Affiliates or Transferee Trusts shall be completed within thirty (30) calendar days from the date of issue of the Purchase Offer. At such completion, the Seller shall deliver to the Non-Transferring Shareholder(s) certificates and other documents representing its title to the relevant Transfer Shares, accompanied by duly executed and valid instruments of Transfer. The thirty (30) calendar day period referred to in Clauses 12(b) and 12(c) shall be extended for a period not exceeding the time period set out in Clause 2(j) in the event that the necessary approvals from the relevant Government Authorities for the Transfer have not been received within such period. Such Transfer Shares shall be free and clear of any Encumbrance, and the Seller shall so represent and warrant and shall further represent and warrant that it is the legal and beneficial owner of such Transfer Shares. The Non-Transferring Shareholder(s) shall, at such completion of the transaction, deliver payment in full of the Offer NoticePrice. In the event that the Non-Transferring Shareholder(s) nominate(s) an Affiliate or Transferee Trust for the purpose of purchasing the Transfer Shares or part thereof, it/they shall cause each such Affiliate or Transferee Trust to execute a Permitted Transferee Deed of Adherence. At such completion, all of the Major Investors parties to the transaction shall execute such additional documents as may elect be necessary or appropriate to purchase complete the sale of the Transfer Shares to the Non-Transferring Shareholder(s). Any stamp duty or obtain, at the price and transfer charges payable on the Transfer of any Transfer Shares shall be borne and paid by the Non-Transferring Shareholder(s).
(d) If the Seller does not receive a Purchase Offer, or elects not to accept any Purchase Offer for the Transfer Shares, the Seller may, subject to the terms specified hereof and Clause 13 (Tag Along Rights) below, Transfer the Transfer Shares to a Proposed Share Transferee; provided that the sale price for the Transfer Shares may not be less than the highest Offer Price set forth in any Purchase Offer that was timely delivered to the Seller; and provided, further, that the Proposed Share Transferee must duly execute a deed of adherence in the format set out in Schedule 7 (Form of the Transferee Deed of Adherence) hereto (each a “Transferee Deed of Adherence”). If the Seller does not Transfer the Transfer Shares within a period six (6) months from the expiry of the Offer NoticePeriod, up it will not be entitled to Transfer the Transfer Shares thereafter to any Person without first re-offering the Transfer Shares to the Non-Transferring Shareholder(s) in accordance with provisions of this Clause 12 (Right of First Offer); provided, that portion of such New Securities which equals six (6) month period shall be extended for a period not exceeding the proportion time period set out in Clause 2(j) in the event that the number necessary approvals from the relevant Government Authorities for the Transfer have not been received within such period.
(e) At request of shares Goldman, Blue Xxxxxxx or GTI CAPITAL, the Company shall provide to a Proposed Share Transferee such information about the Company as it may reasonably request, subject to Applicable Law, including making available information in relation to the Group and giving reasonable access to the Company’s management, staff and Directors as necessary or desirable for the Transfer of Registrable Securities then the Equity Shares held by Goldman, Blue Xxxxxxx or GTI CAPITAL.
(f) Any Transfer of the Transfer Shares pursuant to this Clause 12 (Right of First Offer) shall be valid only upon the execution of a Permitted Transferee Deed of Adherence or a Transferee Deed of Adherence, as the case may be, and shall be registered by the Company upon a validly and duly executed (by all parties thereto) Permitted Transferee Deed of Adherence or a Transferee Deed of Adherence, as the case may be, being lodged with it. The other Shareholders undertake to execute such Major Investor bears Permitted Transferee Deed of Adherence or Transferee Deed of Adherence, as may be required in order to give effect to such Transfer of the Transfer Shares to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible Non-Transferring Shareholder, its Affiliate or exercisable securities and exercise in full of all outstanding options and warrants)Transferee Trust, or a Proposed Share Transferee; provided, however, that such Major Investor nothing contained herein shall have no right require a Shareholder to purchase any such New Securities if such Investor cannot demonstrate to execute a Permitted Transferee Deed of Adherence or Transferee Deed of Adherence where the Company’s reasonable satisfaction that such Investor is, at the time Transfer is in contravention of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, during the sixty (60) day period following the expiration of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) 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 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 Major Investors in accordance with this Section 4.1.
(d) The right of first offer in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major InvestorsAgreement.
Appears in 1 contract
Samples: Shareholder Agreement
Right of First Offer. Subject At least 15 business days prior to transferring any shares of Preferred Stock pursuant to Section 5A(iv), the transferring shareholder (the “Transferring Shareholder”) shall deliver a written notice (a “Sale Notice”) to the Company. The Sale Notice shall disclose in reasonable detail the proposed number of shares of Preferred Stock to be transferred. The Company may offer to purchase all (but not less than all) of the shares of Preferred Stock specified in the Sale Notice by delivering written notice of such offer (a “Company Offer”) to the Transferring Shareholder, as soon as practicable but in any event within 15 days after the delivery of the Sale Notice (the “Election Period”), disclosing in reasonable detail the proposed terms and conditions (including the offer price) of the Company’s offer in a binding commitment (if accepted by the Transferring Shareholder within 60 days) to purchase the Transferring Shareholder’s Preferred Stock specified in this Section 4.1, and applicable securities laws, in the event Sale Notice. If within the Election Period the Company proposes has offered to offer or sell any New Securitiespurchase the shares of Preferred Stock from the Transferring Shareholder in a Company Offer, the Transferring Shareholder may, within 60 days after receipt of the Company shall first make an offering of such New Securities to each Major Investor in accordance with the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
(a) The Company shall deliver a notice Offer (the “Offer NoticePeriod”), in accordance with either accept or decline the provisions Company Offer. If the Transferring Shareholder accepts the Company’s Offer within such 60 day period, then the Transferring Shareholder and the Company shall be bound, and the transfer of Section 6.5 hereof, to each such shares shall be consummated as soon as practical after the delivery of the Major Investors stating (i) its bona fide intention to offer such New SecuritiesTransferring Shareholder’s acceptance of the Company Offer, (ii) the 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 written notification received by the Company, but in any event within fifteen (15) calendar 30 days after mailing the acceptance of the Offer NoticeCompany Offer. If the Transferring Shareholder declines the Company Offer, each then it may transfer such shares of the Major Investors may elect to purchase or obtain, at the price and on the terms Preferred Stock (specified in the Offer Sale Notice, up to that portion of such New Securities which equals ) at a price no less than the proportion that the number of shares of Registrable Securities then held by such Major Investor bears to the total number of shares of Common Stock of price per share specified in the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing Offer within 120 days after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, during the sixty (60) day period following the expiration of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) 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 Offer NoticeElection Period. If the Company does has not enter into an agreement for the sale made a Company Offer (which must be with respect to all 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 Major Investors in accordance with this Section 4.1.
(d) The right of first offer in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with Sale Notice), then the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1Transferring Shareholder may, the Company may elect to give notice to the Major Investors within thirty (30) 180 days after the issuance of New Securities. Such notice shall describe the type, price and terms expiration of the New SecuritiesElection Period, transfer such shares of Preferred Stock specified in the Sale Notice to one or more third parties. Each Major Investor The Transferring Shareholder shall have twenty (20deliver a new Sale Notice under this Section 5E with respect to any shares of Preferred Stock not transferred within such 180-day period after the expiration of the Election Period prior to any subsequent transfer. The purchase price specified in any Company Offer shall be payable solely in cash at the closing of the transaction. If the Company has failed to consummate a Company Offer that one or more Transferring Shareholder(s) days from the date of receipt of accepted, then this Section 5E shall cease to apply with respect to such notice Transferring Shareholder(s) and shall no longer require such Transferring Shareholder(s) to elect to purchase up deliver a Sale Notice to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) Company prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major Investorstransferring any Preferred Stock.
Appears in 1 contract
Samples: Preferred Stock Purchase Agreement (Thoma Cressey Equity Partners Inc)
Right of First Offer. Subject to Purchaser agrees that Purchaser will not sell, assign, pledge, or in any manner transfer any of the terms Shares or any right or interest therein, whether voluntarily or by operation of law, except by a transfer which meets the requirements set forth elsewhere in this Agreement and conditions specified hereinafter set forth in this Section 4.1, and applicable securities laws, in the event the Company proposes to offer or sell any New Securities, the Company shall first make an offering of such New Securities to each Major Investor in accordance with the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.4.6:
(a) The Company shall deliver If Purchaser receives from anyone a notice (the “Offer Notice”), in accordance with the provisions of Section 6.5 hereof, bona fide offer acceptable to each Purchaser to purchase any of the Major Investors stating (i) its Shares, or intends to make a bona fide intention offer to offer such New Securitiessell any Shares, (ii) then Purchaser shall first give written notice thereof to the Company. The notice shall name the proposed transferee, if known, and state the number of such New Securities shares to be offeredtransferred, and (iii) the price per share or method for determining the price and terms, if any, upon which it proposes to offer such New Securitiesall other terms and conditions of the offer.
(b) By written notification received by For five (5) business days following receipt of such notice, the Company, within fifteen (15) calendar days after mailing Company shall have the option to purchase all of the Offer Notice, each of shares (but not less than all) specified in the Major Investors may elect to purchase or obtain, notice at the price and on upon the terms specified set forth in such bona fide offer. In the Offer Notice, up to that portion of such New Securities which equals the proportion that the number of shares of Registrable Securities then held by such Major Investor bears to the total number of shares of Common Stock of event the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares, it shall give written notice to the Purchaser of its election and settlement for said shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed sharesmade as provided below in paragraph (c).
(c) If all New Securities referred In the event the Company elects to acquire any of the Shares as specified in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereofPurchaser's notice, the Company shall so notify Purchaser and settlement thereof shall be made in cash within ten (10) business days after the Company receives Purchaser's notice; provided that if the terms of payment set forth in Purchaser's notice were other than cash against delivery, the Company shall pay for said shares on the same terms and conditions set forth in Purchaser's notice.
(d) In the event the Company does not elect to acquire all of the shares specified in Purchaser's notice, Purchaser may, during within the sixty (60) sixty-day period following the expiration of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) to any person or persons at a price not less than, and upon terms no more favorable option rights granted to the offeree thanCompany herein, those specified in sell elsewhere the 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 Major Investors in accordance with this Section 4.1.
(d) The right of first offer in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major Investors.specified
Appears in 1 contract
Samples: Stock Purchase Agreement (Sugen Inc)
Right of First Offer. Subject In the event that any Member proposes to Transfer all or any of its Units (the terms and conditions specified “Offered Units”) to any unaffiliated third party in this Section 4.1one or more bona fide transactions, then such Member (a “ROFO Seller”) shall deliver to each of the other Members holding a number of Units equal to or greater than the Board Seat Threshold (each, a “ROFO Offeree”) written notice thereof, specifying the number of Offered Units, the price per Offered Unit, and applicable securities laws, in the event the Company proposes to offer or sell any New Securities, the Company shall first make an offering other material terms of such New Securities to each Major Investor in accordance with the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
Transfer (a) The Company shall deliver a notice (the an “Offer Notice”). • Each ROFO Offeree may elect to purchase, in accordance with by written notice given to the provisions of Section 6.5 hereof, to each ROFO Seller at any time during the 10 Business Days following its receipt of the Major Investors stating Offer Notice (i) the “Offer Period”), its bona fide intention to offer such New Securities, pro rata share (ii) based on its respective ownership of the number Units held by all ROFO Offerees as 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 written notification received by the Company, within fifteen (15) calendar days after mailing date of the Offer Notice, each ) of the Major Investors may elect to purchase or obtain, Offered Units at the price and on the terms specified in the Offer Notice, up to . • Any Offered Units that portion of such New Securities which equals the proportion that the number of shares of Registrable Securities then held by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor shall have no right ROFO Offerees do not elect to purchase any such New Securities if such Investor cannot demonstrate will be re-offered pro rata to each ROFO Offeree who elected to purchase Offered Units. • Any remaining Offered Units may be Transferred by the Company’s reasonable satisfaction that such Investor isROFO Seller, at the any time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, during the sixty (60) day period 75 days following the expiration of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) Offer Period to any person third party on terms (including a cash purchase price that, net of commissions or persons at a similar expenses, is no lower than the price not less than, and upon terms specified therein) no more favorable in the aggregate to such third party than the offeree than, those terms specified in the Offer Notice. If a buyer is found during 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 thereof75-day ROFO window, the right provided hereunder shall transfer to such Buyer will be deemed to be revived and such New Securities shall not be offered unless first reoffered subject to the Major Investors in accordance with this Section 4.1.
(d) The right of first offer in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of such notice to elect to purchase up to tag-along if the number of New Securities Units exceeds the 51% threshold for a Tag-Along Sale (as defined below). If during such 75 days the ROFO Seller is not able to sell the remaining Offered Units on such terms, but determines in good faith that wouldsuch remaining Offered Units may reasonably be expected to be sold to a third party under terms more favorable to such third party than originally proposed in the Offer Notice, if purchased by the ROFO Seller may deliver a new Offer Notice to the ROFO Offerees with respect to such Major Investorremaining Offered Units with such terms. Tag-along Rights In the event that any one or more Members proposes to Transfer to any unaffiliated Person or “group” of unaffiliated Persons (the “Tag-Along Buyer”) Units that constitute more than 51% of the total Units then outstanding (a “Tag-Along Sale”), maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(bMember (the “Selling Member”) shall provide notice of the Tag-Along Sale to each of the other Members (the “Tag-Along Offerees”) no later than ten (10) Business Days prior to giving effect to the issuance of such New Securities. The proposed closing of such sale Tag-Along Sale (the “Tag Along Notice”). Each Tag-Along Offeree shall occur within sixty have “tag-along” rights to participate, on a pro rata basis (60) days based on its respective ownership of the Units held by all Tag-Along Offerees as of the date of notice the Tag-Along Notice), in the Tag-Along Sale, on the same terms, and subject to the Major Investorssame conditions as the Selling Member, with a corresponding reduction (except to the extent the Tag-Along Buyer agrees to purchase additional Units) in the number of Units being sold by the Tag-Along Seller to reflect the number of Units that Tag-Along Offerees elect to sell in the Tag-Along Sale. It shall be a condition precedent to the effectiveness of any Tag-Along Sale that the Tag-Along Buyer concurrently purchase, pursuant to the terms hereof, all of the Units with respect to which Tag-Along Offerees elect to exercise tag-along rights in connection with such Tag-Along Sale. Drag-along Rights In the event that any one or more Members collectively holding more than 60% of the outstanding Units proposes to Transfer all of its or their Units, as the case may be, to any unaffiliated Person or “group” of unaffiliated Persons (the “Drag-Along Buyer”), then such Members (the “Drag-Along Seller”) shall have the right to cause all of the other Members to Transfer all of their Units to the Drag-Along Buyer, on the same terms, and subject to the same conditions as the Drag-Along Seller. In connection with any such Transfer, each Member shall, if applicable, (i) vote in favor of the transaction pursuant to which the Transfer is effected, (ii) not exercise any appraisal or similar rights with respect to such transaction and (iii) provide customary representations and warranties to the Drag-Along Buyer regarding its legal status and authority, and its ownership of the Units being transferred, and customary (several but not joint) indemnities regarding the same, (iv) participate pro rata in any indemnification of the Drag-Along Buyer with respect to matters other than the representations and warranties described in clause (iii), provided, that each Member’s liability shall be several and not joint and several, and (v) take all other actions reasonably requested in order to consummate such transaction. In no event shall any such Member be required to indemnify or contribute any amount in excess of the net cash amount received by such Member in any such Transfer.
Appears in 1 contract
Samples: Restructuring Support Agreement (American Apparel, Inc)
Right of First Offer. Subject (i) If any Stockholder (a "Seller") has received and accepted a bona fide offer (a "Transfer Offer") to purchase any or all of the Company Securities (the "Transfer Stock") then owned by such Seller to any person other than pursuant to an Exempt Transfer (as defined in Section 2(c) below), then before the Seller may sell the Transfer Stock, the Seller shall provide to the Company a written notice detailing the terms of such Transfer Offer that the Seller has accepted with respect to such Transfer Stock (a "Transfer Notice"). Such Transfer Notice shall identify the Transfer Stock, the price of the Transfer Stock, the identity of the third party offeror and all the other material terms and conditions specified in this Section 4.1, and applicable securities laws, in of such Transfer Offer. The Transfer Notice shall contain an irrevocable offer (a "First Offer") to sell the event Transfer Stock to the Company proposes at a price equal to offer or sell any New Securities, the Company shall first make an offering of such New Securities to each Major Investor in accordance with price and upon substantially the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion same terms as the right of first offer hereby granted it among itself and its partners, members and Affiliates terms contained in such proportions as it deems appropriate.
(a) Transfer Offer. The Company shall deliver a notice have the irrevocable right and option (the “Offer Notice”), in accordance with the provisions "Right of Section 6.5 hereofFirst Offer") exercisable as provided below, to each accept the First Offer as to any or all Company Securities of the Major Investors stating (i) its bona fide intention to offer such New Securities, (ii) Transfer Stock. The Company shall provide the Seller with an irrevocable written notice of acceptance specifying the number of Company Securities of the Transfer Stock which the Company is agreeing to purchase pursuant to such New First Offer, which shall be binding on the Company for the number of Company Securities in such notice of acceptance, which notice of acceptance must be provided to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By written notification received by the Company, Seller within fifteen (15) calendar business days after mailing the date the Transfer Notice is given (the "Notice Period").
(ii) Subject to the Seller's rights under SEction 2(b)(iii), the closing of the Offer Notice, each purchase of the Major Investors may elect Transfer Stock by the Company pursuant to purchase or obtain, this Section 2(b) shall take place 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 number of shares of Registrable Securities then held by such Major Investor bears to the total number of shares of Common Stock principal office of the Company then outstanding on the Thirtieth (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”30th) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-business day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, during the sixty (60) day period following the expiration of the period provided Notice Period (or after the receipt of any required governmental consents or approvals). At such closing, the Company shall deliver a certified check or checks in subsection 4.1(bthe appropriate amount to the Seller against delivery of certificates representing the Transfer Stock so purchased, duly endorsed in blank by the person or persons in whose name a stock certificate is registered or accompanied by a duly executed assignment separate from the certificate with the signatures thereon guaranteed by a commercial bank or trust company.
(iii) hereofNotwithstanding the exercise by the Company of its rights under this Section 2(b), offer if at the remaining unsubscribed end of the Notice Period the Company shall have agreed to purchase less than all of the Transfer Stock covered thereby (a "Partial Purchase Commitment"), the Seller shall promptly notify the Company as to whether or not it shall accept such Partial purchase Commitment. If such Partial Purchase Commitment is accepted, the closing for such purchase of a portion of such New Securities (collectivelyTransfer Stock shall take place pursuant to Section 2(b)(ii) hereof. Upon acceptance by the Seller of the Partial Purchase Commitment, the “Refused Securities”) Seller shall have the right within the time hereinafter specified to Transfer any person or persons Transfer Stock not included in the Partial Purchase Commitment at a price not less than, than and upon on terms no more favorable to the offeree than, those specified purchaser than were in the Offer Transfer Notice. If the Seller determines not to accept the Partial Purchase Commitment, the Seller shall have the right within the time hereinafter specified to Transfer any or all of the Transfer Stock at a price not less than and on terms no more favorable to the purchaser than contained in the Transfer Notice. If the Company does notifies the Seller that it has decided not enter into an agreement for to purchase any portion of the Transfer Stock, or the Seller has accepted a Partial Purchase Commitment and desires to Transfer the remaining Transfer Stock, or the Seller has rejected the Partial Purchase Commitment and desires to Transfer the Transfer Stock, the Seller shall have 180 days from the end of the Notice Period (the "Sales Period"), in which to Transfer any or all of the Transfer Stock at a price not less than and on terms no more favorable than were contained in the Transfer Notice. No sale may be made to any third party unless such third party agrees in writing, in form and substance reasonably acceptable to the Company, to be bound by the provisions of this Agreement, as a Stockholder. Promptly after any sale pursuant to this Section 2(b), the Seller shall notify the Company of the consummation thereof and shall furnish such evidence of the completion (including time of completion) of such sale and of the terms thereof as the Company may reasonably request. If, at the termination of the Sales Period, the Seller has not completed the sale of all the New Securities within Transfer Stock, such period, or if Seller shall no longer be permitted to Transfer such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed Transfer Stock pursuant to be revived and such New Securities shall not be offered unless first reoffered to the Major Investors in accordance with this Section 4.1.
(d2(b) The right of first offer in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of without again fully complying with the provisions of this Section 4.1, 2(b) and all the Company may elect restrictions on Transfer contained in this Agreement shall again be in effect with respect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of all such notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major InvestorsSeller's Transfer Stock.
Appears in 1 contract
Right of First Offer. (a) Subject to the terms and conditions specified in this Section 4.1, and applicable securities laws, in the event the Company proposes to offer or sell any New Securities2.3, the Company shall first make an offering of such New Securities hereby grants to each Major Investor in accordance a right of first offer with respect to future sales by the following provisions Company of its Shares (as hereinafter defined). For purposes of this Section 4.1. A Major 2.3, Investor includes any partners and affiliates of an Investor, An Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members partners and Affiliates affiliates in such proportions as it deems appropriate, so long as such apportionment does not cause the loss of the exemption under Section 4(2) of the Act or any similar exemption under applicable state securities laws in connection with such sale of shares by the Company.
(ab) The Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, any class of its capital stock (the “Shares”), the Company shall deliver a give written notice (the “Offer Notice”)) to the Investors at least thirty (30) days before the closing of any such sale or transfer. The Notice shall describe in reasonable detail the proposed sale or transfer, in accordance with the provisions of Section 6.5 hereofincluding, to each of the Major Investors stating without limitation (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities Shares to be offered, and (iiiii) the price and terms, if any, terms upon which it proposes to offer such New Securities.
Shares, including voting powers and preferences. Each of the Investors shall have an option for a period of twenty (b) By written notification received by the Company, within fifteen (1520) calendar days after mailing receipt of the Offer Notice, each of the Major Investors may elect to purchase or obtain, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which Shares that equals the proportion that the number of shares of Registrable Securities Common Stock issued and held, or issuable upon conversion of the Series F Preferred then held held, by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all outstanding convertible or and exercisable securities and securities). Each Investor may exercise in full of all outstanding options and warrants); provided, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to its option by notifying the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it within twenty (each, a “Fully-Exercising Investor”20) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing calendar days after receipt of such information, each Fully-Exercising Investor the Notice of the number of securities its elects to purchase. Payment for the offered Shares shall be made by check or wire transfer against delivery of the offered Shares at a place and time specified in the Notice, but in no event later than forty five (45) days after delivery of the Notice. If all Shares that Investors are entitled to obtain that portion of the New Securities for which Major Investors were entitled pursuant to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) If all New Securities referred to in the Offer Notice this section are not elected to be purchased or obtained as provided in subsection 4.1(b) hereofby the Investors, the Company may, during the sixty one hundred twenty (60120) day period following the expiration of the twenty (20) day option period provided in subsection 4.1(b) hereofherein, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) Shares to any person Person or persons Persons at a price not less than, and upon terms no more favorable to the offeree than, than those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities Shares within such one hundred twenty (120) day period, or if such agreement is not consummated within thirty one hundred twenty (30120) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities Shares shall not be offered unless first reoffered to the Major Investors in accordance with this Section 4.1herewith.
(dc) The right of first offer in this Section 4.1 2.3 shall not be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable bona fide options (and the shares issuable upon exercise thereof) issued to employees, directors and consultants of the Corporation pursuant to written stock option or stock purchase plans that have been approved by each Major Investor to any Affiliate the stockholders of such Major Investorthe Corporation, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth shares issued in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance connection with the terms exercise of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated convertible securities outstanding as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice the first sale of Series F Preferred, (iii) 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, (iv) the issuance of stock, warrants or other securities or rights to Persons or entities with which the Major InvestorsCompany has business relationships provided such issuances are for other than primarily equity financing purposes, provided that in cases of issuances pursuant to clauses (iii) and (iv) such issuances shall have been approved by a majority of the Board of Directors, (v) the issuance of shares of Series F Preferred in a Subsequent Series F Offering, or (vi) the Initial Offering.
Appears in 1 contract
Right of First Offer. Subject In the absence of and until a Qualified IPO, if the Investor desires to sell or transfer any of its Securities (except pursuant to a bona fide offer received by the terms and conditions specified in this Section 4.1, and applicable securities laws, in the event the Company proposes to offer or sell any New Securities, the Company shall first make an offering of such New Securities to each Major Investor in accordance with Section 11.6), the following provisions of this Section 4.1. A Major Investor shall be entitled first give a Notice of Intent to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
(a) The Company shall deliver a notice (the “Offer Notice”), in accordance with the provisions of Section 6.5 hereof, to each of the Major Investors stating (i) its bona fide intention to offer such New Securities, (ii) the 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 written notification received by the Company, within fifteen (15) calendar days after mailing . The Notice of the Offer Notice, each of the Major Investors may elect to purchase or obtain, 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 Intent shall set forth the number of shares of Registrable Securities then held by which the Investor desires to sell. For a period of 30 days following receipt of such Major Notice of Intent, the Company shall have the right to negotiate a transaction with the Investor bears whereby the Company will purchase for cash all (but not less than all) of the Securities designated in the Notice of Intent at a price and upon other terms and conditions acceptable to the total number of shares of Common Stock Investor and the Company. Any such purchase shall be consummated on or prior to the 60th day after the Company's receipt of the Notice of Intent. If (a) the Company then outstanding elects not to exercise the right provided in this Section 11.7, (assuming full conversion b) the Company and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor shall have no right to purchase any such New Securities if such the Investor cannot demonstrate to agree on the Company’s reasonable satisfaction that such Investor is, at the time terms and conditions of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to a purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by Company during such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
30 day period, or (c) If all New the Company and the Investor shall agree on the terms and conditions of such purchase but the Company shall fail to pay the purchase price in a timely manner, then the Investor may sell the Securities referred to designated in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, during the sixty (60) day period following the expiration of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) to any person or persons Intent at a price and on terms not less than, and upon terms no more favorable to the offeree than, those specified in purchaser than the Offer Noticeprice and terms offered to the Company. The Investor may sell such Securities during the period ending on the 150th day following the later of the end of such 30 day period and the date on which the Company fails to pay such price. If the Company Investor does not enter into an agreement for the sale of the New sell such Securities within in such 150 day 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 again be offered unless first reoffered subject to the Major Investors in accordance with this Section 4.1.
(d) The right of first offer in this 11.7. This Section 4.1 11.7 shall not be applicable apply to any Excluded Securities.
(e) The right of first offer set forth distribution in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable kind by each Major the Investor to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor its partners or shareholders pursuant to any other Major InvestorSection 15. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in Investor may not transfer any Securities pursuant to this Section 4.1 shall not be available 11.7 to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of those persons competitive with the Company in accordance with which are described on SCHEDULE 11.6 without the terms consent of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major Investors.
Appears in 1 contract
Samples: Senior Convertible Preferred Stock Purchase Agreement (Dpec Inc)
Right of First Offer. (a) Subject to the terms and conditions specified in this provisions of Section 4.13.01, if BFG desires to transfer any Voting Securities it shall give written notice (“BFG’s Notice”) to Bancorp (i) stating that it desires to make such transfer, and applicable securities laws(ii) setting forth the number of shares of Voting Securities proposed to be transferred (the “Offered Shares”), in the event the Company cash price per share that BFG proposes to offer or sell any New Securities, the Company shall first make an offering of be paid for such New Securities to each Major Investor in accordance with the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
(a) The Company shall deliver a notice Offered Shares (the “Offer NoticePrice”), in accordance with and the provisions of Section 6.5 hereof, to each of the Major Investors stating (i) its bona fide intention to offer such New Securities, (ii) the number other material terms and conditions of such New Securities transfer. BFG’s Notice shall constitute an irrevocable offer by BFG to be offered, and (iii) sell to Bancorp the price and terms, if any, upon which it proposes to offer such New SecuritiesOffered Shares at the Offer Price in cash.
(b) By written notification received by the Company, within fifteen (15) calendar days Within 60 Days after mailing receipt of the Offer BFG’s Notice, each of the Major Investors Bancorp may elect to purchase or obtain, all (but not less than all) of the Offered Shares at the price and on the terms specified Offer Price in the Offer cash by delivery of a notice (“Bancorp’s Notice, up ”) to that portion of such New Securities which equals the proportion that the number of shares of Registrable Securities then held by such Major Investor bears to the total number of shares of Common Stock BFG stating Bancorp’s irrevocable acceptance of the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed sharesOffer.
(c) If Bancorp fails to elect to purchase all New Securities referred to of the Offered Shares within the time period specified in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereofSection 4.0l(b), the Company then BFG may, during the sixty (60) day within a period of 120 days following the expiration of the time period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) 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 Offer Notice. If the Company does not Section 4.0l(b), transfer (or enter into an agreement for to transfer) all or any Offered Shares; provided that if the sale purchase, price per share to be paid by any purchaser of the New Securities within such period, or if such agreement Offered Shares is not consummated within thirty (30) days of less than the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Major Investors in accordance with this Section 4.1Offer Price.
(d) The If Bancorp fails to elect to purchase the Offered Shares at the Offer Price within the relevant time period specified in Section 4.0l(b) and BFG shall not have transferred or entered into an agreement to transfer the Offered Shares prior to the expiration of the 120-day period specified in Section 4.0l(c), the right of first offer in under this Section 4.1 4.01 shall not be applicable to again apply in connection with any Excluded Securitiessubsequent transfer of such Offered Shares.
(e) The right Any purchase of first offer set forth in Voting Securities by Bancorp pursuant to this Section 4.1 may 4.01 shall be on a mutually determined closing date which shall not be assigned more than 15 days after the last notice is given with respect to such purchase. The closing shall be held at 10:00 a.m., local time, at the principal office of Bancorp, or transferred except that at such other time or place as the parties mutually agree.
(f) On the closing date, BFG shall deliver (i) such right is assignable by each Major Investor to certificates representing the shares of Voting Securities being sold, free and clear of any Affiliate of such Major Investorlien, claim or encumbrance, and (ii) such right is assignable other documents, including evidence of ownership and authority, as Bancorp may reasonably request. The purchase price shall be paid by any Major Investor to any other Major Investor. wire transfer of immediately available funds no later than 2:00 p.m. on the closing date.
(g) Notwithstanding the foregoing, it is acknowledged and agreed that BFG agrees not to sale the Voting Securities to any Restricted Person (as defined below) without the prior written consent of Bancorp, which consent may be withheld for any reason or for no reason. BFG gives Bancorp the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of purchase the Company in accordance with the terms of the Company’s Articles of Incorporation in effect Offered Shares at the time of such equity financing round
Offer Price (for Reduced Transfer Price, as the case may be) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) 90 days from the date of receipt notice from BFG of such notice to elect the proposed sale at which the Restricted Person agreed to purchase up the Offered Shares. If Bancorp fails to purchase the number Offered Shares within such 90-day period, BFG shall be permitted to proceed with its sale to such Restricted Person in accordance with Section 4.01 (c). “Restricted Person” shall mean a person who is a significant competitor of New Bancorp or the Bank or whose ownership of Voting Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth of Bancorp would cause a change in subsection 4.1(b) prior to giving effect to the issuance control of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major InvestorsBancorp.
Appears in 1 contract
Right of First Offer. Subject From and after the Closing, and subject to the terms and conditions specified herein, each of the Investors shall have preemptive rights with respect to future issuances by the Company of Covered Securities in this Section 4.1, and applicable securities laws, in the event a Covered Transaction. Each time the Company proposes to offer or issue any Covered Securities in a Covered Transaction, the Company will deliver written notice (a “Preemptive Rights Notice”) to each of the Investors at least seventy (70) days prior to any such issuance of Covered Securities stating the Company’s intention to sell any New such Covered Securities, the Company shall first make an offering amount and type of such New Covered Securities to be sold, the price, terms and conditions of the proposed sale (including the identity of the proposed purchaser), and the manner of sale. If the Covered Securities described in a Preemptive Rights Notice consist of Nonvoting Securities, then each Major Investor of the Investors shall have the preemptive rights specified in accordance with the following provisions Section 4.1(a) of this Agreement. If the Covered Securities described in a Preemptive Rights Notice consist of Voting Securities, then each of the Investors shall have the preemptive rights specified in Section 4.1. A Major Investor shall be entitled to apportion the right 4.1(b) of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriatethis Agreement.
(a) The Company shall deliver a notice (the “Offer Notice”), in accordance with the provisions of Section 6.5 hereof, to each of the Major Investors stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to By Election Notification that must be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By written notification received by the Company, Company within fifteen ten (1510) calendar days after mailing of the Offer NoticeNotice Date, each of the Major Investors Investor may elect to purchase or obtainpurchase, at the price and on the terms and conditions specified in the Offer applicable Preemptive Rights Notice, up to that portion amount of Nonvoting Securities that, after giving effect to such New purchase and to the Company’s sale of the entire amount of the Nonvoting Securities which equals described in such Preemptive Rights Notice, would result in such electing Investor’s aggregate percentage ownership of Outstanding Stock, calculated on a fully-diluted basis, being equal to the proportion percentage that (i) the aggregate number of shares of Registrable Securities then Outstanding Stock held of record by such Major electing Investor calculated on a fully-diluted basis as of the Notice Date, bears to (ii) the total number of shares of Common Outstanding Stock calculated on a fully-diluted basis as of the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that Notice Date. Each such Major electing Investor shall have no right deliver to the Company, not later than five (5) days after timely delivery of the Election Notification, cash payment for the Nonvoting Securities it is purchasing pursuant to this Section 4.1(a).
(b) By Election Notification that must be received by the Company within ten (10) days after the Notice Date, each Investor may elect to purchase, at the price and on the terms and conditions specified in the applicable Preemptive Rights Notice, up to that amount of Nonvoting Securities that, after giving effect to such purchase any such New Securities if such Investor cannot demonstrate and to the Company’s reasonable satisfaction that such Investor is, at the time sale of the proposed issuance entire amount of the Voting Securities described in such New SecuritiesPreemptive Rights Notice, an “accredited investor” as defined would result in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major such electing Investor’s failure to do likewise. During the fifteen (15) calendaraggregate percentage ownership of Outstanding Stock, calculated on a fully-day period commencing after receipt of such informationdiluted basis, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is being equal to the proportion percentage that (i) the aggregate number of shares of Registrable Securities then Outstanding Stock held of record by such Fullyelecting Investor calculated on a fully-Exercising Investor diluted basis as of the Notice Date, bears to (ii) the total number of shares of Registrable Outstanding Stock calculated on a fully-diluted basis as of the Notice Date. The type of Nonvoting Securities then held by all Fully-Exercising Investors who wish that each such electing Investor may purchase under this Section 4.1(b) shall correspond to purchase such unsubscribed shares.
(c) If all New the type of Voting Securities referred to specified in the Offer Notice are not elected applicable Preemptive Rights Notice, such that (1) if the Company proposes to be purchased sell Common Stock or obtained as provided Non-Common Capital Stock in subsection 4.1(ba Covered Transaction governed by this Section, then such electing Investor may purchase Nonvoting Stock, and (2) hereofif the Company proposes to sell Common Stock Equivalents or Non-Common Stock Equivalents in a Covered Transaction governed by this Section, then such electing Investor may purchase Nonvoting Stock Equivalents; in any event, the Company mayprice, during terms and conditions applicable to such electing Investor’s purchase shall be the sixty (60) day period following the expiration of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) to any person or persons at a price not less than, and upon terms no more favorable to the offeree than, same as those specified in the Offer Notice. If the Company does not enter into an agreement Preemptive Rights Notice (except, where applicable, for the sale substitution of the New Nonvoting Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder for Voting Securities). Such electing Investor shall be deemed to be revived and such New Securities shall not be offered unless first reoffered deliver to the Major Investors in accordance with this Section 4.1.
Company, not later than five (d) The right of first offer in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within thirty (305) days after the issuance of New Securities. Such notice shall describe the type, price and terms timely delivery of the New Securities. Each Major Investor shall have twenty Election Notification, cash payment (20) days from the date of receipt of such notice to elect to purchase up to the number of New Securities that would, or other payment if purchased agreed by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection electing Investor and the Company) for the Nonvoting Securities it is purchasing pursuant to this Section 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major Investors).
Appears in 1 contract
Right of First Offer. Subject If either a Duke Shareholder or a Phillips Shareholder (each, a "SHAREHOLDER") desires to Transfer all xx xxx xortion of its Corporation Interest (other than pursuant to a registered public offering), to a Person other than an Affiliate then prior to effecting or making such Transfer, the Person desiring to make such Transfer (a "TRANSFERRING ENTITY") shall notify in writing the other Party (the "NON-TRANSFERRING ENTITY"), of the terms and conditions specified in this Section 4.1, and applicable securities laws, in the event the Company proposes to offer or sell any New Securities, the Company shall first make an offering of such New Securities to each Major Investor in accordance with the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
(a) The Company shall deliver a notice (the “Offer Notice”), in accordance with the provisions of Section 6.5 hereof, to each of the Major Investors stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer effect such New Securities.
Transfer (bwhich notice shall be herein referred to as a "TRANSFER NOTICE" and shall include all material price and non-price terms and conditions). The Non-Transferring Entity shall have the right to acquire all (but not less than all) By written notification received of the Corporation Interest that is the subject of the Transfer Notice on the same terms and conditions as are set forth in the Transfer Notice. The Non-Transferring Entity shall have 30 days following delivery of the Transfer Notice during which to notify the Transferring Entity whether or not it desires to exercise its right of first offer. If the Non-Transferring Entity does not respond during the applicable period set forth above for exercising its purchasing right under this Section 8.2, such Non-Transferring Entity shall be deemed to have waived such right. If the Non-Transferring Entity elects to purchase all, but not less than all, of the Corporation Interest that is the subject of the Transfer Notice, the closing of such purchase shall occur at the principal place of business of the Corporation on the tenth day following the first date on which all applicable conditions precedent have been satisfied or waived (but in no event shall such closing take place later than the date that is 60 days (subject to extension for regulatory approvals, but in no event more than 180 days) following the date on which the Non-Transferring Entity agrees to purchase all of the Corporation Interest that is the subject of the Transfer Notice). The Transferring Entity and the purchasing Non-Transferring Entity agree to use commercially reasonable efforts to cause any applicable conditions precedent to be satisfied as expeditiously as possible. At the closing, (i) the Transferring Entity shall execute and deliver to the purchasing Non-Transferring Entity (A) an assignment of the Corporation Interest described in the Transfer Notice, in form and substance reasonably acceptable to the purchasing Non-Transferring Entity and (B) any other instruments reasonably requested by the Company, within fifteen purchasing Non-Transferring Entity to give effect to the purchase; and (15ii) calendar days after mailing of the Offer purchasing Non-Transferring Entity shall deliver to the Transferring Entity the purchase price specified in the Transfer Notice in immediately available funds or other consideration as specified in the Transfer Notice, each of . If the Major Investors may Non-Transferring Entity does not elect to purchase the Corporation Interest pursuant to this Section 8.2, or obtain, at the price and on the terms specified in the Offer Notice, up having elected to that portion of so purchase such New Securities which equals the proportion that the number of shares of Registrable Securities then held by such Major Investor bears Corporation Interests fails to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at do so within the time of period required by this Section 8.2, the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor Transferring Entity shall be entitled to obtain that portion free for a period of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, during the sixty (60) day period following 180 days after the expiration of the offer period provided in subsection 4.1(b) hereof, offer referred to above or the remaining unsubscribed portion date of such New Securities failure, as applicable, to enter into a definitive written agreement with an unaffiliated third party regarding the Transfer of its Corporation Interest on terms and conditions that satisfy the following criteria:
(collectively1) the amount of consideration to be paid by the purchasing party may not be less than the consideration set forth in the Transfer Notice;
(2) the form of consideration may not be materially different from that set forth in the Transfer Notice, except to the “Refused Securities”extent any change in the form of consideration makes the terms of the transaction less favorable from the purchaser's standpoint; and
(3) the terms and conditions set forth in such definitive written agreement, when considered together with the form and amount of consideration to be paid by such purchasing party, may not render the terms of such transaction, taken as a whole, materially inferior (to the Transferring Entity from an economic standpoint) to those set forth in the Transfer Notice (it being agreed that the granting by the Transferring Entity of representations, warranties and indemnities with respect to the business or properties of the Corporation, as applicable, or any person of its subsidiaries that are different from or persons at a price in addition to any such provisions referenced in the Transfer Notice shall not less than, and upon terms no be considered to be more favorable to the offeree than, those specified in the Offer Noticepurchaser for purposes of this clause (c)). If the Company does not enter such a definitive written agreement is entered into with an agreement for the sale of the New Securities unaffiliated third party within such time period, or if the Transferring Entity shall be free for a period of 270 days following the execution of such definitive written agreement to consummate the Transfer of its Corporation Interest in accordance with the terms thereof. If such Transfer is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Major Investors in accordance with this Section 4.1.
(d) The right of first offer in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company time period in accordance with the terms of such definitive written agreement, the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions requirements of this Section 4.1, 8.2 shall apply anew to any further efforts by the Company may elect Transferring Entity to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major InvestorsTransfer its Corporation Interest.
Appears in 1 contract
Right of First Offer. Subject to the terms and conditions specified in this Section 4.1, and applicable securities laws, in the event the Company proposes to offer or sell any New Securities, the Company shall first make an offering of such New Securities to each Major Investor in accordance with the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
(a) The Company Except as set forth in Section 4.1(b), 4.1(c) or 4.4(f), if a Shareholder proposes to Transfer all or any portion of its Shares (the “Publicly Offered Shares”) in a Public Offering or in Brokers Transactions, then such Transferring Shareholder shall deliver a give notice (the “Offer Public Sale Notice”), in accordance with ) of such intention to Transfer the provisions of Section 6.5 hereof, Publicly Offered Shares to each of the Major Investors stating Non-Transferring Shareholders. Such Public Sale Notice shall set forth: (i) its bona fide intention the number of Publicly Offered Shares proposed to offer such New Securities, be transferred; (ii) the number price per Share determined in good faith by the Transferring Shareholder on the date of such New Securities to be offeredthe Public Sale Notice (the “First Offer Price”), and (iii) the price planned date of such Transfer, and terms, if any, upon which it proposes to offer such New Securities(iv) any other material proposed terms of the Transfer.
(b) By written notification Upon receipt of the Public Sale Notice, the Non-Transferring Shareholders shall have the right, for a period of 60 days following the date such Public Sale Notice is received by (or if the CompanyKO Shareholders are the Non-Transferring Shareholders, within fifteen (15) calendar until 15 days after mailing the first meeting of the Offer KO Board of Directors which is held at least 30 days after the date on which the KO Shareholders receive the Public Sale Notice), each to notify the Transferring Shareholder of the Major Investors may elect election to purchase or obtain, the Publicly Offered Shares at the price and on First Offer Price (the “First Notice Period”). The Public Sale Notice shall constitute an offer to the Non-Transferring Shareholders, which shall be irrevocable during the First Notice Period, to sell to the Non-Transferring Shareholders the Publicly Offered Shares upon the terms specified provided in this Section 4.4 and the Offer Public Sale Notice, up to that portion of such New Securities which equals the proportion that the number of shares of Registrable Securities then held by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) If all New Securities referred the Non-Transferring Shareholders timely notify the Transferring Shareholder of the election to in exercise the Offer Notice are not elected right to be purchased or obtained as provided in subsection 4.1(b) hereofpurchase the Publicly Offered Shares, the Company maypurchase, during the sixty (60) day period following the expiration sale and transfer of the period provided in subsection 4.1(b) hereof, offer Publicly Offered Shares shall take place on a date fixed by the remaining unsubscribed portion Non-Transferring Shareholders which must be a date within 60 days after the delivery of the election to purchase such Publicly Offered Shares. The closing of such New Securities purchase shall be effected in accordance with Section 4.5.
(collectivelyd) If the Non-Transferring Shareholders fail to timely notify the Transferring Shareholder of the election to exercise the right to purchase the Publicly Offered Shares within the First Notice Period, or if, following notification, the “Refused Securities”Non- Transferring Shareholders shall fail to consummate the purchase of the Publicly Offered Shares within the time period set forth in paragraph (c) above (other than a failure to any person consummate a sale of the Publicly Offered Shares which results from the inability or persons failure of the Transferring Shareholder to transfer good and marketable title to such Publicly Offered Shares, a breach by the Transferring Shareholder of this Agreement or otherwise due to circumstances not reasonably within the control of the Non- Transferring Shareholders), then the Transferring Shareholder shall have the right for a period of 90 days after the termination of the First Notice Period (or after the earlier waiver by the Non-Transferring Shareholders of the right to purchase), to Transfer the Publicly Offered Shares at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale than 90 percent of the New Securities within such periodFirst Offer Price (x) in a Public Offering, subject to Section 4.4(e) or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Major Investors in accordance with this Section 4.1.
(d) The right of first offer in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major Investors.y)
Appears in 1 contract
Right of First Offer. Subject to the terms and conditions specified in this Section 4.1, and applicable securities laws, in the event the Company proposes to offer or sell any New Securities, the Company shall first make an offering of such New Securities to each Major Investor in accordance with the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
(a) The Company shall deliver a notice (the “Offer Notice”), in accordance with the provisions of Section 6.5 hereof, to each of the Major Investors stating (i) its bona fide intention to offer such New Securities, (ii) the 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 written notification received by the Company, within fifteen (15) calendar days after mailing of the Offer Notice, each of the Major Investors may elect to purchase or obtain, 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 number of shares of Registrable Securities then held by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, during the sixty (60) day period following the expiration of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) 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 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 Major Investors in accordance with this Section 4.1.
(d) The right of first offer in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 You may not be assigned transfer any Shares or transferred except that -------------------- Warrants (ior any shares acquired upon the exercise or conversion thereof) such right is assignable by each Major Investor to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company than in accordance with the terms of this Section and the Company’s Articles other relevant provision of Incorporation this Agreement, and any transfer other than in effect at the time of such equity financing round
(f) In lieu of complying accordance with the provisions of this Section 4.1terms hereof shall be null and void. In the event you propose to transfer any Shares or Warrants (or any shares acquired upon the exercise or conversion thereof), you shall give the Company may elect prior written notice of your intention, describing in as much detail as is reasonably practicable the price or price range and other terms upon which you propose to give notice to the Major Investors within thirty (30) days after the issuance of New Securitiestransfer such securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor The Company shall have twenty (20) the option for ten days from the date of receipt of any such notice to elect offer to purchase up all or a portion of such securities upon the terms specified in an offer letter delivered by the Company to you. You shall respond in writing to the number Company within 10 days of New Securities that wouldreceipt thereof indicating whether you accept the Company's offer. In the event you accept the Company's offer, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such purchase shall take place as soon as is reasonably practicable. In the event you elect not to accept the Company's offer, you shall have 90 days thereafter to sell or enter into an agreement (pursuant to which the sale covered thereby shall occur be closed, if at all, within sixty (60) 30 days of from the date of said agreement) to sell all or a portion of your securities; provided that, insofar as any such sale relates to the securities covered by the Company's offer, such sale must be at a price and upon general terms no more favorable to the purchasers thereof than specified in the Company's offer. In the event that you have not sold within said 90-day period or entered into an agreement to sell your securities within said 90-day period (or sold securities in accordance with the foregoing within 30 days from the date of said agreement), you shall not thereafter sell any securities without first giving notice to the Major InvestorsCompany and otherwise complying with the provisions of this Section. Notwithstanding anything to the contrary contained herein, in any three month period, you may sell Shares or Warrants convertible into (or shares acquired upon conversion or exercise of the Shares or Warrants) up to one percent of the outstanding Common Stock (on a fully diluted basis) without complying with this right of First Offer.
Appears in 1 contract
Samples: Preferred Stock and Warrant Purchase Agreement (Banyan Systems Inc)
Right of First Offer. Subject to the terms and conditions specified in this Section 4.1, and applicable securities laws, in the event the Company If MFI proposes to offer Transfer all or sell any New Securities, part of the Company shall first make an offering of such New Securities Shares pursuant to each Major Investor in accordance with the following provisions Section 5.3(b) of this Section 4.1. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partnersAgreement, members and Affiliates in such proportions as it deems appropriate.
(a) The Company MFI shall deliver a written notice (the “Offer "Transfer Notice”), in accordance with the provisions ") to HBI. HBI promptly shall provide a copy of Section 6.5 hereof, such notice to each any holder of at least ten percent (10)%) of the Major Investors stating outstanding shares of HBI on a fully diluted basis (i) its bona fide intention to offer such New Securities, (ii) "Holder"). The Transfer Notice shall describe the number of such New Securities Shares proposed to be offeredtransferred (the "Offered Shares") and the proposed price per share. HBI first, and (iii) or if HBI fails to do so the price and termsHolders, if any, upon which it proposes to offer such New Securities.
(b) By written notification received by the Company, within fifteen (15) calendar days after mailing of the Offer Notice, each of the Major Investors may elect to purchase or obtainall, but not less than all, of the Offered Shares at the price and on the terms specified described in the Offer Transfer Notice, up to that portion of such New Securities which equals the proportion that the number of shares of Registrable Securities then held by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that If HBI elects to purchase all of the shares available to it Offered Shares, HBI shall give MFI and the Holders written notice of such election no later than twenty-one (each21) days after delivery of the Transfer Notice. If HBI has not given such an election notice, a “Fully-Exercising Investor”) any Holder may give MFI written notice of any other Major Investor’s failure its election to do likewiseso no later than thirty-five (35) days after delivery of the Transfer Notice to HBI. During If more than one Holder has given such an election notice, the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor electing Holders' rights to purchase shall be entitled proportionate with their respective ownership of HBI Common Shares on a fully diluted basis. If an election to obtain that portion purchase all of the New Securities for which Major Investors were entitled Offered Shares has been made, the Offered Shares shall be transferred to subscribe but which were not subscribed for by HBI (or, if applicable, the Major Investors which is equal to Holder) at the proportion that price stated in the number Transfer Notice no later than fourteen (14) days after notice of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish election to purchase such unsubscribed shares.
(c) has been given. If neither HBI nor any Holder collectively has elected to purchase all New Securities referred to of the Offered Shares, MFI may conclude a Transfer at the price per share stated in the Offer Notice are not elected to be purchased Transfer Notice, or obtained as provided in subsection 4.1(b) hereofat a higher price per share, the Company may, during the sixty at any time within a one hundred twenty (60120) day period following the after expiration of such election periods provided that the period provided transferee has agreed in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) 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 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 writing to be revived and such New Securities shall not be offered unless first reoffered to the Major Investors in accordance with this Section 4.1.
(d) The right of first offer in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable bound by each Major Investor to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1, the Company may elect Article 5 as if it was an original signatory to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major Investorsthis Agreement.
Appears in 1 contract
Right of First Offer. Subject to the terms and conditions specified in this Section 4.1, and applicable securities laws, in the event the Company proposes to offer or sell any New Securities, the Company shall first make an offering of such New Securities to each Major Investor in accordance with the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
(a) The Company shall deliver a notice agrees that, during the period beginning on the date hereof and ending on that date on which the Purchasers no longer own twenty percent (20%) or more of the Preferred Shares purchased at the First Closing (the “Offer Notice”"LOCK-UP PERIOD"), in accordance with it will not, without the provisions of Section 6.5 hereof, to each prior written consent of the Major Investors stating (i) its bona fide intention to offer such New Securities, (ii) the number holders 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 written notification received by the Company, within fifteen (15) calendar days after mailing a majority of the Offer Notice, each of the Major Investors may elect to purchase or obtain, Preferred Shares purchased at the price and on the terms specified First Closing, contract with any other party to obtain additional financing in the Offer Notice, up to that portion of such New Securities which equals the proportion that the number of shares of Registrable Securities then held by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding any equity or equity-linked securities are issued (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants"FUTURE OFFERINGS"); provided, however, that such Major Investor the limitation contained in this sentence shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, during the sixty (60) day period following the expiration of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) apply 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 Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or transaction if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Major Investors in accordance with this Section 4.1.
(d) The right of first offer in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round
transaction the aggregate number of Conversion Shares issuable on conversion of Preferred Shares issued at the First Closing is less than twenty percent (f20%) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securitiesaverage daily trading volume for shares of Common Stock on the principal exchange or market on which such shares are traded for the ten (10) trading days immediately preceding the date of such determination. Each Major Investor shall have twenty (20) days The Company agrees from the date of receipt this Agreement until the end of the Lock-Up Period it will not conduct any Future Offering unless it shall have first delivered to each Purchaser at least ten (10) business days prior to the closing of such Future Offering, written notice describing the proposed Future Offering, including the terms and conditions thereof, and providing each Purchaser and its affiliates, an option during the ten (10) business day period following delivery of such notice to elect to purchase up to the number Applicable Portion (as defined below) of New Securities that would, if purchased the securities being offered in the Future Offering on the same terms as contemplated by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated Future Offering (the limitations referred to in this and the immediately preceding sentence are collectively referred to as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities"CAPITAL RAISING LIMITATIONS"). The closing Capital Raising Limitations shall not apply to any transaction involving issuances of securities as consideration in a merger, consolidation or acquisition of assets, or in connection with any strategic partnership or joint venture (the primary purpose of which is not to raise equity capital), or as consideration for the acquisition of a business, product or license by the Company, provided such sale shall occur shares are not covered by an effective registration statement within sixty (60) days one year of the date of notice consummation thereof. The Capital Raising Limitations also shall not apply to (i) the Major Investorsissuance of securities pursuant to an underwritten public offering, (ii) the issuance of securities upon exercise or conversion of the Company's options, warrants or other convertible securities outstanding as of the date hereof, or (iii) the grant of additional options or warrants, or the issuance of additional securities, under any Company stock option, bonus plan or restricted stock plan for the benefit of the Company's employees, consultants or directors pursuant to plans approved by a majority of the Board of Directors who are not officers of the Company or a majority of the Board's compensation committee, if any. The "APPLICABLE PORTION" shall mean a fraction, the numerator of which is the number of Units purchased by such Purchaser hereunder and the denominator of which is the total number of Units purchased by all of the Purchasers hereunder.
Appears in 1 contract
Samples: Securities Purchase Agreement (Henley Healthcare Inc)
Right of First Offer. Subject In the event (and on each occasion) -------------------- that Landlord shall decide to offer for sale, directly or indirectly, all or any portion of the terms and conditions specified in Leased Premises during the term of this Section 4.1Lease Agreement, and applicable securities lawsso long as no Event of Default under this Lease Agreement then exists and is continuing, in Landlord shall give to Tenant written notice by registered or certified mail (the event the Company proposes to offer or sell any New Securities, the Company shall first make an offering "Offer Notice") of such New Securities to each Major Investor in accordance with decision, describing the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
(a) The Company shall deliver a notice (the “Offer Notice”), in accordance with the provisions of Section 6.5 hereof, to each of the Major Investors stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities property to be offered, and (iii) the price and terms, if any, the general terms upon which it proposes Xxxxxxxx has decided to offer such New Securities.
(b) By written notification received by the Company, within same. Tenant shall have fifteen (15) calendar days after mailing of from the date on which Landlord shall give the written Offer Notice, each of Notice (the Major Investors may elect "Offer Acceptance Date") to agree to purchase or obtain, at the offered property for the price and on upon the terms specified in the Offer Notice, up by executing and delivering by registered or certified mail an agreement to that portion of such New Securities which equals purchase in substantially the proportion that the number of shares of Registrable Securities then held by such Major Investor bears form attached to the total number of shares of Common Stock of Offer Notice. If Tenant shall not execute and deliver the Company then outstanding agreement to purchase as aforesaid (assuming full conversion or, having executed and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrantsdelivered the same, shall fail to comply with its terms); provided, however, that such Major Investor Landlord shall have no right to purchase any such New Securities if such Investor cannot demonstrate to nine (9) months from and after the Company’s reasonable satisfaction that such Investor is, at the time expiration of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt on the date of such information, each Fully-Exercising Investor shall be entitled the Offer Notice to obtain that sell all or any portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors offered property, at a price which is equal to no lower than ninety percent (90%) of the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) If all New Securities referred to price specified in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, during the sixty (60) day period following the expiration of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) to any person or persons at a price not less than, and upon general terms no more favorable to the offeree than, those purchasers thereof than specified in the 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 Major Investors in accordance with this Section 4.1.
(d) The right of first offer in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major Investors.the
Appears in 1 contract
Samples: Lease Agreement (Idx Systems Corp)
Right of First Offer. Subject to the terms and conditions specified in this Section 4.19, and applicable securities laws, in the event the Company proposes to offer or sell any New Securities, Securities (other than securities described in Section 9(a)(iv)) the Company shall first make an offering of such New Securities to each the Major Investor Investors in accordance with the following provisions of this Section 4.1provisions. A Each Major Investor shall be entitled may, in its discretion, assign to apportion its Affiliates, any other Major Investor(s) or their respective Affiliates, all or a portion of the right of first offer hereby granted it among itself and its partners, members and Affiliates in to such proportions as it deems appropriateMajor Investor.
(ai) The Company shall deliver a notice notice, in accordance with the provisions hereof (the “Offer Notice”), in accordance with the provisions of Section 6.5 hereof, to each of the Major Investors stating (iA) its bona fide intention to offer such New Securities, (iiB) the number of such New Securities to be offered, and (iiiC) the price and terms, if any, upon which it proposes to offer such New Securities.
(bii) By written notification received by the Company, within fifteen twenty (1520) calendar days after mailing of the Offer Notice, each of the Major Investors Investor may elect to purchase or obtain, at the price and on the terms specified in the Offer Notice, up to any or all of that portion of such New Securities which equals the proportion that the number of shares of Registrable Securities Shares then held by such Major Investor (including all securities held by such Investor that are convertible into or exchangeable for Shares on an as-converted basis) bears to the total number of shares of Common Stock of the Company Shares then outstanding (assuming full conversion and exercise of all convertible or and exercisable securities and exercise in full of all outstanding options and warrantssecurities); provided, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(ciii) If all New Securities referred to in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereofabove, the Company may, during the sixty ninety (6090) day period following the expiration of the period provided in subsection 4.1(b) hereofSection 9(a)(ii), offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) to any person Person or persons Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of any of the New Refused 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 remaining Refused Securities shall not be offered unless first reoffered to the Major Investors in accordance with this Section 4.19(a).
(div) The right of first offer in this Section 4.1 9(a) shall not be applicable to (i) Exempted Securities (as defined in the Certificate of Incorporation), (ii) the issuance of Series F Preferred Stock in connection with the Dividend Conversion, or (iii) any Excluded Securities.other issuance of New Securities excluded from this Section 9(a) by the approval of a (A) Requisite Approval and, to (B) the extent the any of the Persons to whom the New Securities are being offered constitute Major Investors, one of JAFCO or Greenspring Global Partners VI-A, L.P. and Greenspring Global Partners VI-C, L.P.
(ev) The Subject to the right of the Major Investors to apportion such right of first offer set forth in among themselves pursuant to this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate of such Major Investor9(a), and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall 9(a) may not be available assigned or transferred except that such right is assignable by any Major Investors (i) to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round Affiliate of the Company Major Investors, or (ii) to any other transferee or assignee of such Major Investor who purchases, in accordance with the terms of this Agreement, at least 600,000 shares (subject to appropriate adjustment in the Company’s Articles event of Incorporation in effect at the time of any stock dividend, stock split, combination or other similar recapitalization affecting such equity financing round
(fshares) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased Capital Stock owned by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major Investors.
Appears in 1 contract
Right of First Offer. Subject (A) Prior to making any sale or transfer of shares of Serial Preferred or other capital stock of the Company (the "Transfer Shares") other than in an Exempt Transaction, each Purchaser shall give the Company the opportunity to purchase such shares in the following manner:
(i) The Purchaser shall give notice (the "Transfer Notice") to the Company in writing of such intention, specifying the amount of Transfer Shares proposed to be sold or transferred, the proposed price per share therefor (the "Transfer Price") and the other material terms and conditions upon which such disposition is proposed to be made.
(ii) The Company shall have the right, exercisable by written notice given by the Company to the Purchaser within 30 days after receipt of such Transfer Notice, to purchase all but not part of the Transfer Shares specified in this Section 4.1such Transfer Notice for a price per share equal to the Transfer Price, which notice shall be accompanied by evidence satisfactory to the Purchaser (by written commitment letter subject only to customary representations, diligence and applicable securities lawsdocumentation, in letter of credit or otherwise) of the event Company's ability to finance such repurchase.
(iii) If the Company proposes to offer or sell any New Securities, the Company shall first make an offering of such New Securities to each Major Investor in accordance with the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion the exercises its right of first offer hereby granted it among itself hereunder, the closing of the purchase of the Transfer Shares with respect to which such right has been exercised shall take place on the date specified in the Company's acceptance (which date shall not be more than 45 nor less than 20 days after the date of such acceptance) at the offices of the Purchaser located at the address set forth in this Agreement, or at such other time and its partnersplace as the Company and the Purchaser may agree. The Company and the Purchaser will use their respective best efforts to comply with all Federal and state laws, members rules and Affiliates in such proportions as it deems appropriateregulations applicable to any purchase of Transfer Shares under this Section 15.
(aiv) The Company shall deliver a notice (the “Offer Notice”), in accordance with the provisions of Section 6.5 hereof, to each of the Major Investors stating (i) its bona fide intention to offer such New Securities, (ii) the 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 written notification received by the Company, within fifteen (15) calendar days after mailing of the Offer Notice, each of the Major Investors may elect to purchase or obtain, 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 number of shares of Registrable Securities then held by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, during the sixty (60) day period following the expiration of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) 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 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 Major Investors in accordance with this Section 4.1.
(d) The exercise its right of first offer in this Section 4.1 hereunder within the time specified for such exercise, the Purchaser shall not be applicable to any Excluded Securities.
(e) The right free, during the period of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate 120 calendar days following the expiration of such Major Investortime for exercise, and (ii) to sell the Transfer Shares specified in such right is assignable by any Major Investor Transfer Notice on terms no less favorable to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right buyer of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with such Transfer Shares than the terms of the Company’s Articles of Incorporation specified in effect at the time of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major InvestorsTransfer Notice.
Appears in 1 contract
Right of First Offer. Subject to the terms and conditions specified in this Section 4.1, and applicable securities laws, in the event the Company proposes to offer or sell any New Securities, the Company shall first make an offering of such New Securities to each Major Investor in accordance with the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
(a) The Company shall deliver Prior to making any Transfer of Units or other interests in the LLC (other than a Transfer in connection with a Public Offering, a Public Sale of the type referred to in clause (i) of the definition thereof or a Sale of the Company), any Unitholder desiring to make such Transfer (the “Selling Unitholder”) will give written notice (the “Offer Notice”) to the LLC and the other Unitholders (the “Other Unitholders”), . The Offer Notice will disclose in accordance with the provisions of Section 6.5 hereof, to each of the Major Investors stating (i) its bona fide intention to offer such New Securities, (ii) reasonable detail the number of such New Securities Units or other interests in the LLC to be offeredoffered for sale and the terms and conditions of the proposed sale. Such Selling Unitholder will not consummate any Transfer until 45 days after the Offer Notice has been given to the Other Unitholders, unless the parties to the Transfer have been finally determined pursuant to this Section 10.2 prior to the expiration of such 45-day period. (The date of the first to occur of such events is referred to herein as the “Authorization Date”.) The Offer Notice shall constitute a binding offer to sell the Units or other interests in the LLC on such terms and (iii) the price and terms, if any, upon which it proposes to offer such New Securitiesconditions contained therein.
(b) By written notification received by the Company, within fifteen (15) calendar days after mailing of the Offer Notice, each of the Major Investors The Other Unitholders may elect to purchase all (but not less than all) of the Units or obtainother interests to be sold upon the same terms and conditions as those set forth in the Offer Notice by giving written notice of such election to such Selling Unitholder within 25 days after the Offer Notice has been given to the Other Unitholders. If more than one Unitholder elects to purchase the Units or other interests to be transferred, at the price Units or other interests in the LLC to be sold shall be allocated among the electing Other Unitholders pro rata according to the number of Common Units and Class B Preferred Units that are owned by each electing Other Unitholder on a fully diluted basis. If one or more of the terms Other Unitholders have elected to purchase Units or other interests in the LLC from the Selling Unitholder, the transfer of such Units or other interests shall be consummated as soon as practicable after delivery of the election notices to the Selling Unitholder, but in any event within 15 days after the Authorization Date. If one or more of the Other Unitholders do not elect to purchase all of the Units or other interests specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that Selling Unitholder may transfer the number of shares of Registrable Securities then held by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible Units or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) If all New Securities referred to interests specified in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, during the sixty (60) day period following the expiration of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) to any person or persons at a price not less than, and upon on terms no more favorable to the offeree than, those transferee(s) thereof than specified in the Offer NoticeNotice during the 90-day period immediately following the Authorization Date. If the Company does Any Units or other interests not enter into an agreement for the sale of the New Securities Transferred within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall 90-day period will be deemed to be revived and such New Securities shall not be offered unless first reoffered subject to the Major Investors in accordance with provisions of this Section 4.110.2 upon subsequent Transfer.
(c) The restrictions of this Section 10.2 will not apply with respect to Transfers to Permitted Transferees.
(d) The right Notwithstanding anything herein to the contrary, except pursuant to clause (c) above, in no event shall any Transfer of first offer in Units pursuant to this Section 4.1 shall not 10.2 be applicable to made for any Excluded Securitiesconsideration other than cash payable upon consummation of such Transfer.
(e) The right of first offer restrictions set forth in this Section 4.1 may not be assigned 10.2 shall continue with respect to each Unit or transferred except that other interest in the LLC until the earlier of (i) the date on which such right is assignable by each Major Investor to any Affiliate Units or other interests have been transferred in a Public Sale, (ii) the consummation of such Major Investoran Approved Sale, (iii) the consummation of a Qualified IPO, and (iiiv) the date on which such right is assignable by any Major Investor Units or other interests have been transferred pursuant to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available 10.2 (other than pursuant to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure Section 10.2(c) and other than a transfer to participate in an equity financing round of the Company in accordance with the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions of this a Unitholder purchasing from a Selling Unitholder pursuant to Section 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major Investors10.2(b)).
Appears in 1 contract
Samples: Limited Liability Company Agreement (Triad Financial Corp)
Right of First Offer. Subject 8.1 From and after the first date on which Investor holds 15,000,000 (or 7,500,000, if as of such date, the Company has exercised Call Option 2) or less Subscription Shares, subject to Clause 8.5, if Investor desires to sell, dispose of or otherwise transfer (“Transfer”) 1,000,000 or more Subscription Shares to any third party (other than an Affiliate of Investor) in one (1) or a series of related transactions, then prior to consummating such proposed Transfer, Investor shall give written notice (the “ROFO Notice”) to the terms Company that Investor desires to make such a Transfer; provided that, notwithstanding anything to the contrary herein, in no event shall Investor be required to deliver the ROFO Notice to the Company more than once.
8.2 The giving of a ROFO Notice to the Company shall constitute an offer (the “Offer”) by Investor to Transfer all but not less than all of the Subscription Shares then held by Investor (the “ROFO Shares”) to the Company at the Market Price as of the date of delivery of the ROFO Notice. The Company shall have two (2) Business Days following receipt of the ROFO Notice (the “ROFO Period”) within which to accept or reject such Offer as to all of the ROFO Shares by giving written notice of acceptance or rejection to Investor prior to the expiration of the ROFO Period. If the Company fails to notify Investor in writing prior to the expiration of the ROFO Period, the Company shall be deemed to have rejected the Offer.
8.3 If the Company elects to purchase all of the ROFO Shares, the Company shall purchase and conditions specified in this Section 4.1pay, by wire transfer of immediately available funds (together with such additional amounts as shall be required so that the net amount received by Investor per ROFO Share after any deduction or withholding, whether by the Company or any intermediary, of any Tax shall equal the Market Price as of the date of delivery of the ROFO Notice) to an account designated by Investor, for all of the ROFO Shares within five (5) Business Days after the date on which the Offer has been accepted, and applicable securities lawson the same day, Investor shall deliver to the Company all necessary certificates representing valid title to the ROFO Shares and such other documents as may be necessary to effect the transfer of the ROFO Shares; provided that, in the event that the Company proposes fails to offer (a) make the foregoing payment to Investor, or sell (b) complete the acquisition of all of the ROFO Shares from Investor, within five (5) Business Days of the Company’s election to purchase all of the ROFO Shares, then (i) any New Securities, such unpaid portion of the foregoing payment shall be subject to interest accrued daily at 12.5% per annum (starting from the date of acceptance of the Offer in writing by the Company to the date on which the foregoing payment is paid in full), and (ii) Investor shall first make an offering be permitted, in its sole and absolute discretion, to terminate such acquisition of such New Securities to each Major Investor the ROFO Shares, or have the recourse as set out in Clause 10 below unless the Security has been released or should have been released in accordance with Clause 6.4. In addition to and without limiting the following provisions of this Section 4.1. A Major foregoing, Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
(a) The Company shall deliver a notice (the “Offer Notice”), in accordance with the provisions of Section 6.5 hereof, to each of the Major Investors stating (i) its bona fide intention to offer such New Securities, (ii) the 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 written notification received indemnification by the Company, within fifteen (15) calendar days after mailing of the Offer Notice, each of the Major Investors may elect to purchase or obtain, 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 number of shares of Registrable Securities then held by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, during the sixty (60) day period following the expiration of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) 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 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 Major Investors in accordance with this Section 4.1.
(d) The right of first offer in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with Clause 9.
8.4 Upon the terms earliest to occur of (a) rejection in writing of the Offer by the Company’s Articles , and (b) the expiration of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1, ROFO Period without the Company may elect electing in writing to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms purchase all of the New Securities. Each Major ROFO Shares, Investor shall have twenty (20) days from a 180-day period during which to effect a Transfer of any or all of the date of receipt of such notice ROFO Shares at a price equal to elect to purchase up to or greater than the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated Market Price as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice delivery of the ROFO Notice; provided that, if the Transfer is subject to any regulatory approval, such 180-day period shall be extended until the Major Investorsexpiration of ten (10) Business Days after all such approvals shall have been received.
8.5 The provisions of this Clause 8 shall be void and of no force and effect upon the earlier of (a) the exercise of both Call Option 2 and Call Option 3 by the Company pursuant to Clause 7, and (b) the date that is twenty-five (25) months after the Closing Date.
Appears in 1 contract
Samples: Share Subscription Agreement (Lotus Technology Inc.)
Right of First Offer. Subject Commencing on the Closing, in the event an Investor and its "affiliates" or "associates" (as those terms are defined in Rule 405 promulgated under the 1933 Act) (collectively, the "INVESTOR GROUP") seek to sell, transfer the voting rights in, or otherwise transfer for value Common Stock (or Shares convertible into Common Stock or Warrants exercisable for Common Stock) representing 5% or more of the then outstanding shares of the Company's Common Stock to any person or group of persons in one or more related transactions (a "SIGNIFICANT TRANSACTION"), the Investor Group will provide the Company, in writing, with a notice reflecting its desire to enter into such Significant Transaction and setting forth the terms and conditions specified in this Section 4.1of the proposed Significant Transaction (such notice, a "ROFO NOTICE"). Each ROFO Notice shall constitute an offer by the Investor Group to sell the securities covered by such ROFO Notice (the "ROFO SECURITIES") to the Company on the terms and applicable securities laws, conditions set forth in the event ROFO Notice. If the Company proposes desires to accept the offer or sell set forth in the ROFO Notice as to any New part of the ROFO Securities, the Company shall first make an offering shall, within ten business days of receipt of such New ROFO Notice, notify the Investor Group of its agreement to acquire some or all of the ROFO Securities (the "ROFO ACCEPTANCE"). The closing of any sale of ROFO Securities by the Investor Group to each Major Investor in accordance with the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
(a) The Company shall deliver a notice (the “Offer Notice”), in accordance with the provisions of Section 6.5 hereof, to each occur within three business days of the Major Investors stating Investor Group's receipt of the ROFO Acceptance, at which time the Company will deliver the purchase price for the ROFO Securities it is purchasing in return for such securities. In the event (i) its bona fide intention to offer such New Securities, the Company does not provide the Investor Group with a ROFO Acceptance within ten business days of receipt of a ROFO Notice or (ii) the number of such New Securities Investor Group receives a ROFO Acceptance with respect to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By written notification received by the Company, within fifteen (15) calendar days after mailing less than all of the Offer NoticeROFO Securities, each of then the Major Investors Investor Group may elect sell, transfer the voting rights in, or otherwise transfer for value all or the remaining ROFO Securities, as the case may be, to purchase any third party or obtain, at the price parties on terms and on the terms specified conditions no less favorable in the Offer aggregate to such third parties than those set forth in the ROFO Notice, up to that portion of such New Securities which equals the proportion that the number of shares of Registrable Securities then held by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor issale, at the time transfer of the proposed issuance voting rights, or transfer of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, during the sixty (60) day period following the expiration of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) 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 Offer Notice. If the Company value does not enter into an agreement for the sale of the New Securities occur within such period, or if such agreement is not consummated within thirty (30) 60 days of the execution thereofCompany's initial receipt of a ROFO Notice, the right provided hereunder shall Investor Group will be deemed required to be revived and such New Securities shall not be offered unless first reoffered resubmit a ROFO Notice to the Major Investors in accordance with this Section 4.1.
(d) The right of first offer Company and follow the procedures outlined in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right section before consummating such sale, transfer of first offer set forth in this Section 4.1 may not be assigned voting rights or transferred except that transfer for value. This Right of First Offer (i) such right is assignable by each Major Investor will not apply to any Affiliate transfer in connection with a transaction approved by the Company's Board of such Major InvestorDirectors, (ii) will not continue to apply to any Common Stock transferred pursuant to this Section, and (iiiii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) days will terminate three years from the date of receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major InvestorsEffective Date.
Appears in 1 contract
Samples: Preferred Stock and Warrant Purchase Agreement (Versant Corp)
Right of First Offer. Subject to Upon the terms and conditions specified in this Section 4.1, and applicable securities laws, in Minority Shareholders receipt of the event the Company proposes to offer or sell any New SecuritiesNon-Performance Exit Right Notice, the Company Minority Shareholders shall first make an offering of such New Securities to each Major Investor in accordance with the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion collectively have the right of first to provide an offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
(a) The Company shall deliver a notice to SGS (the “First Offer NoticeRight”)) to purchase all but not less than all of SGS’s Shares. All Minority Shareholders are not required to participate, in accordance with but if one or more of the provisions Minority Shareholders choose to exercise their First Offer Right then a Minority Shareholder authorized by all of Section 6.5 hereofthe Minority Shareholders shall deliver, on behalf of all Minority Shareholders, to each of the Major Investors stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, SGS and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By written notification received by the Company, within fifteen (15) calendar days after mailing receiving the Non-Performance Exit Right Notice, a written notice executed by all Minority Shareholders. The written notice shall state the terms of the Offer Noticeoffer, each which shall be binding on the Minority Shareholders, including the names of the Major Investors may Minority Shareholders that have elected to participate in the offer, the purchase price and terms pursuant to which the Minority Shareholders are willing to purchase all but not less than all of SGS’s Shares. None of the Minority Shareholders can exercise the First Offer Right until all Minority Shareholders have agreed and executed the notice delivered to SGS; provided, that those electing not to participate shall so indicate in such notice. Failure of the Minority Shareholders to notify SGS of their offer to purchase all of SGS’s Shares within such 15-day period, time being of the essence, shall constitute a waiver of the First Offer Right by the Minority Shareholders. If the Minority Shareholders elect to exercise their First Offer Right and SGS accepts such offer, then each participating Minority Shareholder shall purchase or obtain, at the price and on the terms specified in the Offer Notice, up to that a pro rata portion of such New Securities which equals the proportion that SGS’s Shares based on the number of shares of Registrable Securities then held Shares owned by such Major Investor bears to that Minority Shareholder participating in exercising First Offer Right divided by the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held Shares owned by all Fully-Exercising Investors who wish to purchase such unsubscribed sharesMinority Shareholders participating in exercising the First Offer Right.
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, during the sixty (60) day period following the expiration of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) 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 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 Major Investors in accordance with this Section 4.1.
(d) The right of first offer in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major Investors.
Appears in 1 contract
Samples: Shareholders’ Agreement (Southern Graphic Systems, Inc.)
Right of First Offer. Subject A Preferred Stockholder desiring to make a Transfer (a "Selling Stockholder") pursuant to Section 5.5(c) of this Agreement, shall be required to give advance notice thereof (a "Transfer Notice") to the Company, including in such Transfer Notice the number of shares of stock, the price and the other terms and conditions upon which it is willing to sell such stock. The Company shall have ten (10) Business Days from the date the Transfer Notice is given (the "First Offer Exercise Period") to elect by notice to the Selling Stockholder whether or not to purchase the entire quantity of stock so offered for the price and on the terms and conditions specified in this Section 4.1so specified; provided, and applicable securities lawshowever, in the event the Company proposes to offer or sell any New Securitiesthat if there is more than one Selling Stockholder, the Company shall first make an offering elect whether or not to purchase the entire quantity of securities of all Selling Stockholders. In the event that the Company elects to purchase such stock on the terms set forth in the Transfer Notices, the Company shall pay the price so specified on the terms so specified within ninety (90) days of the date of the Transfer Notice(s), and the Selling Stockholder(s) shall Transfer all such stock to the Company. If within the First Offer Exercise Period, Company does not give notice electing to purchase all of such New Securities stock, the Selling Stockholder(s) may Transfer all such stock to each Major Investor any third party (an "Outside Transferee") at any time after the expiration of the First Offer Exercise Period, provided the purchase price for such stock is no less than the purchase price offered to the Company, and the other terms offered to the Outside Transferee are no more favorable to the Selling Stockholder than those set forth in accordance with the following provisions Transfer Notice. Notwithstanding the proceeding sentence, if the Selling Stockholder(s) do not Transfer such stock as provided in the preceding sentence within one hundred twenty (120) days after the expiration of the First Offer Exercise Period, any Transfer by the Selling Stockholder(s) of its stock shall again be subject to the terms of this Section 4.12.4. A Major Investor shall be entitled to apportion the right Any subsequent Transfer of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
(a) The Company shall deliver a notice (the “Offer Notice”), stock previously Transferred in accordance with the provisions of this Section 6.5 hereof2.4 shall not be subject to this Section 2.4. The Company may assign its rights under this Section 2.4 to any transferee designated by its Board of Directors; provided that if any such transferee is an existing Stockholder (or its Affiliate), the Company shall offer each other existing Stockholder who is a party to each this Agreement (or who was transferred Preferred Stock or Common Stock in accordance with the provisions of the Major Investors stating (iArticle V) its bona fide intention to offer such New Securities, (ii) the 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 written notification received by the Company, within fifteen (15) calendar days after mailing of the Offer Notice, each of the Major Investors may elect to purchase or obtain, at the price and on the terms specified in the Offer Notice, up to that a pro-rata portion of such New Securities which equals the proportion that the number of shares of Registrable Securities then held by such Major Investor bears to rights based on the total number of shares of Common Stock Equity Securities of the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed sharesStockholders.
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, during the sixty (60) day period following the expiration of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) 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 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 Major Investors in accordance with this Section 4.1.
(d) The right of first offer in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major Investors.
Appears in 1 contract
Right of First Offer. Subject (a) At any and every time during the term of the Lease, including any extended term, all or any part of the space depicted on Exhibit B attached --------- hereto consisting of portions of the first and second floors of 000 Xxxxxxxx Xxxxx with a total of 18,931 square feet, 000 Xxxxxxxx Xxxxx, with a total of 25,719 square feet, and all of 000 Xxxxxxxx Xxxxx) is vacant or any lease of such space is scheduled to or does terminate and the present tenant of such space or its successor does not remain as a tenant in such space, Landlord shall deliver to Tenant a notice in writing of the rent Landlord desires to charge for such space and of the terms on which Landlord is prepared to rent such space. Tenant shall have the right for fifteen (15) days thereafter to enter into a lease for such space on the terms and conditions for the rent specified in this Section 4.1, and applicable securities laws, in the event the Company proposes to offer or sell any New Securities, the Company shall first make an offering of such New Securities to each Major Investor in accordance with the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
(a) The Company shall deliver a notice (the “Offer Notice”), in accordance with the provisions of Section 6.5 hereof, to each of the Major Investors stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securitiesnotice.
(b) By written notification received by If with respect to the Companyspace consisting of portions of 320, within fifteen (15) calendar days after mailing 322 or 000 Xxxxxxxx Xxxxx, Xxxxxx does not lease such space in accordance with the foregoing, Landlord may then lease such space to a third party, provided that the "effective rent" under such lease is not less than 90% of the Offer Notice, each of the Major Investors may elect effective rent at which Landlord offered such space to purchase or obtain, at the price and on the terms specified in the Offer Notice, up to that portion of Tenant. If Landlord does not so lease such New Securities which equals the proportion that the number of shares of Registrable Securities then held by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding space within one hundred eighty (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”180) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, during the sixty (60) day period days following the expiration giving of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) Landlord's notice 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 Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such periodTenant, or if Landlord desires to lease such agreement space for a rent which is not consummated within thirty (30) days less than 90% of the execution thereofeffective rent at which the space was previously offered to Tenant, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Major Investors in accordance with or if circumstances which would originally have triggered this Section 4.1.
(d) The right of first offer in this Section 4.1 arise again, then Landlord shall not again offer such space to Tenant upon the revised terms. "Effective rent" means the discounted present value of total rental revenues to be applicable to received by Landlord under the proposed lease after deducting for any Excluded Securities.
(e) The right costs of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate of such Major Investorleasing commissions, tenant improvements, rental credits, taxes, operating expenses and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth items to be borne by Landlord in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance connection with the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major Investorsproposed lease.
Appears in 1 contract
Samples: Sublease (Depomed Inc)
Right of First Offer. Subject If Liberty or LMI desires to transfer (directly or indirectly by the sale of the entity that owns the Class B Stock) except to an affiliate of Liberty or LMI as described below, any Class B Stock, or to convert any Class B Stock to Class A Stock, the Founders and their designees will have a right (to be allocated among them as they elect) to receive a first offer at a price specified by the seller before the seller (a) transfers any of its Class B Stock or (b) converts any Class B Stock to Class A Stock. If Founders or their designees do not elect to acquire the shares within 60 days or fail to complete the acquisition of such shares within 180 days after the date of the first offer, for a period of 60 days thereafter the seller may sell Class A Stock (but not Class B Stock) at the same or a higher price than was offered by the Founders or their designees. Notwithstanding the foregoing, if a proposed conversion of Class B Stock to Class A Stock would not cause the voting power of the shares that are subject to the terms and conditions specified in this Section 4.1Stockholder Agreement to be less than 80%, and applicable securities laws, in the event the Company proposes to offer or sell any New Securities, the Company shall first make an offering of such New Securities to each Major Investor in accordance with the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself with respect to the shares proposed to be converted must be exercised within two business days and its partners, members and Affiliates in such proportions as it deems appropriate.
(a) The Company shall deliver a notice (closed within five business days after the “Offer Notice”), in accordance with the provisions of Section 6.5 hereof, to each receipt of the Major Investors stating (i) its bona fide intention to first offer such New Securities, (ii) the 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 written notification received by the CompanyFounders. If not so exercised and closed, within fifteen (15) calendar days after mailing the offeror may either sell the offered shares subject to the requirements of the Offer Noticesecond preceding sentence, each of or sell the Major Investors may elect to purchase or obtain, offered shares at the then current market price and on (whether higher or lower than the terms specified in offered price) within the Offer Notice, up to that portion of such New Securities which equals the proportion that the number of shares of Registrable Securities then held by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, during the sixty (60) day period following the expiration of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) to any person or persons at thereafter. LMI will have a price not less than, and upon terms no more favorable to the offeree than, those specified in the 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 Major Investors in accordance with this Section 4.1.
(d) The similar right of first offer in this Section 4.1 shall not on any transfer or conversion of a Founder's shares subject to paragraph 3 below; provided however, the election to acquire the shares must be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate of such Major Investor, made within 30 days and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round acquisition of the Company in accordance with shares must occur within 60 days (as extended for up to an additional 90 days if such acquisition requires any governmental approval (including expiration or termination of any applicable waiting period under the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(fHart-Xxxxx-Xxxxxx Xxt) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors that has not been obtained within thirty (30that 60-day period) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date of the receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased first offer by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major InvestorsLMI.
Appears in 1 contract
Right of First Offer. Subject Any Member desiring to sell all or part of its Interest (the "Selling Member") on account of an Involuntary Withdrawal must offer in writing such part of its Interest to the terms and conditions specified in this Section 4.1Class B Members, and applicable securities laws, in the event the Company proposes to offer or sell any New Securities, the Company shall first make an offering of such New Securities to each Major Investor in accordance with the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.follows:
(a) The Company shall deliver a notice Such offer for sale (the “Offer Notice”), "Offer") shall be addressed by the Selling Member to the Class B Members at their addresses listed in this Agreement (or to such other address that they shall designate in writing in accordance with Section 12.01 hereof). Such Offer shall formally notify (the provisions of Section 6.5 hereof, to each "Notice") the Class B Members of the Major Investors stating Selling Member's willingness to sell or otherwise dispose of all or any part of its Interest (ithe "Purchasable Interest") its bona fide intention to offer such New Securitiesfree and clear of all liens, for an all cash purchase price stated in the Notice (ii) the 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"Purchase Price").
(b) By written notification received by the CompanyThe Class B Members shall have, within fifteen for a period of ten (1510) calendar days after mailing the receipt of the Offer Notice, each of the Major Investors may elect right to purchase or obtainacquire the Purchasable Interest offered for the Purchase Price, at the price and on under the terms specified set forth in the Offer Notice, up to that portion of such New Securities which equals the proportion that the number of shares of Registrable Securities then held by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed sharesSection 6.03 below.
(c) If all New Securities referred the Class B Members elects to purchase the Purchasable Interest being offered, they shall notify the Selling Member as promptly as practicable but in any event no later than within ten (10) days after the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, during the sixty (60) day period following the expiration receipt of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) to any person or persons at Notice which notice shall specify a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement date 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 Major Investors in accordance with this Section 4.1.
(d) The right of first offer in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company closing in accordance with the terms of the Company’s Articles of Incorporation Section 6.03 below. Thereafter, a closing shall take place in effect at the time of such equity financing round
(f) In lieu of complying accordance with the provisions Section 6.03 of this Section 4.1, Agreement. If the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of such notice to Class B Members do not elect to purchase up the Purchasable Interest being offered, they shall immediately so notify the Selling Member.
(d) If the Class B Members shall fail to exercise the number right herein granted to purchase all of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as the Purchasable Interest being offered in accordance with the procedures set forth in subsection 4.1(b) prior this Section 6.02, the Selling Member shall have the right for a period of 90 days thereafter to giving effect sell the Purchasable Interest as was being offered to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of Class B Members to any Person for an all cash price not less than the date of notice to the Major InvestorsPurchase Price.
Appears in 1 contract
Right of First Offer. Subject to the terms and conditions specified in this Section 4.1, and applicable securities laws, in the event the Company proposes to offer or sell any New Securities, the Company shall first make an offering of such New Securities to each Major Investor in accordance with the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
(a) The Company If either MCW LLC or Regency decides to offer for sale a Project that it has received pursuant to Section 7.5 within 180 days after the date that the Project has been distributed to it, MCW LLC or Regency, as applicable (“Selling Member”), shall deliver first Notify the other Non-Managing Member (“Buying Member”) and give the Buying Member 30 days in which to make a notice written offer to purchase the Project (the “Offer NoticeOffer”), in accordance with ) and the provisions of Section 6.5 hereof, to each Selling Member shall not sell such Project for a price less than the price offered by the Buying Member for such Project for 180 days after the date of the Major Investors stating (i) its bona fide intention to offer Offer, but may sell such New Securities, (ii) Project for more than such price at any time after receipt of the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New SecuritiesOffer.
(b) By written notification received by Unless otherwise set forth in the CompanyOffer, within fifteen five Business Days after the Selling Member’s acceptance of the Offer, the Buying Member shall deposit Xxxxxxx Money equal to five percent (155%) calendar days after mailing of the Offer Noticeprice with an independent and neutral party reasonably satisfactory to the Selling Member. The Xxxxxxx Money shall be applied against the purchase price at the closing referenced below, each or shall be paid as liquidated damages in the event of default by the Buying Member. In the event the Buying Member fails to deposit timely such Xxxxxxx Money, then the Selling Member shall be free to sell the subject Project at any price at any time without further reference to this Section 7.6.
(c) Unless otherwise set forth in the Offer, if the Selling Member accepts the Offer, the Buying Member shall pay (or cause its designee to pay) to the Selling Member, at a closing to be held at the Selling Member’s principal offices no later than 90 days after the Selling Member’s acceptance of the Major Investors Offer, an amount equal to the price set forth in the Offer. Simultaneously with the receipt of such payment, the Selling Member shall execute and deliver all documents that may elect be necessary or appropriate and customary, in the reasonable opinion of counsel to purchase the Buying Member and as determined by a title company selected by the Buying Member, to convey good, marketable and indefeasible fee simple title to the Project, free and clear of all liens and encumbrances (other than (i) liens securing any mortgage debt that the Buying Member has agreed to assume, (ii) liens for taxes not yet delinquent, (iii) easements, rights-of-way, covenants and restrictions which are customary and typical for properties similar to the subject Project or obtain, (iv) those title matters affecting the Project existing at the price time the Project was acquired by the Selling Member and disclosed on the terms specified title insurance commitment issued to the Selling Member at that time), together with all documents customarily required in similar transactions or as reasonably required by the Buying Member or the title company, including owner’s title policy and survey. The Buying Member shall execute and deliver all documents reasonably required by the Selling Member to evidence the Buying Member’s assumption of debt which the Buying Member has agreed to assume. All items of income and expenses, charges, escrows, deposits and fees customarily prorated and adjusted in similar transactions shall be so prorated and adjusted. In the event that accurate prorations and adjustments cannot be made at such closing because current bills are not obtainable, the Selling Member and the Buying Member shall prorate on the best available information, subject to adjustment upon receipt of the final bills. The Selling Member shall pay all closing costs normally and customarily paid by a seller of a real property interest in the Offer Noticearea where the applicable Project is located, up to that portion and the Buying Member shall pay all closing costs normally and customarily paid by a buyer of such New Securities which equals the proportion that the number of shares of Registrable Securities then held by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants)a real property interest; provided, however, that such Major Investor the Buying Member and the Selling Member shall have no right each pay the fees and expenses of its own legal counsel. In the event of the Buying Member’s default of its obligation to purchase any such New Securities if such Investor cannot demonstrate to under this Section 7.6(c), then the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor Selling Member shall be entitled free to obtain that portion of sell the New Securities for which Major Investors were entitled subject Project at any price at any time without further reference to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, during the sixty (60) day period following the expiration of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) 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 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 Major Investors in accordance with this Section 4.17.6.
(d) The right of first offer in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major Investors.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Regency Centers Corp)
Right of First Offer. Subject (a) If a Holdings Entity desires to transfer any Shares other than pursuant to the terms and conditions specified in this Section 4.1, and applicable securities laws, in the event the Company proposes provisions of Sections 2.1(b) or 2.1(c) or pursuant to offer or sell any New Securities, the Company shall first make an offering of such New Securities to each Major Investor a registered Public Offering in accordance with the following provisions of this Section 4.1. A Major Investor Registration Rights Agreement, such Holdings Entity shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
(a) The Company shall deliver a give written notice (the “Offer a "Transfer Notice”), in accordance with the provisions of Section 6.5 hereof, ") to each of the Major Investors stating that effect to KMOC containing (i) its bona fide intention the number of Shares proposed to offer such New Securitiesbe transferred (the "Offered Shares"), and (ii) the number of such New Securities purchase price (the "First Offer Price") which the Holdings Entity proposes to be offered, and (iii) paid for the price and terms, if any, upon which it proposes to offer such New SecuritiesOffered Shares.
(b) By written notification received by the Company, within fifteen (15) calendar KMOC shall have a period of 30 days after mailing the date of receipt of the Offer Notice, each of Transfer Notice (the Major Investors may elect "Response Period") to purchase or obtain, at accept 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 number of shares of Registrable Securities then held by such Major Investor bears offer made pursuant to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects Transfer Notice to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for Offered Shares (on its own behalf or on the behalf of others) at the First Offer Price by the Major Investors which is equal delivering written notice of acceptance to the proportion that Holdings Entity within the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed sharesResponse Period.
(c) If KMOC elects to purchase (on its behalf or on the behalf of others) all New Securities referred to in of the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereofOffered Shares, the Company may, during the sixty (60) day period following the expiration closing of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) 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 Offer Notice. If the Company does not enter into an agreement for the sale of the Offered Shares will be held at KMOC's principal office in New Securities within such period, or if such agreement York on a date to be specified by KMOC which is not consummated within thirty (30) less than 10 days nor more than 60 days after the end of the execution thereofResponse Period. At the closing, KMOC will deliver the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Major Investors in accordance with this Section 4.1.
(d) The right of first offer in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company consideration in accordance with the terms of the Company’s Articles offer set forth in the Transfer Notice, and the Holdings Entity will deliver the Offered Shares to KMOC, duly indorsed for transfer, free and clear of Incorporation in effect all liens, claims and encumbrances.
(d) If, at the end of the Response Period, KMOC has not given notice of its decision to purchase all of the Offered Shares, then the Holdings Entity shall be entitled for a period of 90 days beginning the day after the expiration of the Response Period to sell the Offered Shares at a price not lower than the First Offer Price and on terms not more favorable to the transferee than were contained in the Transfer Notice. Promptly after any sale pursuant to this Section 2.2, the Holdings Entity shall notify KMOC of the consummation thereof and shall furnish such evidence of the completion (including time of completion) of such equity financing roundsale and of the terms thereof as KMOC may request.
(fe) In lieu If, at the end of any such 90-day period provided for in this Section 2.2, the Holdings Entity has not completed the sale of the Offered Shares, the Holdings Entity shall no longer be permitted to sell any of such Offered Shares pursuant to this Section 2.2 without again fully complying with the provisions of this Section 4.12.2 and all the restrictions on sale, transfer, assignment or other disposition contained in this Agreement shall again be in effect.
(f) Notwithstanding the foregoing, in the event that KMOC fails to close the purchase of the Offered Shares on the date specified in its notice of acceptance, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance Holdings Entity shall be entitled, for a period of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) 120 days from the closing date originally set by KMOC in its offer of receipt acceptance, to sell the Offered Shares at any reasonably negotiated price to any third party without having to further comply with the provisions of this Section 2.2; provided, however, that in the event that KMOC's failure to close the purchase is due to an order, injunction or other similar mandate from a regulatory body of competent jurisdiction and KMOC is using its best efforts to cause such notice order, injunction or mandate, as the case may be, to elect to purchase up not apply to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days purchase of the Offered Shares then KMOC shall have until the earlier of (i) the expiration of 30 days from the closing date originally set by KMOC in its acceptance or (ii) such time as the order, injunction or mandate becomes final and non-appealable, in which to close the purchase of notice to the Major InvestorsOffered Shares before the provisions of this clause (f) become applicable.
Appears in 1 contract
Right of First Offer. Subject to the terms and conditions specified in this Section 4.1, and applicable securities laws, in the event the Company proposes to offer or sell any New Securities, the Company shall first make an offering of such New Securities to each Major Investor in accordance with the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
(a) The Company If at any time after the Closing Date, the Shareholder desires to transfer all or a portion of the shares of Stock owned by him to a third party (other than an Affiliate or family member of the Shareholder and other than as provided in the Warrant), the Shareholder shall deliver a give prompt written notice (a "Notice of Offer") to the “Offer Notice”)Company of his intent to transfer the Stock, in accordance with which notice shall contain the provisions proposed sale price for the shares of Section 6.5 hereof, to each of the Major Investors stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, Stock being offered and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By written notification received by the Company, within fifteen (15) calendar days after mailing of the Offer Notice, each of the Major Investors may elect to purchase or obtain, 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 number of shares of Registrable Securities then held by Stock which the Shareholder proposes to transfer and any other material term or condition of the proposed transfer. The date on which such Major Investor bears notice is sent to the total number Company is referred to hereinafter as the "Notice Date." The Notice of Offer shall be deemed an irrevocable offer to sell to the Company (or any Person designated by the Company) such shares of Common Stock on the terms and conditions set forth in the Notice of Offer. The Company shall have 15 days following the Notice Date to notify in writing the Shareholder of its election to purchase all, but not less than all, of such shares of Stock (or to have all, but not less than all, of such shares of Stock purchased by its designees). If the Company then outstanding (assuming full conversion notifies the Shareholder of its election to purchase such shares of Stock, the closing for such transaction shall take place no later than 30 days from the Notice Date. If the Shareholder does not receive such written notice from the Company within the 15-day period, the Company shall be deemed to have declined to purchase such shares of Stock and exercise the Shareholder may transfer such shares of all convertible or exercisable securities Stock to any third parties at not less than the sale price and exercise upon the other terms and conditions set forth in full the Notice of all outstanding options and warrants)Offer; provided, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, during the sixty (60) day period following the expiration of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) 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 Offer Notice. If the Company Shareholder does not enter into an agreement for complete the contemplated sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) 180 days of the execution thereofNotice Date, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Major Investors in accordance with this Section 4.1.
(d) The right of first offer in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.111.1(a) shall again apply.
(b) Notwithstanding anything herein to the contrary, the Company may elect terms and conditions of Section 11.1(a) do not apply to give notice transfers made by the Shareholder (i) pursuant to an effective registration statement or in the Major Investors within thirty open market pursuant to Rule 144 under the Securities Act or otherwise or (30ii) days after the issuance of New Securities. Such notice shall describe the type, price and terms in connection with any merger or business combination of the New Securities. Each Major Investor shall have twenty (20) days from Company approved by the date Board of receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major InvestorsDirectors.
Appears in 1 contract
Samples: Stock Purchase Agreement (Kevco Inc)
Right of First Offer. Subject (a) At least 30 days prior to making any transfer of any Preferred Shares, Warrants, Conversion Shares or shares of Common Stock issuable upon exercise of the Warrants (other than a Public Sale or a transfer to Affiliates or partners of the holder of such shares) (a "Transfer"), the holder of such shares being transferred (the "Transferring Shareholder") shall deliver a written notice (an "Offer Notice") to the Company. The Offer Notice shall disclose in reasonable detail the proposed number of Preferred Shares, Warrants, Conversion Shares and shares of Common Stock to be transferred (the "Transfer Shares"), the proposed terms and conditions specified in this Section 4.1, of the Transfer and applicable securities laws, in the event identity of the Company proposes to offer or sell any New Securities, the Company shall first make an offering of such New Securities to each Major Investor in accordance with the following provisions of this Section 4.1prospective transferee(s) (if known). A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
(a) The Company shall deliver a notice (the “Offer Notice”), in accordance with the provisions of Section 6.5 hereof, to each of the Major Investors stating (i) its bona fide intention to offer such New Securities, (ii) the 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 written notification received by the Company, within fifteen (15) calendar days after mailing of the Offer Notice, each of the Major Investors may elect to purchase or obtain, all (but not less than all) of the Transfer Shares specified in the Offer Notice at the price and on the terms specified therein by delivering written notice of such election to the Transferring Shareholder as soon as practical but in any event within fourteen (14) days after the delivery of the Offer Notice, up to that portion of such New Securities which equals Notice (the proportion that the number of shares of Registrable Securities then held by such Major Investor bears to the total number of shares of Common Stock of "Election Period"). If the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (eachTransfer Shares, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt transfer of such information, each Fully-Exercising Investor shares shall be entitled to obtain that portion consummated as soon as practical after the delivery of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal election notice(s) to the proportion Transferring Shareholder, but in any event within 15 days after the expiration of the Election Period. To the extent that the number Company has not elected to purchase all of shares the Transfer Shares being offered, the Transferring Shareholder may, within 90 days after the expiration of Registrable Securities then held by such Fully-Exercising Investor bears the Election Period and subject to the total number provisions of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
subparagraph (c) If all New Securities referred below, transfer such Transfer Shares to one or more third parties at a price no less than 95% of the price per share specified in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, during the sixty (60) day period following the expiration of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) to any person or persons at a price not less than, and upon on other terms no more favorable to the offeree than, those specified transferees thereof than offered to the Company in the Offer Notice. If the Company does Any Transfer Shares not enter into an agreement for the sale of the New Securities transferred within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder 90-day period shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Major Investors Company under this paragraph 11.1
(a) prior to any subsequent Transfer. The purchase price specified in accordance with this Section 4.1any Offer Notice shall be payable solely in cash at the closing of the transaction.
(db) The right of first offer in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer restrictions set forth in this Section 4.1 may paragraph 11.1 shall not be assigned or transferred except that (i) such right is assignable by each Major Investor apply with respect to any Affiliate Transfer by any Shareholder, among its Affiliates or partners; provided that the restrictions contained in this paragraph 5 shall continue to be applicable to the Transfer Shares after any such Transfer and provided further that the transferees of such Major Investor, and (ii) such right is assignable Transfer Shares shall have agreed in writing to be bound by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1, Agreement affecting the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major InvestorsTransfer Shares so transferred.
Appears in 1 contract
Samples: Preferred Stock Purchase Agreement (Transact Technologies Inc)
Right of First Offer. Subject to the terms and conditions specified in this Section 4.1, and applicable securities laws, in In the event that Advisor desires to sell or otherwise transfer all or any portion of Advisor’s Shares (the Company proposes to offer or sell any New Securities“Offered Shares”), the Company Advisor shall first make an offering of such New Securities submit in good faith to each Major Investor in accordance with the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
(a) The Company shall deliver NHI a written notice (the “Offer Notice”), in accordance with the provisions of Section 6.5 hereof, to each of the Major Investors stating which shall include (i) its bona fide intention to offer such New Securitiesthe proposed sale price for the Offered Shares, (ii) all details of the number payment terms and other material terms and conditions in connection with the proposed sale of such New Securities to be offered, the Offered Shares and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By written notification received by the Company, within fifteen (15) calendar days after mailing clear instructions regarding acceptance of the Offer Notice. The purchase price for the Offered Shares shall be expressed in U.S. dollars, whether or not the form of consideration is wholly or partially cash or cash equivalents. NHI shall then have the right, but not the obligation, to purchase all or any portion of the Offered Shares on the terms set forth in the Offer Notice until the expiration of the thirty (30)-day period following the delivery of the Offer Notice (the “ROFO Election Period”). If NHI elects to purchase any Offered Shares prior to the expiration of the ROFO Election Period, each of NHI and Advisor shall take all actions as may be reasonably necessary to consummate the Major Investors transfer contemplated by this Section 4.15, including, without limitation, entering into agreements and delivering certificates and instruments and consents as may be deemed reasonably necessary or appropriate by NHI and Advisor. If NHI has not elected to purchase any Offered Shares (or has elected to purchase only a portion of the Offered Shares) prior to the expiration of the ROFO Election Period, Advisor may, within ninety (90) days after the expiration of the ROFO Election Period, transfer the Offered Shares (or the applicable portion thereof that NHI did not elect to purchase or obtain, at the price and purchase) on not less favorable economic terms to NHI than the terms specified and conditions as set forth in the Offer Notice, up to that portion including a sale price of such New Securities which equals the proportion that the number of shares of Registrable Securities then held by such Major Investor bears to the total number of shares of Common Stock at least 95% of the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) If all New Securities referred to sale price set forth in the Offer Notice on a pro rata basis. If any such Offered Shares are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, transferred during the sixty such ninety (60) day period following the expiration of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) 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 Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such 90)-day period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder Advisor shall again be deemed required to be revived and such New Securities shall not be offered unless first reoffered to the Major Investors in accordance with this Section 4.1.
(d) The right of first offer in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance comply with the terms of the Company’s Articles of Incorporation this Section 4.15 with respect to such Shares in effect at the time connection with any proposed transfer of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major InvestorsShares.
Appears in 1 contract
Samples: Termination Agreement (NorthStar Healthcare Income, Inc.)
Right of First Offer. Subject (a) If the Company issues or sells any Capital Stock to the terms and conditions specified in this Section 4.1, and applicable securities laws, in the event the Company proposes to offer or sell any New SecuritiesInvestors, the Company shall first make an offering offer to sell to each Executive and Other Stockholder a percentage of such New Securities Capital Stock equal to each Major Investor in accordance with the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
quotient determined by dividing (a) The Company shall deliver a notice (the “Offer Notice”), in accordance with the provisions of Section 6.5 hereof, to each of the Major Investors stating (i) its bona fide intention to offer such New Securities, (ii1) the 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 written notification received by the Company, within fifteen (15) calendar days after mailing of the Offer Notice, each of the Major Investors may elect to purchase or obtain, 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 number of shares of Registrable Securities then held by such Major Investor bears to the total aggregate number of shares of Common Stock issued to such Stockholder prior to such issuance (other than shares of the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor shall have no right Common Stock which are not vested pursuant to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (eacha Senior Management Agreement, a “Fully-Exercising Investor”restricted stock purchase agreement or similar agreement) by (2) the aggregate number of any shares of Common Stock issued and outstanding immediately prior to such issuance (other Major Investor’s failure than shares of Common Stock which are not vested pursuant to do likewisea Senior Management Agreement, a restricted stock purchase agreement or similar agreement). During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor Each Executive and Other Stockholder shall be entitled to obtain purchase such Capital Stock on the same terms as such Capital Stock are purchased by the Investors; provided that if the Investors are required to also purchase other securities (including debt securities) of the Company or any of its Subsidiaries, the Executives and Other Stockholders shall also be required to purchase their pro rata portion of such securities (on the New Securities for which Major same terms and conditions) that the Investors were entitled are required to subscribe but which were not subscribed for by purchase.
(b) In order to exercise such Stockholder’s purchase rights hereunder, the Major Investors which is equal Stockholders must within 15 days after receipt of written notice from the Company describing the Capital Stock being offered, the purchase price thereof, the payment terms and such holder’s percentage allotment deliver a written notice to the proportion that the number of shares of Registrable Securities then held by Company describing such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed sharesStockholder’s election hereunder (which election shall be absolute and unconditional).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, during the sixty (60) day period following Upon the expiration of the offering period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectivelydescribed above, the “Refused Securities”) Company shall be entitled to any person sell such Capital Stock which the Stockholders have not elected to purchase during the 180 days following such expiration. Any Capital Stock offered or persons at a price not less than, and upon terms no more favorable sold by the Company to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within Investors after such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall 180-day period must be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Major Investors in accordance with Stockholders pursuant to the terms of this Section 4.1Section.
(d) The right provisions of first offer in this Section 4.1 14 shall not be applicable terminate upon the earlier to any Excluded Securities.
(e) The right occur of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate the consummation of such Major Investor, a Public Offering and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right consummation of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with the terms a Sale of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major Investors.
Appears in 1 contract
Right of First Offer. Subject to the terms and conditions specified in this Section 4.19, and applicable securities laws, in the event the Company proposes to offer or sell any New Securities, the Company shall first make an offering of such New Securities to each Major Investor PBT or its designee in accordance with the following provisions of this Section 4.19. A Major Investor PBT or its designee shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
(a) The Company shall deliver a notice (the “Offer Notice”)notice, in accordance with the provisions of Section 6.5 10(a) hereof, (the “Offer Notice”) to each of the Major Investors PBT stating (i) its bona fide intention to offer such New Securities, (ii) the 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 written notification received by the Company, within fifteen twenty (1520) calendar days after mailing of the Offer Notice, each of the Major Investors PBT or its designee may elect to purchase or obtain, 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 number of shares of Registrable Securities Common Stock issued and held, or issuable upon conversion of the Series A Preferred Stock (and any other securities convertible into, or otherwise exercisable or exchangeable for, shares of Common Stock) then held held, by such Major Investor PBT bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrantssecurities); provided, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(bSection 9(b) hereof, the Company may, during the sixty (60) day period following the expiration of the period provided in subsection 4.1(bSection 9(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) 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 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 sixty (3060) days of following the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Major Investors PBT or its designee in accordance with this Section 4.19.
(d) The right of first offer in this Section 4.1 9 shall not be applicable to New Securities issued:
i. upon conversion of shares of Preferred Stock;
ii. to officers, directors, employees and consultants of the Company pursuant to stock incentive plans, or other stock arrangements that have been approved by the Board of Directors of the Company including the directors elected by the holders of a majority of the Series A Preferred Stock (the “Series A Directors”);
iii. as a dividend or distribution on the Corporation’s Common Stock or Preferred Stock;
iv. upon the written consent of PBT that expressly states that the right of first offer in this Section 9 shall not apply to such New Securities;
v. upon the exercise or conversion of any Excluded Securitiesoptions or other convertible securities outstanding as of the date hereof;
vi. pursuant to a loan arrangement or debt financing from a bank, equipment lessor or similar financial institution approved by the Board of Directors, including the Series A Directors; or
vii. in connection with strategic transactions (but excluding any merger, consolidation, acquisition or similar business combination) that have been approved by the Board of Directors of the Corporation including the Series A Directors.
(e) The right of first offer set forth in this Section 4.1 9 may not be assigned or transferred except that (i) such right is assignable by each Major Investor PBT to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major InvestorsPBT.
Appears in 1 contract
Right of First Offer. Subject to the terms and conditions specified in this Section 4.1, and applicable securities laws, in the event the Company proposes to offer or sell any New Securities, the Company shall first make an offering of such New Securities to each Major Investor in accordance with the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
(a) The Company If any Shareholder (the "Selling Shareholder") desires to transfer any Shares to any Person other than pursuant to Section 4.1(b) or 4.1(c), such Shareholder shall deliver a first give written notice (the “Offer a "Transfer Notice”), in accordance with the provisions of Section 6.5 hereof, ") to each of the Major Investors stating that effect to UPC containing (i) its bona fide intention the number of Shares proposed to offer such New Securitiesbe transferred (the "Offered Shares"), and (ii) the number of purchase price (the "First Offer Price") which such New Securities Shareholder proposes to be offered, and (iii) paid for the price and terms, if any, upon which it proposes to offer such New SecuritiesOffered Shares.
(b) By written notification received by UPC shall have the Companyirrevocable and exclusive right, within fifteen (15i) calendar days after mailing if the Offered Shares represent less than 10% of the Offer then outstanding UPC Common Stock, for a period of 30 days or (ii) if the Offered Shares represent 10% or more of the then outstanding UPC Common Stock, for a period of 90 days, after the Transfer Notice is received (the "Response Period") to purchase, pursuant to the Transfer Notice, each all or any part of the Major Investors may elect to purchase or obtain, Offered Shares at the price and on First Offer Price, exercisable by delivering a written notice to the terms specified in Selling Shareholder within the Offer NoticeResponse Period, up to that portion of such New Securities which equals the proportion that stating therein the number of shares of Registrable Securities then held by such Major Investor bears Offered Shares UPC intends to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed sharespurchase.
(c) If If, at the end of the Response Period, UPC has not given notice of its decision to purchase all New Securities referred to in of the Offer Offered Shares, then a Selling Shareholder who has duly given such Transfer Notice are not elected to shall be purchased or obtained as provided in subsection 4.1(b) hereof, entitled for a period of 75 days beginning the Company may, during the sixty (60) day period following after the expiration of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) Response Period to any person or persons sell those Offered Shares which UPC does not intend to purchase at a price not less than, lower than the First Offer Price and upon on terms no not more favorable to the offeree than, those specified transferee than were contained in the Offer Transfer Notice. If Promptly after any sale pursuant to this Section 4.2, the Company does not enter into an agreement for the sale Selling Shareholder shall notify UPC of the New Securities within consummation thereof and shall furnish such period, or if such agreement is not consummated within thirty (30) days evidence of the execution thereof, completion (including time of completion) of such sale and of the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Major Investors in accordance with this Section 4.1terms thereof as UPC may request.
(d) The right If, at the end of first offer any such 60-day period provided for in this Section 4.1 4.2, the Selling Shareholder has not completed the sale of the Offered Shares, the Selling Shareholder shall not no longer be applicable permitted to sell any Excluded Securities.
(e) The right of first offer set forth in such Offered Shares pursuant to this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of 4.2 without again fully complying with the provisions of this Section 4.14.2 and all the restrictions on sale, transfer, assignment or other disposition contained in this Agreement shall again be in effect.
(e) Following a Public Offering of UPC Common Stock, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms obligations of the New Securities. Each Major Investor Shareholders and the rights of UPC under this Section 4.2 shall have twenty (20) days from not be triggered by the date desire to sell or transfer or the actual sale or transfer by the Shareholders to any one transferee within a 90-day period of receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days Shares aggregating less than 2% of the date of notice to the Major Investorsthen outstanding UPC Common Stock.
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Right of First Offer. Subject In the event that NHI Partner desires to the terms and conditions specified in this Section 4.1, and applicable securities laws, sell or otherwise Transfer all or a portion of NHI Partner’s interest in the event Partnership (the Company proposes “Offered Interest”), NHI Partner shall submit in good faith to offer or sell any New Securities, the Company shall first make an offering of such New Securities to each Major Investor in accordance with the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
(a) The Company shall deliver NRF Partner a written notice (the “Offer Notice”), in accordance with the provisions of Section 6.5 hereof, to each of the Major Investors stating which shall include (i) its bona fide intention to offer such New Securitiesthe proposed sale price for the Offered Interest, (ii) all details of the number payment terms and all other material terms and conditions, including the nature of such New Securities the representations and warranties to be offeredmade and the indemnities to be given, in connection with the proposed sale of the Offered Interest, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By written notification received by the Company, within fifteen (15) calendar days after mailing clear instructions regarding acceptance of the Offer Notice. The purchase price shall be expressed in U.S. dollars, each whether or not the form of consideration is wholly or partially cash or cash equivalents. NRF Partner shall then have the right, but not the obligation, to purchase all, but not less than all, of the Major Investors may elect to purchase or obtain, at the price and Offered Interest on the terms specified set forth in the Offer Notice until the expiration of the 30-day period following the delivery of the Offer Notice (the “Election Period”). If NRF Partner elects to purchase the Offered Interest prior to the expiration of the Election Period, each Partner shall take all actions as may be reasonably necessary to consummate the Transfer contemplated by this Section 15.2, including, without limitation, entering into agreements and delivering certificates and instruments and consents as may be deemed necessary or appropriate. If NRF Partner has not elected to purchase the Offered Interest prior to the expiration of the Election Period, NHI Partner may, within 90 days after the expiration of the Election Period, Transfer the Offered Interest on substantially the same terms and conditions as set forth in the Offer Notice, up to that portion of such New Securities which equals the proportion that the number of shares of Registrable Securities then held by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, provided that such Major Investor shall have no right third parties execute joinder agreements to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or obtained this Agreement as provided in subsection 4.1(b) hereof, the Company may, during the sixty (60) day period following the expiration of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) 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 Offer NoticeSection 15.6. If the Company does Offered Interest is not enter into an agreement for the sale of the New Securities within transferred during such 90-day period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder it shall again be deemed subject to be revived and such New Securities shall not be offered unless first reoffered to the Major Investors in accordance with this Section 4.1.
(d) The right of first offer in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth 15.2 in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major Investorsconnection with any Transfer.
Appears in 1 contract
Samples: Purchase and Sale Agreement (NorthStar Healthcare Income, Inc.)
Right of First Offer. Subject (a) At any time after the seventh (7th) anniversary of the date of the Merger, if any Rollover Investor, Institutional Investor, or, in each case, any of their Permitted Transferees wishes to transfer all or a portion of its, his or her Preferred Entitlement or any other class of preferred equity securities in the Company (“Preferred Interest”) to a third party, such Investor shall provide OEP and the Company with written notice (an “Offer Notice”) of its intent to transfer such Preferred Interest (specifying the amount of Preferred Interest it intends to transfer and any other material terms and conditions of Transfer, other than price), and OEP, their Permitted Transferees or the Company may offer to acquire all of such Preferred Interest at a purchase price proposed by OEP, their Permitted Transferees or the Company on the terms and conditions specified in this Section 4.1, and applicable securities laws, in the event the Company proposes to offer or sell any New Securities, the Company shall first make an offering of such New Securities to each Major Investor in accordance with the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
(a) The Company shall deliver a notice (the “Offer Notice”), in accordance with the provisions of Section 6.5 hereof, to each of the Major Investors stating (i) its bona fide intention to offer such New Securities, (ii) the 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 written notification received by the Company, within fifteen (15) calendar days after mailing of the Offer Notice, each of the Major Investors may elect to purchase or obtain, 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 number of shares of Registrable Securities then held by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, during the sixty (60) day period following the expiration of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) 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 Offer Notice. If such Investor does not wish to sell the Preferred Interest at such price and on such terms, it may reject such offer of OEP, their Permitted Transferees or the Company does and thereafter, for a period of 90 days, shall be free to sell such Preferred Interest to a third party at a price and on terms that are not enter into an agreement for more favorable to the sale third party than the terms offered by OEP, its Permitted Transferees and/or the Company, as applicable. In the event that none of OEP, their Permitted Transferees and the Company inform such Investor of its intention to offer a price to acquire such Preferred Interest within 30 days after receiving the Offer Notice, such Investor may sell such Preferred Interest to the third party at any time up to 90 days after the delivery 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 Offer Notice on terms and such New Securities shall not be offered unless first reoffered conditions no more favorable to the Major Investors third party than those specified in accordance with this Section 4.1the Offer Notice.
(db) The To the extent an Investor proposes to sell any of its Preferred Entitlements pursuant to this Section 1.5, the Company shall provide the right of first offer and ability for such Investor Permitted Transferee to sell the Preferred Entitlement while retaining the Common Entitlement through a Recapitalization or other means as may be selected by the Company that, in each case, has no adverse effect, in any material respect, on the Investor.
(c) Notwithstanding anything to the contrary in this Section 4.1 shall not 1.5, a Rollover Investor, an Institutional Investor, and in each case their respective Permitted Transferees may make any of the following Transfers without offering OEP, OEP’s Permitted Transferees and the Company the opportunity to make an offer for the Securities to be applicable transferred pursuant to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that 1.5: (i) Transfers by such right is assignable by each Major Investor to any Affiliate Permitted Transferee of such Major Investor, and (ii) such right is assignable by any Major Investor sales in a Public Offering, (iii) sales under Rule 144 under the Securities Act and (iv) sales pursuant to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major Investors1.3 or 1.4.
Appears in 1 contract
Right of First Offer. (a) Subject to the terms and conditions specified in this Section 4.1, and applicable securities laws, rights of AOL set forth in the event AOL Agreement, until the Common Stock is registered under Section 12(b) or 12(g) of the Exchange Act, if any Holder (an "Offeror") desires to Transfer from time to time all or any portion of the shares of Common Stock Beneficially Owned by such Holders on a Fully Diluted Basis (all or such portion hereinafter referred to as the "Offered Securities"), the Offeror shall, at least twenty days prior to the proposed Transfer, furnish to the Company proposes and each Holder a written notice setting forth an offer to offer sell the Offered Securities for a specific cash dollar amount (the "Offer"). The other Holder(s) (each, an "Electing Holder") shall have the right to elect, by providing written notice to the Offeror of its election to purchase within ten days after the date of the Offer, to purchase that number of Offered Securities (or sell any New Securitiesif such number is not an integral number, the Company shall first make an offering of next integral number which is greater than such New Securities to each Major Investor in accordance with the following provisions of this Section 4.1. A Major Investor number) which shall be entitled to apportion the right product of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
(a) The Company shall deliver a notice (the “Offer Notice”), in accordance with the provisions of Section 6.5 hereof, to each of the Major Investors stating (i) its bona fide intention to offer such New Securities, (ii) the 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 written notification received by the Company, within fifteen (15) calendar days after mailing of the Offer Notice, each of the Major Investors may elect to purchase or obtain, 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 number of shares of Registrable Securities then held by such Major Investor bears to the total number of shares of Common Stock then Beneficially Owned by such Electing Holder on a Fully Diluted Basis and (ii) a fraction, the numerator of which shall be the number of Offered Securities to be Transferred by the Offeror and the denominator of which shall be the total number of shares of Common Stock then Beneficially Owned by all of the Company Holders on a Fully Diluted Basis. This provision shall not permit a Holder to duplicate any rights such holder has as a result of a right of first offer contained in any other agreement or security issued by the Company.
(b) If the Electing Holder(s) shall timely exercise their first right to purchase all or any portion of the Offered Securities, the Offeror shall sell all or such portion of the Offered Securities to such Electing Holder(s) who shall pay the cash price specified in the Offer to the Offeror, and the parties shall otherwise consummate such transaction no later than twenty days after the Company's receipt of the Offer.
(c) If the Electing Holder(s) fails to exercise its/their first right to purchase, or exercises its/their right only with respect to a portion of the Offered Securities, the Offeror shall have ten days thereafter to sell any remaining Offered Securities at the price and on terms no less favorable to the Offeror than those specified in the Offer. If the Offeror does not consummate the sale of such Offered Securities within such ten day period, then outstanding the Offeror shall not thereafter Transfer any of its Securities without again complying with this Section 5.
(assuming full conversion and exercise d) The restrictions set forth in this Section 5 shall not apply with respect to any (i) Transfer of all convertible or exercisable securities and exercise in full of all outstanding options and warrants)Securities by a Holder to a Permitted Transferee; provided, however, that such Major Investor shall have no right each Permitted Transferee must agree to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time be bound by all of the proposed issuance terms of this Agreement as a Holder, and (ii) Transfer by Provident of securities issued by the Company upon conversion of securities issued in the Provident Offering and the transferee of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, during the sixty (60) day period following the expiration of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) 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 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 securities shall not be offered unless first reoffered to bound by the Major Investors in accordance with terms of this Section 4.1.
(d) The right of first offer in this Section 4.1 shall not be applicable to any Excluded SecuritiesAgreement.
(e) The right of first offer restrictions set forth in this Section 4.1 may not 5 shall be assigned or transferred except that (i) such right is assignable subject to the prior exercise by each Major Investor to any Affiliate AOL of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer its rights set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major InvestorsAOL Agreement.
Appears in 1 contract
Right of First Offer. Subject Commencing on the Closing, in the event Investor and its "affiliates" or "associates" (as those terms are defined in Rule 405 promulgated under the 1933 Act) (collectively, the "INVESTOR GROUP") seek to sell, transfer the voting rights in, or otherwise transfer for value 5% or more of the then outstanding shares of the Company's Common Stock (assuming for this purpose conversion of any Notes) to any person or group of persons in one or more related transactions (a "SIGNIFICANT TRANSACTION"), the Investor Group will provide the Company, in writing, with a notice reflecting its desire to enter into such Significant Transaction and setting forth the terms and conditions specified in this Section 4.1of the proposed Significant Transaction (such notice, a "ROFO NOTICE"). Each ROFO Notice shall constitute an offer by the Investor Group to sell the securities covered by such ROFO Notice (the "ROFO SECURITIES") to the Company on the terms and applicable securities laws, conditions set forth in the event ROFO Notice. If the Company proposes desires to accept the offer or sell set forth in the ROFO Notice as to any New part of the ROFO Securities, the Company shall first make an offering shall, within ten business days of receipt of such New ROFO Notice, notify the Investor Group of its agreement to acquire some or all of the ROFO Securities (the "ROFO ACCEPTANCE"). The closing of any sale of ROFO Securities by the Investor Group to each Major Investor in accordance with the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
(a) The Company shall deliver a notice (the “Offer Notice”), in accordance with the provisions of Section 6.5 hereof, to each occur within three business days of the Major Investors stating Investor Group's receipt of the ROFO Acceptance, at which time the Company will deliver the purchase price for the ROFO Securities it is purchasing in return for such securities. In the event (i) its bona fide intention to offer such New Securities, the Company does not provide the Investor Group with a ROFO Acceptance within ten business days of receipt of a ROFO Notice or (ii) the number of such New Securities Investor Group receives a ROFO Acceptance with respect to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By written notification received by the Company, within fifteen (15) calendar days after mailing less than all of the Offer NoticeROFO Securities, each of then the Major Investors Investor Group may elect sell, transfer the voting rights in, or otherwise transfer for value all or the remaining ROFO Securities, as the case may be, to purchase any third party or obtain, at the price parties on terms and on the terms specified conditions no less favorable in the Offer aggregate to such third parties than those set forth in the ROFO Notice, up to that portion of such New Securities which equals the proportion that the number of shares of Registrable Securities then held by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor issale, at the time transfer of the proposed issuance voting rights, or transfer of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, during the sixty (60) day period following the expiration of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) 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 Offer Notice. If the Company value does not enter into an agreement for the sale of the New Securities occur within such period, or if such agreement is not consummated within thirty (30) 60 days of the execution thereofCompany's initial receipt of a ROFO Notice, the right provided hereunder shall Investor Group will be deemed required to be revived and such New Securities shall not be offered unless first reoffered resubmit a ROFO Notice to the Major Investors in accordance with this Section 4.1.
(d) The right of first offer Company and follow the procedures outlined in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right section before consummating such sale, transfer of first offer set forth in this Section 4.1 may not be assigned voting rights or transferred except that transfer for value. This Right of First Offer (i) such right is assignable by each Major Investor will not apply to any Affiliate transfer in connection with a transaction approved by the Company's Board of such Major InvestorDirectors, (ii) will not continue to apply to any shares transferred pursuant to this Section, and (iiiii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) days will terminate three years from the date of receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major Investorshereof.
Appears in 1 contract
Right of First Offer. Subject to the terms and conditions specified in this Section 4.1, and applicable securities laws, in the event the Company proposes to offer or sell any New Securities, the Company shall first make an offering of such New Securities to each Major Investor in accordance with the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
(a) The Company In the event that a Shareholder shall deliver have a bona tide intent to Transfer any of the Shares or shall receive a bona fide offer to Transfer Shares to a third party, the Shareholder shall give written notice (the “Offer Notice”), in accordance with the provisions of Section 6.5 hereof, ) by postage-paid registered mail to each of the Major Investors stating Seren setting forth: (i) its that such Shareholder has a bona fide intention intent to offer make such New Securitiesa Transfer, (ii) the number of such New Securities Shares which it desires to be offered, sell (the “Offered Shares”); and (iii) the terms and price per Share which shall be the Fair Market Value (as defined below), and termsany conditions with respect to which a Transfer is proposed to be made; and in said notice shall offer to sell and transfer such Offered Shares to Seren, if anywhich offer shall be irrevocable until the expiration of the option period described in Section 1.2(c) hereof. For the purposes of this Section 1.2, upon which it proposes the “Fair Market Value” of each of the Shares shall be (i) the price per Share offered by such bona fide third party or (ii) as mutually agreed to offer by such New SecuritiesShareholder and Seren.
(b) By written notification received by the Company, within fifteen (15) calendar days after mailing of the Offer Notice, each of the Major Investors may elect to purchase or obtain, 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 number of shares of Registrable Securities then held by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor Seren shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, during the sixty (60) day period following the expiration of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) 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 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 Major Investors in accordance with this Section 4.1.
(d) The right of first offer in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) 30 business days from the date of receipt of such the Offer Notice to elect whether or not to purchase all (but not less than all) of the Offered Shares by giving written notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New SecuritiesShareholder. The closing of such sale the purchase by Seren of the Offered Shares shall occur be promptly completed, and in any event within sixty (60) 60 days of the date election to purchase by Seren, unless such closing is required to be extended until all regulatory approvals have been obtained. At such closing, the Shareholder shall deliver the Offered Shares to Seren free and clear of notice all liens and encumbrances, except those rights and obligations imposed by this Agreement, represented by the certificate(s) duly endorsed in blank and accompanied by all other documents necessary for the effective transfer thereof. At such closing, Seren shall deliver to the Major InvestorsShareholder cash, a certified or official bank check or shall pay by wire transfer of immediately available funds the Fair Market Value per Share multiplied by the number of Offered Shares.
(c) If Seren does not elect to purchase all the Offered Shares or fails to purchase the Offered Shares after exercising its election to purchase, then, for a period of 60 days thereafter, the Shareholder shall be free to sell the Offered Shares to a third party without further compliance with this Section 1.2; provided, that the price per Share in such third party sale shall be at least at the Fair Market Value; and provided, further, that such third party shall be required to execute an undertaking agreeing to be bound by the provisions of this Agreement.
Appears in 1 contract
Right of First Offer. Subject If the Rangeland Member desires to Transfer its Membership Interest and at such time the Delek Member continues to hold at least a 10% Percentage Interest, then the Rangeland Member shall provide a notice to the Delek Member (the “Sale Offer”), which shall constitute an offer by the Rangeland Member to sell all of its Membership Interest, free and clear of all liens (other than transfer restrictions imposed under applicable securities Laws), to the Delek Member for an amount equal to [*CONFIDENTIAL*] times the Rangeland Member’s aggregate Capital Contributions as of the date of the Sale Offer. The Delek Member shall have the right and option, but not the obligation, to either accept the Sale Offer or to make a counter-offer (the “Counter-Offer”), in either case by providing written notice to the Rangeland Member within 30 days of receiving the Sale Offer. Any Counter-Offer must be to purchase all of the Rangeland Member’s Membership Interest and include the cash purchase price, the date on which the Counter-Offer will expire and other material terms and conditions under which the Delek Member proposes to acquire the Rangeland Member’s Membership Interest. The Rangeland Member shall be entitled to accept or reject the Counter-Offer in its sole discretion and shall notify the Delek Member within 30 days of receiving the Counter-Offer whether it accepts or rejects the Counter-Offer. If the Delek Member accepts the Sale Offer or the Rangeland Member accepts the Counter-Offer, the Parties shall proceed to negotiate definitive documentation reflecting the terms and conditions specified set forth in the Sale Offer or Counter-Offer, as the case may be. If the Parties are unable to execute definitive acquisition documents with respect to the transaction contemplated by the Sale Offer or Counter-Offer, as the case may be, within 60 days of the Delek Member’s acceptance of the Sale Offer or the Rangeland Member’s acceptance of the Counter-Offer, then the Delek Member shall be deemed to have waived all its rights under this Section 4.1, 3.7(b) and applicable securities laws, in the event the Company proposes to offer or sell any New Securities, the Company shall first make an offering of such New Securities to each Major Investor in accordance with the following provisions of this Section 4.1. A Major Investor Rangeland Member shall be entitled permitted to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
(a) The Company shall deliver a notice (the “Offer Notice”), in accordance pursue an alternate sale transaction with the provisions of Section 6.5 hereof, to each of the Major Investors stating (i) its bona fide intention to offer such New Securities, (ii) the 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 written notification received by the Company, within fifteen (15) calendar days after mailing of the Offer Notice, each of the Major Investors may elect to purchase or obtain, 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 number of shares of Registrable Securities then held by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants)any Third Party; provided, however, that such Major Investor if the Delek Member properly made a Counter-Offer, then for so long as the Counter-Offer has not expired and may be accepted by the Rangeland Member, the Rangeland Member shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, during the sixty (60) day period following the expiration of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) to any person or persons at consummate a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement transaction for the sale of its Membership Interests to a Third Party for consideration that is less than the New Securities cash purchase price contained in the Counter-Offer. If the Rangeland Member does not (i) enter into a definitive written agreement with a Third Party in accordance with the foregoing within such period90 days after the later to occur of (x) the expiration or rejection of the Sale Offer without the Delek Member making a valid Counter-Offer and (y) the expiration or rejection of the Counter-Offer, or if (ii) consummate such Transfer pursuant to such definitive written agreement is not consummated within thirty (30) 90 days of after the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall Rangeland Member may not be offered unless first reoffered to the Major Investors Transfer any of its Membership Interest without complying again in accordance full with this Section 4.13.7(b).
(d) The right of first offer in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major Investors.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Delek Logistics Partners, LP)
Right of First Offer. Subject Each time a Member proposes to Transfer all or any part of that Member’s Membership Interest other than to a Permitted Transferee (such Member, an “Offering Member”), such Offering Member shall first obtain the consent of the Manager to the terms and conditions specified in this Section 4.1of any such transfer by providing written notice to the Manager of the proposed terms of the transfer. The Manager shall, and applicable securities lawswithin ten (10) days of receipt of such notice, in either approve the proposed terms or propose revised terms to the Offering Member. The Offering Member may accept the revised terms or provide a new proposal to the Manager. In no event will the Manager be required to approve the terms of any proposed offer to transfer the Membership Interests. Following the approval by the Manager of a proposed transfer other than to a Permitted Transferee, an Offering Member shall offer that Member’s Membership Interest to the non-transferring Members by providing written notice (“ROFO Notice”) to all Members with a copy to the Company proposes specifying the percentage and type of Membership Interest the Offering Member desires to offer or sell any New SecuritiesTransfer (“Offered Amount”), the Company shall first make an offering of such New Securities to each Major Investor in accordance with the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
(a) The Company shall deliver a notice price (the “Offer NoticeOffering Price”), in accordance with ) for which the provisions of Section 6.5 hereof, Offering Member intends to each market the Membership Interest for sale and any other material terms of the Major Investors stating (i) its bona fide intention to offer such New Securities, (ii) the number offer. For a period 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 written notification received by the Company, within fifteen (15) calendar days after mailing of the Offer Notice, each of the Major Investors may elect to purchase or obtain, 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 number of shares of Registrable Securities then held by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, during the sixty (60) day period following the expiration of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) 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 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 following delivery of the execution thereofROFO Notice (the “ROFO Option Period”), each non-transferring Member shall have the right to send an option reply (“Option Reply”) to the Offering Member indicating that such non-transferring Member desires to purchase the offered Membership Interest at the Offering Price, and on the terms and conditions indicated in the ROFO Notice, which terms shall remain outstanding during the ROFO Option Period. If more than one non-transferring Member indicates interest to purchase the offered Membership Interest upon the Offering Price, on the terms and conditions as are contained in the ROFO Notice, then such Membership Interest shall be allotted between them as they shall agree, or if they are unable to agree, then in proportion to their relative Residual Percentages determined by multiplying (x) the offered Membership Interest by (y) a fraction, the numerator of which is the Residual Percentage of the exercising Member and the denominator of which is the sum of the Residual Percentages of all exercising Members. If any exercising Member fails to purchase the entire pro rata amount allotted to such Member, each remaining exercising Member shall have the right provided hereunder shall be deemed to be revived and purchase its pro rata portion of that unpurchased amount in proportion to their Residual Percentages within 15 business days of such New Securities failure to purchase. Notwithstanding the foregoing, if the non-transferring Members do not agree to purchase, in aggregate, the entire Offered Amount, the Offering Member shall not be offered unless first reoffered obligated to sell the Offered Amount to the Major Investors Members and may instead offer such amount to any third party provided such offer and sale are in accordance compliance with this Section 4.1.
all securities laws (d) The with any such offer and sale to a third party permitted only if at or above the Offering Price and containing substantially similar terms and conditions to those described in the ROFO Notice). To the extent permitted under applicable law, a Member holding Other FinTech Shares shall provide a similar right of first offer in this Section 4.1 shall not be applicable refusal to any Excluded Securities.
(e) The right of first offer the other Members as set forth in this Section 4.1 may not be assigned or transferred except that (i8.01(d) such right is assignable by each Major Investor with respect to any Affiliate transfer or sale of such Major Investorhis, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major Investors.her or its Other FinTech Shares
Appears in 1 contract
Samples: Limited Liability Company Agreement (Fintech Investor Holdings, LLC)
Right of First Offer. Subject to the terms and conditions specified in this Section 4.1, and applicable securities laws, in the event the Company proposes to offer or sell any New Securities, the Company shall first make an offering of such New Securities to each Major Investor in accordance with the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
(a) The Company If, following the Closing (but subject to Section 6.06(a)), Buyer or one of its Affiliates desires to Transfer any Subject Shares or other securities, in either case directly or indirectly constituting a controlling interest in TFHL or TFM (or their respective successors and assigns) (each a “Qualifying Transfer”), Buyer shall deliver give notice (an “Offer Notice”) to Freeport that Buyer or its applicable Affiliate desires to make such a notice Transfer and that sets forth the number and kind of Subject Shares or other securities proposed to be Transferred by Buyer or its applicable Affiliate (the “Offered Securities”), the cash price per share that Buyer or its applicable Affiliate proposes to be paid for such Offered Securities (the “Offer NoticePrice”), in accordance with the provisions of Section 6.5 hereof, to each of the Major Investors stating (i) and all other material terms sought by Buyer or its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securitiesapplicable Affiliate.
(b) By written notification received The giving of an Offer Notice to Freeport shall constitute an offer (the “Offer”) by Buyer or its applicable Affiliate to Transfer the Company, within fifteen (15) calendar days after mailing of Offered Securities to Freeport for cash at the Offer Notice, each of the Major Investors may elect to purchase or obtain, at the price Price and on the other terms specified set forth in the Offer Notice, up to that portion of such New Securities which equals the proportion that the number of shares of Registrable Securities then held by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor . Freeport shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar45-day period commencing after receipt (the “Offer Period”) in which to accept such Offer as to all, but not less than all, of the Offered Securities by giving a notice of acceptance to Buyer prior to the expiration of such informationOffer Period. If Freeport fails to so notify Buyer prior to the expiration of the Offer Period (for the avoidance of doubt, each Fully-Exercising Investor an attempt to accept an Offer under any material terms other than as set out in the Offer Notice shall be entitled deemed not to obtain that portion be an acceptance of the New Securities for which Major Investors were entitled such Offer), it shall be deemed to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by have rejected such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed sharesOffer.
(c) If Freeport elects to accept an Offer, Freeport shall purchase and pay, by wire transfer of immediately available funds to an account designated by Buyer, for all New Offered Securities referred within 20 Business Days after the date on which such Offer has been accepted; provided that, if the Transfer of such Offered Securities is subject to in the Offer Notice are not elected any prior regulatory approval, subject to be purchased or obtained as provided in subsection 4.1(b) hereofSection 6.04(d)(iii), the Company may, time period during the sixty (60) day period following which such Transfer may be consummated shall be extended until the expiration of five Business Days after all such approvals shall have been received, or until a customary drop-dead date has been reached under the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) 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 Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within definitive Contract governing such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Major Investors in accordance with this Section 4.1Transfer.
(d) The Upon the earlier to occur of (i) rejection of the Offer by Freeport, (ii) the expiration of the Offer Period without Freeport accepting the Offer, (iii) the failure to obtain any required consent or regulatory approval for the purchase of all of the Offered Securities by Freeport or (iv) the expiration of the applicable drop-dead date under the definitive Contract governing the applicable Transfer, Buyer or its applicable Affiliate shall have a 180-day period during which to effect a Transfer of any or all of the Offered Securities on the same or more favorable (as to Buyer or its applicable Affiliate) terms and conditions as were set forth in the Offer Notice at a price in cash not less than the Offer Price; provided that, if the Transfer is subject to regulatory approval, such 180-day period shall be extended until the expiration of five Business Days after all such approvals shall have been received, but in no event shall such period be extended for more than an additional 90 days. If Buyer or its applicable Affiliate does not consummate the Transfer of the Offered Securities in accordance with the foregoing time limitations, then the right of first offer Buyer or its applicable Affiliate to effect the Transfer of such Offered Securities pursuant to this Section 6.04(d) shall terminate and Buyer and its Affiliates shall again comply with the procedures set forth in this Section 4.1 shall not be applicable 6.04 with respect to any Excluded Securitiesproposed Qualifying Transfer.
(e) The right of first offer set forth in granted to Freeport pursuant to this Section 4.1 may not 6.04 shall be assigned or transferred except that (i) such right is assignable by each Major Investor subject to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the applicable right of first offer set forth in this Section 4.1 or similar right held by a shareholder of TFHL or TFM, or its Affiliates, under the TFHL JVSA or TFM Shareholders Agreement. From and after the date hereof, Buyer and its Affiliates shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of not, and shall cause the Company and its Subsidiaries not to, (i) enter into any new Contract or any other written or oral arrangement or (ii) amend, modify or otherwise alter, or waive any material rights under, any existing organizational document, Contract or any other similar written or oral arrangement, in accordance each case with respect to the terms Company or any of its Subsidiaries, including TFHL and TFM, in any manner that would adversely affect the Company’s Articles ability of Incorporation in effect at the time of such equity financing roundFreeport to exercise its rights under this Section 6.04.
(f) In lieu connection with Freeport’s consideration of complying an Offer, Buyer shall use commercially reasonable efforts to cooperate with Freeport’s reasonable requests, including by making the provisions of this Section 4.1properties, the Company may elect to give notice books and records, and other assets relating to the Major Investors within thirty Offered Securities reasonably available for inspection by Freeport, establishing a physical or electronic data room including materials customarily made available to potential acquirers in connection with sales processes and making its officers and employees reasonably available for a management presentation, due diligence calls and a site visit, in each case subject to reasonable and customary confidentiality provisions.
(30g) days after Any dispute between Freeport and Buyer as to what the issuance of New Securities. Such notice Offer Price is for any Offered Securities in any Qualifying Transfer shall describe be resolved by determining such Offer Price in the typesame manner as Transaction Price is determined pursuant to Section 6.06(c), price and terms of the New Securities. Each Major Investor which Section 6.06(c) shall have twenty (20) days from the date of receipt of apply, mutatis mutandis, to such notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major Investorsa dispute.
Appears in 1 contract
Right of First Offer. Subject The Company may elect to purchase all, but not less than all, of the Offered Securities which are the subject of the Sale Notice delivered by any Stockholder upon the same terms and conditions specified as described in this Section 4.1the Sale Notice by delivering a written notice of such election to such Transferring Stockholder within twenty (20) days after the Sale Notice has been delivered to the Company. If the Company has not elected to purchase all of the Offered Securities which are the subject of such Sale Notice, and applicable securities lawsthe Other Stockholders may, in the event aggregate, elect to purchase all, but not less than all, of the Company proposes Offered Securities which are the subject of such Sale Notice delivered by any Stockholder upon the same terms and conditions as described in the Sale Notice by delivering a written notice of such election to offer or sell any New the Transferring Stockholder within twenty (20) days after the Sale Notice has been delivered to the Other Stockholders. If more than one Other Stockholder elects to purchase the Offered Securities, the Company shall first make an offering of such New Offered Securities to each Major Investor in accordance with the following provisions of this Section 4.1. A Major Investor shall be entitled allocated among the Other Stockholders so electing on a Pro Rata Basis. If neither the Company nor the Other Stockholders elect to apportion purchase all of the right of first offer hereby granted it among itself Offered Securities specified in the Sale Notice, the Transferring Stockholder will have (y) ninety (90) days after the Authorization Date to draft, execute and its partnersdeliver definitive documentation to Transfer such Offered Securities, members and Affiliates in such proportions as it deems appropriate.
(a) The Company shall deliver a notice (the “Offer Notice”), in accordance with subject to the provisions of Section 6.5 hereof2.2(b)(ii) below, to each of the Major Investors stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, on terms and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By written notification received by the Company, within fifteen (15) calendar days after mailing of the Offer Notice, each of the Major Investors may elect to purchase or obtain, 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 number of shares of Registrable Securities then held by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, during the sixty (60) day period following the expiration of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) to any person or persons at a price not less than, and upon terms conditions no more favorable to the offeree than, transferee than those specified proposed in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or Sale Notice and (z) if such agreement documentation is not consummated within thirty so drafted, executed and delivered, sixty (3060) days of thereafter to consummate the execution thereof, Transfer. Any such Offered Securities not so Transferred by the right provided hereunder shall Transferring Stockholder during such 150 day period will again be deemed subject to be revived and such New Securities shall not be offered unless first reoffered to the Major Investors in accordance with this Section 4.1.
(d) The right of first offer in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major Investors.2.2(b)
Appears in 1 contract
Samples: Stockholders' Agreement (Classic Communications Inc)
Right of First Offer. Subject to the terms and conditions specified in this Section 4.1, and applicable securities laws, in the event the Company proposes to offer or sell any New Securities, the Company shall first make an offering of such New Securities to each Major Investor in accordance with the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
(a) The Company shall deliver Other than a notice transfer pursuant to Section 2, the Investor may transfer any of its Securities (the “Offer Notice”), in accordance with "OFFERED SECURITIES") only if the provisions of Section 6.5 hereof, to each of the Major Investors stating (i) its Investor receives a bona fide intention to offer such New Securities, from an independent third-party (iian "INDICATIVE OFFER") and causes the number of such New Securities Company to be offered, and given notice thereof (iii) a "FIRST OFFER NOTICE"). The First Offer Notice shall describe the price and terms, if any, upon which it proposes to offer such New SecuritiesIndicative Offer in reasonable detail.
(b) By written notification received by the Company, within fifteen (15) calendar days after mailing of the Offer Notice, each of the Major Investors may elect to purchase or obtain, 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 number of shares of Registrable Securities then held by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptlyhave the right, in writingexercisable by written notice (the "PURCHASE NOTICE") given to the Investor within 10 business days after the date the First Offer Notice is received, inform each Major Investor that elects to offer to purchase from the Investor all the shares available to it (each, a “Fully-Exercising Investor”but not less than all) of any other Major Investor’s failure the Securities that are the subject of the First Offer Notice on terms no less favorable to do likewisethe Investor than the terms of the Indicative Offer. During In the fifteen (15) calendar-day period commencing after receipt event that the Investor and the Company are unable to agree upon whether the terms set forth in the Purchase Notice are no less favorable than the terms of the Indicative Offer, then such information, each Fully-Exercising Investor determination shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for made in good faith by the Major Investors which is equal to independent investment banking firm selected jointly by the proportion Company and the Investor or, if that selection cannot be made within 15 days, by an independent investment banking firm selected by the number of shares of Registrable Securities then held American Arbitration Association in accordance with its rules. If given, the Purchase Notice shall constitute the irrevocable offer by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish Company to purchase such unsubscribed sharesSecurities subject only to the conditions set forth in the First Office Notice and as set forth in Section 3(c).
(c) If all New In the event the Company elects to purchase the Offered Securities, such Offered Securities referred to shall be purchased and sold in accordance with the terms set forth in the Offer Purchase Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereofno more than 15 business days after the date of the Purchase Notice. At the closing of such purchase and sale, the Investor shall deliver the Offered Securities to the Company mayin valid form for transfer with appropriate duly executed assignments, stock powers or endorsements, as the case may be, bearing any necessary documentary stamps and accompanied by such certificates of authority, consents to transfer or other instruments or evidences of good title of the Investor to the Offered Securities, free and clear of all Liens, against receipt of the purchase price therefor in cash.
(d) In the event the Company shall not elect to purchase the Offered Securities, the Investor may thereafter transfer all of the Offered Securities to a third party at any time during the sixty (60) 120-day period following the expiration of the 10 business day period provided in subsection 4.1(b) hereof, offer which the remaining unsubscribed portion of such New Securities (collectively, Company was required to send the “Refused Securities”) to any person or persons Purchase Notice at a price per share of not less than, and upon terms no more favorable to than 95% of the offeree than, those specified price per share set forth in the First Offer Notice. If the Company does not enter into an agreement for the sale Any such transfer of the New Offered Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder to a third party shall be deemed subject, with respect to be revived and such New Securities shall not be offered unless first reoffered a Sale Transaction, to the Major Investors in accordance with this Section 4.12.
(d) The right of first offer in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major Investors.
Appears in 1 contract
Right of First Offer. Subject to the terms and conditions specified in this Section 4.1, and applicable securities laws, in the event (a) If at any time the Company proposes desires to offer or sell any New SecuritiesChancellor Stock acquired pursuant to this Agreement, the Company shall first make give written notice (the "Offer Notice") to Chancellor stating (a) the number of shares of Chancellor Stock that the Company desires to sell (the "Offered Shares"), desired, (b) a price per share at which the Company wishes to sell (which shall not be more than the average of the closing sale prices, regular way, per share of Chancellor Stock on the Nasdaq Stock Market in U.S. dollars as reported in The Wall Street Journal for the ten consecutive trading days ending the trading day before the date the Offer Notice is given (the "Price"), and (c) an offering offer to sell the Offered Shares to Chancellor or Chancellor's designee at the Price.
(b) Upon receipt of such New Securities the Offer Notice, Chancellor or any person designated by Chancellor (either, the "Designated Purchaser") shall have the right to each Major Investor purchase all (but not less than all) of the Offered Shares at the Price in accordance with the following provisions provisions. Chancellor may exercise the right to purchase only by giving written notice (the "Acceptance Notice") to the Company no later than ten business days after delivery of this Section 4.1the Offer Notice. A Major Investor The Acceptance Notice shall (i) state that the Designated Purchaser (who shall be entitled to apportion identified by name in the right of first Acceptance Notice, whether or not it is Chancellor) accepts the Company's offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.for the Designated Purchaser
(ac) The At the closing, the Designated Purchaser's purchase of the Offered Shares shall be completed on the following terms and conditions:
(i) the Company shall deliver a notice to the Designated Purchaser duly executed and acknowledged stock powers conveying the Offered Shares to the Designated Purchaser free and clear of all Liens (other than those created by the “Offer Notice”Designated Purchaser), in accordance with the provisions of Section 6.5 hereof, to each of the Major Investors stating (i) its bona fide intention to offer such New Securities, ;
(ii) the Designated Purchaser shall pay the Company in legal currency of the United States, by wire transfer in federal (same day) funds to the account or accounts that the Company designates, the purchase price for the Offered Shares in an amount equal to the product of the Price multiplied by the number of such New Securities to be offered, and Offered Shares; and
(iii) the price Company and terms, if any, upon which it proposes to offer such New Securities.
(b) By written notification received by the Company, within fifteen (15) calendar days after mailing Designated Purchaser shall each pay 50% of the Offer Noticetransfer, each stamp, or similar taxes (but not state or federal income taxes of the Major Investors may elect to purchase or obtain, at other person) due in connection with the price and on conveyance of the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the number of shares of Registrable Securities then held by such Major Investor bears Offered Shares to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, during the sixty (60) day period following the expiration of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) 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 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 Major Investors in accordance with this Section 4.1Designated Purchaser.
(d) The right If Chancellor does not give a valid Acceptance Notice within the time period required under Section 7.1(b), or if Chancellor gives a valid Acceptance Notice but the Designated Purchaser fails for any reason (other than default by the Company) to close the purchase of first offer the Offered Shares within the time period specified in Section 7.1(c), then the Company may sell the Offered Shares to a third party subject to satisfaction of the following conditions: (i) if the Offered Shares are sold in a public transaction across a stock exchange or inter-dealer quotation system that is not a directed or block trade to a specific buyer, the price at which the Offered Shares are sold shall be the market price (whether or not lower than the Price); (ii) if the Offered Shares are sold otherwise than as stated in the preceding clause (i), the price shall be equal to or greater than the Price; (iii) all the Offered Shares are sold; and (iv) the sale of all the Offered Shares is completed no later than 45 days (if Chancellor failed to give a valid Acceptance Notice) or 90 days (if Chancellor gave a valid Acceptance Notice but the Designated Purchaser failed to timely close the purchase of the Offered Shares) following the day on which the Offer Notice is given. If the Designated Purchaser is not Chancellor, Chancellor shall have no liability for any failure of the Designated Purchaser to close the purchase of the Offered Shares as specified in this Section 4.1 shall not be applicable to any Excluded Securities7.1.
(e) The right If the Company determines to proceed with a sale that does not meet the requirements of first clause (d) of this Section, the Company shall re-offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose corresponding shares of Preferred Chancellor Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company Chancellor in accordance with the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership position, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major InvestorsSection.
Appears in 1 contract
Samples: Stock Purchase and Merger Agreement (Chancellor Media Corp of Los Angeles)
Right of First Offer. For the period of 180 days from the date of this Agreement, Stockholder may sell at the market price on the date of such sale up to 3,000,000 shares of the Owned Shares (the "Subject Shares"), in one or more sales, to any person, other than a person that Parent reasonably deems to be member of the medical device industry if such sale is pursuant to clause (b)(i) of this Section 7.03, subject to the following conditions (a "Third Party Sale"): (a) Stockholder shall first offer to sell the Subject Shares to Parent and Purchaser by written notice evidencing the terms and conditions specified in this Section 4.1of such offer before Stockholder effects any Third Party Sale, and applicable securities lawsif Parent or Purchaser accepts such offer within 5 business days of receipt thereof, in the event the Company proposes to offer Stockholder shall sell, and Parent or sell any New SecuritiesPurchaser shall purchase, the Company shall first make an offering of Subject Shares upon such New Securities to each Major Investor in accordance with terms and conditions as promptly as practicable after such acceptance, provided, if the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion market price for such Subject Shares declines by more than 5% after the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
(a) The Company shall deliver a notice (the “Offer Notice”), in accordance with the provisions of Section 6.5 hereof, to each date of the Major Investors stating notice and prior to purchase by Parent or Purchaser, Stockholder may rescind the offer and shall have no obligation to sell the Subject Shares to Parent or Purchaser pursuant to the offer, or (ib) its bona fide intention to if Parent or Purchaser does not accept such offer such New Securitieswithin 5 business days, (ii) the number of such New Securities to be offered, and (iii) Stockholder may effect a Third Party Sale so long as the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By written notification received by the Company, within fifteen (15) calendar days after mailing of the Offer Notice, each of the Major Investors may elect to purchase or obtain, at the price other terms and on the terms specified in the Offer Notice, up to that portion conditions of such New Securities which equals the proportion that the number of shares of Registrable Securities then held by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) If all New Securities referred to in the Offer Notice Third Party Sale are not elected to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, during the sixty (60) day period following the expiration of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) to any person or persons at a price not less than, and upon terms no more favorable to the offeree than, such person than those specified in the 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 offered to be revived Parent and such New Securities shall not be offered unless first reoffered to the Major Investors Purchaser in accordance with this Section 4.1.
clause (da) The right of first offer in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that above and either (i) such right is assignable by each Major Investor person has agreed to execute an agreement reasonably satisfactory to Parent pursuant to which such person shall participate in, vote for or otherwise support any Affiliate exercise of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company Option in accordance with the terms and conditions hereof or (ii) such Subject Shares are sold in a brokered transaction in the over-the-counter market for shares of Common Stock; provided, that, in each case, any Third Party Sale at the then current over-the-counter market price for the Subject Shares shall not be deemed to be more favorable to such person. Notwithstanding anything to the contrary in this Section 7.03, Stockholder shall not, in any event, sell any Owned Shares to any person if such Third Party Sale, alone or together with any other sales by the Controlling Stockholders, would cause the combined ownership of capital stock of the Company’s Articles of Incorporation in effect at Company by the time Controlling Stockholders, Parent and Purchaser to be less than 52% of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms of the New Securities. Each Major Investor shall have twenty (20) days from the date of receipt of such notice to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage ownership positioncapital stock, calculated as set forth in subsection 4.1(b) prior to giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date of notice to the Major Investorson a Fully Diluted Basis.
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Right of First Offer. Subject to the terms and conditions specified in this Section 4.1, and applicable securities laws, in In the event a Member desires to Transfer all or any part of its Interest, such Members (the Company proposes to offer or sell any New Securities, the Company “Selling Member”) shall first make an offering of such New Securities to each Major Investor in accordance with the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
(a) The Company shall deliver a written notice (the “Offer Section 11.1 Notice”) to the other Member (the “Second Member”), in accordance with which notice shall specify the provisions of Section 6.5 hereof, to each of the Major Investors stating (i) its bona fide intention to offer such New Securities, (ii) the 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 written notification received by the Company, within fifteen (15) calendar days after mailing of the Offer Notice, each of the Major Investors may elect to purchase or obtain, 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 number of shares of Registrable Securities then held by such Major Investor bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor shall have no right to purchase any such New Securities if such Investor cannot demonstrate to the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) If all New Securities referred to in the Offer Notice are not elected Selling Member’s Interest to be purchased or obtained as provided in subsection 4.1(b) hereof, the Company may, during the sixty sold (60) day period following the expiration of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused SecuritiesOffered Interest”) 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 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 Major Investors in accordance with this Section 4.1.
(d) The right of first offer in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within Within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms its receipt of the New Securities. Each Major Investor Section 11.1 Notice, the Second Member shall have twenty (20) days from the date of receipt of such notice right to elect offer to purchase up to (the number of New Securities that would“First Offer”) all, if purchased by but not less than all, the Offered Interest at a price payable only in cash (the “First Offer Price”) and on such Major Investor, maintain such Major Investor’s percentage ownership position, calculated other terms and conditions as shall be set forth in subsection 4.1(bthe First Offer. Within thirty (30) prior days after its receipt of the First Offer, the Selling Members shall either accept or reject the First Offer. If the Selling Member accepts the First Offer, the Selling Member shall sell, and the Second Member shall purchase, the Offered Interest at a closing to giving effect to the issuance of such New Securities. The closing of such sale shall occur within be held at a time not later than sixty (60) days (or such longer period, if any, pending any necessary Regulatory Approval or removal of Liens) after the Selling Member’s acceptance of the date First Offer and at such location as may be mutually agreed upon, at which time the Offered Interest shall be delivered, free and clear of notice all Liens which may have been imposed on the Offered Interest and are not connected with the financing or operation of the Company itself, against payment of the First Offer Price. In order to comply with applicable regulatory requirements, the purchasing Member may designate (i) a third party to purchase any portion of the Offered Interest which the purchasing Member has committed to purchase hereunder if the Offered Interest constitutes all of the Selling Member’s equity and debt interest in the Company, or (ii) a third party reasonably acceptable to the Major InvestorsSelling Member to purchase any portion of the Offered Interest which the purchasing Member has committed to purchase hereunder if the Offered Interest constitutes less than all of the Selling Member’s equity and debt interest in the Company. If the Selling Member rejects or does not timely accept the First Offer, then the Selling Member shall have one hundred and twenty (120) days (or such longer period, if any, required to obtain any necessary Regulatory Approval or to remove any Liens) following such rejection within which to consummate the sale of the Offered Interest at a price per share in cash greater than the First Offer Price and in all other respects upon terms and conditions no less favorable than those specified in the First Offer. If no such sale occurs within such 120-day period (or longer period as described above), the Offered Interest shall again be subject to all of the restrictions set forth in this Section 11.1(b).
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Right of First Offer. Subject to the terms and conditions specified in this Section 4.1, and applicable securities laws, in In the event a Member desires to Transfer all or any part of its Interest, such Members (the Company proposes to offer or sell any New Securities, the Company "Selling Member") shall first make an offering of such New Securities to each Major Investor in accordance with the following provisions of this Section 4.1. A Major Investor shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
(a) The Company shall deliver a written notice (the “Offer "Section 11.1 Notice”), in accordance with the provisions of Section 6.5 hereof, to each of the Major Investors stating (i") its bona fide intention to offer such New Securities, (ii) the 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 written notification received by the Company, within fifteen (15) calendar days after mailing of the Offer Notice, each of the Major Investors may elect to purchase or obtain, 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 number of shares of Registrable Securities then held by such Major Investor bears to the total number of shares of Common Stock of other Member (the Company then outstanding (assuming full conversion and exercise of all convertible or exercisable securities and exercise in full of all outstanding options and warrants); provided, however, that such Major Investor "Second Member") which notice shall have no right to purchase any such New Securities if such Investor cannot demonstrate to specify the Company’s reasonable satisfaction that such Investor is, at the time of the proposed issuance of such New Securities, an “accredited investor” as defined in Regulation D under the Securities Act. The Company shall promptly, in writing, inform each Major Investor that elects to purchase all the shares available to it (each, a “Fully-Exercising Investor”) of any other Major Investor’s failure to do likewise. During the fifteen (15) calendar-day period commencing after receipt of such information, each Fully-Exercising Investor shall be entitled to obtain that portion of the New Securities for which Major Investors were entitled to subscribe but which were not subscribed for by the Major Investors which is equal to the proportion that the number of shares of Registrable Securities then held by such Fully-Exercising Investor bears to the total number of shares of Registrable Securities then held by all Fully-Exercising Investors who wish to purchase such unsubscribed shares.
(c) If all New Securities referred to in the Offer Notice are not elected Selling Member's Interest to be purchased or obtained as provided in subsection 4.1(b) hereof, sold (the Company may, during the sixty (60) day period following the expiration of the period provided in subsection 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) 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 Offer Notice"Offered Interest"). 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 Major Investors in accordance with this Section 4.1.
(d) The right of first offer in this Section 4.1 shall not be applicable to any Excluded Securities.
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such right is assignable by each Major Investor to any Affiliate of such Major Investor, and (ii) such right is assignable by any Major Investor to any other Major Investor. Notwithstanding the foregoing, it is acknowledged and agreed that the right of first offer set forth in this Section 4.1 shall not be available to any Investor whose shares of Preferred Stock were mandatorily converted into Common Stock for failure to participate in an equity financing round of the Company in accordance with the terms of the Company’s Articles of Incorporation in effect at the time of such equity financing round
(f) In lieu of complying with the provisions of this Section 4.1, the Company may elect to give notice to the Major Investors within Within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price and terms its receipt of the New Securities. Each Major Investor Section 11.1 Notice, the Second Member shall have twenty (20) days from the date of receipt of such notice right to elect offer to purchase up to (the number of New Securities that would"First Offer") all, if purchased by but not less than all, the Offered Interest at a price payable only in case (the "First Offer Price") and on such Major Investor, maintain such Major Investor’s percentage ownership position, calculated other terms and conditions as shall be set forth in subsection 4.1(bthe First Offer. Within thirty (30) prior days after its receipt of the First Offer, the Selling Members shall either accept or reject the First Offer. If the Selling Member accepts the First Offer, the Selling Member shall sell, and the Second Member shall purchase, the Offered Interest at a closing to giving effect to the issuance of such New Securities. The closing of such sale shall occur within be held at a time not later than sixty (60) days (or such longer period, if any, pending any necessary Regulatory Approval or removal of Liens) after the Selling Member's acceptance of the date First Offer and at such location as may be mutually agreed upon, at which time the Offered Interest shall be delivered, free and clear of notice all Liens which may have been imposed on the Offered Interest and are not connected with the financing or operation of the Company itself, against payment of the First Offer Price. In order to comply with applicable regulatory requirements, the purchasing Member may designate (i) a third party to purchase any portion of the Offered Interest which the purchasing Member has committed to purchase hereunder if the Offered Interest constitutes all of the Selling Member's equity and debt interest in the Company, or (ii) a third party reasonably acceptable to the Major InvestorsSelling Member to purchase any portion of the Offered Interest which the purchasing Member has committed to purchase hereunder if the Offered Interest constitutes less than all of the Selling Member's equity and debt interest in the Company. If the Selling Member rejects or does not timely accept the First Offer, then the Selling Member shall have one hundred and twenty (120) days (or such longer period, if any, required to obtain any necessary Regulatory Approval or to remove any Liens) following such rejection within which to consummate the sale of the Offered Interest at a price per share in cash greater than the First Offer Price and in all other respects upon terms and conditions no less favorable than those specified in the First Offer. If no such sale occurs within such 120-day period (or longer period as described above), the Offered Interest shall again be subject to all of the restrictions set forth in this Section 11.1(b).
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