Right of Participation. The Company acknowledges and agrees that the right set forth in this Section 5(j) is a right granted by the Company, separately, to each Subscriber. (i) At least five (5) trading days prior to any proposed or intended sale by the Company of its Common Stock or other securities or equity linked debt obligations (each, a “Subsequent Placement”), the Company shall deliver to each Subscriber a written notice of its proposal or intention to effect a Subsequent Placement (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) a statement that the Company proposes or intends to effect a Subsequent Placement, (B) a statement that the statement in clause (A) above does not constitute material, non-public information and (C) a statement informing such Subscriber that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Subscriber within five (5) business days after the Company’s delivery to such Subscriber of such Pre-Notice, and only upon a written request by such Subscriber, the Company shall promptly, but no later than one (1) business day after such request, deliver to such Subscriber an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (I) identify and describe the Offered Securities, (II) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (III) identify the persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (IV) offer to issue and sell to or exchange with such Subscriber in accordance with the terms of the Offer such Subscriber’s pro rata portion of 100% of the Offered Securities, provided that the number of Offered Securities which such Subscriber shall have the right to subscribe for under this Section 5(j) shall be (x) based on such Subscriber’s pro rata portion of the aggregate original amount of the Units purchased hereunder by all Subscribers (the “Basic Amount”), and (y) with respect to each Subscriber that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Subscribers as such Subscribers shall indicate it will purchase or acquire should the other Subscribers subscribe for less than their Basic Amounts (the “Undersubscription Amount”). (ii) To accept an Offer, in whole or in part, such Subscriber must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such Subscriber’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such Subscriber’s Basic Amount that such Subscriber elects to purchase and, if such Subscriber shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Subscriber elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Subscribers are less than the total of all of the Basic Amounts, then such Subscriber who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), such Subscriber who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Subscriber bears to the total Basic Amounts of all Subscribers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Subscriber a new Offer Notice and the Offer Period shall expire on the fifth(5th) Business Day after such Subscriber’s receipt of such new Offer Notice. (iii) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Subscriber (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring person or persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (I) the execution of such Subsequent Placement Agreement, and (II) either (x) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (y) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 8-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto. (iv) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 5(j)(iii) above), then such Subscriber may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Subscriber elected to purchase pursuant to Section 5(j)(ii)1(a)(ii) above multiplied by a fraction, (A) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Subscribers pursuant to this Section 5(j) prior to such reduction) and (B) the denominator of which shall be the original amount of the Offered Securities. In the event that any Subscriber so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Subscribers in accordance with Section 5(j)(i) above. (v) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Subscriber shall acquire from the Company, and the Company shall issue to such Subscriber, the number or amount of Offered Securities specified in its Notice of Acceptance. The purchase by such Subscriber of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Subscriber of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Subscriber and its counsel. (vi) Any Offered Securities not acquired by a Subscriber or other persons in accordance with this Section 5(j) may not be issued, sold or exchanged until they are again offered to such Subscriber under the procedures specified in this Agreement. (vii) The Company and each Subscriber agree that if any Subscriber elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Subscriber shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company. (viii) Notwithstanding anything to the contrary in this Section 5(j) and unless otherwise agreed to by such Subscriber, the Company shall either confirm in writing to such Subscriber that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Subscriber will not be in possession of any material, non-public information, by the fifth (5th) business day following delivery of the Offer Notice. If by such fifth (5th) business day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such Subscriber, such transaction shall be deemed to have been abandoned and such Subscriber shall not be in possession of any material, non-public information with respect to the Company or any of its subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Subscriber with another Offer Notice in accordance with, and subject to, the terms of this Section 5(j) and such Subscriber will again have the right of participation set forth in this Section 5(j) The Company shall not be permitted to deliver more than one such Offer Notice to such Subscriber in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 5(j)(ii). The Right of Participation set forth in this Section 5(j) shall terminate on the twenty four month anniversary of the Closing Date.
Appears in 3 contracts
Samples: Subscription Agreement (Majesco Entertainment Co), Subscription Agreement (Majesco Entertainment Co), Subscription Agreement (Majesco Entertainment Co)
Right of Participation. The Until the one year anniversary of the Final Closing, except in connection with the issuance of securities associated with (i) shares issued to officers, directors or employees of or consultants of the Company pursuant to any compensation agreement, plan or arrangement (ii) the issuance of Common Stock upon the exercise of any such options or warrants, provided such securities were issued prior to the date hereof, (iii) pursuant to a stock option plan that was approved by the board of directors and/or the stockholders of the Company or; (iv) issued for consideration other than cash pursuant to a merger, consolidation, acquisition, or similar business combination approved by the Company’s Board of Directors; (“Excepted Issuances”), the Subscriber, shall have the right to participate in subsequent issuances by the Company of its debt, equity and/or other securities (each a “Subsequent Placement”) in accordance with this Section 5.4 (the “Right of Participation”). Subscriber acknowledges and agrees that the right Placement Agent has agreed to assist the Company with managing the Right of Participation process set forth in this Section 5(j) is a right granted 5.4, and Subscriber acknowledges that the Placement Agent’s delivery of notices and other documents under this Section 5.4 on behalf of the Company shall be deemed to constitute delivery by the Company, separately, to each Subscriber.
(i) At least five (5) trading days prior to any proposed or intended sale by the Company of its Common Stock or other securities or equity linked debt obligations (each, a “Subsequent Placement”), the Company shall deliver to each Subscriber a written notice of its proposal or intention to effect a Subsequent Placement (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (Ai) a statement that the Company proposes or intends to effect a Subsequent Placement, (Bii) a statement that the statement in clause (Ai) above does not constitute material, non-public information and (Ciii) a statement informing such Subscriber that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Subscriber within five three (53) business trading days after the Company’s delivery to such Subscriber of such Pre-Notice, and only upon a written request by such Subscriber, the Company shall promptly, but no later than one (1) business day Trading Day after such request, deliver to such Subscriber an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (Iw) identify and describe the Offered Securities, (IIx) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (IIIy) identify the persons Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (IVz) offer to issue and sell to or exchange with such Subscriber in accordance with the terms of the Offer such Subscriber’s pro rata portion of 100% all of the Offered Securities, provided that the number of Offered Securities which such Subscriber shall have the right to subscribe for under this Section 5(j) 5.4 shall be (xa) based on such Subscriber’s pro rata portion of the aggregate original amount number of shares of Common Stock purchased under the Units purchased hereunder Offering by all Subscribers (the “Basic Amount”), and (yb) with respect to each Subscriber that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Subscribers as such Subscribers Subscriber shall indicate it will purchase or acquire should the other Subscribers subscribe for less than their Basic Amounts (the “Undersubscription Amount”).
(ii) To accept an Offer, in whole or in part, such Subscriber must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such Subscriber’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such Subscriber’s Basic Amount that such Subscriber elects to purchase and, if such Subscriber shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Subscriber elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Subscribers are less than the total of all of the Basic Amounts, then such Subscriber who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), such Subscriber who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Subscriber bears to the total Basic Amounts of all Subscribers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Subscriber a new Offer Notice and the Offer Period shall expire on the fifth(5thfifth (5th) Business Day after such Subscriber’s receipt of such new Offer Notice.
(iii) The Company shall have five (5) Business Days business days from the expiration of the Offer Period above (Ai) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Subscriber (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring person Person or persons Persons or less favorable to the Company than those set forth in the Offer Notice and (Bii) to publicly announce (Ia) the execution of such Subsequent Placement Agreement, and (IIb) either (x) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (y) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 8-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(iv) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 5(j)(iii5.4 (iii) above), then such Subscriber may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Subscriber elected to purchase pursuant to Section 5(j)(ii)1(a)(ii5.4(ii) above multiplied by a fraction, (Ai) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Subscribers pursuant to this Section 5(j) 5.4 prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Subscriber so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Subscribers in accordance with Section 5(j)(i5.4(i) above.
(v) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Subscriber shall acquire from the Company, and the Company shall issue to such Subscriber, the number or amount of Offered Securities specified in its Notice of Acceptance. The purchase by such Subscriber of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Subscriber of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Subscriber and its counsel.
(vi) Any Offered Securities not acquired by a Subscriber or other persons Persons in accordance with this Section 5(j) 5.4 may not be issued, sold or exchanged until they are again offered to such Subscriber under the procedures specified in this Agreement.
(vii) The Company and each Subscriber agree that if any Subscriber elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Subscriber shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, waiver or release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(viii) Notwithstanding anything to the contrary in this Section 5(j) 5.4 and unless otherwise agreed to by such Subscriber, the Company shall either confirm in writing to such Subscriber that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Subscriber will not be in possession of any material, non-public information, by the fifth (5th) business day following delivery of the Offer Notice. If by such fifth (5th) business day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such Subscriber, such transaction shall be deemed to have been abandoned and such Subscriber shall not be in possession of any material, non-public information with respect to the Company or any of its subsidiariesSubsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Subscriber with another Offer Notice in accordance with, and subject to, the terms of this Section 5(j) and such Subscriber will again have the right of participation set forth in this Section 5(j) 5.4. The Company shall not be permitted to deliver more than one such Offer Notice to such Subscriber in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 5(j)(ii5.4(ii). The Right of Participation set forth in this Section 5(j) shall terminate on the twenty four month anniversary of the Closing Date.
Appears in 3 contracts
Samples: Subscription Agreement (Socialwise, Inc. (Formerly Known as IdeaEdge, Inc)), Subscription Agreement (Socialwise, Inc. (Formerly Known as IdeaEdge, Inc)), Subscription Agreement (Socialwise, Inc. (Formerly Known as IdeaEdge, Inc))
Right of Participation. The Company acknowledges Subject to the terms and agrees that the right set forth in conditions of this Section 5(j) is a right granted by the CompanySubsection 4.1 and applicable securities laws, separately, to each Subscriber.
(i) At least five (5) trading days prior to any proposed or intended sale by if the Company of its Common Stock proposes to offer or other securities or equity linked debt obligations (each, a “Subsequent Placement”)sell any New Securities, the Company shall deliver allow each Investor to each Subscriber purchase a written notice portion of such New Securities to the extent set forth in Subsection 4.1 (b). An Investor shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate, among (i) itself, (ii) its proposal Affiliates and (iii) its beneficial interest holders, such as limited partners, members or intention to effect a Subsequent Placement any other Person having “beneficial ownership,” as such term is defined in Rule 13d-3 promulgated under the Exchange Act, of such Investor (“Investor Beneficial Owners”); provided that each such noticeAffiliate or Investor Beneficial Owner (x) is not a Competitor, a unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, and (y) agrees to enter into, at the time any New Securities are acquired by such Person, this Agreement and the Right of Co-Sale and Voting Agreement of even date herewith among the Company, the Investors and the other parties named therein (the “PreCo-NoticeSale Agreement”), which Pre-Notice ) as an “Investor” and “Holder” under each such agreement (provided that any Competitor shall not contain be entitled to any information rights as an Investor under Subsections 3.1, 3.2 and 4.1 hereof).
(including, without limitation, material, non-public informationa) other than: (A) a statement that In the event the Company proposes or intends to effect a Subsequent Placement, (B) a statement that the statement in clause (A) above does not constitute material, non-public information and (C) a statement informing such Subscriber that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Subscriber within five (5) business days after the Company’s delivery to such Subscriber of such Pre-Notice, and only upon a written request by such Subscriberissue any New Securities, the Company shall promptly, but no later than one (1) business day after such request, deliver to such Subscriber an irrevocable written give notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange to each Investor, stating (the “Offer”i) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (I) identify and describe the Offered its bona fide intention to offer such New Securities, (IIii) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered such New Securities to be issued, sold or exchanged, (III) identify the persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (IViii) offer to issue the price and sell to or exchange with such Subscriber in accordance with the terms of the Offer such Subscriber’s pro rata portion of 100% of the Offered Securities, provided that the number of Offered Securities which such Subscriber shall have the right to subscribe for under this Section 5(j) shall be (x) based on such Subscriber’s pro rata portion of the aggregate original amount of the Units purchased hereunder by all Subscribers (the “Basic Amount”), and (y) with respect to each Subscriber that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Subscribers as such Subscribers shall indicate it will purchase or acquire should the other Subscribers subscribe for less than their Basic Amounts (the “Undersubscription Amount”).
(ii) To accept an Offer, in whole or in part, such Subscriber must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such Subscriber’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such Subscriber’s Basic Amount that such Subscriber elects to purchase and, if such Subscriber shall elect to purchase all of its Basic Amount, the Undersubscription Amountmaterial terms, if any, that upon which it proposes to offer such Subscriber elects New Securities.
(b) By written notification to purchase the Company within fifteen (in either case15) days after the Offer Notice is given, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Subscribers are less than the total of all of the Basic Amounts, then such Subscriber who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled each Investor may elect to purchase, in addition to at the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), such Subscriber who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Subscriber bears to the total Basic Amounts of all Subscribers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Subscriber a new Offer Notice and the Offer Period shall expire on the fifth(5th) Business Day after such Subscriber’s receipt of such new Offer Notice.
(iii) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Subscriber (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring person or persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (I) the execution of such Subsequent Placement Agreement, and (II) either (x) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (y) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 8-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(iv) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner price and on the terms specified in Section 5(j)(iiithe Offer Notice, up to that portion of such New Securities that equals the proportion that the Common Stock then held by such Investor (including all shares of Common Stock then issuable (directly or indirectly) above)upon conversion and/or exercise, as applicable, of any Derivative Securities then held by such Subscriber may, at its sole option and in its sole discretion, reduce Investor) bears to the number or amount total Common Stock of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Subscriber elected to purchase pursuant to Section 5(j)(ii)1(a)(ii) above multiplied by a fractionCompany then outstanding (assuming full conversion and/or exercise, (A) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issueas applicable, sell or exchange (including Offered Securities to be issued or sold to Subscribers pursuant to this Section 5(j) prior to such reduction) and (B) the denominator of which shall be the original amount of the Offered Securities. In the event that any Subscriber so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Subscribers in accordance with Section 5(j)(i) above.
(v) Upon the closing of the issuance, sale or exchange of all or less than all Derivative Securities). Any Investor that does not provide written notice of the Refused Securities, election within such Subscriber fifteen (15) day period shall acquire from the Company, and the Company shall issue to such Subscriber, the number or amount of Offered Securities specified in its Notice of Acceptance. The purchase by such Subscriber of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Subscriber of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Subscriber and its counsel.
(vi) Any Offered Securities not acquired by a Subscriber or other persons in accordance with this Section 5(j) may not be issued, sold or exchanged until they are again offered to such Subscriber under the procedures specified in this Agreement.
(vii) The Company and each Subscriber agree that if any Subscriber elects to participate in the Offer, neither the Subsequent Placement Agreement have no further rights with respect to such Offer nor issuance of New Securities, At the expiration of such fifteen (15) day period, the Company shall promptly notify each Investor that elected to purchase all the shares available to it (each, a “Fully Exercising Investor”) of any other transaction documents related thereto Investor’s failure to do likewise. During the five (collectively5) day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the “Subsequent Placement Documents”Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which Investors were entitled to subscribe but that were not subscribed for by the Investors which is equal to the proportion that the Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of any Derivative Securities then held, by such Fully Exercising Investor bears to the Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of any Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Subsection 4.1(b) shall include any term or provision whereby such Subscriber shall be required to agree to any restrictions on trading as to any securities occur within the later of ninety (90) days of the Company or be required date that the Offer Notice is given and the date of initial sale of New Securities pursuant to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(viii) Subsection 4.1(c). Notwithstanding anything to the contrary set forth herein, in this Section 5(jlieu of New Securities which are voting securities of the Company; an Investor may elect to acquire non-voting securities of the Company with the same rights, preference and terms as such New Securities (other than with respect to voting).
(c) and unless otherwise agreed If all New Securities referred to by such Subscriberin the Offer Notice are not elected to be purchased or acquired as provided in Subsection 4.1(b), the Company shall either confirm may, during the ninety (90) day period following the expiration of the periods provided in writing Subsection 4.1(b), offer and sell the remaining unsubscribed portion of such New Securities to such Subscriber that the transaction with respect any Person or Persons at a price not less than, and upon terms no more favorable to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securitiesofferee than, those specified in either case, in such a manner such that such Subscriber will not be in possession of any material, non-public information, by the fifth (5th) business day following delivery of the Offer Notice. If by the Company does not enter into an agreement for the sale of the New Securities within such fifth period, or if such agreement is not consummated within thirty (5th30) business daydays of the execution thereof, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such Subscriber, such transaction right provided hereunder shall be deemed to have been abandoned be revived and such Subscriber New Securities shall not be in possession of any material, non-public information with respect offered unless first reoffered to the Company or Investors in accordance with this Subsection 4.1.
(d) The right of first offer in this Subsection 4.1 shall not be applicable to (i) Exempted Securities; (ii) shares of Common Stock issued in the IPO; and (iii) in connection with any expedited issuance of its subsidiaries. Should New Securities undertaken at the Company decide to pursue written direction of an applicable bank regulatory authority (an “Expedited Issuance”); provided that following consummation of such transaction with respect to the Offered SecuritiesExpedited Issuance, the Company shall provide such Subscriber then comply with another Offer Notice in accordance with, and subject to, the terms provisions of this Section 5(j) 4.1 and allow each Investor to purchase up to that number of additional New Securities to enable such Subscriber will again have Investor to maintain its percentage interest in the right Company (calculated as of participation set forth in this Section 5(j) The Company shall not be permitted to deliver more than one such Offer Notice immediately prior to such Subscriber Expedited Issuance), and the sale of any such additional New Securities to the Investors shall be consummated as promptly as is practicable but in any sixty event no later than ninety (6090) day period, except as expressly contemplated by days subsequent to the last sentence of Section 5(j)(ii). The Right of Participation set forth in this Section 5(j) shall terminate date on which the twenty four month anniversary of Company consummates the Closing DateExpedited Issuance.
Appears in 2 contracts
Samples: Registration and Other Rights Agreement (Live Oak Bancshares, Inc.), Registration and Other Rights Agreement (Live Oak Bancshares, Inc.)
Right of Participation. The Company acknowledges and agrees that Until twenty four (24) months following the right set forth in this Section 5(j) is a right granted by Closing Date, the Company, separately, to each Subscriber.
(i) At least Subscribers hereunder shall be given not less than five (5) trading days prior to written notice of any proposed or intended sale (the “Offering Notice”) by the Company of its Common Stock or other securities or equity linked debt obligations (each, a “Subsequent PlacementOther Offering”). Notwithstanding the foregoing, at least five (5) days prior to the Company’s delivery of the Offering Notice to the Subscribers, the Company shall deliver to each Subscriber a written notice of its proposal or intention “pre-notification” allowing the Subscribers to effect a Subsequent Placement elect to receive potential material non-public information (each such notice, a the “Pre-NoticeNotification”), which Pre-Notice shall not contain any information (including, without limitation, material, . If the Subscribers elect to receive such material non-public information) other than: (A) a statement that , which, for the Company proposes avoidance of doubt, such information shall not be included or intends to effect a Subsequent Placement, (B) a statement that described in the statement in clause (A) above does not constitute material, non-public information and (C) a statement informing such Subscriber that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Subscriber within five (5) business days after the Company’s delivery to such Subscriber of such Pre-Notice, and only upon a written request by such SubscriberNotification, the Company shall promptlydeliver the Offering Notice pursuant to the first sentence of this Section 2(g). If Subscribers elect to exercise their rights pursuant to this Section 2(g), but no later than one the Subscribers shall have the right during the ten (110) business day after such request, deliver to such Subscriber an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) days following receipt of the notice, to purchase in the aggregate up to all of such offered Common Stock, debt or other securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (I) identify and describe the Offered Securities, (II) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (III) identify the persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (IV) offer to issue and sell to or exchange with such Subscriber in accordance with the terms and conditions set forth in the notice of sale, relative to each other in proportion to the amount of Units issued to them as of the Offer Closing Date. Subscribers who participate in such Subscriber’s pro rata portion Other Offering shall be entitled at their option to purchase, in proportion to each other, the amount of 100% such Other Offering that could have been purchased by Subscribers who do not exercise their rights hereunder until up to the entire Other Offering is purchased by Subscribers. In the event such terms and conditions are modified during the notice period, Subscribers shall be given prompt notice of the Offered Securities, provided that the number of Offered Securities which such Subscriber modification and shall have the right during the five (5) days following the notice of modification to subscribe for under this Section 5(j) shall be (x) based on exercise such right. Notwithstanding anything herein to the contrary, to the extent that the Subscriber’s pro rata portion rights pursuant to any Other Offering would result in the Subscriber exceeding the Subscriber’s ownership limitations as set forth in any of the aggregate original amount of Securities, then the Units purchased hereunder by all Subscribers Subscriber shall not be entitled to participate in such Other Offering rights to such extent (the “Basic Amount”), and (y) with respect to each Subscriber that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Subscribers as such Subscribers shall indicate it will purchase or acquire should the other Subscribers subscribe for less than their Basic Amounts (the “Undersubscription Amount”).
(ii) To accept an Offer, in whole or in part, the beneficial ownership of any shares of Common Stock as a result of such Subscriber must deliver a written notice adjustment to the Company prior to the end of the fifth (5thsuch extent) Business Day after such Subscriber’s receipt of the Offer Notice (the “Offer Period”), setting forth and the portion of such right of participation shall be held in abeyance for the benefit of the Subscriber until such time, if ever, as its right thereto would not result in the Subscriber exceeding the maximum limitations of the Subscriber’s Basic Amount that such Subscriber elects to purchase andownership, if such Subscriber shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Subscriber elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Subscribers are less than the total of all of the Basic Amounts, then such Subscriber who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), such Subscriber who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Subscriber bears to the total Basic Amounts of all Subscribers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Subscriber a new Offer Notice and the Offer Period shall expire on the fifth(5th) Business Day after such Subscriber’s receipt of such new Offer Notice.
(iii) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Subscriber (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring person or persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (I) the execution of such Subsequent Placement Agreement, and (II) either (x) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (y) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 8-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(iv) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 5(j)(iii) above), then such Subscriber maySecurities, at its sole option and in its sole discretion, reduce which time the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Subscriber elected to purchase pursuant to Section 5(j)(ii)1(a)(ii) above multiplied by a fraction, (A) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Subscribers pursuant to this Section 5(j) prior to such reduction) and (B) the denominator of which shall be the original amount of the Offered Securities. In the event that any Subscriber so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Subscribers in accordance with Section 5(j)(i) above.
(v) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Subscriber shall acquire from the Company, and the Company shall issue to such Subscriber, the number or amount of Offered Securities specified in its Notice of Acceptance. The purchase by such Subscriber of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Subscriber of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Subscriber and its counsel.
(vi) Any Offered Securities not acquired by a Subscriber or other persons in accordance with this Section 5(j) may not be issued, sold or exchanged until they are again offered to such Subscriber under the procedures specified in this Agreement.
(vii) The Company and each Subscriber agree that if any Subscriber elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Subscriber shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(viii) Notwithstanding anything granted such right to the contrary in this Section 5(j) and unless otherwise agreed to by same extent as if there had been no such Subscriber, the Company shall either confirm in writing to such Subscriber that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Subscriber will not be in possession of any material, non-public information, by the fifth (5th) business day following delivery of the Offer Notice. If by such fifth (5th) business day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such Subscriber, such transaction shall be deemed to have been abandoned and such Subscriber shall not be in possession of any material, non-public information with respect to the Company or any of its subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Subscriber with another Offer Notice in accordance with, and subject to, the terms of this Section 5(j) and such Subscriber will again have the right of participation set forth in this Section 5(j) The Company shall not be permitted to deliver more than one such Offer Notice to such Subscriber in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 5(j)(iilimitation). The Right of Participation set forth in this Section 5(j) shall terminate on the twenty four month anniversary of the Closing Date.
Appears in 2 contracts
Samples: Subscription Agreement (Paulson Capital Corp), Subscription Agreement (Paulson Capital Corp)
Right of Participation. The Company acknowledges and agrees From the date hereof until the date that is the right set forth in this Section 5(j) is a right granted by 24 month anniversary of the Companyfinal Closing Date, separately, to each Subscriber.
(i) At least five (5) trading days prior to upon any proposed or intended sale issuance by the Company or any of its subsidiaries of Common Stock, Common Stock Equivalents for cash consideration, indebtedness or other securities or equity linked debt obligations a combination of units hereof (each, a “Subsequent PlacementFinancing”), the Company shall deliver to each Subscriber a written notice of its proposal or intention to effect a Subsequent Placement (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) a statement that the Company proposes or intends to effect a Subsequent Placement, (B) a statement that the statement in clause (A) above does not constitute material, non-public information and (C) a statement informing such Subscriber that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Subscriber within five (5) business days after the Company’s delivery to such Subscriber of such Pre-Notice, and only upon a written request by such Subscriber, the Company shall promptly, but no later than one (1) business day after such request, deliver to such Subscriber an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (I) identify and describe the Offered Securities, (II) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (III) identify the persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (IV) offer to issue and sell to or exchange with such Subscriber in accordance with the terms of the Offer such Subscriber’s pro rata portion of 100% of the Offered Securities, provided that the number of Offered Securities which such Subscriber Purchaser shall have the right to subscribe for under this Section 5(jparticipate on a pro-rata basis (with respect to other participating Purchasers and the number of Units purchased by them on the Closing Date) shall be (x) based on such Subscriber’s pro rata portion of the aggregate original in up to an amount of the Units purchased hereunder by all Subscribers Subsequent Financing equal to 10% of the Subsequent Financing (the “Basic AmountParticipation Maximum”)) on the same terms, conditions and (y) with respect to each Subscriber that elects to purchase its Basic Amountunder the same documents, any additional portion of the Offered Securities attributable to the Basic Amounts of other Subscribers as such Subscribers shall indicate it will purchase or acquire should the other Subscribers subscribe for less than their Basic Amounts (the “Undersubscription Amount”).
(ii) To accept an Offer, in whole or in part, such Subscriber must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such Subscriber’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such Subscriber’s Basic Amount that such Subscriber elects to purchase and, if such Subscriber shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Subscriber elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Subscribers are less than the total of all of the Basic Amounts, then such Subscriber who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), such Subscriber who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Subscriber bears to the total Basic Amounts of all Subscribers that have subscribed for Undersubscription Amounts, subject to rounding offered by the Company to the extent it deems reasonably necessaryother prospective investors. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Subscriber a new Offer Notice and the Offer Period shall expire on the fifth(5th) Business Day after such Subscriber’s receipt of such new Offer Notice.
(iii) The Company shall have notify the Purchaser in writing not less than five (5) Business Days from prior to the expiration proposed closing date of the Offer Period above Subsequent Financing (A) to offer, issue, sell or exchange all or any part of which date shall be specified in such Offered Securities as to which a Notice of Acceptance has not been given by a Subscriber (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”notice), but only which notice shall be accompanied by all agreements and other documents then in place to the offerees described be delivered to or signed by other prospective investors in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring person or persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (I) the execution of such Subsequent Placement AgreementFinancing, and (II) either (x) if the consummation of the transactions contemplated by such Subsequent Placement Agreement or (y) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 8-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(iv) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 5(j)(iii) above), then such Subscriber may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Subscriber elected to purchase pursuant to Section 5(j)(ii)1(a)(ii) above multiplied by a fraction, (A) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Subscribers pursuant to this Section 5(j) prior to such reduction) and (B) the denominator of which shall be the original amount of the Offered Securities. In the event that any Subscriber so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Subscribers in accordance with Section 5(j)(i) above.
(v) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Subscriber shall acquire from the Company, and the Company shall issue to such Subscriber, the number or amount of Offered Securities specified in its Notice of Acceptance. The purchase by such Subscriber of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Subscriber of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Subscriber and its counsel.
(vi) Any Offered Securities not acquired by a Subscriber or other persons in accordance with this Section 5(j) may not be issued, sold or exchanged until they are again offered to such Subscriber under the procedures specified in this Agreement.
(vii) The Company and each Subscriber agree that if any Subscriber elects Purchaser desires to participate in the OfferSubsequent Financing, neither it shall so notify the Company in writing not less than two (2) Business days from its receipt of the original notice of the Subsequent Placement Agreement with respect Financing, and further shall execute all Subsequent Financing documents as required and deliver them and the purchase price for such securities and such other items as are specified to be delivered under the such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Subscriber shall be required to agree to any restrictions on trading as to any securities of the Company on or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(viii) Notwithstanding anything to the contrary in this Section 5(j) and unless otherwise agreed to by such Subscriber, the Company shall either confirm in writing to such Subscriber that the transaction with respect prior to the Subsequent Placement has been abandoned Financing proposed closing date (or such later date as the Company may agree in writing). Notwithstanding the foregoing, this Section 9.5 shall publicly disclose its intention to issue the Offered Securitiesnot apply in respect of an Exempt Issuance, in either case, in such a manner such except that such Subscriber will not be in possession of any material, non-public information, by the fifth (5th) business day following delivery of the Offer Notice. If by such fifth (5th) business day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such Subscriber, such transaction Variable Rate Transaction shall be deemed to have been abandoned and such Subscriber shall not be in possession of any material, non-public information with respect to the Company or any of its subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Subscriber with another Offer Notice in accordance with, and subject to, the terms of this Section 5(j) and such Subscriber will again have the right of participation set forth in this Section 5(j) The Company shall not be permitted to deliver more than one such Offer Notice to such Subscriber in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 5(j)(ii). The Right of Participation set forth in this Section 5(j) shall terminate on the twenty four month anniversary of the Closing Datean Exempt Issuance.
Appears in 2 contracts
Samples: Note Purchase Agreement (Sharps Technology Inc.), Note Purchase Agreement (Sharps Technology Inc.)
Right of Participation. The Company acknowledges and agrees that the right set forth in this Section 5(j) is a right granted by the Company, separately, to each Subscriber.
(i) At least five From the date hereof until first (51st) trading days prior anniversary of the Initial Issuance Date, the Company will not (A) directly or indirectly, file any registration statement with the SEC with respect to any proposed Subsequent Placement (as defined below) and shall not file any prospectus supplement with respect to any Subsequent Placement or intended sale by the Company (B) directly or indirectly, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition of) any of its or its Subsidiaries’ equity or equity equivalent securities, including without limitation any debt, preferred stock or other instrument or security that is, at any time during its life and under any circumstances, convertible into or exchangeable or exercisable for shares of Common Stock or other securities Common Stock Equivalents (any such offer, sale, grant, disposition or equity linked debt obligations (each, announcement being referred to as a “Subsequent Placement”) unless the Company shall have first complied with this Section 7(a), the .
(ii) The Company shall deliver to each Subscriber a written notice of its proposal or intention to effect a Subsequent Placement (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) a statement that the Company proposes or intends to effect a Subsequent Placement, (B) a statement that the statement in clause (A) above does not constitute material, non-public information and (C) a statement informing such Subscriber that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Subscriber within five (5) business days after the Company’s delivery to such Subscriber of such Pre-Notice, and only upon a written request by such Subscriber, the Company shall promptly, but no later than one (1) business day after such request, deliver to such Subscriber Holder an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (IA) identify and describe the Offered Securities, (IIB) describe the anticipated price and other material terms upon which they are to be issued, sold issued or exchangedsold, and the number or amount of the Offered Securities to be issued, sold issued or exchangedsold, (IIIC) identify the persons Persons (if known) to which or with which the Offered Securities are to be offered, issued, issued or sold or exchanged and (IVD) offer to issue and sell to or exchange with such Subscriber in accordance with the terms of the Offer such Subscriber’s pro rata portion of 100% Holders at least thirty-five percent (35%) of the Offered Securities, provided that the number of Offered Securities which allocated among such Subscriber shall have the right to subscribe for under this Section 5(j) shall be Holders (xa) based on such SubscriberHolder’s pro rata portion ownership of the aggregate original amount total number of Preferred Shares outstanding on the Units purchased hereunder by all Subscribers Subscription Date (the “Basic Amount”), ) and (yb) with respect to each Subscriber Holder that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Subscribers Holders as such Subscribers Holder shall indicate it will purchase or acquire should the other Subscribers Holders subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until the Holders shall have an opportunity to subscribe for any remaining Undersubscription Amount; provided that (i) the Company shall promptly notify each Holder of any changes to the anticipated price and other material terms of the Offered Securities after the Offer Notice is sent and (ii) the Company shall provide each Holder reasonable notice (which shall not be less than four (4) hours) of the final price (or formula therefor) of the Offered Securities before the Holders are required to provide the Company any notice of their election to accept such Offer pursuant to Section 7(a)(iii) below.
(iiiii) To accept an Offer, in whole or in part, such Subscriber Holder must deliver a written notice to the Company prior to the end of the fifth tenth (5th10th) Business Day after such SubscriberHolder’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such SubscriberHolder’s Basic Amount that such Subscriber Holder elects to purchase and, if such Subscriber Holder shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Subscriber Holder elects to purchase (in either case, the “Notice of Acceptance”). For the avoidance of doubt, in the event a Holder fails to timely deliver a Notice of Acceptance, such Holder shall be deemed to have declined to participate in such Subsequent Placement. If the Basic Amounts elected to be subscribed for by all Subscribers Holders are less than the total of all of the Basic Amounts, then such Subscriber each Holder who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has elected to be subscribed for; provided, however, that if the Undersubscription Amounts elected to be subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), such Subscriber each Holder who has elected to be subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Subscriber Holder bears to the total Basic Amounts of all Subscribers Holder that have elected to be subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it its deems reasonably necessary. Notwithstanding anything to the foregoingcontrary contained herein, if the Company desires to modify or amend the terms and conditions of the Offer in any material respect, prior to the expiration of the Offer Period, the Company may deliver to each Subscriber the Holders a new Offer Notice and the Offer Period shall expire on the fifth(5thsecond (2nd) Business Day after such SubscriberHolder’s receipt of such new Offer Notice.
(iiiiv) The Company shall have five (5) Business Days from the expiration of the Offer Period above (Ai) to offer, issue, issue or sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Subscriber the Holders (the “Refused Securities”) pursuant to a definitive agreement(s) agreement (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring person Person or persons Persons or less favorable to the Company than those set forth in the Offer Notice and (Bii) to publicly announce (Ia) the execution of such Subsequent Placement Agreement, if any and (IIb) either (x) the consummation consummation, or the expected consummation, of the transactions contemplated by such Subsequent Placement Agreement or (y) if a Subsequent Placement Agreement is executed, the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 8-K with such Subsequent Placement Agreement and any material documents contemplated therein filed as exhibits thereto.
(ivv) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 5(j)(iii7(a)(iv) above), then such Subscriber each Holder may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Subscriber Holder elected to purchase pursuant to Section 5(j)(ii)1(a)(ii7(a)(iii) above multiplied by a fraction, (Ai) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, issue or sell or exchange (including Offered Securities to be issued or sold to Subscribers Holders pursuant to this Section 5(j7(a)(iv) above prior to such reduction) and (Bii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Subscriber Holder so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, issue or sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Subscribers Holders in accordance with Section 5(j)(i7(a)(ii) above.
(vvi) Upon the closing of the issuance, issuance or sale or exchange of all or less than all of the Refused Securities, such Subscriber the Holders shall acquire from the Company, and the Company shall issue to such Subscriberthe Holders, the number or amount of Offered Securities specified in its Notice the Notices of Acceptance, as reduced pursuant to Section 7(a)(iv) above if the Holders have so elected, upon the terms and conditions specified in the Offer. The purchase by such Subscriber the Holders of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Subscriber the Holders of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Subscriber the Holders and its their respective counsel; provided that, for the avoidance of doubt, this paragraph shall not create any obligation on the Company to amend or modify, or seek to amend or modify, any of the terms or provisions of the Subsequent Placement Agreement, or otherwise prohibit the Company from consummating the respective Subsequent Placement of Refused Securities in accordance with the applicable Subsequent Placement Agreement.
(vivii) Any Offered Securities not acquired by a Subscriber the Holders or other persons Persons in accordance with this Section 5(j7(a)(iv) above may not be issued, issued or sold or exchanged until they are again offered to such Subscriber the Holders under the procedures specified in this AgreementSection 7(a).
(viiviii) The Company and each Subscriber the Holders agree that if any Subscriber Holder elects to participate in the Offer, (x) neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision provisions whereby such Subscriber any Holder shall be required to agree to any restrictions on in trading as to any securities of the Company or owned by such Holder prior to such Subsequent Placement and (y) the Holders shall be required entitled to consent the same registration rights provided to any amendment to or termination of, or grant any waiver, release or other investors in the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the CompanySubsequent Placement.
(viiiix) Notwithstanding anything to the contrary in this Section 5(j7(a) and unless otherwise agreed to by such Subscriberthe Holders, the Company shall either confirm in writing to such Subscriber the Holders that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, case in such a manner such that such Subscriber the Holders will not be in possession of any material, material non-public information, by the fifth fifteenth (5th15th) business day Business Day following delivery of the Offer Notice. If by such fifth the fifteenth (5th15th) business day, Business Day following delivery of the Offer Notice no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such Subscriberthe Holders, such transaction shall be deemed to have been abandoned and such Subscriber the Holders shall not be deemed to be in possession of any material, non-public information with respect to the Company or any of its subsidiariesCompany. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Subscriber each Holder with another Offer Notice in accordance with, and subject to, the terms of this Section 5(j) and such Subscriber each Holder will again have the right of participation set forth in this Section 5(j) 7(a). The Company shall not be permitted to deliver more than one such Offer Notice to such Subscriber the Holders in any sixty 60 day period (60) day period, except as expressly other than the Offer Notices contemplated by the last sentence of Section 5(j)(ii7(a)(iii) of this Certificate of Designations). The Right Notwithstanding anything to the contrary herein, in no event shall delivery of Participation set forth any notice in accordance with the requirements of this Section 5(j7(a) constitute or be deemed to constitute a breach of the Company’s obligation not to provide material non-public information regarding the Company to any Holder or any other Person; provided the Company then complies with the applicable requirement to publicly disclose such material, nonpublic information pursuant to this Section 7(a)(ix).
(x) This Section 7(a) shall terminate not apply in connection with the issuance or deemed issuance of any Common Stock by the Company: (A) under any employee benefit plan which has been approved by the Board, pursuant to which the Company’s securities may be issued to any employee, officer or, director or consultant for services provided to the Company; (B) with respect to the Preferred Shares pursuant to the terms of this Certificate of Designations; (C) upon conversion, exercise or exchange of any Options or Convertible Securities which are outstanding on the twenty four month anniversary day immediately preceding the Subscription Date, provided that such issuance of Common Stock upon exercise of such Options or Convertible Securities is made pursuant to the terms of such Options or Convertible Securities in effect on the date immediately preceding the Subscription Date and such Options or Convertible Securities are not amended, modified or changed on or after the Subscription Date to increase the number of such securities or to decrease the exercise price, exchange price or conversion price of such securities (other than in connection with stock splits or combinations) or to extend the term of such securities; or (D) securities issued pursuant to acquisitions or strategic transactions approved by a majority of the Closing Datedisinterested directors of the Company, provided that any such issuance shall only be to a Person which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities for the purpose of raising capital or to an entity whose primary business is investing in securities.
Appears in 2 contracts
Samples: Loan and Security Agreement (Fuelcell Energy Inc), Underwriting Agreement (Fuelcell Energy Inc)
Right of Participation. The Company acknowledges and agrees that the right set forth in this Section 5(j5(h) is a right granted by the Company, separately, to each Subscriber.
(i) At least five (5) trading days prior to any proposed or intended sale by the Company of its Common Stock or other securities or equity linked debt obligations (each, a “Subsequent Placement”), the Company shall deliver to each Subscriber a written notice of its proposal or intention to effect a Subsequent Placement (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) a statement that the Company proposes or intends to effect a Subsequent Placement, (B) a statement that the statement in clause (A) above does not constitute material, non-public information and (C) a statement informing such Subscriber that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Subscriber within five (5) business days after the Company’s delivery to such Subscriber of such Pre-Notice, and only upon a written request by such Subscriber, the Company shall promptly, but no later than one (1) business day after such request, deliver to such Subscriber an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (I) identify and describe the Offered Securities, (II) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (III) identify the persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (IV) offer to issue and sell to or exchange with such Subscriber in accordance with the terms of the Offer such Subscriber’s pro rata portion of 100% of the Offered Securities, provided that the number of Offered Securities which such Subscriber shall have the right to subscribe for under this Section 5(j5(h) shall be (x) based on such Subscriber’s pro rata portion of the aggregate original amount of the Units purchased hereunder by all Subscribers (the “Basic Amount”), and (y) with respect to each Subscriber that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Subscribers as such Subscribers shall indicate it will purchase or acquire should the other Subscribers subscribe for less than their Basic Amounts (the “Undersubscription Amount”).
(ii) To accept an Offer, in whole or in part, such Subscriber must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such Subscriber’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such Subscriber’s Basic Amount that such Subscriber elects to purchase and, if such Subscriber shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Subscriber elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Subscribers are less than the total of all of the Basic Amounts, then such Subscriber who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), such Subscriber who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Subscriber bears to the total Basic Amounts of all Subscribers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Subscriber a new Offer Notice and the Offer Period shall expire on the fifth(5thfifth (5th) Business Day after such Subscriber’s receipt of such new Offer Notice.
(iii) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Subscriber (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring person or persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (I) the execution of such Subsequent Placement Agreement, and (II) either (x) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (y) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 8-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(iv) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 5(j)(iii5(h)(iii) above), then such Subscriber may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Subscriber elected to purchase pursuant to Section 5(j)(ii)1(a)(ii5(h)(ii)1(a)(ii) above multiplied by a fraction, (A) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Subscribers pursuant to this Section 5(j5(h) prior to such reduction) and (B) the denominator of which shall be the original amount of the Offered Securities. In the event that any Subscriber so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Subscribers in accordance with Section 5(j)(i5(h)(i) above.
(v) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Subscriber shall acquire from the Company, and the Company shall issue to such Subscriber, the number or amount of Offered Securities specified in its Notice of Acceptance. The purchase by such Subscriber of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Subscriber of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Subscriber and its counsel.
(vi) Any Offered Securities not acquired by a Subscriber or other persons in accordance with this Section 5(j5(h) may not be issued, sold or exchanged until they are again offered to such Subscriber under the procedures specified in this Agreement.
(vii) The Company and each Subscriber agree that if any Subscriber elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision in addition to any terms or conditions contained in this Agreement whereby such Subscriber shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(viii) Notwithstanding anything to the contrary in this Section 5(j5(h) and unless otherwise agreed to by such Subscriber, the Company shall either confirm in writing to such Subscriber that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Subscriber will not be in possession of any material, non-public information, by the fifth (5th) business day following delivery of the Offer Notice. If by such fifth (5th) business day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such Subscriber, such transaction shall be deemed to have been abandoned and such Subscriber shall not be in possession of any material, non-public information with respect to the Company or any of its subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Subscriber with another Offer Notice in accordance with, and subject to, the terms of this Section 5(j5(h) and such Subscriber will again have the right of participation set forth in this Section 5(j5(h) The Company shall not be permitted to deliver more than one such Offer Notice to such Subscriber in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 5(j)(ii5(h)(ii). The Right of Participation set forth in this Section 5(j) shall terminate on the twenty four month anniversary of the Closing Date.
Appears in 2 contracts
Samples: Subscription Agreement (Mabvax Therapeutics Holdings, Inc.), Subscription Agreement (Mabvax Therapeutics Holdings, Inc.)
Right of Participation. The Company acknowledges and agrees Provided that the right set forth in this Section 5(j) is a right granted by the Company, separately, to each Subscriber.
(i) At least five (5) trading days prior to any proposed or intended sale by the Company of its Common Stock or other securities or equity linked debt obligations (each, a “Subsequent Placement”), the Company shall deliver to each Subscriber a written notice of its proposal or intention to effect a Subsequent Placement (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) a statement that the Company proposes or intends to effect a Subsequent Placement, (B) a statement that the statement in clause (A) above does not constitute material, non-public information and (C) a statement informing such Subscriber that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Subscriber within five (5) business days after the Company’s delivery to such Subscriber of such Pre-Notice, and only upon a written request by such Subscriber, the Company shall promptly, but no later than one (1) business day after such request, deliver to such Subscriber an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (I) identify and describe the Offered Securities, (II) describe the price and other terms upon which they Firm Shares are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (III) identify the persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (IV) offer to issue and sell to or exchange with such Subscriber in accordance with the terms of the Offer such Subscriber’s pro rata portion of 100% of the Offered Securities, provided that the number of Offered Securities which such Subscriber shall have the right to subscribe for under this Section 5(j) shall be (x) based on such Subscriber’s pro rata portion of the aggregate original amount of the Units purchased hereunder by all Subscribers (the “Basic Amount”), and (y) with respect to each Subscriber that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Subscribers as such Subscribers shall indicate it will purchase or acquire should the other Subscribers subscribe for less than their Basic Amounts (the “Undersubscription Amount”).
(ii) To accept an Offer, in whole or in part, such Subscriber must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such Subscriber’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such Subscriber’s Basic Amount that such Subscriber elects to purchase and, if such Subscriber shall elect to purchase all of its Basic AmountAgreement, the Undersubscription Amount, if any, that such Subscriber elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Subscribers are less than the total of all of the Basic Amounts, then such Subscriber who has set forth an Undersubscription Amount in its Notice of Acceptance Representative shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), such Subscriber who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Subscriber bears to the total Basic Amounts of all Subscribers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Subscriber a new Offer Notice and the Offer Period shall expire on the fifth(5th) Business Day after such Subscriber’s receipt of such new Offer Notice.
(iii) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Subscriber (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring person or persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (I) the execution of such Subsequent Placement Agreement, and (II) either (x) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (y) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 8-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(iv) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 5(j)(iii) above), then such Subscriber may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Subscriber elected to purchase pursuant to Section 5(j)(ii)1(a)(ii) above multiplied by a fraction, (A) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Subscribers pursuant to this Section 5(j) prior to such reduction) and (B) the denominator of which shall be the original amount of the Offered Securities. In the event that any Subscriber so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Subscribers in accordance with Section 5(j)(i) above.
(v) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Subscriber shall acquire from the Company, and the Company shall issue to such Subscriber, the number or amount of Offered Securities specified in its Notice of Acceptance. The purchase by such Subscriber of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Subscriber of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Subscriber and its counsel.
(vi) Any Offered Securities not acquired by a Subscriber or other persons in accordance with this Section 5(j) may not be issued, sold or exchanged until they are again offered to such Subscriber under the procedures specified in this Agreement.
(vii) The Company and each Subscriber agree that if any Subscriber elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Subscriber shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(viii) Notwithstanding anything to the contrary in this Section 5(j) and unless otherwise agreed to by such Subscriber, the Company shall either confirm in writing to such Subscriber that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Subscriber will not be in possession of any material, non-public information, by the fifth (5th) business day following delivery of the Offer Notice. If by such fifth (5th) business day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such Subscriber, such transaction shall be deemed to have been abandoned and such Subscriber shall not be in possession of any material, non-public information with respect to the Company or any of its subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Subscriber with another Offer Notice in accordance with, and subject to, the terms of this Section 5(j) and such Subscriber will again have the right of participation set forth in this Section 5(j) The (the “Right of Participation”), for a period of twelve months following the Business Combination, to act as joint book running manager with at least 30% of the economics for any and all future public equity offerings of the Company shall not be permitted or any successor to deliver more than one such Offer Notice the Company (each, a “Subject Transaction”), so long as the Representative agrees to such Subscriber in any sixty (60) day period, except as expressly contemplated match the exact terms provided by the last sentence of Section 5(j)(ii)lead manager. The Right of Participation shall also encompass the time period leading up to the closing of the Business Combination while the Company is still a special purpose acquisition company. The Representative shall be afforded the same terms of compensation in connection with its right as the lead manager and the Representative has to exactly match all the other terms being provided by the lead manager. The Company shall notify the Representative of its intention to pursue a Subject Transaction, including the material terms thereof, by providing written notice thereof by email or registered mail or overnight courier service addressed to the Representative. If the Representative fails to exercise its Right of Participation with respect to the Subject Transaction within one Business Day after receiving the written notice, then the Representative shall have no further claim or right with respect to the Subject Transaction. If the Representative fails to exercise its Right of Participation with respect to any two Subject Transactions within one Business Day after receiving the applicable written notice, then the Representative shall have no further claim or right with respect to such Subject Transactions and all future and other Subject Transactions. The Representative may elect, in its sole and absolute discretion, not to exercise its Right of Participation with respect to any Subject Transaction; provided that, pursuant to FINRA Rule 5110(f)(2)(F)(ii), the Representative shall not have more than one opportunity to waive or terminate the Right of Participation in consideration of any payment or fee. The terms and conditions of any such engagements shall be set forth in separate agreements and may be subject to, among other things, satisfactory completion of due diligence by the Representative, market conditions, the absence of a material adverse change to the Company's business, financial condition and prospects, approval of the Representative's internal committee and any other conditions that the Representative may deem appropriate for transactions of such nature. In addition, during the time period articulated in this Section 5(j) shall terminate on 3.33, NBCF will have a Right of Participation to act as a co-manager for any and all future public equity offerings with future economic consideration to be negotiated at a later date between the twenty four month anniversary of the Closing DateCompany and NBCF.
Appears in 2 contracts
Samples: Underwriting Agreement (National Energy Services Reunited Corp.), Underwriting Agreement (National Energy Services Reunited Corp.)
Right of Participation. The Company acknowledges and agrees that the right set forth in this Section 5(j) is a right granted by the Company, separately, to each Subscriber.
(i) At least five (5) trading days prior Subject to any proposed statutory preemptive rights under applicable law, which have not been satisfied or intended sale by waived, until the Company third (3rd) anniversary of its Common Stock or other securities or equity linked debt obligations (each, a “Subsequent Placement”)the Closing Date, the Company shall deliver not issue, sell or exchange, agree or obligate itself to each Subscriber issue, sell or exchange, or reserve or set aside for issuance, sale or exchange, in a written notice transaction not involving a public offering, any (i) ADSs, (ii) any other equity security of its proposal or intention to effect a Subsequent Placement (each such noticethe Company, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, including without limitation, materialpreference shares, non-public information(iii) other than: (A) a statement that any debt security of the Company proposes (other than debt with no equity feature) including without limitation, any debt security which by its terms is convertible into or intends to effect a Subsequent Placementexchangeable for any equity security of the Company, (Biv) any security of the Company that is a statement that the statement in clause combination of debt and equity, or (Av) above does not constitute materialany option, non-public information and (C) a statement informing warrant or other right to subscribe for, purchase or otherwise acquire any such Subscriber that it is entitled to receive an Offer Notice (as defined below) with respect to equity security or any such Subsequent Placement upon its written request. Upon the written request debt security of a Subscriber within five (5) business days after the Company’s delivery to such Subscriber of such Pre-Notice, and only upon a written request by such Subscriber, unless in each case the Company shall promptly, but no later than one (1) business day after have first offered to issue such request, deliver to such Subscriber an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in to the Major Purchaser(s) and each other person or entity that has such a Subsequent Placementright (each an “Offeree” and collectively, which Offer Notice shall (Ithe “Offerees”) identify and describe the Offered Securities, (II) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (III) identify the persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (IV) offer to issue and sell to or exchange with such Subscriber in accordance with the terms of the Offer such Subscriber’s pro rata portion of 100% of the Offered Securities, provided that the number of Offered Securities which such Subscriber as set forth herein Each Offeree shall have the right to subscribe for under this Section 5(j) shall be for: (x) based on such Subscriber’s pro rata that portion of the aggregate original amount Offered Securities as the number of ADSs then held (including shares then issuable upon the exercise or conversion of outstanding securities, including without limitation the Shares) by such Offeree bears to the total number of shares of issued and outstanding ADSs of the Units purchased hereunder by all Subscribers Company calculated on a fully diluted basis to include (i) the total number of ADSs subject to outstanding awards granted under stock plans of the Company and (ii) the total number of shares that could be issued upon the exercise or conversion of outstanding securities (the “Basic Amount”), and (y) with respect to each Subscriber that elects to purchase its Basic Amount, any such additional portion of the Offered Securities attributable to the Basic Amounts of other Subscribers as such Subscribers Offeree shall indicate it will purchase or acquire should the other Subscribers Offerees subscribe for less than their Basic Amounts (the “Undersubscription Amount”).
(ii) To accept an Offer, in whole or in part, at a price and on such Subscriber must deliver a written notice to other terms as shall have been specified by the Company prior in writing delivered to such Offeree (the end of “Offer”), which Offer by its terms shall remain open and irrevocable for a period ending on 4:30 p.m. on the fifth second (5th2nd) Business Trading Day after such Subscriber’s following receipt of the Offer Notice (the “Offer Period”)offer. Subject to any statutory preemptive rights under applicable law, setting forth the portion of such Subscriber’s Basic Amount that such Subscriber elects to purchase and, if such Subscriber shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Subscriber elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Subscribers are less than the total of all of the Basic Amounts, then such Subscriber who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), such Subscriber who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Subscriber bears to the total Basic Amounts of all Subscribers that which have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Subscriber a new Offer Notice and the Offer Period shall expire on the fifth(5th) Business Day after such Subscriber’s receipt of such new Offer Notice.
(iii) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Subscriber satisfied or waived, until the third (the “Refused Securities”3rd) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring person or persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (I) the execution of such Subsequent Placement Agreement, and (II) either (x) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (y) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 8-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(iv) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 5(j)(iii) above), then such Subscriber may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Subscriber elected to purchase pursuant to Section 5(j)(ii)1(a)(ii) above multiplied by a fraction, (A) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Subscribers pursuant to this Section 5(j) prior to such reduction) and (B) the denominator of which shall be the original amount of the Offered Securities. In the event that any Subscriber so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Subscribers in accordance with Section 5(j)(i) above.
(v) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Subscriber shall acquire from the Company, and the Company shall issue to such Subscriber, the number or amount of Offered Securities specified in its Notice of Acceptance. The purchase by such Subscriber of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Subscriber of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Subscriber and its counsel.
(vi) Any Offered Securities not acquired by a Subscriber or other persons in accordance with this Section 5(j) may not be issued, sold or exchanged until they are again offered to such Subscriber under the procedures specified in this Agreement.
(vii) The Company and each Subscriber agree that if any Subscriber elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Subscriber shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(viii) Notwithstanding anything to the contrary in this Section 5(j) and unless otherwise agreed to by such Subscriber, the Company shall either confirm in writing to such Subscriber that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Subscriber will not be in possession of any material, non-public information, by the fifth (5th) business day following delivery of the Offer Notice. If by such fifth (5th) business day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such Subscriber, such transaction shall be deemed to have been abandoned and such Subscriber shall not be in possession of any material, non-public information with respect to the Company or any of its subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Subscriber with another Offer Notice in accordance with, and subject to, the terms of this Section 5(j) and such Subscriber will again have the right of participation set forth in this Section 5(j) The Company shall not be permitted to deliver more than one such Offer Notice to such Subscriber in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 5(j)(ii). The Right of Participation set forth in this Section 5(j) shall terminate on the twenty four month anniversary of the Closing Date, in the event the Company commences a public offering of its securities, it shall instruct its underwriter or placement agent for such offering to contact each Major Purchaser promptly following the first public announcement of such offering and consider in good faith an allocation of securities in such offering.
Appears in 2 contracts
Samples: Securities Subscription Agreement, Securities Subscription Agreement (Amarin Corp Plc\uk)
Right of Participation. The Company acknowledges and agrees that For the right set forth in this Section 5(jperiod ending on the eighteen (18) is a right granted by month anniversary of the Company, separately, to each Subscriber.
Closing Date (i) At least five (5) trading days prior to any proposed or intended sale by the Company of its Common Stock or other securities or equity linked debt obligations (each, a “Subsequent Placement”)such period, the Company shall deliver to each Subscriber a written notice of its proposal or intention to effect a Subsequent Placement (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) a statement that the Company proposes or intends to effect a Subsequent Placement, (B) a statement that the statement in clause (A) above does not constitute material, non-public information and (C) a statement informing such Subscriber that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Subscriber within five (5) business days after the Company’s delivery to such Subscriber of such Pre-Notice, and only upon a written request by such Subscriber, the Company shall promptly, but no later than one (1) business day after such request, deliver to such Subscriber an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (I) identify and describe the Offered Securities, (II) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (III) identify the persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (IV) offer to issue and sell to or exchange with such Subscriber in accordance with the terms of the Offer such Subscriber’s pro rata portion of 100% of the Offered Securities, provided that the number of Offered Securities which such Subscriber shall have the right to subscribe for under this Section 5(j) shall be (x) based on such Subscriber’s pro rata portion of the aggregate original amount of the Units purchased hereunder by all Subscribers (the “Basic Amount”), and (y) with respect to each Subscriber that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Subscribers as such Subscribers shall indicate it will purchase or acquire should the other Subscribers subscribe for less than their Basic Amounts (the “Undersubscription Amount”).
(ii) To accept an Offer, in whole or in part, such Subscriber must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such Subscriber’s receipt of the Offer Notice (the “Offer Participation Period”), setting forth the portion of such Subscriber’s Basic Amount that such Subscriber elects to purchase and, if such Subscriber shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Subscriber elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Subscribers are less than the total of all of the Basic Amounts, then such Subscriber who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), such Subscriber who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Subscriber bears to the total Basic Amounts of all Subscribers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Subscriber a new Offer Notice and the Offer Period shall expire on the fifth(5th) Business Day after such Subscriber’s receipt of such new Offer Notice.
(iii) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Subscriber (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring person or persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (I) the execution of such Subsequent Placement Agreement, and (II) either (x) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (y) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 8-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(iv) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 5(j)(iii) above), then such Subscriber may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Subscriber elected to purchase pursuant to Section 5(j)(ii)1(a)(ii) above multiplied by a fraction, (A) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Subscribers pursuant to this Section 5(j) prior to such reduction) and (B) the denominator of which shall be the original amount of the Offered Securities. In the event that any Subscriber so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Subscribers in accordance with Section 5(j)(i) above.
(v) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Subscriber shall acquire from the Company, and the Company shall issue to such Subscriber, the number or amount of Offered Securities specified in its Notice of Acceptance. The purchase by such Subscriber of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Subscriber of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Subscriber and its counsel.
(vi) Any Offered Securities not acquired by a Subscriber or other persons in accordance with this Section 5(j) may not be issued, sold or exchanged until they are again offered to such Subscriber under the procedures specified in this Agreement.
(vii) The Company and each Subscriber agree that if any Subscriber elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Subscriber shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(viii) Notwithstanding anything to the contrary in this Section 5(j) and unless otherwise agreed to by such Subscriber, the Company shall either confirm in writing to such Subscriber that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Subscriber will not be in possession of any material, non-public information, by the fifth (5th) business day following delivery of the Offer Notice. If by such fifth (5th) business day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such Subscriber, such transaction shall be deemed to have been abandoned and such Subscriber shall not be in possession of any material, non-public information with respect to the Company or any of its subsidiaries. Should Subsidiaries proposes to offer and sell shares of Common Shares or Common Share Equivalents (“Offered Securities”) to investors primarily for capital raising purposes (each, a “Future Offering”), the Company decide Purchasers shall have the right, but not the obligation, to pursue participate in each such transaction with respect Future Offering in an amount of up to 30% in the aggregate of the Offered SecuritiesSecurities (the “Participation Right”). The Participation Right shall not apply to any Exempt Issuances. In connection with each Participation Right, the Company shall provide such Subscriber with another Offer Notice written notice to the Purchasers of the proposed terms and conditions of the Future Offering (a) in accordance withthe case of an offering that is an “overnight offering”, no later than twelve (12) hours prior to the launch or pricing date and subject to(b) in the case of a “public offering” as defined pursuant to the rules and regulations of The Nasdaq Capital Market, no later than forty-eight (48) hours prior to the launch or pricing date (in each case, the terms “Offering Notice”). If a Purchaser shall elect to exercise its Participation Right, such Purchaser shall notify the Company, in writing, of this Section 5(j) and such Subscriber will again have election promptly after receipt of the right of participation set forth in this Section 5(j) The Company shall Offering Notice (the “Participation Notice”). In the event the Purchaser does not be permitted to deliver more than one such Offer timely return a Participation Notice to such Subscriber in any sixty (60) day periodthe Company , except as expressly contemplated by the last sentence of Section 5(j)(ii). The Participation Right of Participation set forth in this Section 5(j) granted hereunder shall terminate on the twenty four month anniversary and be of no further force and effect; provided, however, that such Participation Right shall be reinstated in respect of the Closing DateFuture Offering in connection with which such Offering Notice was delivered if the anticipated closing referenced in the Offering Notice does not occur within thirty (30) days of the delivery of the Offering Notice and the Participation Period has not otherwise ended.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Neptune Wellness Solutions Inc.), Securities Purchase Agreement (Neptune Wellness Solutions Inc.)
Right of Participation. The For a period of 12 months from the Execution of this Agreement or until such time a Senior Exchange is completed, the Company acknowledges and agrees that will not, directly or indirectly, effect an offering of any shares of capital stock, convertible securities, rights, options, warrants or any other kind of its securities in a financing (a “Subsequent Financing”), unless in each case the right set forth Company shall have, in the manner prescribed in this Section 5(joffered to sell to Consultant on the same terms and conditions as offered to the investors in such Subsequent Financing an amount of such offered securities equal to ten percent (10%) is a right granted by of the Companytotal amount of the Subsequent Financing (the “Right of Participation”). For purposes of this Section, separatelyConsultant’s “Right of Participation” shall equal the amount of the Subsequent Financing, to each Subscriber.
(i) inclusive of the Consultant’s acquisition of securities in such Subsequent Financing. At least five (5) trading days Business Days prior to any proposed or intended sale by the Company of its Common Stock or other securities or equity linked debt obligations (each, a “Subsequent Placement”)Financing, the Company shall deliver to each Subscriber Consultant a written notice of its proposal or intention to effect a Subsequent Placement Financing (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (Ai) a statement that the Company proposes or intends to effect a Subsequent PlacementFinancing, (B) a statement that the statement in clause (A) above does not constitute material, non-public information and (Cii) a statement informing such Subscriber Consultant that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement Financing upon its written request. Upon the written request of a Subscriber Consultant within five three (53) business days Business Days after the Company’s delivery to such Subscriber Consultant of such Pre-Notice, and only upon a written request by such SubscriberConsultant, the Company shall promptly, but no later than one (1) business day Business Day after such request, deliver to such Subscriber Consultant an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent PlacementFinancing, which Offer Notice shall (Iw) identify and describe the Offered Securities, (IIx) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (IIIy) identify the persons Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (IVz) offer to issue and sell to or exchange with such Subscriber Consultant in accordance with the terms of the Offer an amount of such Subscriber’s pro rata portion of 100% of the Offered Securities, provided that the number of Offered Securities which such Subscriber shall have the right sufficient to subscribe for under this Section 5(j) shall be (x) based on such Subscriberfulfill Consultant’s pro rata portion Right of the aggregate original amount of the Units purchased hereunder by all Subscribers (the “Basic Amount”), and (y) with respect to each Subscriber that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Subscribers as such Subscribers shall indicate it will purchase or acquire should the other Subscribers subscribe for less than their Basic Amounts (the “Undersubscription Amount”).
(ii) Participation. To accept an Offer, in whole or in part, such Subscriber Consultant must deliver a written notice to the Company prior to the end of the fifth fourth (5th4th) Business Day after such SubscriberConsultant’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such Subscriber’s the Basic Amount that such Subscriber Consultant elects to purchase and, if such Subscriber Consultant shall elect to purchase all of its Basic Amount, the Undersubscription Amountany additional number, if any, that such Subscriber Consultant elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Subscribers are less than the total of all of the Basic Amounts, then such Subscriber who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if that the Undersubscription Amounts subscribed for exceed Company shall only be obligated under this Section to sell to the difference between the total Consultant that number of all Offered Securities included in a Notice of Acceptance up to the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), such Subscriber who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Subscriber bears to the total Basic Amounts of all Subscribers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer (including a change in the number of Offered Securities) prior to the expiration of the Offer Period, the Company may must deliver to each Subscriber Consultant a new Offer Notice and the a new Offer Period shall expire on the fifth(5thfourth (4th) Business Day after such SubscriberConsultant’s receipt of such new Offer Notice.
(iii) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a . Any prior Notice of Acceptance has not been given by a Subscriber (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) shall be null and only void upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring person or persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (I) the execution of such Subsequent Placement Agreement, and (II) either (x) the consummation receipt of the transactions contemplated by such Subsequent Placement Agreement or (y) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 8-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(iv) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 5(j)(iii) above), then such Subscriber may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Subscriber elected to purchase pursuant to Section 5(j)(ii)1(a)(ii) above multiplied by a fraction, (A) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Subscribers pursuant to this Section 5(j) prior to such reduction) and (B) the denominator of which shall be the original amount of the Offered Securitiesnew Offer Notice. In the event that any Subscriber so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Subscribers in accordance with Section 5(j)(i) above.
(v) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Subscriber Consultant shall acquire from the Company, and the Company shall issue to such SubscriberConsultant, the number or amount of Offered Securities specified in its Notice of Acceptance. The purchase by such Subscriber Consultant of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Subscriber Consultant of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Subscriber Consultant and its counsel.
(vi) Any Offered Securities not acquired by a Subscriber or other persons in accordance with this Section 5(j) may not be issued, sold or exchanged until they are again offered to such Subscriber under the procedures specified in this Agreement.
(vii) The Company and each Subscriber agree that if any Subscriber elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Subscriber shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(viii) Notwithstanding anything to the contrary in this Section 5(j) and unless otherwise agreed to by such Subscriber, the Company shall either confirm in writing to such Subscriber that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Subscriber will not be in possession of any material, non-public information, by the fifth (5th) business day following delivery of the Offer Notice. If by such fifth (5th) business day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such Subscriber, such transaction shall be deemed to have been abandoned and such Subscriber shall not be in possession of any material, non-public information with respect to the Company or any of its subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Subscriber with another Offer Notice in accordance with, and subject to, the terms of this Section 5(j) and such Subscriber will again have the right of participation set forth in this Section 5(j) The Company shall not be permitted to deliver more than one such Offer Notice to such Subscriber in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 5(j)(ii). The Right of Participation set forth in this Section 5(j) shall terminate on the twenty four month anniversary of the Closing Date.
Appears in 2 contracts
Samples: Capital Market Advisory Agreement (Vocodia Holdings Corp), Capital Market Advisory Agreement (Vocodia Holdings Corp)
Right of Participation. The Company acknowledges and agrees that If the right set forth in this Section 5(j) Waiver is a right granted not obtained by the CompanySeller and delivered to the Purchasers by October 15, separately2001, then from October 16, 2001 through and including December 15, 2001, other than to each Subscriber.
(i) At least five (5) trading days prior the Purchasers pursuant to this Agreement, the Seller shall not directly or indirectly, offer, sell, grant any proposed option to purchase, or intended sale by the Company otherwise dispose of its any shares of Common Stock or other securities or equity linked debt obligations (eachcollectively, a “"Subsequent Placement”Sale"), the Company shall deliver to each Subscriber a written notice of its proposal or intention to effect a Subsequent Placement (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other thanunless: (A) the Seller delivers to the Purchasers a statement that the Company proposes or intends to effect a Subsequent Placement, (B) a statement that the statement in clause (A) above does not constitute material, non-public information and (C) a statement informing such Subscriber that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Subscriber within five (5) business days after the Company’s delivery to such Subscriber of such Pre-Notice, and only upon a written request by such Subscriber, the Company shall promptly, but no later than one (1) business day after such request, deliver to such Subscriber an irrevocable written notice (the “Offer a "Subsequent Sale Notice”") of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a its intention to effect such Subsequent PlacementSale, which Offer Subsequent Sale Notice shall (I) identify and describe the Offered Securities, (II) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (III) identify the persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (IV) offer to issue and sell to or exchange with such Subscriber in accordance with the terms of the Offer such Subscriber’s pro rata portion of 100% of the Offered Securities, provided that reasonable detail the number of Offered Securities which shares of Common Stock proposed to be sold (the "Subsequent Shares") and the proposed terms of such Subscriber shall have Subsequent Sale [(including the right amount of any finders, placement or similar fee or commission due to subscribe for under this Section 5(j) shall be any Person in connection with such Subsequent Sale)], and (if not precluded by a confidentiality arrangement), (x) based on the Person with whom such Subscriber’s pro rata portion of the aggregate original amount of the Units purchased hereunder by all Subscribers (the “Basic Amount”), Subsequent Sale shall be effected and (y) include any term sheet or similar document relating thereto, and (B) no Purchaser shall have notified the Seller by 6:30 p.m. (New York City time) on the third Business Day after (but not including) its receipt of the Subsequent Sale Notice (a "Subsequent Sale Participation Notice") of its willingness to purchase such Subsequent Shares. The parties agree that the Company may not deliver a Subsequent Sales Notice with respect to each Subscriber that elects to purchase its Basic Amountany First Tranche Shares, any additional portion Second Tranche Shares, Third Tranche Shares or the 500,000 shares of Common Stock which the Offered Securities attributable to Purchasers may acquire under the Basic Amounts first sentence of other Subscribers as such Subscribers shall indicate it will purchase or acquire should the other Subscribers subscribe for less than their Basic Amounts (the “Undersubscription Amount”Section 4.2(a).
(iia) To accept an Offer, in whole or in part, such Subscriber must deliver If no Purchaser delivers a written notice Subsequent Sale Participation Notice to the Company prior Seller regarding its willingness to purchase Subsequent Shares by the end of the fifth (5th) third Business Day after such Subscriber’s (but not including) receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such Subscriber’s Basic Amount that such Subscriber elects to purchase and, if such Subscriber shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Subscriber elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Subscribers are less than the total of all of the Basic AmountsSubsequent Sale Notice, then such Subscriber who has the Seller may effect the Subsequent Sale substantially upon the terms and to the Persons set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed forSubsequent Sale Notice; provided, however, if that the Undersubscription Amounts subscribed for exceed Seller shall provide the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), such Subscriber who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Subscriber bears to the total Basic Amounts of all Subscribers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Subscriber Purchasers with a new Offer second Subsequent Sale Notice and the Offer Period Purchasers shall expire again have the rights set forth above in this Section if the Subsequent Sale subject to the initial Subsequent Sale Notice shall not have been consummated for any reason on the fifth(5thterms set forth in such Subsequent Sale Notice within five Business Days after (but not including) Business Day after such Subscriber’s receipt the date of delivery of such new Offer Subsequent Sale Notice.
(iiib) The Company If one or more Purchasers shall have five timely indicated in a Subsequent Sale Participation Notice its election to acquire Subsequent Shares, then:
(51) Business Days from If the expiration Purchasers shall have delivered Subsequent Sale Participation Notices that would exceed the number of Subsequent Shares offered for sale in a Subsequent Sale Notice, then the Subsequent Sale Participation Notice of each Purchaser will automatically be reduced to indicate a number of Subsequent Shares equal to the product of (a) such Purchaser's First Tranche Percentage multiplied by (b) the number of Subsequent Shares offered in the Subsequent Sale Notice.
(2) If the Purchasers shall have delivered one or more Subsequent Sale Participation Notices on or following the Third Tranche Settlement Date, then the settlement of the Offer Period above (A) purchase and sale of the Subsequent Shares subject to offer, issue, sell or exchange all or any part of each such Offered Securities notice shall occur as to which a Notice of Acceptance has not been given by a Subscriber (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”)soon as possible, but only in any event by the fourth Business Day following (but not including) the last date to have timely delivered such Subsequent Sale Participation Notice.
(3) If the Purchasers shall have delivered one or more Subsequent Sale Participation Notices prior to the offerees described in Third Tranche Settlement Date, then the Offer Notice (if so described therein) settlement of the purchase and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable sale of the Subsequent Shares subject to each such notice shall occur on the acquiring person or persons or less favorable later to the Company than those set forth in the Offer Notice and (B) to publicly announce (I) the execution occur of such Subsequent Placement Agreement, and (II) either (x) the consummation of the transactions contemplated by such Subsequent Placement Agreement or Third Tranche Settlement Date and (y) the termination of fourth Business Day following (but not including) the last date to have timely delivered such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 8-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits theretoSale Participation Notice.
(iv4) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 5(j)(iii) above), then such Subscriber may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Subscriber elected to purchase pursuant to Section 5(j)(ii)1(a)(ii) above multiplied by a fraction, By (A) in the numerator case of which shall be settlement under Section 4.1(b)(2), the number fourth Business Day following (but not including) the last date to have timely delivered a Subsequent Sale Participation Notice or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Subscribers pursuant to this Section 5(j) prior to such reduction) and (B) in the denominator case of which shall be settlement under Section 4.1(b)(3), the original later to occur of (x) the Third Tranche Settlement Date and (y) the fourth Business Day following (but not including) the last date to have timely delivered such Subsequent Sale Participation Notice; each Purchaser who delivered such Subsequent Sale Participation Notice will deliver to the Money Escrow Agent an amount in United States dollars equal to the product of the Offered Securities. In the event that any Subscriber so elects to reduce (x) the number or amount of Offered Securities specified Subsequent Shares that such Purchaser indicated a willingness to acquire in its Subsequent Sale Participation Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Subscribers (as adjusted in accordance with Section 5(j)(i4.1(b)(1)) above.
multiplied by (v) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Subscriber shall acquire from the Company, and the Company shall issue to such Subscriber, the number or amount of Offered Securities specified in its Notice of Acceptance. The purchase by such Subscriber of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Subscriber of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Subscriber and its counsel.
(vi) Any Offered Securities not acquired by a Subscriber or other persons in accordance with this Section 5(j) may not be issued, sold or exchanged until they are again offered to such Subscriber under the procedures specified in this Agreement.
(vii) The Company and each Subscriber agree that if any Subscriber elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Subscriber shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(viii) Notwithstanding anything to the contrary in this Section 5(j) and unless otherwise agreed to by such Subscriber, the Company shall either confirm in writing to such Subscriber that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Subscriber will not be in possession of any material, non-public information, by the fifth (5th) business day following delivery of the Offer Notice. If by such fifth (5th) business day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such Subscriber, such transaction shall be deemed to have been abandoned and such Subscriber shall not be in possession of any material, non-public information with respect to the Company or any of its subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Subscriber with another Offer Notice in accordance with, and subject to, the terms of this Section 5(j) and such Subscriber will again have the right of participation set forth in this Section 5(j) The Company shall not be permitted to deliver more than one such Offer Notice to such Subscriber in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 5(j)(iiy). The Right of Participation set forth in this Section 5(j) shall terminate on the twenty four month anniversary of the Closing Date.
Appears in 1 contract
Samples: Securities Purchase Agreement (Impax Laboratories Inc)
Right of Participation. The Company acknowledges and agrees that For the right set forth in this Section 5(jperiod ending on the twelve (12) is a right granted by month anniversary of the Company, separately, to each Subscriber.
Closing Date (i) At least five (5) trading days prior to any proposed or intended sale by the Company of its Common Stock or other securities or equity linked debt obligations (each, a “Subsequent Placement”)such period, the Company shall deliver to each Subscriber a written notice of its proposal or intention to effect a Subsequent Placement (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) a statement that the Company proposes or intends to effect a Subsequent Placement, (B) a statement that the statement in clause (A) above does not constitute material, non-public information and (C) a statement informing such Subscriber that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Subscriber within five (5) business days after the Company’s delivery to such Subscriber of such Pre-Notice, and only upon a written request by such Subscriber, the Company shall promptly, but no later than one (1) business day after such request, deliver to such Subscriber an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (I) identify and describe the Offered Securities, (II) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (III) identify the persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (IV) offer to issue and sell to or exchange with such Subscriber in accordance with the terms of the Offer such Subscriber’s pro rata portion of 100% of the Offered Securities, provided that the number of Offered Securities which such Subscriber shall have the right to subscribe for under this Section 5(j) shall be (x) based on such Subscriber’s pro rata portion of the aggregate original amount of the Units purchased hereunder by all Subscribers (the “Basic Amount”), and (y) with respect to each Subscriber that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Subscribers as such Subscribers shall indicate it will purchase or acquire should the other Subscribers subscribe for less than their Basic Amounts (the “Undersubscription Amount”).
(ii) To accept an Offer, in whole or in part, such Subscriber must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such Subscriber’s receipt of the Offer Notice (the “Offer Participation Period”), setting forth the portion of such Subscriber’s Basic Amount that such Subscriber elects to purchase and, if such Subscriber shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Subscriber elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Subscribers are less than the total of all of the Basic Amounts, then such Subscriber who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), such Subscriber who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Subscriber bears to the total Basic Amounts of all Subscribers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Subscriber a new Offer Notice and the Offer Period shall expire on the fifth(5th) Business Day after such Subscriber’s receipt of such new Offer Notice.
(iii) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Subscriber (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring person or persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (I) the execution of such Subsequent Placement Agreement, and (II) either (x) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (y) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 8-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(iv) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 5(j)(iii) above), then such Subscriber may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Subscriber elected to purchase pursuant to Section 5(j)(ii)1(a)(ii) above multiplied by a fraction, (A) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Subscribers pursuant to this Section 5(j) prior to such reduction) and (B) the denominator of which shall be the original amount of the Offered Securities. In the event that any Subscriber so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Subscribers in accordance with Section 5(j)(i) above.
(v) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Subscriber shall acquire from the Company, and the Company shall issue to such Subscriber, the number or amount of Offered Securities specified in its Notice of Acceptance. The purchase by such Subscriber of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Subscriber of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Subscriber and its counsel.
(vi) Any Offered Securities not acquired by a Subscriber or other persons in accordance with this Section 5(j) may not be issued, sold or exchanged until they are again offered to such Subscriber under the procedures specified in this Agreement.
(vii) The Company and each Subscriber agree that if any Subscriber elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Subscriber shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(viii) Notwithstanding anything to the contrary in this Section 5(j) and unless otherwise agreed to by such Subscriber, the Company shall either confirm in writing to such Subscriber that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Subscriber will not be in possession of any material, non-public information, by the fifth (5th) business day following delivery of the Offer Notice. If by such fifth (5th) business day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such Subscriber, such transaction shall be deemed to have been abandoned and such Subscriber shall not be in possession of any material, non-public information with respect to the Company or any of its subsidiaries. Should Subsidiaries proposes to offer and sell shares of Common Shares or Common Share Equivalents (“Offered Securities”) to investors primarily for capital raising purposes (each, a “Future Offering”), the Company decide Purchasers shall have the right, but not the obligation, to pursue participate in each such transaction with respect Future Offering in an amount of up to 50% in the aggregate of the Offered SecuritiesSecurities (the “Participation Right”). The Participation Right shall not apply to any Exempt Issuances. In connection with each Participation Right, the Company shall provide such Subscriber with another Offer Notice written notice to the Purchasers of the proposed terms and conditions of the Future Offering (a) in accordance withthe case of an offering that is an “overnight offering”, no later than twelve (12) hours prior to the launch or pricing date and subject to(b) in the case of a “public offering” as defined pursuant to the rules and regulations of the NYSE American, no later than forty-eight (48) hours prior to the launch or pricing date (in each case, the terms “Offering Notice”). If a Purchaser shall elect to exercise its Participation Right, such Purchaser shall notify the Company, in writing, of this Section 5(j) and such Subscriber will again have election promptly after receipt of the right of participation set forth in this Section 5(j) The Company shall Offering Notice (the “Participation Notice”). In the event the Purchaser does not be permitted to deliver more than one such Offer timely return a Participation Notice to such Subscriber in any sixty (60) day periodthe Company , except as expressly contemplated by the last sentence of Section 5(j)(ii). The Participation Right of Participation set forth in this Section 5(j) granted hereunder shall terminate on the twenty four month anniversary and be of no further force and effect; provided, however, that such Participation Right shall be reinstated in respect of the Closing DateFuture Offering in connection with which such Offering Notice was delivered if the anticipated closing referenced in the Offering Notice does not occur within thirty (30) days of the delivery of the Offering Notice and the Participation Period has not otherwise ended.
Appears in 1 contract
Samples: Securities Purchase Agreement (AgEagle Aerial Systems Inc.)
Right of Participation. The Company acknowledges and agrees that the right set forth in this Section 5(j) is a right granted by the Company, separately, to each Subscriber.
(i) At least five (5) trading days prior to any proposed or intended sale by For a period of 12 months following the Company of its Common Stock or other securities or equity linked debt obligations (each, a “Subsequent Placement”)Closing Date, the Company shall deliver not issue, sell or exchange, agree or obligate itself to each Subscriber issue, sell or exchange or reserve or set aside for issuance, sale or exchange (a written notice of its proposal or intention to effect a Subsequent Placement (each such notice, a “Pre-Notice”"FUTURE ISSUANCE"), which Pre-Notice shall not contain but excluding any information Excluded Securities (includingas defined in the Notes), without limitation, material, non-public information) other than: (A) a statement that the Company proposes or intends to effect a Subsequent Placementany shares of Common Stock, (B) a statement that any other equity security of the statement in clause (A) above does not constitute materialCompany, non-public information and including without limitation shares of preferred stock, (C) any debt security of the Company (other than debt with no equity feature), including without limitation any debt security which by its terms is convertible into or exchangeable for any equity security of the Company, (D) any security of the Company that is a statement informing combination of debt and equity, or (E) any option, warrant or other right to subscribe for, purchase or otherwise acquire any such Subscriber that it is entitled equity security or any such debt security of the Company, unless in each case the Company shall have first offered to receive an Offer Notice sell (in the case of public offerings, to the extent permitted by the SEC and other applicable laws, as reasonably determined by the Company upon consultation with counsel) the Offered Securities (as defined below) with respect to such Subsequent Placement the Buyers (in all respects upon its written request. Upon the written request of a Subscriber within five (5identical terms and conditions, including, without limitations, unit price and interest rates) business days after the Company’s delivery to such Subscriber of such Pre-Notice, and only upon a written request by such Subscriber, the as follows: The Company shall promptly, but no later than one offer to sell to each Buyer (1) business day after such request, deliver to such Subscriber an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (I) identify and describe the Offered Securities, (II) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount that portion of the Offered Securities to be issued, sold or exchanged, (III) identify as the persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (IV) offer to issue and sell to or exchange with such Subscriber in accordance with the terms of the Offer such Subscriber’s pro rata portion of 100% of the Offered Securities, provided that the number of Offered Securities which such Subscriber shall have the right to subscribe for under this Section 5(j) shall be (x) based on such Subscriber’s pro rata portion of the aggregate original principal amount of Notes acquired by such Buyer at the Units purchased hereunder Closing bears to the total principal amount of Notes acquired by all Subscribers Buyers at the Closing (the “Basic Amount”"BASIC AMOUNT"), and (y2) with respect to each Subscriber that elects to purchase its Basic Amount, any such additional portion of the Offered Securities attributable to the Basic Amounts of other Subscribers as such Subscribers Buyer shall indicate it will purchase or acquire should the other Subscribers Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”"UNDERSUBSCRIPTION AMOUNT").
(ii) To accept an Offer, in whole or in part, at a price and on such Subscriber must deliver a written notice to other terms as shall have been specified by the Company prior in writing delivered to such Buyer (the end "OFFER"), which Offer by its terms shall remain open and irrevocable (unless the Future Issuance is not consummated) for a period of the fifth twenty (5th20) Business Day after such Subscriber’s days from receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such Subscriber’s Basic Amount that such Subscriber elects to purchase and, if such Subscriber shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Subscriber elects to purchase (in either case, the “Notice of Acceptance”)Offer. If the Basic Amounts subscribed for by all Subscribers are less than the total of all "OFFERED SECURITIES" means 50% of the Basic Amounts, then such Subscriber who has set forth an Undersubscription Amount aggregate amount of the securities being issued or sold in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed forFuture Issuance; provided, however, if that with respect to Future Issuances that are underwritten public offerings, "Offered Securities" means the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), such Subscriber who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion Buyers' pro rata share of the Available Undersubscription Amount as the Basic Amount of such Subscriber bears to the total Basic Amounts of all Subscribers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Subscriber a new Offer Notice and the Offer Period shall expire on the fifth(5th) Business Day after such Subscriber’s receipt of such new Offer Notice.
(iii) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Subscriber (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring person or persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (I) the execution of such Subsequent Placement Agreement, and (II) either (x) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (y) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 8-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(iv) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 5(j)(iii) above), then such Subscriber may, at its sole option and in its sole discretion, reduce the number or aggregate amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Subscriber elected to purchase pursuant to Section 5(j)(ii)1(a)(ii) above multiplied by a fraction, (A) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be securities being issued or sold to Subscribers pursuant to this Section 5(j) prior to such reduction) and (B) the denominator of which shall be the original amount of the Offered Securities. In the event that any Subscriber so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Subscribers in accordance with Section 5(j)(i) above.
(v) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Subscriber shall acquire from the Company, and the Company shall issue to such Subscriber, the number or amount of Offered Securities specified in its Notice of Acceptance. The purchase by such Subscriber of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Subscriber of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Subscriber and its counsel.
(vi) Any Offered Securities not acquired by a Subscriber or other persons in accordance with this Section 5(j) may not be issued, sold or exchanged until they are again offered to such Subscriber under the procedures specified in this Agreement.
(vii) The Company and each Subscriber agree that if any Subscriber elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Subscriber shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(viii) Notwithstanding anything to the contrary in this Section 5(j) and unless otherwise agreed to by such Subscriber, the Company shall either confirm in writing to such Subscriber that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such Future Issuance, calculated on a manner such that such Subscriber will not be in possession of any material, non-public information, by the fifth (5th) business day following delivery of the Offer Notice. If by such fifth (5th) business day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such Subscriber, such transaction shall be deemed to have been abandoned and such Subscriber shall not be in possession of any material, non-public information with respect to the Company or any of its subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Subscriber with another Offer Notice in accordance with, and subject to, the terms of this Section 5(j) and such Subscriber will again have the right of participation set forth in this Section 5(j) The Company shall not be permitted to deliver more than one such Offer Notice to such Subscriber in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 5(j)(ii). The Right of Participation set forth in this Section 5(j) shall terminate on the twenty four month anniversary of the Closing Datefully diluted basis.
Appears in 1 contract
Samples: Securities Purchase Agreement (Noble International LTD)
Right of Participation. The Company acknowledges and agrees that the right set forth in this Section 5(j) is a right granted by the Company, separately, to each Subscriber.
(i) At least five (5) trading days prior to any proposed or intended sale by the Company of its Common Stock or other securities or equity linked debt obligations (each, a “Subsequent Placement”), the Company shall deliver to each Subscriber a written notice of its proposal or intention to effect a Subsequent Placement (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) a statement that the Company proposes or intends to effect a Subsequent Placement, (B) a statement that the statement in clause (A) above does not constitute material, non-public information and (C) a statement informing such Subscriber that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Subscriber within five (5) business days after the Company’s delivery to such Subscriber of such Pre-Pre- Notice, and only upon a written request by such Subscriber, the Company shall promptly, but no later than one (1) business day after such request, deliver to such Subscriber an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (I) identify and describe the Offered Securities, (II) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (III) identify the persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (IV) offer to issue and sell to or exchange with such Subscriber in accordance with the terms of the Offer such Subscriber’s pro rata portion of 100% of the Offered Securities, provided that the number of Offered Securities which such Subscriber shall have the right to subscribe for under this Section 5(j) shall be (x) based on such Subscriber’s pro rata portion of the aggregate original amount of the Units purchased hereunder by all Subscribers (the “Basic Amount”), and (y) with respect to each Subscriber that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Subscribers as such Subscribers shall indicate it will purchase or acquire should the other Subscribers subscribe for less than their Basic Amounts (the “Undersubscription Amount”).
(ii) To accept an Offer, in whole or in part, such Subscriber must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such Subscriber’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such Subscriber’s Basic Amount that such Subscriber elects to purchase and, if such Subscriber shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Subscriber elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Subscribers are less than the total of all of the Basic Amounts, then such Subscriber who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), such Subscriber who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Subscriber bears to the total Basic Amounts of all Subscribers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Subscriber a new Offer Notice and the Offer Period shall expire on the fifth(5th) Business Day after such Subscriber’s receipt of such new Offer Notice.
(iii) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Subscriber (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring person or persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (I) the execution of such Subsequent Placement Agreement, and (II) either (x) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (y) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 8-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(iv) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 5(j)(iii) above), then such Subscriber may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Subscriber elected to purchase pursuant to Section 5(j)(ii)1(a)(ii) above multiplied by a fraction, (A) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Subscribers pursuant to this Section 5(j) prior to such reduction) and (B) the denominator of which shall be the original amount of the Offered Securities. In the event that any Subscriber so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Subscribers in accordance with Section 5(j)(i) above.
(v) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Subscriber shall acquire from the Company, and the Company shall issue to such Subscriber, the number or amount of Offered Securities specified in its Notice of Acceptance. The purchase by such Subscriber of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Subscriber of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Subscriber and its counsel.
(vi) Any Offered Securities not acquired by a Subscriber or other persons in accordance with this Section 5(j) may not be issued, sold or exchanged until they are again offered to such Subscriber under the procedures specified in this Agreement.
(vii) The Company and each Subscriber agree that if any Subscriber elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Subscriber shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(viii) Notwithstanding anything to the contrary in this Section 5(j) and unless otherwise agreed to by such Subscriber, the Company shall either confirm in writing to such Subscriber that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Subscriber will not be in possession of any material, non-non- public information, by the fifth (5th) business day following delivery of the Offer Notice. If by such fifth (5th) business day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such Subscriber, such transaction shall be deemed to have been abandoned and such Subscriber shall not be in possession of any material, non-public information with respect to the Company or any of its subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Subscriber with another Offer Notice in accordance with, and subject to, the terms of this Section 5(j) and such Subscriber will again have the right of participation set forth in this Section 5(j) The Company shall not be permitted to deliver more than one such Offer Notice to such Subscriber in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 5(j)(ii). The Right of Participation set forth in this Section 5(j) shall terminate on the twenty four month anniversary of the Closing Date.
Appears in 1 contract
Right of Participation. The Company acknowledges and agrees that the right set forth in this Section 5(j5(i) is a right granted by the Company, separately, to each Subscriber.
(i) At least five (5) trading days prior to any proposed or intended sale by the Company of its Common Stock or other securities or equity linked debt obligations (each, a “Subsequent Placement”), the Company shall deliver to each Subscriber a written notice of its proposal or intention to effect a Subsequent Placement (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) a statement that the Company proposes or intends to effect a Subsequent Placement, (B) a statement that the statement in clause (A) above does not constitute material, non-public information and (C) a statement informing such Subscriber that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Subscriber within five (5) business days after the Company’s delivery to such Subscriber of such Pre-Notice, and only upon a written request by such Subscriber, the Company shall promptly, but no later than one (1) business day after such request, deliver to such Subscriber an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (IA) identify and describe the Offered Securities, (IIB) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (IIIC) identify the persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (IVD) offer to issue and sell to or exchange with such Subscriber in accordance with the terms of the Offer such Subscriber’s pro rata portion of 100% of the Offered Securities, provided that the number of Offered Securities which such Subscriber shall have the right to subscribe for under this Section 5(j5(i) shall be (x) based on such Subscriber’s pro rata portion of the aggregate original amount of the Units purchased hereunder by all Subscribers (the “Basic Amount”), and (y) with respect to each Subscriber that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Subscribers as such Subscribers shall indicate it will purchase or acquire should the other Subscribers subscribe for less than their Basic Amounts (the “Undersubscription Amount”).
(ii) To accept an Offer, in whole or in part, such Subscriber must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such Subscriber’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such Subscriber’s Basic Amount that such Subscriber elects to purchase and, if such Subscriber shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Subscriber elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Subscribers are less than the total of all of the Basic Amounts, then such Subscriber who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), such Subscriber who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Subscriber bears to the total Basic Amounts of all Subscribers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Subscriber a new Offer Notice and the Offer Period shall expire on the fifth(5thfifth (5th) Business Day after such Subscriber’s receipt of such new Offer Notice.
(iii) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Subscriber (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring person or persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (Ix) the execution of such Subsequent Placement Agreement, and (IIy) either (xI) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (yII) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 8-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(iv) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 5(j)(iii5(i)(iii) above), then such Subscriber may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Subscriber elected to purchase pursuant to Section 5(j)(ii)1(a)(ii5(i)(ii) above multiplied by a fraction, (A) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Subscribers pursuant to this Section 5(j5(i) prior to such reduction) and (B) the denominator of which shall be the original amount of the Offered Securities. In the event that any Subscriber so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Subscribers in accordance with Section 5(j)(i5(i)(i) above.
(v) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Subscriber shall acquire from the Company, and the Company shall issue to such Subscriber, the number or amount of Offered Securities specified in its Notice of Acceptance. The purchase by such Subscriber of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Subscriber of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Subscriber and its counsel.
(vi) Any Offered Securities not acquired by a Subscriber or other persons in accordance with this Section 5(j5(i) may not be issued, sold or exchanged until they are again offered to such Subscriber under the procedures specified in this Agreement.
(vii) The Company and each Subscriber agree that if any Subscriber elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Subscriber shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(viii) Notwithstanding anything to the contrary in this Section 5(j5(i) and unless otherwise agreed to by such Subscriber, the Company shall either confirm in writing to such Subscriber that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Subscriber will not be in possession of any material, non-public information, by the fifth (5th) business day following delivery of the Offer Notice. If by such fifth (5th) business day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such Subscriber, such transaction shall be deemed to have been abandoned and such Subscriber shall not be in possession of any material, non-public information with respect to the Company or any of its subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Subscriber with another Offer Notice in accordance with, and subject to, the terms of this Section 5(j5(i) and such Subscriber will again have the right of participation set forth in this Section 5(j5(i) The Company shall not be permitted to deliver more than one such Offer Notice to such Subscriber in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 5(j)(ii5(i)(ii). The Right of Participation set forth in this Section 5(j5(i) shall terminate on upon the twenty four month anniversary conclusion of the Closing DateObligation Period.
Appears in 1 contract
Right of Participation. The (a) For a period as long as any Convertible Debenture is outstanding, the Company acknowledges covenants and agrees that to promptly notify in writing (a “Rights Notice”) the right set forth Purchasers who are in this Section 5(jpossession of outstanding Convertible Debenture(s) is a right granted by ( the Company, separately, to each Subscriber.
(i“Eligible Purchaser(s)”) At least five (5) trading days prior to of the terms and conditions of any proposed offer or intended sale by the Company to, or exchange with (or other type of its distribution to) any third party (a “Subsequent Financing”), of Common Stock or other any equity securities convertible, exercisable or equity linked debt obligations (eachexchangeable into Common Stock; provided, however, prior to delivering to each Eligible Purchaser a “Subsequent Placement”)Rights Notice, the Company shall first deliver to each Subscriber Eligible Purchaser a written notice of its proposal or intention to effect a Subsequent Placement Financing (each such notice, a “Pre-Notice”)) within three (3) Business Days of receiving an applicable offer, which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) a statement that ask such Eligible Purchaser if it wants to review the Company proposes or intends to effect a Subsequent Placement, (B) a statement that the statement in clause (A) above does not constitute material, non-public information and (C) a statement informing details of such Subscriber that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written requestfinancing. Upon the written request of a Subscriber within five (5) business days after the Company’s delivery to such Subscriber of such Pre-Noticean Eligible Purchaser, and only upon a written request by such SubscriberEligible Purchaser within three (3) Business Days of receipt of a Pre-Notice, the Company shall promptly, but no later than one two (12) business day Business Days after such request, deliver a Rights Notice to such Subscriber an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Eligible Purchaser. The Rights Notice shall (I) identify describe, in reasonable detail, the proposed Subsequent Financing, the names and describe investment amounts of all investors participating in the Offered Securities, (II) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (III) identify the persons Subsequent Financing (if known) to which or with which ), the Offered Securities are to be offered, issued, sold or exchanged and (IV) offer to issue and sell to or exchange with such Subscriber in accordance with the terms proposed closing date of the Offer such Subscriber’s pro rata portion of 100% Subsequent Financing, which shall be no earlier than ten (10) Business Days from the date of the Offered Securities, provided that the number of Offered Securities which such Subscriber shall have the right to subscribe for under this Section 5(j) shall be (x) based on such Subscriber’s pro rata portion of the aggregate original amount of the Units purchased hereunder by all Subscribers (the “Basic Amount”)Rights Notice, and (y) with respect to each Subscriber that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Subscribers as such Subscribers shall indicate it will purchase or acquire should the other Subscribers subscribe for less than their Basic Amounts (the “Undersubscription Amount”).
(ii) To accept an Offer, in whole or in part, such Subscriber must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such Subscriber’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such Subscriber’s Basic Amount that such Subscriber elects to purchase and, if such Subscriber shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Subscriber elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Subscribers are less than the total of all of the Basic Amounts, then such Subscriber who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), such Subscriber who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Subscriber bears to the total Basic Amounts of all Subscribers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of thereof and proposed definitive documentation to be entered into in connection therewith. The Rights Notice shall provide each Eligible Purchaser an option (the Offer prior to “Rights Option”) during the expiration of the Offer Period, the Company may deliver to each Subscriber a new Offer Notice and the Offer Period shall expire on the fifth(5th) Business Day after such Subscriber’s receipt of such new Offer Notice.
(iii) The Company shall have five (5) Business Days from the expiration following delivery of the Offer Period above Rights Notice (the “Option Period”) to inform the Company whether such Eligible Purchaser will purchase up to its pro rata portion of all or a portion of the securities being offered in such Subsequent Financing on the same, absolute terms and conditions as contemplated by such Subsequent Financing, provided that, the amount of such purchase shall not exceed such Purchaser’s Purchase Price hereunder except as allowed by the following sentence. If any Eligible Purchaser elects not to participate in such Subsequent Financing, the other Eligible Purchasers may participate on a pro-rata basis so long as such participation in the aggregate does not exceed the total Purchase Price hereunder. For purposes of this Section, all references to “pro rata” means, for any Purchaser electing to participate in such Subsequent Financing, the percentage obtained by dividing (x) the face value of the then outstanding Convertible Debentures held by each Eligible Purchaser by (y) the dollar amount of proceeds raised in the Subsequent Financing so long as the combined participation in aggregate does not exceed the total subsequent financing amount. Delivery of any Rights Notice constitutes a representation and warranty by the Company that there are no other material terms and conditions, arrangements, agreements or otherwise except for those disclosed in the Rights Notice, to provide additional compensation to any party participating in any proposed Subsequent Financing, including, but not limited to, additional compensation based on changes in the Purchase Price or any type of reset or adjustment of a purchase or conversion price or to issue additional securities at any time after the closing date of a Subsequent Financing. If the Company does not receive notice of exercise of the Rights Option from any or all of Eligible Purchasers within the Option Period, the Company shall have the right to close the Subsequent Financing on the scheduled closing date set forth in the Rights Notice (or within sixty (60) days thereafter) without the participation of any or all of such Purchasers; provided that, all of the material terms and conditions of the closing are the same as those provided to the Purchasers in the Rights Notice. If the closing of the proposed Subsequent Financing does not occur on the scheduled closing date set forth in the Rights Notice (or within sixty (60) days thereafter), any closing of the contemplated Subsequent Financing or any other Subsequent Financing shall be subject to all of the provisions of this Section 3.12(a), including, without limitation, the delivery of a new Rights Notice. The provisions of this Section 3.12(a) shall not apply to issuances of securities in a Permitted Financing.
(b) For purposes of this Agreement, a Permitted Financing (as defined hereinafter) shall not be considered a Subsequent Financing. A “Permitted Financing” shall mean (i) securities issued pursuant to a bona fide acquisition of another business entity or business segment of any such entity by the Company pursuant to a merger, purchase of substantially all the assets or any type of reorganization (each an “Acquisition”) provided that (A) to offer, issue, sell or exchange all or any part the Company will own more than fifty percent (50%) of the voting power of such Offered Securities as to which a Notice business entity or business segment of Acceptance has not been given such entity and (B) such Acquisition is approved by a Subscriber the Company’s Board of Directors; (the “Refused Securities”ii) securities issued pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only conversion or exercise of convertible or exercisable securities issued or outstanding on or prior to the offerees described date of this Agreement or issued pursuant to this Agreement (so long as the terms governing the conversion or exercise price in such securities are not amended to lower such price and/or adversely affect the Offer Notice Purchasers); (if iii) securities issued in connection with bona fide strategic license agreements or other partnering arrangements so described thereinlong as such issuances are not for the primary purpose of raising capital; (iv) Common Stock issued or the issuance or grants of options to purchase Common Stock, in each case, at no less than the then-applicable fair market value, pursuant to equity incentive plans that are adopted by the Company’s Board of Directors; (v) securities issued to any placement agent and only upon terms and conditions its respective designees for the transactions contemplated by this Agreement; (vi) securities issued at no less than the then-applicable fair market value to advisors or consultants (including, without limitation, unit prices financial advisors and interest ratesinvestor relations firms) in connection with any engagement letter or consulting agreement, provided that are not more favorable any such issuance is approved by the Company’s Board of Directors; (vii) securities issued to financial institutions or lessors in connection with reasonable commercial credit arrangements, equipment financings or similar transactions, provided that any such issue is approved by the acquiring person Company’s Board of Directors; (viii) securities issued to vendors or customers or to other persons in similar commercial situations as the Company, provided that any such issue is approved by the Company’s Board of Directors; (ix) securities issued in connection with any recapitalization of the Company; or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (I) the execution of such Subsequent Placement Agreement, and (II) either (x) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (y) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 8-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(iv) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 5(j)(iii) above), then such Subscriber may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance securities issued pursuant to an amount that shall be not less than the number or amount of the Offered Securities that such Subscriber elected to purchase pursuant to Section 5(j)(ii)1(a)(ii) above multiplied by a fraction, (A) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Subscribers pursuant to this Section 5(j) prior to such reduction) and (B) the denominator of which shall be the original amount of the Offered Securities. In the event that any Subscriber so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Subscribers in accordance with Section 5(j)(i) above.
(v) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Subscriber shall acquire from the Company, and the Company shall issue to such Subscriber, the number or amount of Offered Securities specified in its Notice of Acceptance. The purchase by such Subscriber of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Subscriber of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Subscriber and its counsel.
(vi) Any Offered Securities not acquired by a Subscriber or other persons in accordance with this Section 5(j) may not be issued, sold or exchanged until they are again offered to such Subscriber under the procedures specified in this Agreement.
(vii) The Company and each Subscriber agree that if any Subscriber elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Subscriber shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(viii) Notwithstanding anything to the contrary in this Section 5(j) and unless otherwise agreed to by such Subscriber, the Company shall either confirm in writing to such Subscriber that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Subscriber will not be in possession of any material, non-underwritten public information, by the fifth (5th) business day following delivery of the Offer Notice. If by such fifth (5th) business day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such Subscriber, such transaction shall be deemed to have been abandoned and such Subscriber shall not be in possession of any material, non-public information with respect to the Company or any offering of its subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Subscriber with another Offer Notice in accordance with, and subject to, the terms of this Section 5(j) and such Subscriber will again have the right of participation set forth in this Section 5(j) The Company shall not be permitted to deliver more than one such Offer Notice to such Subscriber in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 5(j)(ii). The Right of Participation set forth in this Section 5(j) shall terminate on the twenty four month anniversary of the Closing Datecommon stock.
Appears in 1 contract
Samples: Securities Purchase Agreement (One Horizon Group, Inc.)
Right of Participation. The Company acknowledges and agrees that the right rights set forth in this Section 5(j6(e) is a right granted by the CompanyOffering Entity (as defined below), separately, to each SubscriberPurchaser.
(i) At least five (5) trading days prior to any proposed or intended sale by the Company or, after the Public Company Event, Pubco (such entity, the “Offering Entity”) of its Common Stock or other securities or equity linked debt obligations (each, a “Subsequent Placement”), the Company Offering Entity shall deliver to each Subscriber Purchaser a written notice of its proposal or intention to effect a Subsequent Placement (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) a statement that the Company Offering Entity proposes or intends to effect a Subsequent Placement, (B) a statement that the statement in clause (A) above does not constitute material, non-public information and (C) a statement informing such Subscriber Purchaser that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Subscriber Purchaser within five (5) business days after the CompanyOffering Entity’s delivery to such Subscriber Purchaser of such Pre-Notice, and only upon a written request by such SubscriberPurchaser, the Company Offering Entity shall promptly, but no later than one (1) business day after such request, deliver to such Subscriber Purchaser an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (I) identify and describe the Offered Securities, (II) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (III) identify the persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (IV) offer to issue and sell to or exchange with such Subscriber Purchaser in accordance with the terms of the Offer such SubscriberPurchaser’s pro rata portion of 100% of the Offered Securities, provided that the number of Offered Securities which such Subscriber Purchaser shall have the right to subscribe for under this Section 5(j6(e) shall be (x) based on such SubscriberPurchaser’s pro rata portion of the aggregate original principal amount of the Units Notes purchased hereunder by all Subscribers Purchasers (the “Basic Amount”), and (y) with respect to each Subscriber Purchaser that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Subscribers Purchasers as such Subscribers Purchasers shall indicate it will purchase or acquire should the other Subscribers Purchasers subscribe for less than their Basic Amounts (the “Undersubscription Amount”).
(ii) To accept an Offer, in whole or in part, such Subscriber Purchaser must deliver a written notice to the Company Offering Entity prior to the end of the fifth (5th) Business Day after such SubscriberPurchaser’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such SubscriberPurchaser’s Basic Amount that such Subscriber Purchaser elects to purchase and, if such Subscriber Purchaser shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Subscriber Purchaser elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Subscribers Purchasers are less than the total of all of the Basic Amounts, then such Subscriber Purchaser who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), such Subscriber Purchaser who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Subscriber Purchaser bears to the total Basic Amounts of all Subscribers Purchasers that have subscribed for Undersubscription Amounts, subject to rounding by the Company Offering Entity to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company Offering Entity desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company Offering Entity may deliver to each Subscriber Purchaser a new Offer Notice and the Offer Period shall expire on the fifth(5th) Business Day after such SubscriberPurchaser’s receipt of such new Offer Notice.
(iii) The Company Offering Entity shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Subscriber Purchaser (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring person or persons or less favorable to the Company Offering Entity than those set forth in the Offer Notice and (B) to publicly announce (I) the execution of such Subsequent Placement Agreement, and (II) either (x) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (y) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 8-K (after a Public Company Event) with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(iv) In the event the Company Offering Entity shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 5(j)(iii6(e)(iii) above), then such Subscriber Purchaser may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Subscriber Purchaser elected to purchase pursuant to Section 5(j)(ii)1(a)(ii) 6(e)(ii)0 above multiplied by a fraction, (A) the numerator of which shall be the number or amount of Offered Securities the Company Offering Entity actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Subscribers Purchasers pursuant to this Section 5(j6(e) prior to such reduction) and (B) the denominator of which shall be the original amount of the Offered Securities. In the event that any Subscriber Purchaser so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company Offering Entity may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Subscribers Purchasers in accordance with Section 5(j)(i6(e)(i) above.
(v) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Subscriber Purchaser shall acquire from the CompanyOffering Entity, and the Company Offering Entity shall issue to such SubscriberPurchaser, the number or amount of Offered Securities specified in its Notice of Acceptance. The purchase by such Subscriber Purchaser of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company Offering Entity and such Subscriber Purchaser of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Subscriber Purchaser and its counsel.
(vi) Any Offered Securities not acquired by a Subscriber Purchaser or other persons in accordance with this Section 5(j6(e) may not be issued, sold or exchanged until they are again offered to such Subscriber Purchaser under the procedures specified in this Agreement.
(vii) The Company Offering Entity and each Subscriber Purchaser agree that if any Subscriber Purchaser elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Subscriber Purchaser shall be required to agree to any restrictions on trading as to any securities of the Company Offering Entity or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company Offering Entity or any instrument received from the CompanyOffering Entity.
(viii) Notwithstanding anything to the contrary in this Section 5(j6(e) and unless otherwise agreed to by such SubscriberPurchaser, the Company Offering Entity shall either confirm in writing to such Subscriber Purchaser that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Subscriber Purchaser will not be in possession of any material, non-public information, by the fifth (5th) business day following delivery of the Offer Notice. If by such fifth (5th) business day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such SubscriberPurchaser, such transaction shall be deemed to have been abandoned and such Subscriber Purchaser shall not be in possession of any material, non-public information with respect to the Company Offering Entity or any of its subsidiaries. Should the Company Offering Entity decide to pursue such transaction with respect to the Offered Securities, the Company Offering Entity shall provide such Subscriber Purchaser with another Offer Notice in accordance with, and subject to, the terms of this Section 5(j6(e) and such Subscriber Purchaser will again have the right of participation set forth in this Section 5(j6(e) The Company Offering Entity shall not be permitted to deliver more than one such Offer Notice to such Subscriber Purchaser in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 5(j)(ii6(e)(ii). The Right of Participation set forth in this Section 5(j6(e) shall terminate on the twenty four month anniversary of date that is twelve (12) months from the Closing Date. Upon consummation of a Public Company Event, the Company shall cause Pubco to assume all obligations of the Company under this Section 6(e).
Appears in 1 contract
Samples: Securities Purchase Agreement (Ecosphere Technologies Inc)
Right of Participation. The (a) From the date hereof until the date that is twelve (12) months after the date of Closing Date, upon any issuance by the Company acknowledges and agrees that or any of its Subsidiaries of Common Stock, Common Stock Equivalents or preferred stock for cash consideration, Indebtedness or a combination of securities hereof (a “Subsequent Financing”), the Purchasers shall have the right set forth to participate in this Section 5(jup to an amount of the Subsequent Financing equal to 50% of the Subsequent Financing (the “Participation Maximum”) is a right granted by on the Companysame terms, separately, to each Subscriberconditions and price provided for in the Subsequent Financing.
(ib) At least No later than five (5) trading days Trading Days prior to any proposed or intended sale by the Company expected time of its Common Stock or other securities or equity linked debt obligations (each, a “pricing of the Subsequent Placement”)Offering, the Company shall deliver to each Subscriber Purchaser a written notice of its proposal or the Company’s intention to effect a Subsequent Placement Financing (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information ask the Purchaser if it wants to review the details of such financing (includingsuch additional notice, without limitation, material, non-public information) other than: (A) a statement that the Company proposes or intends to effect a “Subsequent Placement, (B) a statement that the statement in clause (A) above does not constitute material, non-public information and (C) a statement informing such Subscriber that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written requestFinancing Notice”). Upon the written request of a Subscriber within five (5) business days after the Company’s delivery to such Subscriber of such Pre-NoticePurchaser, and only upon a written request by such SubscriberPurchaser, for a Subsequent Financing Notice, the Company shall promptly, but no not later than one (1) business day Trading Day after such request, deliver a Subsequent Financing Notice to such Subscriber Purchaser, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder and the Person or Persons through or with whom such Subsequent Financing is proposed to be effected and shall include a term sheet and transaction documents relating thereto as an irrevocable attachment.
(c) Any Purchaser desiring to participate in such Subsequent Financing must provide written notice to the Company not later than one (1) Trading Day prior to the expected time of pricing of the Subsequent Offering (the “Offer NoticeNotice Termination Time”) ), to the effect that such Purchaser is willing to participate in the Subsequent Financing, the amount of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (I) identify and describe the Offered Securities, (II) describe the price and other terms upon which they are to be issued, sold or exchangedsuch Purchaser’s participation, and representing and warranting that such Purchaser has such funds ready, willing, and available for investment on the number terms set forth in the Subsequent Financing Notice. If the Company receives no such notice from a Purchaser as of such Notice Termination Time, such Purchaser shall be deemed to have notified the Company that it does not elect to participate in such Subsequent Financing.
(d) If, by the Notice Termination Time, notifications by the Purchasers of their willingness to participate in the Subsequent Financing (or to cause their designees to participate) is, in the aggregate, less than the total amount of the Offered Securities to be issuedSubsequent Financing, sold or exchanged, (III) identify then the persons (if known) to which or with which Company may effect the Offered Securities are to be offered, issued, sold or exchanged remaining portion of such Subsequent Financing on the terms and (IV) offer to issue and sell to or exchange with such Subscriber in accordance with the terms Persons set forth in the Subsequent Financing Notice.
(e) If, by the Notice Termination Time, notifications by the Purchasers of their willingness to participate in the Subsequent Financing (or to cause their designees to participate) is, in the aggregate, more than the total amount of the Offer such Subscriber’s pro rata portion of 100% of the Offered SecuritiesSubsequent Financing, provided that the number of Offered Securities which such Subscriber then each Purchaser shall have the right to subscribe for under this Section 5(j) shall be (x) based on such Subscriber’s purchase its pro rata portion of such Subsequent Financing, such pro rata portion measured by reference to the aggregate original amount ratio of the Units purchased hereunder by all Subscribers (the “Basic Amount”), and (y) with respect to each Subscriber that elects to purchase its Basic Amount, any additional portion Subscription Amount of the Offered Securities attributable such Purchaser participating under this Section 4.16 relative to the Basic Subscription Amounts of other Subscribers as such Subscribers shall indicate it will purchase or acquire should the other Subscribers subscribe for less than their Basic Amounts (the “Undersubscription Amount”)all Purchasers participating under this Section 4.16.
(iif) To accept an OfferThe Company must provide the Purchasers with a second Subsequent Financing Notice, in whole or in part, such Subscriber must deliver a written notice to and the Company prior to Purchasers will again have the end right of the fifth (5th) Business Day after such Subscriber’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such Subscriber’s Basic Amount that such Subscriber elects to purchase and, if such Subscriber shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Subscriber elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Subscribers are less than the total of all of the Basic Amounts, then such Subscriber who has participation set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, howeverabove, if the Undersubscription Amounts subscribed for exceed definitive agreement related to the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), such Subscriber who has subscribed initial Subsequent Financing Notice is not entered into for any Undersubscription Amount shall be entitled to purchase only that portion reason on the terms set forth in such Subsequent Financing Notice within two (2) Trading Days, or the Subsequent Financing is not consummated within ten (10) Trading Days, in each case after the date of delivery of the Available Undersubscription Amount as the Basic Amount of such Subscriber bears to the total Basic Amounts of all Subscribers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Subscriber a new Offer Notice and the Offer Period shall expire on the fifth(5th) Business Day after such Subscriber’s receipt of such new Offer initial Subsequent Financing Notice.
(iii) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Subscriber (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring person or persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (I) the execution of such Subsequent Placement Agreement, and (II) either (x) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (y) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 8-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(iv) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 5(j)(iii) above), then such Subscriber may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Subscriber elected to purchase pursuant to Section 5(j)(ii)1(a)(ii) above multiplied by a fraction, (A) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Subscribers pursuant to this Section 5(j) prior to such reduction) and (B) the denominator of which shall be the original amount of the Offered Securities. In the event that any Subscriber so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Subscribers in accordance with Section 5(j)(i) above.
(v) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Subscriber shall acquire from the Company, and the Company shall issue to such Subscriber, the number or amount of Offered Securities specified in its Notice of Acceptance. The purchase by such Subscriber of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Subscriber of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Subscriber and its counsel.
(vi) Any Offered Securities not acquired by a Subscriber or other persons in accordance with this Section 5(j) may not be issued, sold or exchanged until they are again offered to such Subscriber under the procedures specified in this Agreement.
(viig) The Company and each Subscriber Purchaser agree that that, if any Subscriber Purchaser elects to participate in the OfferSubsequent Financing, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, to the “Subsequent Placement Documents”) Financing shall not include any term or provision that, directly or indirectly, will, or is intended to, exclude one or more of the Purchasers from participating in a Subsequent Financing, including, but not limited to, provisions whereby such Subscriber Purchaser shall be required to agree to any restrictions on trading as to any the securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with this Agreement, without the prior written consent of such Purchaser. In addition, the Company and each Purchaser agree that, in connection with a Subsequent Financing, the transaction documents related to the Subsequent Financing shall include a requirement for the Company to issue a widely disseminated press release by 9:30 am (New York City time) on the Trading Day of execution of the transaction documents in such Subsequent Financing (or, if the date of execution is not a Trading Day, on the immediately following Trading Day, or any instrument received from for an intra-day offering, by 9:30 am (New York City time) on the CompanyTrading Day immediately following the date of execution of the transaction documents in such Subsequent Financing) that discloses the material terms of the transactions contemplated by the transaction documents in such Subsequent Financing.
(viiih) Notwithstanding anything to the contrary in this Section 5(j) herein and unless otherwise agreed to by such SubscriberPurchaser, the Company shall either confirm in writing to such Subscriber Purchaser that the transaction with respect to the Subsequent Placement Financing has been abandoned or shall publicly disclose its intention to issue the Offered Securitiessecurities in the Subsequent Financing, in either case, case in such a manner such that such Subscriber Purchaser will not be in possession of any material, non-public information, by 9:30 am (New York City time) on the fifth second (5th2nd) business day Trading Day following date of delivery of the Offer Subsequent Financing Notice. If by 9:30 am (New York City time) on such fifth second (5th2nd) business dayTrading Day, no public disclosure regarding a transaction with respect to the Offered Securities Subsequent Financing has been made, and no notice regarding the abandonment of such transaction has been received by such SubscriberPurchaser, such transaction shall be deemed to have been abandoned and such Subscriber Purchaser shall not be deemed to be in possession of any material, non-public information with respect to the Company or any of its subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Subscriber with another Offer Notice in accordance with, and subject to, the terms of this Section 5(j) and such Subscriber will again have the right of participation set forth in this Section 5(j) The Company shall not be permitted to deliver more than one such Offer Notice to such Subscriber in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 5(j)(ii). The Right of Participation set forth in this Section 5(j) shall terminate on the twenty four month anniversary of the Closing DateSubsidiaries.
Appears in 1 contract
Right of Participation. The Company acknowledges and agrees that the right set forth in this Section 5(j) 4.7 is a right granted by the Company, separately, to each Subscriberthe Purchaser, provided that the Purchaser owns no fewer than Two Hundred Fifty (250) Preferred Shares.
(ia) At If the Company has delivered to the Purchaser or its assigns a notice (an “MNPI Pre-Notice”) and offer to deliver Material Non-Public Information (“MNPI”), and the Purchaser or its assigns has delivered written notice that it will accept such MNPI and only in that event, at least five ten (510) trading days prior to any proposed or intended sale by the Company of its Common Stock or other securities or equity linked debt obligations other than an Exempt Issuance other than (v) thereof (each, a “Subsequent Placement”), the Company shall deliver to each Subscriber the Purchaser a written notice of its proposal or intention to effect a Subsequent Placement (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) a statement that the Company proposes or intends to effect a Subsequent Placement, (B) a statement that the statement in clause (A) above does not constitute material, non-public information and (C) a statement informing such Subscriber the Purchaser that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Subscriber the Purchaser within five (5) business days Business Days after the Company’s delivery to such Subscriber the Purchaser of such Pre-Notice, and only upon a written request by such Subscriberthe Purchaser, the Company shall promptly, but no later than one (1) business day Business Day after such request, deliver to such Subscriber the Purchaser an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (I) identify and describe the Offered Securities, (II) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (III) identify the persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (IV) offer to issue and sell to or exchange with such Subscriber the Purchaser in accordance with the terms of the Offer such Subscriber’s pro rata portion of 100% of the Offered Securities, provided that the number of Offered Securities which such Subscriber shall have entitling the right Purchaser to subscribe for under this Section 5(j) shall be (x) based on such Subscriber’s pro rata portion maintain its percentage beneficial ownership of the aggregate original amount of Company held prior to the Units purchased hereunder by all Subscribers Subsequent Placement (the “Basic Participation Amount”). As used in this Section 4.7, and (y) with respect to each Subscriber that elects to purchase the word “Purchaser” includes its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Subscribers as such Subscribers shall indicate it will purchase or acquire should the other Subscribers subscribe for less than their Basic Amounts (the “Undersubscription Amount”)assigns.
(iib) To accept an Offer, in whole or in part, such Subscriber the Purchaser must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such Subscriberthe Purchaser’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such Subscriberthe Purchaser’s Basic Participation Amount that such Subscriber the Purchaser elects to purchase and, if such Subscriber shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Subscriber elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Subscribers are less than the total of all of the Basic Amounts, then such Subscriber who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), such Subscriber who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Subscriber bears to the total Basic Amounts of all Subscribers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Subscriber the Purchaser a new Offer Notice and the Offer Period shall expire on the fifth(5thfifth (5th) Business Day after such Subscriberthe Purchaser’s receipt of such new Offer Notice.
. Notwithstanding anything herein to the contrary, in the event that the Subsequent Placement is an “overnight” registered offering (iii“RDO”), there shall be no Pre-Notice required to be delivered to the Purchaser; provided that the Subsequent Placement is delivered between the time period of 4:00 pm (New York City time) The Company shall have five and 6:00 pm (5New York City time) Business Days from on the expiration Trading Day immediately prior to the Trading Day of the expected announcement of the Subsequent Placement (or, if the Trading Day of the expected announcement of the Subsequent Placement is the first Trading Day following a holiday or a weekend (including a holiday weekend), between the time period of 4:00 pm (New York City time) on the Trading Day immediately prior to such holiday or weekend and 2:00 pm (New York City time) on the day immediately prior to the Trading Day of the expected announcement of the Subsequent Placement). The Offer Period above (A) to offer, issue, sell or exchange all or any part Notice shall describe in reasonable detail the proposed terms of such Offered Securities Subsequent Placement, the amount of proceeds intended to be raised thereunder and the Person or Persons through or with whom such Subsequent Placement is proposed to be effected and shall include a term sheet or similar document relating thereto as an attachment. In addition, in the event of an RDO, any Purchaser desiring to participate in such Subsequent Placement must provide written notice to the Company by 6:30 am (New York City time) on the Trading Day following the date on which a the Offer Notice of Acceptance has not been given by a Subscriber is delivered to such Purchaser (the “Refused SecuritiesNotice Termination Time”) pursuant that such Purchaser is willing to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described participate in the Offer Notice (if so described therein) Subsequent Placement, the amount of such Purchaser’s participation, and only upon representing and warranting that such Purchaser has such funds ready, willing, and available for investment on the terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring person or persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (I) the execution of such Subsequent Placement Agreement, and (II) either (x) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (y) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 8-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(iv) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 5(j)(iii) above), then such Subscriber may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Subscriber elected to purchase pursuant to Section 5(j)(ii)1(a)(ii) above multiplied by a fraction, (A) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Subscribers pursuant to this Section 5(j) prior to such reduction) and (B) the denominator of which shall be the original amount of the Offered Securities. In the event that any Subscriber so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Subscribers in accordance with Section 5(j)(i) above.
(v) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Subscriber shall acquire from the Company, and the Company shall issue to such Subscriber, the number or amount of Offered Securities specified in its Notice of Acceptance. The purchase by such Subscriber of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Subscriber of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Subscriber and its counsel.
(vi) Any Offered Securities not acquired by a Subscriber or other persons in accordance with this Section 5(j) may not be issued, sold or exchanged until they are again offered to such Subscriber under the procedures specified in this Agreement.
(vii) The Company and each Subscriber agree that if any Subscriber elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Subscriber shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(viii) Notwithstanding anything to the contrary in this Section 5(j) and unless otherwise agreed to by such Subscriber, the Company shall either confirm in writing to such Subscriber that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Subscriber will not be in possession of any material, non-public information, by the fifth (5th) business day following delivery of the Offer Notice. If by the Company receives no such fifth (5th) business day, no public disclosure regarding notice from a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment Purchaser as of such transaction has been received by such SubscriberNotice Termination Time, such transaction Purchaser shall be deemed to have been abandoned and such Subscriber shall not be in possession of any material, non-public information with respect to notified the Company or any of its subsidiaries. Should the Company decide that it does not elect to pursue participate in such transaction with respect to the Offered Securities, the Company shall provide such Subscriber with another Offer Notice in accordance with, and subject to, the terms of this Section 5(j) and such Subscriber will again have the right of participation set forth in this Section 5(j) The Company shall not be permitted to deliver more than one such Offer Notice to such Subscriber in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 5(j)(ii). The Right of Participation set forth in this Section 5(j) shall terminate on the twenty four month anniversary of the Closing DateSubsequent Placement.
Appears in 1 contract
Samples: Securities Purchase Agreement (Ault Alliance, Inc.)
Right of Participation. The Company acknowledges Purchaser shall have the option and agrees that the right set forth to participate in this Section 5(j) is a right granted by the Company’s next offering and sale (if any), separatelysolely for cash consideration, to each Subscriber.
(i) At least five (5) trading days prior to any proposed or intended sale by the Company of its Common Stock or other securities or equity linked debt obligations (each, a “Subsequent Placement”), the Company shall deliver to each Subscriber a written notice of its proposal or intention to effect a Subsequent Placement (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) a statement that the Company proposes or intends to effect a Subsequent Placement, (B) a statement that the statement in clause (A) above does not constitute material, non-public information and (C) a statement informing such Subscriber that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Subscriber within five (5) business days after the Company’s delivery to such Subscriber of such Pre-Notice, and only upon a written request by such Subscriber, the Company shall promptly, but no later than one (1) business day after such request, deliver to such Subscriber an irrevocable written notice Common Stock Equivalents (the “Offer NoticeNext Offering”) of any proposed or intended issuance or sale or exchange (at the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (I) identify and describe the Offered Securities, (II) describe the same purchase price and other on the same terms upon which they are to be issued, sold or exchangedand conditions, and under the number or amount of the Offered Securities to be issuedsame documents, sold or exchanged, (III) identify the persons (if known) to which or with which the Offered Securities as are to be offered, issued, sold or exchanged and (IV) offer to issue and sell to or exchange with such Subscriber in accordance with the terms of the Offer such Subscriber’s pro rata portion of 100% of the Offered Securities, provided that the number of Offered Securities which such Subscriber shall have the right to subscribe for under this Section 5(j) shall be (x) based on such Subscriber’s pro rata portion of the aggregate original amount of the Units purchased hereunder by all Subscribers (the “Basic Amount”), and (y) with respect to each Subscriber that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Subscribers as such Subscribers shall indicate it will purchase or acquire should the other Subscribers subscribe for less than their Basic Amounts (the “Undersubscription Amount”).
(ii) To accept an Offer, in whole or in part, such Subscriber must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such Subscriber’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such Subscriber’s Basic Amount that such Subscriber elects to purchase and, if such Subscriber shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Subscriber elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Subscribers are less than the total of all of the Basic Amounts, then such Subscriber who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), such Subscriber who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Subscriber bears to the total Basic Amounts of all Subscribers that have subscribed for Undersubscription Amounts, subject to rounding offered by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoingother prospective investors, if the Company desires for an aggregate purchase price of up to modify $3,000,000 (or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, such lesser amount as the Company may deliver determine to each Subscriber a new Offer Notice and offer to all purchasers in the Offer Period shall expire on Next Offering) (the fifth(5th) Business Day after such Subscriber’s receipt of such new Offer Notice.
(iii) “Purchaser Allotment”). The Company shall have notify the Purchaser in writing not less than five (5) Business Days from prior to the expiration proposed closing date of the Offer Period above Next Offering (A) to offer, issue, sell or exchange all or any part of which date shall be specified in such Offered Securities as to which a Notice of Acceptance has not been given by a Subscriber (the “Refused Securities”) pursuant to a definitive agreement(snotice) (the “Subsequent Placement AgreementProposed Closing Date”), but only which notice shall be accompanied by all agreements and other documents to be delivered to or signed by other prospective investors in the Next Offering (the “Next Offering Documents”), and if the Purchaser desires to purchase all or any portion of the Purchaser Allotment, it shall so notify the Company in writing not less than two (2) Business days prior to the offerees described in Proposed Closing Date of the Offer Notice (if so described therein) portion of the Purchaser Allotment the Purchaser elects to purchase, and only upon terms shall execute all Next Offering Documents as required and conditions (including, without limitation, unit prices deliver them and interest rates) that the purchase price for such securities and such other items as are not more favorable specified to be delivered under the acquiring person or persons or less favorable Next Offering Documents to the Company than those set forth (or as otherwise specified in the Offer Notice and (BNext Offering Documents) to publicly announce (I) the execution of such Subsequent Placement Agreement, and (II) either (x) the consummation of the transactions contemplated by such Subsequent Placement Agreement on or (y) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 8-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(iv) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 5(j)(iii) above), then such Subscriber may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Subscriber elected to purchase pursuant to Section 5(j)(ii)1(a)(ii) above multiplied by a fraction, (A) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Subscribers pursuant to this Section 5(j) prior to the Proposed Closing Date (or such reduction) and (B) the denominator of which shall be the original amount of the Offered Securities. In the event that any Subscriber so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, later date as the Company may not issue, sell or exchange more than the reduced number or amount agree in writing). (For avoidance of the Offered Securities unless and until such securities have again been offered to the Subscribers in accordance with Section 5(j)(i) above.
(v) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Subscriber shall acquire from the Company, and the Company shall issue to such Subscriberdoubt, the number Purchaser Allotment described in this Section 4.13 does not add to or increase the Purchaser Allotment amount of Offered set forth and established in the previous Securities specified in its Notice of Acceptance. The purchase by such Subscriber of any Offered Securities is subject in all cases to the preparationPurchase Agreement dated December 1, execution and delivery by 2020 between the Company and such Subscriber of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Subscriber and its counselPurchaser.
(vi) Any Offered Securities not acquired by a Subscriber or other persons in accordance with this Section 5(j) may not be issued, sold or exchanged until they are again offered to such Subscriber under the procedures specified in this Agreement.
(vii) The Company and each Subscriber agree that if any Subscriber elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Subscriber shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(viii) Notwithstanding anything to the contrary in this Section 5(j) and unless otherwise agreed to by such Subscriber, the Company shall either confirm in writing to such Subscriber that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Subscriber will not be in possession of any material, non-public information, by the fifth (5th) business day following delivery of the Offer Notice. If by such fifth (5th) business day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such Subscriber, such transaction shall be deemed to have been abandoned and such Subscriber shall not be in possession of any material, non-public information with respect to the Company or any of its subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Subscriber with another Offer Notice in accordance with, and subject to, the terms of this Section 5(j) and such Subscriber will again have the right of participation set forth in this Section 5(j) The Company shall not be permitted to deliver more than one such Offer Notice to such Subscriber in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 5(j)(ii). The Right of Participation set forth in this Section 5(j) shall terminate on the twenty four month anniversary of the Closing Date.
Appears in 1 contract
Samples: Securities Purchase Agreement (Gaming Technologies, Inc.)
Right of Participation. The Company acknowledges Subject to the terms and agrees that the right set forth conditions specified in this Section 5(j4(q), the Company hereby grants to BVF, provided it then owns Securities representing at least five percent (5%) is of the Company's Common Stock, a right granted by the Company, separately, of participation with respect to each Subscriber.
(i) At least five (5) trading days prior to any proposed or intended sale future sales by the Company of New Securities (as hereinafter defined). Each time the Company proposes to issue, in a bona fide financing, any shares of, or securities convertible into or exercisable for any voting shares of, any class of its Common capital stock other than Permissible Redeemable, Convertible, Non-Voting Preferred Stock or other securities or equity linked debt obligations (each, a “Subsequent Placement”"New Securities"), the Company shall deliver first offer such New Securities to each Subscriber a BVF in accordance with the following provisions:
(i) The Company shall provide written notice of its proposal or intention ("Notice") to effect a Subsequent Placement (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: BVF stating:
(A) a statement that the Company proposes or intends its bona fide intention to effect a Subsequent Placement, issue such New Securities,
(B) a statement that the statement in clause (A) above does not constitute material, non-public information and (C) a statement informing such Subscriber that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Subscriber within five (5) business days after the Company’s delivery to such Subscriber number of such Pre-Notice, and only upon a written request by such Subscriber, the Company shall promptly, but no later than one (1) business day after such request, deliver to such Subscriber an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (I) identify and describe the Offered Securities, (II) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered New Securities to be issued, sold or exchangedand
(C) the price and terms, (III) identify the persons (if known) to any, upon which or with which the Offered Securities are to be offered, issued, sold or exchanged and (IV) offer it proposes to issue and sell to or exchange with such Subscriber in accordance with the terms of the Offer such Subscriber’s pro rata portion of 100% of the Offered New Securities, provided that the number of Offered Securities which such Subscriber shall have the right to subscribe for under this Section 5(j) shall be (x) based on such Subscriber’s pro rata portion of the aggregate original amount of the Units purchased hereunder by all Subscribers (the “Basic Amount”), and (y) with respect to each Subscriber that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Subscribers as such Subscribers shall indicate it will purchase or acquire should the other Subscribers subscribe for less than their Basic Amounts (the “Undersubscription Amount”).
(ii) To accept an Offer, in whole or in part, such Subscriber must deliver a written notice to the Company prior to the end Within 5 business days after delivery of the fifth (5th) Business Day after such Subscriber’s receipt of Notice, BVF may elect to purchase, at the Offer Notice (price and on the “Offer Period”)terms specified in the Notice, setting forth the up to that portion of such Subscriber’s Basic Amount New Securities that such Subscriber elects equals the proportion that the number of shares of Common Stock then held by BVF bears to purchase and, if such Subscriber shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Subscriber elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Subscribers are less than the total number of all shares of Common Stock of the Basic Amounts, Company then such Subscriber who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed foroutstanding; provided, however, if such New Securities are issued for consideration other than cash, BVF shall have the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), such Subscriber who has subscribed for any Undersubscription Amount shall be entitled right to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Subscriber bears its pro rata share in cash in an amount equivalent, on a per share basis, to the total Basic Amounts of all Subscribers that have subscribed for Undersubscription Amounts, subject consideration to rounding be received by the Company to set forth in the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Subscriber a new Offer Notice and the Offer Period shall expire on the fifth(5th) Business Day after such Subscriber’s receipt of such new Offer Notice.
(iii) The Company shall have five (5) Business Days from may, during the expiration 60-day period following the delivery of the Offer Period above (ANotice referred to in subsection 4(q)(ii) to offerhereof, issueissue the New Securities, sell or exchange all or less any part of such Offered Securities as portion to which a Notice of Acceptance has not been given by a Subscriber (the “Refused Securities”) BVF is entitled to purchase pursuant to subsection 4(q)(ii) hereof, to any person or persons at a definitive agreement(s) (the “Subsequent Placement Agreement”)price not less than, but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not no more favorable to the acquiring person offeree than those specified in the Notice. If the Company does not enter into such an agreement for the sale of the New Securities within such period, or persons if such agreement is not consummated within 60 days of the execution thereof, the right provided hereunder shall be deemed to be revived and any New Securities shall not be issued unless reoffered to BVF in accordance herewith. For greater certainty, the right of participation in this Section 4(q) shall not be applicable to:
(i) the issuance or less favorable sale of Common Stock (or options therefor) to employees, directors, consultants or advisors of the Company (for the primary purpose of soliciting or retaining their employment or services) provide such issuance or sale is approved by the Company's board of directors,
(ii) the issuance of securities pursuant to the Company than those set forth in conversion or exercise of convertible or exercisable securities outstanding, provided the Offer Notice and Company's issuance of such convertible or exercisable securities complied with the provisions of this Section 4(q),
(B) to publicly announce (Iiii) the execution issuance of such Subsequent Placement Agreementsecurities pursuant to a bona fide acquisition of an asset, and business, property or any interest therein (IIwhether by way of license or otherwise), merger, amalgamation, reorganization, arrangement (statutory or otherwise) either (x) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (y) the termination of such Subsequent Placement Agreementsimilar corporate transactions, which shall be filed with the SEC on a Current Report on Form 8-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.or
(iv) In the event the Company shall propose to sell less than all the Refused Securities any share recapitalization, capital reorganization or similar corporate transaction provided BVF's ownership and voting percentages (any both on an outstanding and as-converted basis) following such sale to be in the manner transaction equals its ownership and voting percentages (both on the terms specified in Section 5(j)(iiian outstanding and as-converted basis) above), then following such Subscriber may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Subscriber elected to purchase pursuant to Section 5(j)(ii)1(a)(ii) above multiplied by a fraction, (A) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Subscribers pursuant to this Section 5(j) prior to such reduction) and (B) the denominator of which shall be the original amount of the Offered Securities. In the event that any Subscriber so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Subscribers in accordance with Section 5(j)(i) above.
(v) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Subscriber shall acquire from the Company, and the Company shall issue to such Subscriber, the number or amount of Offered Securities specified in its Notice of Acceptancetransaction. The purchase by such Subscriber of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Subscriber of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Subscriber and its counsel.
(vi) Any Offered Securities not acquired by a Subscriber or other persons in accordance with this Section 5(j) may not be issued, sold or exchanged until they are again offered to such Subscriber under the procedures specified in this Agreement.
(vii) The Company and each Subscriber agree that if any Subscriber elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Subscriber shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(viii) Notwithstanding anything to the contrary in this Section 5(j) and unless otherwise agreed to by such Subscriber, the Company shall either confirm in writing to such Subscriber that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Subscriber will not be in possession of any material, non-public information, by the fifth (5th) business day following delivery of the Offer Notice. If by such fifth (5th) business day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such Subscriber, such transaction shall be deemed to have been abandoned and such Subscriber shall not be in possession of any material, non-public information with respect to the Company or any of its subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Subscriber with another Offer Notice in accordance with, and subject to, the terms of this Section 5(j) and such Subscriber will again have the right of participation set forth in this Section 5(j4(q) The Company shall may not be permitted to deliver more than one such Offer Notice to such Subscriber in any sixty (60) day periodassigned or transferred, except that such right is assignable by BVF to an affiliated limited partnership, limited partner, general partner, member, stockholder or other entity or person that is, within the meaning of the Act, controlling, controlled by or under common control with, BVF; provided that such entity or person is an "accredited investor" as expressly contemplated by that term is defined in: (i) Rule 501(a)(3) of Regulation D under the last sentence of Section 5(j)(ii). The Right of Participation 1933 Act, and (ii) the Canadian Securities Laws as set forth in this Section 5(j) shall terminate on the twenty four month anniversary of the Closing Date.Exhibit H.
Appears in 1 contract
Samples: Securities Purchase Agreement (Biotechnology Value Fund L P)
Right of Participation. The Subject to the exceptions described below, the Company acknowledges and agrees that the right set forth in this Section 5(j) is a right granted by the Company, separately, to each Subscriber.
its Subsidiaries shall not contract with any party for any (i) At least five convertible securities (5other than the Preferred Shares pursuant to this Agreement) trading days prior that are convertible into or exchangeable for Common Stock at a price which may vary (including by way of one or more periodic adjustments to any proposed or intended sale by a fixed conversion price) with the Company market price of its the Common Stock or other securities or equity linked debt obligations shares of Common Stock with an effective ultimate purchase price which may vary with the market price of the Common Stock after the issuance date of such shares of Common Stock (eachthe formulation for such variable price being herein referred to as, a “Subsequent Placement”the "VARIABLE PRICE"), (ii) shares of Common Stock issued at a price which is less than the Company Fixed Conversion Price (as defined in the Certificate of Designations) on the date immediately preceding the issuance date of such shares, or (iii) convertible securities (other than the Preferred Shares pursuant to this Agreement) that are convertible into or exchangeable for Common Stock at a price which is less than the Fixed Conversion Price on the date immediately preceding the issuance date of such convertible securities ("FUTURE OFFERINGS") during the period (the "RIGHT OF PARTICIPATION PERIOD") beginning on the date which is 184 days after the Closing Date and ending on and including December 31, 2000, unless it shall deliver have first delivered to each Subscriber Buyer or a designee appointed by such Buyer written notice of (the "PARTICIPATION OFFERING NOTICE") describing the proposed Future Offering, including the terms and conditions thereof, and providing each Buyer an option to purchase up to its proposal or intention to effect a Subsequent Placement (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) a statement that the Company proposes or intends to effect a Subsequent Placement, (B) a statement that the statement in clause (A) above does not constitute material, non-public information and (C) a statement informing such Subscriber that it is entitled to receive an Offer Notice Aggregate Participation Percentage (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Subscriber within five (5) business days after the Company’s delivery to such Subscriber of such Pre-Notice), and only upon a written request by such Subscriber, the Company shall promptly, but no later than one (1) business day after such request, deliver to such Subscriber an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) as of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (I) identify and describe the Offered Securities, (II) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount date of the Offered Securities to be issued, sold or exchanged, (III) identify the persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (IV) offer to issue and sell to or exchange with such Subscriber in accordance with the terms of the Offer such Subscriber’s pro rata portion of 100% of the Offered Securities, provided that the number of Offered Securities which such Subscriber shall have the right to subscribe for under this Section 5(j) shall be (x) based on such Subscriber’s pro rata portion of the aggregate original amount of the Units purchased hereunder by all Subscribers (the “Basic Amount”), and (y) with respect to each Subscriber that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Subscribers as such Subscribers shall indicate it will purchase or acquire should the other Subscribers subscribe for less than their Basic Amounts (the “Undersubscription Amount”).
(ii) To accept an Offer, in whole or in part, such Subscriber must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such Subscriber’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such Subscriber’s Basic Amount that such Subscriber elects to purchase and, if such Subscriber shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Subscriber elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Subscribers are less than the total of all of the Basic Amounts, then such Subscriber who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), such Subscriber who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Subscriber bears to the total Basic Amounts of all Subscribers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Subscriber a new Offer Notice and the Offer Period shall expire on the fifth(5th) Business Day after such Subscriber’s receipt of such new Offer Notice.
(iii) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Subscriber (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring person or persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (I) the execution of such Subsequent Placement Agreement, and (II) either (x) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (y) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 8-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(iv) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 5(j)(iii) above), then such Subscriber may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Subscriber elected to purchase pursuant to Section 5(j)(ii)1(a)(ii) above multiplied by a fraction, (A) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Subscribers pursuant to this Section 5(j) prior to such reduction) and (B) the denominator of which shall be the original amount of the Offered Securities. In the event that any Subscriber so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Subscribers in accordance with Section 5(j)(i) above.
(v) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Subscriber shall acquire from the Company, and the Company shall issue to such Subscriber, the number or amount of Offered Securities specified in its Notice of Acceptance. The purchase by such Subscriber of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Subscriber of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Subscriber and its counsel.
(vi) Any Offered Securities not acquired by a Subscriber or other persons in accordance with this Section 5(j) may not be issued, sold or exchanged until they are again offered to such Subscriber under the procedures specified in this Agreement.
(vii) The Company and each Subscriber agree that if any Subscriber elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Subscriber shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(viii) Notwithstanding anything to the contrary in this Section 5(j) and unless otherwise agreed to by such Subscriber, the Company shall either confirm in writing to such Subscriber that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Subscriber will not be in possession of any material, non-public information, by the fifth (5th) business day following delivery of the Offer Participation Offering Notice. If by such fifth (5th) business day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such Subscriber, such transaction shall be deemed to have been abandoned and such Subscriber shall not be in possession of any material, non-public information with respect to the Company or any of its subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Subscriber with another Offer Notice in accordance with, and subject to, the terms of this Section 5(j) and such Subscriber will again have the right of participation set forth in this Section 5(j) The Company shall not be permitted to deliver more than one such Offer Notice to such Subscriber in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 5(j)(ii). The Right of Participation set forth in this Section 5(j) shall terminate on the twenty four month anniversary of the Closing Date.Future
Appears in 1 contract
Right of Participation. The For a period of 12 months from the Execution of this Agreement or until such time a Senior Exchange Listing is completed, the Company acknowledges and agrees that will not, directly or indirectly, effect an offering of any shares of capital stock, convertible securities, rights, options, warrants or any other kind of its securities in a financing (a “Subsequent Financing”), unless in each case the right set forth Company shall have, in the manner prescribed in this Section 5(joffered to sell to Consultant on the same terms and conditions as offered to the investors in such Subsequent Financing an amount of such offered securities equal to twenty five percent (25%) is a right granted by of the Companytotal amount of the Subsequent Financing (the “Right of Participation”). For purposes of this Section, separatelyConsultant’s “Right of Participation” shall equal the amount of the Subsequent Financing, to each Subscriber.
(i) inclusive of the Consultant’s acquisition of securities in such Subsequent Financing. At least five (5) trading days Business Days prior to any proposed or intended sale by the Company of its Common Stock or other securities or equity linked debt obligations (each, a “Subsequent Placement”)Financing, the Company shall deliver to each Subscriber Consultant a written notice of its proposal or intention to effect a Subsequent Placement Financing (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (Ai) a statement that the Company proposes or intends to effect a Subsequent PlacementFinancing, (B) a statement that the statement in clause (A) above does not constitute material, non-public information and (Cii) a statement informing such Subscriber Consultant that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement Financing upon its written request. Upon the written request of a Subscriber Consultant within five three (53) business days Business Days after the Company’s delivery to such Subscriber Consultant of such Pre-Notice, and only upon a written request by such SubscriberConsultant, the Company shall promptly, but no later than one (1) business day Business Day after such request, deliver to such Subscriber Consultant an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent PlacementFinancing, which Offer Notice shall (Iw) identify and describe the Offered Securities, (IIx) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (IIIy) identify the persons Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (IVz) offer to issue and sell to or exchange with such Subscriber Consultant in accordance with the terms of the Offer an amount of such Subscriber’s pro rata portion of 100% of the Offered Securities, provided that the number of Offered Securities which such Subscriber shall have the right sufficient to subscribe for under this Section 5(j) shall be (x) based on such Subscriberfulfill Consultant’s pro rata portion Right of the aggregate original amount of the Units purchased hereunder by all Subscribers (the “Basic Amount”), and (y) with respect to each Subscriber that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Subscribers as such Subscribers shall indicate it will purchase or acquire should the other Subscribers subscribe for less than their Basic Amounts (the “Undersubscription Amount”).
(ii) Participation. To accept an Offer, in whole or in part, such Subscriber Consultant must deliver a written notice to the Company prior to the end of the fifth fourth (5th4th) Business Day after such SubscriberConsultant’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such Subscriber’s the Basic Amount that such Subscriber Consultant elects to purchase and, if such Subscriber Consultant shall elect to purchase all of its Basic Amount, the Undersubscription Amountany additional number, if any, that such Subscriber Consultant elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Subscribers are less than the total of all of the Basic Amounts, then such Subscriber who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if that the Undersubscription Amounts subscribed for exceed Company shall only be obligated under this Section to sell to the difference between the total Consultant that number of all Offered Securities included in a Notice of Acceptance up to the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), such Subscriber who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Subscriber bears to the total Basic Amounts of all Subscribers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer (including a change in the number of Offered Securities) prior to the expiration of the Offer Period, the Company may must deliver to each Subscriber Consultant a new Offer Notice and the a new Offer Period shall expire on the fifth(5thfourth (4th) Business Day after such SubscriberConsultant’s receipt of such new Offer Notice.
(iii) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a . Any prior Notice of Acceptance has not been given by a Subscriber (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) shall be null and only void upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring person or persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (I) the execution of such Subsequent Placement Agreement, and (II) either (x) the consummation receipt of the transactions contemplated by such Subsequent Placement Agreement or (y) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 8-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(iv) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 5(j)(iii) above), then such Subscriber may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Subscriber elected to purchase pursuant to Section 5(j)(ii)1(a)(ii) above multiplied by a fraction, (A) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Subscribers pursuant to this Section 5(j) prior to such reduction) and (B) the denominator of which shall be the original amount of the Offered Securitiesnew Offer Notice. In the event that any Subscriber so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Subscribers in accordance with Section 5(j)(i) above.
(v) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Subscriber Consultant shall acquire from the Company, and the Company shall issue to such SubscriberConsultant, the number or amount of Offered Securities specified in its Notice of Acceptance. The purchase by such Subscriber Consultant of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Subscriber Consultant of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Subscriber Consultant and its counsel.
(vi) Any Offered Securities not acquired by a Subscriber or other persons in accordance with this Section 5(j) may not be issued, sold or exchanged until they are again offered to such Subscriber under the procedures specified in this Agreement.
(vii) The Company and each Subscriber agree that if any Subscriber elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Subscriber shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(viii) Notwithstanding anything to the contrary in this Section 5(j) and unless otherwise agreed to by such Subscriber, the Company shall either confirm in writing to such Subscriber that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Subscriber will not be in possession of any material, non-public information, by the fifth (5th) business day following delivery of the Offer Notice. If by such fifth (5th) business day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such Subscriber, such transaction shall be deemed to have been abandoned and such Subscriber shall not be in possession of any material, non-public information with respect to the Company or any of its subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Subscriber with another Offer Notice in accordance with, and subject to, the terms of this Section 5(j) and such Subscriber will again have the right of participation set forth in this Section 5(j) The Company shall not be permitted to deliver more than one such Offer Notice to such Subscriber in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 5(j)(ii). The Right of Participation set forth in this Section 5(j) shall terminate on the twenty four month anniversary of the Closing Date.
Appears in 1 contract
Right of Participation. The Company acknowledges and agrees that (a) From the right set forth in this Section 5(j) is a right granted by date hereof until the Company24-month anniversary of the closing of the Merger, separately, to each Subscriber.
(i) At least five (5) trading days prior to upon any proposed or intended sale issuance by the Company of its Common Stock, Common Stock Equivalents or other securities Indebtedness or equity linked debt obligations other Securities, whether for cash consideration or a combination of units thereof, resulting in gross proceeds to the Company in excess of $1,000,000 (each, a “Subsequent PlacementFinancing”), each Purchaser shall have the right to participate up to its Pro Rata Portion (measured against all Purchasers) of a percentage of such Subsequent Financing equal to, 25% in the aggregate for all Purchasers of Series A-1 Preferred Stock, and 15% in the aggregate for all Purchasers of Series A-2 Preferred Stock (the “Participation Maximum”) on the same terms, conditions and price provided for in the Subsequent Financing.
(b) At least three (3) Trading Days (six (6) hours in case of a Subsequent Financing structured as a public offering or as an ‘overnight’ deal or other similar transaction) prior to the closing of a Subsequent Financing, the Company shall deliver to each Subscriber Purchaser of the Securities a written notice of its proposal or intention to effect a Subsequent Placement Financing (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information ask such Purchaser if it wants to review the details of such financing (includingeach additional notice containing such details, without limitation, material, non-public information) other than: (A) a statement that the Company proposes or intends to effect a “Subsequent Placement, (B) a statement that the statement in clause (A) above does not constitute material, non-public information and (C) a statement informing such Subscriber that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written requestFinancing Notice”). Upon the written request of any Purchaser for a Subscriber within five (5) business days after the Company’s delivery to such Subscriber of such Pre-Subsequent Financing Notice, and only upon such a written request by such Subscriberrequest, the Company shall promptly, but no later than one (1) business day Trading Day after such requestrequest (or no later than one (1) hour in the case of a Subsequent Financing structured as a public offering or as an ‘overnight’ deal or other similar transaction), deliver a Subsequent Financing Notice to such Subscriber an irrevocable written notice (Purchaser. The Subsequent Financing Notice shall describe in reasonable detail the “Offer Notice”) proposed terms of any such Subsequent Financing, the amount of proceeds intended to be raised thereunder and the Persons through or with whom such Subsequent Financing is proposed or intended issuance or sale or exchange (to be effected, the “Offer”) Pro Rata Portion of the securities being offered Participation Maximum of such Purchaser, an inquiry as to whether such Purchaser is willing to participate above their Pro Rata Portion (and what is the “Offered Securities”maximum amount such Purchaser is willing to commit) in and shall include a Subsequent Placement, which Offer Notice shall (I) identify and describe the Offered Securities, (II) describe the price and other terms upon which they are to be issued, sold term sheet or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (III) identify the persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (IV) offer to issue and sell to or exchange with such Subscriber in accordance with the terms of the Offer such Subscriber’s pro rata portion of 100% of the Offered Securities, provided that the number of Offered Securities which such Subscriber shall have the right to subscribe for under this Section 5(j) shall be (x) based on such Subscriber’s pro rata portion of the aggregate original amount of the Units purchased hereunder by all Subscribers (the “Basic Amount”), and (y) with respect to each Subscriber that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Subscribers similar document relating thereto as such Subscribers shall indicate it will purchase or acquire should the other Subscribers subscribe for less than their Basic Amounts (the “Undersubscription Amount”)an attachment.
(iic) To accept an Offer, If any such Purchaser desires to participate in whole or in partsuch Subsequent Financing, such Subscriber Purchaser must deliver a provide written notice to the Company prior to the end within one (1) Trading Day of the fifth (5th) Business Day after such Subscriber’s receipt of the Offer Subsequent Financing Notice (six (6) hours in case of a Subsequent Financing structured as a public offering or as an ‘overnight’ deal or other similar transaction) that such Purchaser is willing to participate in the “Offer Period”Subsequent Financing, the maximum amount for which such Purchaser would be willing to participate if it is allocated to it (up to the Participation Maximum), setting forth and representing and warranting that the portion of Purchaser has such Subscriber’s Basic Amount that such Subscriber elects to purchase andfunds ready, if such Subscriber shall elect to purchase all of its Basic Amountwilling, and available for investment on the Undersubscription Amount, if any, that such Subscriber elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Subscribers are less than the total of all of the Basic Amounts, then such Subscriber who has terms set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), such Subscriber who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Subscriber bears to the total Basic Amounts of all Subscribers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Subscriber a new Offer Notice and the Offer Period shall expire on the fifth(5th) Business Day after such Subscriber’s receipt of such new Offer Subsequent Financing Notice.
(iiid) The Company At first, each such Purchaser shall first have the right to purchase its Pro Rata Portion (measured against all Purchasers) of the Participation Maximum. If some Purchasers have declined to participate in such Subsequent Financing, and some portion of the Participation Maximum remains unallocated, each Purchaser having agreed to participate above its current allocation shall be allocated its Pro Rata Portion (measured against all Purchasers having so agreed) of the remaining portion of the Participation Maximum at such time - and so on and so forth until the Participation Maximum shall be fully allocated or all Purchasers shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Subscriber (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described their desired allocation in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring person or persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (I) the execution of such Subsequent Placement Agreement, and (II) either (x) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (y) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 8-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits theretofull.
(iv) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 5(j)(iii) above), then such Subscriber may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Subscriber elected to purchase pursuant to Section 5(j)(ii)1(a)(ii) above multiplied by a fraction, (A) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Subscribers pursuant to this Section 5(j) prior to such reduction) and (B) the denominator of which shall be the original amount of the Offered Securities. In the event that any Subscriber so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Subscribers in accordance with Section 5(j)(i) above.
(v) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Subscriber shall acquire from the Company, and the Company shall issue to such Subscriber, the number or amount of Offered Securities specified in its Notice of Acceptance. The purchase by such Subscriber of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Subscriber of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Subscriber and its counsel.
(vi) Any Offered Securities not acquired by a Subscriber or other persons in accordance with this Section 5(j) may not be issued, sold or exchanged until they are again offered to such Subscriber under the procedures specified in this Agreement.
(viie) The Company and each Subscriber agree that if any Subscriber elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “to any Subsequent Placement Documents”) Financing applicable to any Purchaser participating in such Subsequent Financing shall not include any term or provision whereby such Subscriber Purchaser shall be required to agree to any restrictions on trading as to any securities of the Company or be required Securities purchased hereunder. In addition, the transaction documents related to the Subsequent Financing shall not include any requirement to consent to any amendment to or termination of, or grant any waiver, release or other modification or the like under or in connection with, any this Agreement, without the prior written consent of the number of Purchasers required hereunder to consent to this amendment, termination, waiver, consent, release or other modification. The Company must provide the Purchasers with a second Subsequent Financing Notice, and the Purchasers will again have the right of participation set forth above in this Section 4.11, if the definitive agreement previously related to the initial Subsequent Financing Notice is not entered into with for any reason on the Company or any instrument received from terms set forth in such Subsequent Financing Notice within two (2) Trading Days after the Companydate of delivery of the initial Subsequent Financing Notice.
(viiif) Notwithstanding anything to the contrary in this Section 5(j4.11(f) and unless otherwise agreed to by such Subscriberthe applicable Purchaser, the Company shall either confirm in writing to such Subscriber each Purchaser that the transaction with respect to the Subsequent Placement Financing has been abandoned or shall publicly disclose its intention to issue the Offered Securitiessecurities in the Subsequent Financing, in either case, case in such a manner such that such Subscriber each Purchaser will not be in possession of any material, non-public information, by the fifth (5th) business day Trading Day following delivery of the Offer NoticeSubsequent Financing Notice (or by 9:30 am (New York City time) on the second (2nd) Trading Day following date of delivery of the Subsequent Financing Notice in case of a Subsequent Financing structure as a public offering or as an ‘overnight’ deal or other similar transaction). If by such fifth (5th) business dayTrading Day (or by 9:30 am (New York City time) on the second (2nd) Trading Day following date of delivery of the Subsequent Financing Notice in case of a Subsequent Financing structure as a public offering or as an ‘overnight’ deal or other similar transaction), no public disclosure regarding a transaction with respect to the Offered Securities Subsequent Financing has been made, and no notice regarding the abandonment of such transaction has been received by such Subscriberthe Purchaser, such transaction shall be deemed to have been abandoned and such Subscriber the Purchaser shall not be deemed to be in possession of any material, non-public information with respect to the Company or any of its subsidiaries. Should Subsidiaries.
(g) Notwithstanding the Company decide to pursue such transaction with respect to the Offered Securitiesforegoing, the Company shall provide such Subscriber with another Offer Notice in accordance with, and subject to, the terms of this Section 5(j) and such Subscriber will again have the right of participation set forth in this Section 5(j) The Company 4.11 shall not be permitted apply to deliver more than one such Offer Notice to such Subscriber in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 5(j)(ii). The Right of Participation set forth in this Section 5(j) shall terminate on the twenty four month anniversary of the Closing Datean Exempt Issuance.
Appears in 1 contract
Samples: Securities Purchase Agreement (IMAC Holdings, Inc.)
Right of Participation. The Company acknowledges and agrees that the right set forth in this Section 5(j) 4.7 is a right granted by the Company, separately, to each Subscriberthe Purchaser, provided that the Purchaser owns no fewer than Ten Thousand (10,000) Preferred Shares.
(ia) At If the Company has delivered to the Purchaser or its assigns a notice (an “MNPI Pre-Notice”) and offer to deliver Material Non-Public Information (“MNPI”), and the Purchaser or its assigns has delivered written notice that it will accept such MNPI and only in that event, at least five ten (510) trading days prior to any proposed or intended sale by the Company of its Common Stock or other securities or equity linked debt obligations other than an Exempt Issuance other than (v) thereof (each, a “Subsequent Placement”), the Company shall deliver to each Subscriber the Purchaser a written notice of its proposal or intention to effect a Subsequent Placement (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) a statement that the Company proposes or intends to effect a Subsequent Placement, (B) a statement that the statement in clause (A) above does not constitute material, non-public information and (C) a statement informing such Subscriber the Purchaser that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Subscriber the Purchaser within five (5) business days Business Days after the Company’s delivery to such Subscriber the Purchaser of such Pre-Notice, and only upon a written request by such Subscriberthe Purchaser, the Company shall promptly, but no later than one (1) business day Business Day after such request, deliver to such Subscriber the Purchaser an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (I) identify and describe the Offered Securities, (II) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (III) identify the persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (IV) offer to issue and sell to or exchange with such Subscriber the Purchaser in accordance with the terms of the Offer such Subscriber’s pro rata portion of 100% of the Offered Securities, provided that the number of Offered Securities which such Subscriber shall have entitling the right Purchaser to subscribe for under this Section 5(j) shall be (x) based on such Subscriber’s pro rata portion maintain its percentage beneficial ownership of the aggregate original amount of Company held prior to the Units purchased hereunder by all Subscribers Subsequent Placement (the “Basic Participation Amount”). As used in this Section 4.7, and (y) with respect to each Subscriber that elects to purchase the word “Purchaser” includes its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Subscribers as such Subscribers shall indicate it will purchase or acquire should the other Subscribers subscribe for less than their Basic Amounts (the “Undersubscription Amount”)assigns.
(iib) To accept an Offer, in whole or in part, such Subscriber the Purchaser must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such Subscriberthe Purchaser’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such Subscriberthe Purchaser’s Basic Participation Amount that such Subscriber the Purchaser elects to purchase and, if such Subscriber shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Subscriber elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Subscribers are less than the total of all of the Basic Amounts, then such Subscriber who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), such Subscriber who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Subscriber bears to the total Basic Amounts of all Subscribers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Subscriber the Purchaser a new Offer Notice and the Offer Period shall expire on the fifth(5thfifth (5th) Business Day after such Subscriberthe Purchaser’s receipt of such new Offer Notice.
. Notwithstanding anything herein to the contrary, in the event that the Subsequent Placement is an “overnight” registered offering (iii“RDO”), there shall be no Pre-Notice required to be delivered to the Purchaser; provided that the Subsequent Placement is delivered between the time period of 4:00 pm (New York City time) The Company shall have five and 6:00 pm (5New York City time) Business Days from on the expiration Trading Day immediately prior to the Trading Day of the expected announcement of the Subsequent Placement (or, if the Trading Day of the expected announcement of the Subsequent Placement is the first Trading Day following a holiday or a weekend (including a holiday weekend), between the time period of 4:00 pm (New York City time) on the Trading Day immediately prior to such holiday or weekend and 2:00 pm (New York City time) on the day immediately prior to the Trading Day of the expected announcement of the Subsequent Placement). The Offer Period above (A) to offer, issue, sell or exchange all or any part Notice shall describe in reasonable detail the proposed terms of such Offered Securities Subsequent Placement, the amount of proceeds intended to be raised thereunder and the Person or Persons through or with whom such Subsequent Placement is proposed to be effected and shall include a term sheet or similar document relating thereto as an attachment. In addition, in the event of an RDO, any Purchaser desiring to participate in such Subsequent Placement must provide written notice to the Company by 6:30 am (New York City time) on the Trading Day following the date on which a the Offer Notice of Acceptance has not been given by a Subscriber is delivered to such Purchaser (the “Refused SecuritiesNotice Termination Time”) pursuant that such Purchaser is willing to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described participate in the Offer Notice (if so described therein) Subsequent Placement, the amount of such Purchaser’s participation, and only upon representing and warranting that such Purchaser has such funds ready, willing, and available for investment on the terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring person or persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (I) the execution of such Subsequent Placement Agreement, and (II) either (x) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (y) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 8-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(iv) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 5(j)(iii) above), then such Subscriber may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Subscriber elected to purchase pursuant to Section 5(j)(ii)1(a)(ii) above multiplied by a fraction, (A) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Subscribers pursuant to this Section 5(j) prior to such reduction) and (B) the denominator of which shall be the original amount of the Offered Securities. In the event that any Subscriber so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Subscribers in accordance with Section 5(j)(i) above.
(v) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Subscriber shall acquire from the Company, and the Company shall issue to such Subscriber, the number or amount of Offered Securities specified in its Notice of Acceptance. The purchase by such Subscriber of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Subscriber of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Subscriber and its counsel.
(vi) Any Offered Securities not acquired by a Subscriber or other persons in accordance with this Section 5(j) may not be issued, sold or exchanged until they are again offered to such Subscriber under the procedures specified in this Agreement.
(vii) The Company and each Subscriber agree that if any Subscriber elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Subscriber shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(viii) Notwithstanding anything to the contrary in this Section 5(j) and unless otherwise agreed to by such Subscriber, the Company shall either confirm in writing to such Subscriber that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Subscriber will not be in possession of any material, non-public information, by the fifth (5th) business day following delivery of the Offer Notice. If by the Company receives no such fifth (5th) business day, no public disclosure regarding notice from a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment Purchaser as of such transaction has been received by such SubscriberNotice Termination Time, such transaction Purchaser shall be deemed to have been abandoned and such Subscriber shall not be in possession of any material, non-public information with respect to notified the Company or any of its subsidiaries. Should the Company decide that it does not elect to pursue participate in such transaction with respect to the Offered Securities, the Company shall provide such Subscriber with another Offer Notice in accordance with, and subject to, the terms of this Section 5(j) and such Subscriber will again have the right of participation set forth in this Section 5(j) The Company shall not be permitted to deliver more than one such Offer Notice to such Subscriber in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 5(j)(ii). The Right of Participation set forth in this Section 5(j) shall terminate on the twenty four month anniversary of the Closing DateSubsequent Placement.
Appears in 1 contract
Samples: Securities Purchase Agreement (Ault Alliance, Inc.)
Right of Participation. The Company acknowledges Subject to the terms and agrees that the right set forth conditions specified in this Section 5(jparagraph 2.3, the Company hereby grants to each Holder who holds at least 250,000 shares of Registrable Securities (a “Major Investor”) is a right granted by the Company, separately, of participation with respect to each Subscriber.
(i) At least five (5) trading days prior to any proposed or intended sale future sales by the Company of its Common Stock shares of, or other securities convertible into or equity linked debt obligations exercisable for any shares of, any class of its capital stock (each, a “Subsequent PlacementShares”). Each time the Company proposes to issue and sell any Shares, the Company shall deliver first make an offering of such Shares to each Subscriber a written notice of its proposal or intention to effect a Subsequent Placement (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) a statement that the Company proposes or intends to effect a Subsequent Placement, (B) a statement that the statement in clause (A) above does not constitute material, non-public information and (C) a statement informing such Subscriber that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Subscriber within five (5) business days after the Company’s delivery to such Subscriber of such Pre-Notice, and only upon a written request by such Subscriber, the Company shall promptly, but no later than one (1) business day after such request, deliver to such Subscriber an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (I) identify and describe the Offered Securities, (II) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (III) identify the persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (IV) offer to issue and sell to or exchange with such Subscriber Major Investor in accordance with the terms of the Offer such Subscriber’s pro rata portion of 100% of the Offered Securities, provided that the number of Offered Securities which such Subscriber shall have the right to subscribe for under this Section 5(j) shall be (x) based on such Subscriber’s pro rata portion of the aggregate original amount of the Units purchased hereunder by all Subscribers (the “Basic Amount”), and (y) with respect to each Subscriber that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Subscribers as such Subscribers shall indicate it will purchase or acquire should the other Subscribers subscribe for less than their Basic Amounts (the “Undersubscription Amount”).following provisions:
(ii) To accept an Offer, in whole or in part, such Subscriber must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such Subscriber’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such Subscriber’s Basic Amount that such Subscriber elects to purchase and, if such Subscriber shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Subscriber elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Subscribers are less than the total of all of the Basic Amounts, then such Subscriber who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), such Subscriber who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Subscriber bears to the total Basic Amounts of all Subscribers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Subscriber a new Offer Notice and the Offer Period shall expire on the fifth(5th) Business Day after such Subscriber’s receipt of such new Offer Notice.
(iiia) The Company shall have five deliver a notice by certified mail (5) Business Days from the expiration of the Offer Period above (A“Notice”) to offer, issue, sell or exchange all or any part the Major Investors stating (i) its bona fide intention to offer such Shares and (ii) the number of such Offered Securities as to which a Notice of Acceptance has not been given by a Subscriber (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring person or persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (I) the execution of such Subsequent Placement Agreement, and (II) either (x) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (y) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 8-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits theretoShares.
(ivb) In Within fifteen (15) calendar days after receiving the event Notice, the Company shall propose Major Investor may elect to sell less than all purchase or obtain, at the Refused Securities (any such sale to be in the manner price and on the terms specified in Section 5(j)(iii) above)the Notice, then up to that portion of such Subscriber may, at its sole option and in its sole discretion, reduce Shares that equals the proportion that the number of shares of common stock issued and held, or amount issuable upon conversion of the Offered Registrable Securities specified in its Notice then held, by such Major Investor bears to the total number of Acceptance shares of common stock issued and held, or issuable upon conversion of all convertible or exercisable securities then held, by all the Major Investors.
(c) If not all Shares that Investors are entitled to an amount that shall be not less than the number or amount of the Offered Securities that such Subscriber elected to purchase pursuant to Section 5(j)(ii)1(a)(ii) above multiplied by a fraction, (A) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Subscribers obtain pursuant to this Section 5(j2.3(b) prior are elected to such reduction) and (B) the denominator of which shall be the original amount of the Offered Securities. In the event that any Subscriber so elects to reduce the number or amount of Offered Securities specified obtained as provided in its Notice of AcceptanceSection 2.3(b), the Company may not issuemay, sell or exchange more than during the reduced number or amount sixty (60) day period following the expiration of the Offered Securities unless period provided in Section 2.3(b) hereof, offer the remaining unsubscribed portion of such Shares to any person or persons at a price not less than, and until such securities have again been offered upon terms no more favorable to the Subscribers in accordance with Section 5(j)(i) above.
(v) Upon the closing of the issuanceofferee than, sale or exchange of all or less than all of the Refused Securities, such Subscriber shall acquire from the Company, and the Company shall issue to such Subscriber, the number or amount of Offered Securities those specified in its Notice of Acceptance. The purchase by such Subscriber of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Subscriber of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Subscriber and its counsel.
(vi) Any Offered Securities not acquired by a Subscriber or other persons in accordance with this Section 5(j) may not be issued, sold or exchanged until they are again offered to such Subscriber under the procedures specified in this Agreement.
(vii) The Company and each Subscriber agree that if any Subscriber elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Subscriber shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(viii) Notwithstanding anything to the contrary in this Section 5(j) and unless otherwise agreed to by such Subscriber, the Company shall either confirm in writing to such Subscriber that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Subscriber will not be in possession of any material, non-public information, by the fifth (5th) business day following delivery of the Offer Notice. If by the Company does not sell such fifth Shares or enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (5th60) business daydays of the execution thereof, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such Subscriber, such transaction right provided hereunder shall be deemed to have been abandoned be revived and such Subscriber Shares shall not be in possession of any material, non-public information with respect offered unless first reoffered to the Company or any of its subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Subscriber with another Offer Notice Major Investors in accordance with, and subject to, the terms of this Section 5(jherewith.
(d) and such Subscriber will again have the The right of participation set forth in this Section 5(j) The Company 2.3 shall not be permitted apply to deliver Shares issued or issuable: (i) upon conversion of shares of Series A Preferred Stock or Series B Preferred Stock; (ii) upon conversion of Class B Common Stock into Class A Common Stock; (iii) to officers, directors or employees of, or consultants to, the Company pursuant to stock option or stock purchase plans or agreements on terms approved by the Board of Directors; (iv) in connection with equipment financings or similar transactions, or in connection with strategic investments or corporate partnering transactions, the terms of which are approved by the Board of Directors of the Corporation; (v) as a dividend or distribution on Series A Preferred Stock; (vi) under the terms of the Convertible Note; (vii) for which adjustment of the Conversion Price of the Series A Preferred Stock or Series B Preferred Stock (as defined in the Company’s Amended and Restated Articles of Incorporation (the “Articles of Incorporation”)) is made pursuant to the Articles of Incorporation; (viii) in connection with a Qualified IPO; (ix) pursuant to the acquisition of another business entity or business segment of any such entity by the Company by merger, purchase of substantially all the assets or other reorganization whereby the Company will own more than one fifty percent (50%) of the voting power of such Offer Notice business entity or business segment of any such entity; (x) upon the exercise, conversion or exchange of any security outstanding as of the date hereof or securities issued or issuable pursuant to such Subscriber in subsections
(i) through (ix) above; or (xi) any sixty right, option or warrant to acquire any security convertible into the securities issued or issuable pursuant to subsections (60i) day period, except as expressly contemplated by the last sentence of Section 5(j)(ii)through (x) above. The Right right of Participation first offer set forth in this Section 5(j2.3 may not be assigned or transferred, except that (a) shall terminate on such right is assignable by each Holder to any wholly owned subsidiary or parent of, or to any corporation or entity that is, within the twenty four month anniversary meaning of the Closing DateAct, controlling, controlled by or under common control with, any such Holder, and (b) such right is assignable between and among any of the Holders.
Appears in 1 contract
Right of Participation. (a) In the event that at any time prior to the consummation of a Qualified IPO, (i) any Member or Transferee (the “Transferring Members”) proposes to Transfer all or any portion of its Membership Interests in one transaction or a series of related transactions and such proposed Transfer does not constitute an Exempt Transfer, (ii) the Transferring Members have elected not to exercise their rights, if any, under Section 10.4 with respect to the Membership Interests owned by other Members and (iii) the other Members have not during the Transfer Option Period elected to purchase all of such securities pursuant to Section 10.2, then such Transferring Members shall offer (a “Participation Offer”) to each other Member (a “Participation Investor”) to include in the proposed Transfer a portion of each Participation Investor’s Membership Interest equal to the product of (A) a fraction, the numerator of which is the Sharing Ratio represented by the Membership Interests proposed to be included in the Transfer by the Transferring Members and the denominator of which is the aggregate Interest Percentage of all Membership Interests owned by the Transferring Members and (B) the Sharing Ratio represented by all of such Participation Investor’s Membership Interests.
(b) The Company acknowledges Transferring Members shall give written notice (a “Participation Notice”) to each Participation Investor no later than 10 Business Days following the end of the Transfer Option Period but at least 10 Business Days prior to the proposed Participation Sale (as defined below). The Participation Notice shall specify the proposed Transferee, the aggregate Sharing Ratio proposed to be included in the proposed sale under this Section 10.5 (a “Participation Sale”), the purchase price (and agrees if the proposed Transfer is to be wholly or partly for consideration other than cash, the Participation Notice shall state the amount of cash consideration, if any, and shall describe all non-monetary consideration), all other material terms and conditions of such proposed Participation Sale and the place and date on which such proposed Participation Sale is to be consummated. Each Participation Investor who wishes to include Membership Interests in the proposed Participation Sale shall so notify the Transferring Members (an “Acceptance Notice”) not more than five Business Days after the date of the Participation Notice.
(c) The Participation Offer shall be conditioned upon the Transferring Members’ sale of Membership Interests pursuant to the transactions contemplated in the Participation Notice with the transferee named therein. If any Participation Investor accepts the Participation Offer (a “Participating Member”), the Transferring Members shall, to the extent necessary, reduce the Sharing Ratio it otherwise would have included in such proposed Participation Sale so as to permit the Participating Members to include in the Participation Sale corresponding to the Membership Interests that they are entitled include pursuant to this Section 10.5.
(d) In any Transfer subject to this Section 10.5, the right aggregate consideration to be paid by the acquiring party shall be allocated to each class of Membership Interests, with such allocations determined based on the amount that would be distributable to such class of Membership Interests by applying Article 5 to such aggregate consideration (giving effect to all distributions actually made pursuant to Article 5 through the date of the Transfer).
(e) The Acceptance Notice of a Participating Member shall include wire transfer instructions for payment of the purchase price for the Membership Interests to be sold in such Participation Sale and shall be accompanied by a limited power-of-attorney authorizing the Transferring Members to transfer its Membership Interests on the terms set forth in the Participation Notice and all other documents required to be executed in connection with such Participation Sale. Delivery of an Acceptance Notice shall constitute an irrevocable acceptance of the Participation Offer by such Participating Member.
(f) If, at the end of a 60-day period after delivery of an Acceptance Notice (which 60-day period shall be extended if any of the transactions contemplated by the Participation Offer are subject to regulatory approval until the expiration of five Business Days after all such approvals have been received, but in no event later than 90 days following receipt by the Transferring Members of the Acceptance Notice), the Transferring Members have not completed the transfer of their Membership Interests on terms no more favorable to the prospective transferee than the terms and conditions set forth in the Participation Notice, the Transferring Members shall (i) return to each Participating Member the limited power-of-attorney (and all copies thereof) that such Participating Member executed and any other documents in the possession of the Transferring Member executed by the Participating Members in connection with the proposed Participation Sale, and (ii) not conduct any Transfer of their Membership Interests without again complying with Section 10.2 and this Section 5(j10.5.
(g) is a right granted Concurrently with the consummation of the Participation Sale, the Transferring Members shall (i) notify the Participating Members thereof, (ii) remit to the Participating Members the total consideration for the Membership Interests of the Participating Members Transferred of pursuant thereto, and (iii) promptly after the consummation of the Participation Sale, furnish such other evidence of the completion and the date of completion of such transfer and the terms thereof as may be reasonably requested by the CompanyParticipating Members.
(h) If at the termination of the Participation Notice Period any other Member shall not have delivered an Acceptance Notice, separately, such other Member shall be deemed to each Subscriberhave waived its rights under this Section 10.5 with respect to the transfer of its Membership Interest pursuant to such Participation Sale.
(i) At least five Notwithstanding anything contained in this Section 10.5, there shall be no liability on the part of the Transferring Members to the Participating Members if the Transfer of the Membership Interest pursuant to this Section 10.5 is not consummated for whatever reason.
(5j) trading days prior to any proposed or intended sale by the Company of its Common Stock or other securities or equity linked debt obligations (each, a “Subsequent Placement”)Notwithstanding anything contained in this Section 10.5, the Company shall deliver to each Subscriber a written notice of its proposal or intention to effect a Subsequent Placement (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) a statement that the Company proposes or intends to effect a Subsequent Placement, (B) a statement that the statement in clause (A) above does not constitute material, non-public information rights and (C) a statement informing such Subscriber that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Subscriber within five (5) business days after the Company’s delivery to such Subscriber of such Pre-Notice, and only upon a written request by such Subscriber, the Company shall promptly, but no later than one (1) business day after such request, deliver to such Subscriber an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) obligations of the securities being offered (the “Offered Securities”) other Members to participate in a Subsequent Placement, which Offer Notice shall Participation Sale are subject to the following conditions:
(Ii) identify the Transferring Members and describe all Participating Members will receive the Offered Securities, (II) describe the price same form and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (III) identify the persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (IV) offer to issue and sell to or exchange with such Subscriber in accordance with the terms consideration per percentage of the Offer such Subscriber’s pro rata portion of 100% of the Offered Securities, provided that the number of Offered Securities which such Subscriber shall have the right to subscribe for under this Section 5(j) shall be (x) based on such Subscriber’s pro rata portion of the aggregate original amount of the Units purchased hereunder by all Subscribers (the “Basic Amount”), and (y) with respect to each Subscriber that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Subscribers as such Subscribers shall indicate it will purchase or acquire should the other Subscribers subscribe for less than their Basic Amounts (the “Undersubscription Amount”).Sharing Percentage;
(ii) To accept an Offer, no Participating Member shall be required to make any representation or warranty in whole connection with such Transfer other than representations or in part, such Subscriber must deliver a written notice to the Company prior to the end of the fifth warranties (5thx) Business Day after such Subscriber’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such Subscriber’s Basic Amount that such Subscriber elects Participating Member’s Membership Interests are owned by such Participating Member free and clear of all Liens other than as provided in this Agreement, (y) that such Participating Member has the power and authority to purchase and, if effect such Subscriber shall elect to purchase all Transfer of its Basic Amount, the Undersubscription Amount, if any, that Membership Interest and (z) as to such Subscriber elects matters pertaining to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Subscribers are less than the total of all of the Basic Amounts, then such Subscriber who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), such Subscriber who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount securities laws as the Basic Amount of such Subscriber bears to the total Basic Amounts of all Subscribers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems Transferee may reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Subscriber a new Offer Notice and the Offer Period shall expire on the fifth(5th) Business Day after such Subscriber’s receipt of such new Offer Notice.require; and
(iii) The Company no Member participating therein shall have five be obligated to pay any expenses incurred in connection with any unconsummated Participation Sale, and each such Member shall be obligated to pay only its pro rata share (5based on the aggregate Sharing Percentage attributable to Membership Interests Transferred) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which expenses incurred in connection with a Notice of Acceptance has not been given by a Subscriber (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only consummated Participation Sale to the offerees described in extent such expenses are incurred for the Offer Notice (if so described therein) benefit of all such Members and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring person or persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (I) the execution of such Subsequent Placement Agreement, and (II) either (x) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (y) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 8-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(iv) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 5(j)(iii) above), then such Subscriber may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Subscriber elected to purchase pursuant to Section 5(j)(ii)1(a)(ii) above multiplied by a fraction, (A) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Subscribers pursuant to this Section 5(j) prior to such reduction) and (B) the denominator of which shall be the original amount of the Offered Securities. In the event that any Subscriber so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Subscribers in accordance with Section 5(j)(i) above.
(v) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Subscriber shall acquire from the Company, and the Company shall issue to such Subscriber, the number or amount of Offered Securities specified in its Notice of Acceptance. The purchase by such Subscriber of any Offered Securities is subject in all cases to the preparation, execution and delivery otherwise paid by the Company and such Subscriber of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Subscriber and its counselor another Person.
(vi) Any Offered Securities not acquired by a Subscriber or other persons in accordance with this Section 5(j) may not be issued, sold or exchanged until they are again offered to such Subscriber under the procedures specified in this Agreement.
(vii) The Company and each Subscriber agree that if any Subscriber elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Subscriber shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(viii) Notwithstanding anything to the contrary in this Section 5(j) and unless otherwise agreed to by such Subscriber, the Company shall either confirm in writing to such Subscriber that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Subscriber will not be in possession of any material, non-public information, by the fifth (5th) business day following delivery of the Offer Notice. If by such fifth (5th) business day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such Subscriber, such transaction shall be deemed to have been abandoned and such Subscriber shall not be in possession of any material, non-public information with respect to the Company or any of its subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Subscriber with another Offer Notice in accordance with, and subject to, the terms of this Section 5(j) and such Subscriber will again have the right of participation set forth in this Section 5(j) The Company shall not be permitted to deliver more than one such Offer Notice to such Subscriber in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 5(j)(ii). The Right of Participation set forth in this Section 5(j) shall terminate on the twenty four month anniversary of the Closing Date.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Ensource Energy Income Fund LP)
Right of Participation. The Company acknowledges and agrees that the right set forth in this Section 5(j) 4.16 is a right granted by the Company, separately, to each SubscriberPurchaser, during the period such Purchaser holds non-converted Shares.
(i) At least five (5) trading days Trading Days prior to any proposed or intended sale by the Company of its Common Stock or other securities or equity linked debt obligations (each, a “Subsequent Placement”), the Company shall deliver to each Subscriber Purchaser then holding non-converted Shares a written notice of its proposal or intention to effect a Subsequent Placement (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether the Purchaser is willing and wants to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (By) a statement that the statement in clause (Ax) above does not constitute material, non-public information and (Cz) a statement informing such Subscriber Purchaser that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Subscriber Purchaser within five (5) business days Business Days after the Company’s delivery to such Subscriber Purchaser of such Pre-Notice, and only upon a written request by such SubscriberPurchaser, the Company shall promptly, but no later than one (1) business day Business Day after such request, deliver to such Subscriber Purchaser an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (I) identify and describe the Offered Securities, (II) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (III) identify the persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (IV) offer to issue and sell to or exchange with such Subscriber Purchaser in accordance with the terms of the Offer such SubscriberPurchaser’s pro rata portion of 100% of the Offered Securities, provided that the number of Offered Securities which such Subscriber Purchaser shall have the right to subscribe for under this Section 5(j) 4.16 shall be (x) based on the ratio of the number of non-converted Shares then held by such Subscriber’s pro rata portion of Purchaser to the aggregate original amount of the Units Shares purchased hereunder by all Subscribers Purchasers (the “Basic Amount”), and (y) with respect to each Subscriber Purchaser that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Subscribers Purchasers as such Subscribers Purchasers shall indicate it will purchase or acquire should the other Subscribers Purchasers subscribe for less than their Basic Amounts (the “Undersubscription Amount”).
(ii) To accept an Offer, in whole or in part, such Subscriber Purchaser must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such SubscriberPurchaser’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such SubscriberPurchaser’s Basic Amount that such Subscriber Purchaser elects to purchase and, if such Subscriber Purchaser shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Subscriber Purchaser elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Subscribers Purchasers are less than the total of all of the Basic Amounts, then such Subscriber Purchaser who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), such Subscriber Purchaser who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Subscriber Purchaser bears to the total Basic Amounts of all Subscribers Purchasers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Subscriber Purchaser a new Offer Notice and the Offer Period shall expire on the fifth(5thfifth (5th) Business Day after such SubscriberPurchaser’s receipt of such new Offer Notice.
(iii) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Subscriber Purchaser (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring person or persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (I) the execution of such Subsequent Placement Agreement, and (II) either (x) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (y) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC Commission on a Current Report on Form 8-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(iv) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 5(j)(iii4.16(iii) above), then such Subscriber Purchaser may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Subscriber Purchaser elected to purchase pursuant to Section 5(j)(ii)1(a)(ii4.16(ii) above multiplied by a fraction, (A) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Subscribers Purchasers pursuant to this Section 5(j) 4.16 prior to such reduction) and (B) the denominator of which shall be the original amount of the Offered Securities. In the event that any Subscriber Purchaser so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Subscribers Purchasers in accordance with Section 5(j)(i4.16(i) above.
(v) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Subscriber Purchaser shall acquire from the Company, and the Company shall issue to such SubscriberPurchaser, the number or amount of Offered Securities specified in its Notice of Acceptance. The purchase by such Subscriber Purchaser of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Subscriber Purchaser of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Subscriber Purchaser and its counsel.
(vi) Any Offered Securities not acquired by a Subscriber Purchaser or other persons in accordance with this Section 5(j) 4.16 may not be issued, sold or exchanged until they are again offered to such Subscriber Purchaser under the procedures specified in this Agreement.
(vii) The Company and each Subscriber Purchaser agree that if any Subscriber Purchaser elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Subscriber Purchaser shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(viii) Notwithstanding anything to the contrary in this Section 5(j) 4.16 and unless otherwise agreed to by such SubscriberPurchaser, the Company shall either confirm in writing to such Subscriber Purchaser that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Subscriber Purchaser will not be in possession of any material, non-public information, by the fifth (5th) business day Business Day following delivery of the Offer Notice. If by such fifth (5th) business dayBusiness Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such SubscriberPurchaser, such transaction shall be deemed to have been abandoned and such Subscriber Purchaser shall not be in possession of any material, non-public information with respect to the Company or any of its subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Subscriber Purchaser with another Offer Notice in accordance with, and subject to, the terms of this Section 5(j) 4.16 and such Subscriber Purchaser will again have the right of participation set forth in this Section 5(j) 4.16 The Company shall not be permitted to deliver more than one such Offer Notice to such Subscriber Purchaser in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 5(j)(ii4.16(ii). The Right of Participation set forth in this Section 5(j4.16 shall (x) shall terminate immediately on the twenty four (24) month anniversary of the Closing Date, (y) with respect to each Purchaser, terminate immediately upon such time as such Purchaser no longer holds non-converted Shares and (z) not apply with respect to any offer or sale of Excluded Securities (as defined in the Series C Certificate of Designation).
Appears in 1 contract
Right of Participation. The Company acknowledges and agrees that the right set forth in this Section 5(j) 4.7 is a right granted by the Company, separately, to each Subscriberthe Purchaser, provided that the Purchaser owns no fewer than Ten Thousand (10,000) Preferred Shares.
(ia) At If the Company has delivered to the Purchaser or its assigns a notice (an “MNPI Pre-Notice”) and offer to deliver Material non-Public Information (“MNPI”), and the Purchaser or its assigns has delivered written notice that it will accept such MNPI and only in that event, at least five ten (510) trading days prior to any proposed or intended sale by the Company of its Common Stock or other securities or equity linked debt obligations other than an Exempt Issuance other than (v) thereof (each, a “Subsequent Placement”), the Company shall deliver to each Subscriber the Purchaser a written notice of its proposal or intention to effect a Subsequent Placement (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) a statement that the Company proposes or intends to effect a Subsequent Placement, (B) a statement that the statement in clause (A) above does not constitute material, non-public information and (C) a statement informing such Subscriber the Purchaser that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Subscriber the Purchaser within five (5) business days Business Days after the Company’s delivery to such Subscriber the Purchaser of such Pre-Notice, and only upon a written request by such Subscriberthe Purchaser, the Company shall promptly, but no later than one (1) business day Business Day after such request, deliver to such Subscriber the Purchaser an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (I) identify and describe the Offered Securities, (II) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (III) identify the persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (IV) offer to issue and sell to or exchange with such Subscriber the Purchaser in accordance with the terms of the Offer such Subscriber’s pro rata portion of 100% of the Offered Securities, provided that the number of Offered Securities which such Subscriber shall have entitling the right Purchaser to subscribe for under this Section 5(j) shall be (x) based on such Subscriber’s pro rata portion maintain its percentage beneficial ownership of the aggregate original amount of Company held prior to the Units purchased hereunder by all Subscribers Subsequent Placement (the “Basic Participation Amount”). As used in this Section 4.7, and (y) with respect to each Subscriber that elects to purchase the word “Purchaser” includes its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Subscribers as such Subscribers shall indicate it will purchase or acquire should the other Subscribers subscribe for less than their Basic Amounts (the “Undersubscription Amount”)assigns.
(iib) To accept an Offer, in whole or in part, such Subscriber the Purchaser must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such Subscriberthe Purchaser’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such Subscriberthe Purchaser’s Basic Participation Amount that such Subscriber the Purchaser elects to purchase and, if such Subscriber shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Subscriber elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Subscribers are less than the total of all of the Basic Amounts, then such Subscriber who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), such Subscriber who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Subscriber bears to the total Basic Amounts of all Subscribers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Subscriber the Purchaser a new Offer Notice and the Offer Period shall expire on the fifth(5thfifth (5th) Business Day after such Subscriberthe Purchaser’s receipt of such new Offer Notice.
. Notwithstanding anything herein to the contrary, in the event that the Subsequent Placement is an “overnight” registered offering (iii“RDO”), there shall be no Pre-Notice required to be delivered to the Purchaser; provided that the Subsequent Placement is delivered between the time period of 4:00 pm (New York City time) The Company shall have five and 6:00 pm (5New York City time) Business Days from on the expiration Trading Day immediately prior to the Trading Day of the expected announcement of the Subsequent Placement (or, if the Trading Day of the expected announcement of the Subsequent Placement is the first Trading Day following a holiday or a weekend (including a holiday weekend), between the time period of 4:00 pm (New York City time) on the Trading Day immediately prior to such holiday or weekend and 2:00 pm (New York City time) on the day immediately prior to the Trading Day of the expected announcement of the Subsequent Placement). The Offer Period above (A) to offer, issue, sell or exchange all or any part Notice shall describe in reasonable detail the proposed terms of such Offered Securities Subsequent Placement, the amount of proceeds intended to be raised thereunder and the Person or Persons through or with whom such Subsequent Placement is proposed to be effected and shall include a term sheet or similar document relating thereto as an attachment. In addition, in the event of an RDO, any Purchaser desiring to participate in such Subsequent Placement must provide written notice to the Company by 6:30 am (New York City time) on the Trading Day following the date on which a the Offer Notice of Acceptance has not been given by a Subscriber is delivered to such Purchaser (the “Refused SecuritiesNotice Termination Time”) pursuant that such Purchaser is willing to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described participate in the Offer Notice (if so described therein) Subsequent Placement, the amount of such Purchaser’s participation, and only upon representing and warranting that such Purchaser has such funds ready, willing, and available for investment on the terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring person or persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (I) the execution of such Subsequent Placement Agreement, and (II) either (x) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (y) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 8-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(iv) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 5(j)(iii) above), then such Subscriber may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Subscriber elected to purchase pursuant to Section 5(j)(ii)1(a)(ii) above multiplied by a fraction, (A) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Subscribers pursuant to this Section 5(j) prior to such reduction) and (B) the denominator of which shall be the original amount of the Offered Securities. In the event that any Subscriber so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Subscribers in accordance with Section 5(j)(i) above.
(v) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Subscriber shall acquire from the Company, and the Company shall issue to such Subscriber, the number or amount of Offered Securities specified in its Notice of Acceptance. The purchase by such Subscriber of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Subscriber of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Subscriber and its counsel.
(vi) Any Offered Securities not acquired by a Subscriber or other persons in accordance with this Section 5(j) may not be issued, sold or exchanged until they are again offered to such Subscriber under the procedures specified in this Agreement.
(vii) The Company and each Subscriber agree that if any Subscriber elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Subscriber shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(viii) Notwithstanding anything to the contrary in this Section 5(j) and unless otherwise agreed to by such Subscriber, the Company shall either confirm in writing to such Subscriber that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Subscriber will not be in possession of any material, non-public information, by the fifth (5th) business day following delivery of the Offer Notice. If by the Company receives no such fifth (5th) business day, no public disclosure regarding notice from a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment Purchaser as of such transaction has been received by such SubscriberNotice Termination Time, such transaction Purchaser shall be deemed to have been abandoned and such Subscriber shall not be in possession of any material, non-public information with respect to notified the Company or any of its subsidiaries. Should the Company decide that it does not elect to pursue participate in such transaction with respect to the Offered Securities, the Company shall provide such Subscriber with another Offer Notice in accordance with, and subject to, the terms of this Section 5(j) and such Subscriber will again have the right of participation set forth in this Section 5(j) The Company shall not be permitted to deliver more than one such Offer Notice to such Subscriber in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 5(j)(ii). The Right of Participation set forth in this Section 5(j) shall terminate on the twenty four month anniversary of the Closing DateSubsequent Placement.
Appears in 1 contract
Samples: Securities Purchase Agreement (Ault Alliance, Inc.)
Right of Participation. The Company acknowledges and agrees that the right set forth in this Section 5(j) is a right granted by the Company, separately, to each Subscriber.
(i) At least For five (5) trading days prior to any proposed years from the date hereof or intended sale by for the period during which the Company of its Common Stock or other securities or equity linked debt obligations has provided Project Notices (each, a “Subsequent Placement”), the Company shall deliver to each Subscriber a written notice of its proposal or intention to effect a Subsequent Placement (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) a statement that the Company proposes or intends to effect a Subsequent Placement, (B) a statement that the statement in clause (A) above does not constitute material, non-public information and (C) a statement informing such Subscriber that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Subscriber within five six (56) business days after the Company’s delivery rights to such Subscriber of such Pre-Noticeparticipate, and only upon a written request by such Subscriberas further described, whichever is longer, the Company shall promptly, but no later than one (1) business day after such request, deliver to such Subscriber an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (I) identify and describe the Offered Securities, (II) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (III) identify the persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (IV) offer to issue and sell to or exchange with such Subscriber in accordance with the terms of the Offer such Subscriber’s pro rata portion of 100% of the Offered Securities, provided that the number of Offered Securities which such Subscriber Purchaser shall have the right to subscribe for under participate in the external financing of Company’s projects in which the Company shall develop, improve or otherwise use the High Efficiency Biological Treatment (“HEBioT”) technology (the “Technology”) licensed from Entsorgafin to AVWC (a “Covered Project”) in an amount pari passu with the other Purchasers in this Section 5(jOffering up to twenty percent (20%) shall be (x) based on such Subscriber’s pro rata portion of the aggregate original of the Company’s investment in the Covered Project. The right to participate, is a right to participate in the equity portion of a Covered Project that the Company anticipates (i) the construction and other tangible based costs will be financed through a construction or project type financing, (ii) will require an amount of “owner’s equity” or “Equity Portion” in the Units purchased hereunder overall project to consummate construction or project type financing, and (iii) it will be seeking external financing to fund the Equity Portion of a Covered Project. The Company shall give a notice to the Purchaser, no sooner than having received final approvals as required for the construction and operation of a Covered Project or having incurred at least $1,000,000 in initial development related costs and no later than having negotiated the level of Equity Portion required by all Subscribers the anticipated lender for such Covered Project, via facsimile or email that it has agreed to terms for a Covered Project and a description of the terms of such Covered Project (the “Basic Amount”), and (y) with respect to each Subscriber that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Subscribers as such Subscribers shall indicate it will purchase or acquire should the other Subscribers subscribe for less than their Basic Amounts (the “Undersubscription Amount”).
(ii) To accept an Offer, in whole or in part, such Subscriber must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such Subscriber’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such Subscriber’s Basic Amount that such Subscriber elects to purchase and, if such Subscriber shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Subscriber elects to purchase (in either case, the “Notice of AcceptanceProject Notice”). If the Basic Amounts subscribed for by all Subscribers are less than the total of all of the Basic Amounts, then such Subscriber who has set forth an Undersubscription Amount in its Notice of Acceptance The Purchaser shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for have ten (the “Available Undersubscription Amount”), such Subscriber who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Subscriber bears to the total Basic Amounts of all Subscribers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Subscriber a new Offer Notice and the Offer Period shall expire on the fifth(5th10) Business Day days after such Subscriber’s receipt of such new Offer Notice.
(iii) The Company shall have five (5) Business Days from Project Notice that the expiration of Purchaser intends to exercise its right to participate in a Covered Project and the Offer Period above (A) to offer, issue, sell or exchange all or any part amount of such Offered Securities as to which a Notice of Acceptance Purchaser’s participation, and representing and warranting that such Purchaser has not been given by a Subscriber (such funds ready, willing, and available for investment on the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring person or persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (I) the execution of such Subsequent Placement Agreement, and (II) either (x) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (y) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 8-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(iv) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 5(j)(iii) above), then such Subscriber may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Subscriber elected to purchase pursuant to Section 5(j)(ii)1(a)(ii) above multiplied by a fraction, (A) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Subscribers pursuant to this Section 5(j) prior to such reduction) and (B) the denominator of which shall be the original amount of the Offered Securities. In the event that any Subscriber so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Subscribers in accordance with Section 5(j)(i) above.
(v) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Subscriber shall acquire from the Company, and the Company shall issue to such Subscriber, the number or amount of Offered Securities specified in its Notice of Acceptance. The purchase by such Subscriber of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Subscriber of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Subscriber and its counsel.
(vi) Any Offered Securities not acquired by a Subscriber or other persons in accordance with this Section 5(j) may not be issued, sold or exchanged until they are again offered to such Subscriber under the procedures specified in this Agreement.
(vii) The Company and each Subscriber agree that if any Subscriber elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Subscriber shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(viii) Notwithstanding anything to the contrary in this Section 5(j) and unless otherwise agreed to by such Subscriber, the Company shall either confirm in writing to such Subscriber that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Subscriber will not be in possession of any material, non-public information, by the fifth (5th) business day following delivery of the Offer Project Notice. If by the Company receives no such fifth (5th) business day, no public disclosure regarding notice from a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment Purchaser as of such transaction has been received by such Subscribertime, such transaction Purchaser shall be deemed to have been abandoned notified the Company that it does not elect to participate. If the Purchaser elects to participate in a Covered Project, the Company and such Subscriber any and participating Purchasers shall not be in possession of any materialform a special purpose entity, non-public information with respect on terms agreeable to the Company or any and the Purchasers, for the purpose of its subsidiariesinvesting in such Covered Project. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company Under no circumstances shall provide such Subscriber with another Offer Notice in accordance with, and subject to, the terms of this Section 5(j) and such Subscriber will again have the right of participation described herein expire earlier than as set forth in this Section 5(j) The above and the Company shall not be permitted undertake any act, or enter into any transaction, that would directly or indirectly impair such right of participation prior to deliver more than one such Offer Notice to such Subscriber in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 5(j)(ii). The Right of Participation set forth in this Section 5(j) shall terminate on the twenty four month anniversary of the Closing Dateagreed expiration date.
Appears in 1 contract
Samples: Securities Purchase Agreement (Biohitech Global, Inc.)
Right of Participation. The Company acknowledges and agrees that the right set forth in this Section 5(j) 4.16 is a right granted by the Company, separately, to each SubscriberPurchaser.
(i) At least five (5) trading days Trading Days prior to any proposed or intended sale by the Company of its Common Stock or other securities or equity linked debt obligations (each, a “Subsequent Placement”), the Company shall deliver to each Subscriber Purchaser a written notice of its proposal or intention to effect a Subsequent Placement (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether the Purchaser is willing and wants to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (By) a statement that the statement in clause (Ax) above does not constitute material, non-public information and (Cz) a statement informing such Subscriber Purchaser that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Subscriber Purchaser within five (5) business days Business Days after the Company’s delivery to such Subscriber Purchaser of such Pre-Notice, and only upon a written request by such SubscriberPurchaser, the Company shall promptly, but no later than one (1) business day Business Day after such request, deliver to such Subscriber Purchaser an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (I) identify and describe the Offered Securities, (II) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (III) identify the persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (IV) offer to issue and sell to or exchange with such Subscriber Purchaser in accordance with the terms of the Offer such SubscriberPurchaser’s pro rata portion of 100% of the Offered Securities, provided that the number of Offered Securities which such Subscriber Purchaser shall have the right to subscribe for under this Section 5(j) 4.16 shall be (x) based on such SubscriberPurchaser’s pro rata portion of the aggregate original amount of the Units Shares purchased hereunder by all Subscribers Purchasers (the “Basic Amount”), and (y) with respect to each Subscriber Purchaser that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Subscribers Purchasers as such Subscribers Purchasers shall indicate it will purchase or acquire should the other Subscribers Purchasers subscribe for less than their Basic Amounts (the “Undersubscription Amount”).
(ii) To accept an Offer, in whole or in part, such Subscriber Purchaser must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such SubscriberPurchaser’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such SubscriberPurchaser’s Basic Amount that such Subscriber Purchaser elects to purchase and, if such Subscriber Purchaser shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Subscriber Purchaser elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Subscribers Purchasers are less than the total of all of the Basic Amounts, then such Subscriber Purchaser who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), such Subscriber Purchaser who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Subscriber Purchaser bears to the total Basic Amounts of all Subscribers Purchasers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Subscriber Purchaser a new Offer Notice and the Offer Period shall expire on the fifth(5thfifth (5th) Business Day after such SubscriberPurchaser’s receipt of such new Offer Notice.
(iii) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Subscriber Purchaser (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring person or persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (I) the execution of such Subsequent Placement Agreement, and (II) either (x) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (y) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC Commission on a Current Report on Form 8-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(iv) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 5(j)(iii4.16(iii) above), then such Subscriber Purchaser may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Subscriber Purchaser elected to purchase pursuant to Section 5(j)(ii)1(a)(ii4.16(ii) above multiplied by a fraction, (A) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Subscribers Purchasers pursuant to this Section 5(j) 4.16 prior to such reduction) and (B) the denominator of which shall be the original amount of the Offered Securities. In the event that any Subscriber Purchaser so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Subscribers Purchasers in accordance with Section 5(j)(i4.16(i) above.
(v) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Subscriber Purchaser shall acquire from the Company, and the Company shall issue to such SubscriberPurchaser, the number or amount of Offered Securities specified in its Notice of Acceptance. The purchase by such Subscriber Purchaser of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Subscriber Purchaser of a separate purchase agreement relating 22 to such Offered Securities reasonably satisfactory in form and substance to such Subscriber Purchaser and its counsel.
(vi) Any Offered Securities not acquired by a Subscriber Purchaser or other persons in accordance with this Section 5(j) 4.16 may not be issued, sold or exchanged until they are again offered to such Subscriber Purchaser under the procedures specified in this Agreement.
(vii) The Company and each Subscriber Purchaser agree that if any Subscriber Purchaser elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Subscriber Purchaser shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(viii) Notwithstanding anything to the contrary in this Section 5(j) 4.16 and unless otherwise agreed to by such SubscriberPurchaser, the Company shall either confirm in writing to such Subscriber Purchaser that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Subscriber Purchaser will not be in possession of any material, non-public information, by the fifth (5th) business day Business Day following delivery of the Offer Notice. If by such fifth (5th) business dayBusiness Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such SubscriberPurchaser, such transaction shall be deemed to have been abandoned and such Subscriber Purchaser shall not be in possession of any material, non-public information with respect to the Company or any of its subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Subscriber Purchaser with another Offer Notice in accordance with, and subject to, the terms of this Section 5(j) 4.16 and such Subscriber Purchaser will again have the right of participation set forth in this Section 5(j) 4.16 The Company shall not be permitted to deliver more than one such Offer Notice to such Subscriber Purchaser in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 5(j)(ii4.16(ii). The Right of Participation set forth in this Section 5(j4.16 shall (x) shall terminate immediately on the twenty four (24) month anniversary of the Closing DateDate and (y) not apply with respect to any offer or sale of Excluded Securities (as defined in the Series B Certificate of Designation).
Appears in 1 contract
Right of Participation. The Company acknowledges and agrees that (a) From the right set forth in this Section 5(j) is a right granted by date hereof until the Companysix month anniversary of the final Conversion Price Adjustment (as defined n the Certificate of Designation), separately, to each Subscriber.
(i) At least five (5) trading days prior to upon any proposed or intended sale issuance by the Company of its Common Stock, Common Stock Equivalents or other securities Indebtedness or equity linked debt obligations other Securities, whether for cash consideration or a combination of units thereof, resulting in gross proceeds to the Company in excess of $1,000,000 (each, a “Subsequent PlacementFinancing”), each Purchaser shall have the right to participate up to its Pro Rata Portion (measured against all Purchasers) of a percentage of such Subsequent Financing equal to, in the aggregate for all Purchasers, 50%, in case of a registered offering, and 50% in case of any other offering (the “Participation Maximum”) on the same terms, conditions and price provided for in the Subsequent Financing.
(b) At least three (3) Trading Days (six (6) hours in case of a Subsequent Financing structured as a public offering or as an ‘overnight’ deal or other similar transaction) prior to the closing of a Subsequent Financing, the Company shall deliver to each Subscriber Purchaser of the Securities a written notice of its proposal or intention to effect a Subsequent Placement Financing (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information ask such Purchaser if it wants to review the details of such financing (includingeach additional notice containing such details, without limitation, material, non-public information) other than: (A) a statement that the Company proposes or intends to effect a “Subsequent Placement, (B) a statement that the statement in clause (A) above does not constitute material, non-public information and (C) a statement informing such Subscriber that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written requestFinancing Notice”). Upon the written request of any Purchaser for a Subscriber within five (5) business days after the Company’s delivery to such Subscriber of such Pre-Subsequent Financing Notice, and only upon such a written request by such Subscriberrequest, the Company shall promptly, but no later than one (1) business day Trading Day after such requestrequest (or no later than one (1) hour in the case of a Subsequent Financing structured as a public offering or as an ‘overnight’ deal or other similar transaction), deliver a Subsequent Financing Notice to such Subscriber an irrevocable written notice (Purchaser. The Subsequent Financing Notice shall describe in reasonable detail the “Offer Notice”) proposed terms of any such Subsequent Financing, the amount of proceeds intended to be raised thereunder and the Persons through or with whom such Subsequent Financing is proposed or intended issuance or sale or exchange (to be effected, the “Offer”) Pro Rata Portion of the securities being offered Participation Maximum of such Purchaser, an inquiry as to whether such Purchaser is willing to participate above their Pro Rata Portion (and what is the “Offered Securities”maximum amount such Purchaser is willing to commit) in and shall include a Subsequent Placement, which Offer Notice shall (I) identify and describe the Offered Securities, (II) describe the price and other terms upon which they are to be issued, sold term sheet or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (III) identify the persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (IV) offer to issue and sell to or exchange with such Subscriber in accordance with the terms of the Offer such Subscriber’s pro rata portion of 100% of the Offered Securities, provided that the number of Offered Securities which such Subscriber shall have the right to subscribe for under this Section 5(j) shall be (x) based on such Subscriber’s pro rata portion of the aggregate original amount of the Units purchased hereunder by all Subscribers (the “Basic Amount”), and (y) with respect to each Subscriber that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Subscribers similar document relating thereto as such Subscribers shall indicate it will purchase or acquire should the other Subscribers subscribe for less than their Basic Amounts (the “Undersubscription Amount”)an attachment.
(iic) To accept an Offer, If any such Purchaser desires to participate in whole or in partsuch Subsequent Financing, such Subscriber Purchaser must deliver a provide written notice to the Company prior to the end within one (1) Trading Day of the fifth (5th) Business Day after such Subscriber’s receipt of the Offer Subsequent Financing Notice (six (6) hours in case of a Subsequent Financing structured as a public offering or as an ‘overnight’ deal or other similar transaction) that such Purchaser is willing to participate in the “Offer Period”Subsequent Financing, the maximum amount for which such Purchaser would be willing to participate if it is allocated to it (up to the Participation Maximum), setting forth and representing and warranting that the portion of Purchaser has such Subscriber’s Basic Amount that such Subscriber elects to purchase andfunds ready, if such Subscriber shall elect to purchase all of its Basic Amountwilling, and available for investment on the Undersubscription Amount, if any, that such Subscriber elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Subscribers are less than the total of all of the Basic Amounts, then such Subscriber who has terms set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), such Subscriber who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Subscriber bears to the total Basic Amounts of all Subscribers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Subscriber a new Offer Notice and the Offer Period shall expire on the fifth(5th) Business Day after such Subscriber’s receipt of such new Offer Subsequent Financing Notice.
(iiid) The Company At first, each such Purchaser shall first have the right to purchase its Pro Rata Portion (measured against all Purchasers) of the Participation Maximum. If some Purchasers have declined to participate in such Subsequent Financing, and some portion of the Participation Maximum remains unallocated, each Purchaser having agreed to participate above its current allocation shall be allocated its Pro Rata Portion (measured against all Purchasers having so agreed) of the remaining portion of the Participation Maximum at such time – and so on and so forth until the Participation Maximum shall be fully allocated or all Purchasers shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Subscriber (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described their desired allocation in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring person or persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (I) the execution of such Subsequent Placement Agreement, and (II) either (x) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (y) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 8-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits theretofull.
(iv) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 5(j)(iii) above), then such Subscriber may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Subscriber elected to purchase pursuant to Section 5(j)(ii)1(a)(ii) above multiplied by a fraction, (A) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Subscribers pursuant to this Section 5(j) prior to such reduction) and (B) the denominator of which shall be the original amount of the Offered Securities. In the event that any Subscriber so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Subscribers in accordance with Section 5(j)(i) above.
(v) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Subscriber shall acquire from the Company, and the Company shall issue to such Subscriber, the number or amount of Offered Securities specified in its Notice of Acceptance. The purchase by such Subscriber of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Subscriber of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Subscriber and its counsel.
(vi) Any Offered Securities not acquired by a Subscriber or other persons in accordance with this Section 5(j) may not be issued, sold or exchanged until they are again offered to such Subscriber under the procedures specified in this Agreement.
(viie) The Company and each Subscriber agree that if any Subscriber elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “to any Subsequent Placement Documents”) Financing applicable to any Purchaser participating in such Subsequent Financing shall not include any term or provision whereby such Subscriber Purchaser shall be required to agree to any restrictions on trading as to any securities of the Company or be required Securities purchased hereunder. In addition, the transaction documents related to the Subsequent Financing shall not include any requirement to consent to any amendment to or termination of, or grant any waiver, release or other modification or the like under or in connection with, any this Agreement, without the prior written consent of the number of Purchasers required hereunder to consent to this amendment, termination, waiver, consent, release or other modification. The Company must provide the Purchasers with a second Subsequent Financing Notice, and the Purchasers will again have the right of participation set forth above in this Section 4.11, if the definitive agreement previously related to the initial Subsequent Financing Notice is not entered into with for any reason on the Company or any instrument received from terms set forth in such Subsequent Financing Notice within two (2) Trading Days after the Companydate of delivery of the initial Subsequent Financing Notice.
(viiif) Notwithstanding anything to the contrary in this Section 5(j4.1(f) and unless otherwise agreed to by such Subscriberthe applicable Purchaser, the Company shall either confirm in writing to such Subscriber each Purchaser that the transaction with respect to the Subsequent Placement Financing has been abandoned or shall publicly disclose its intention to issue the Offered Securitiessecurities in the Subsequent Financing, in either case, case in such a manner such that such Subscriber each Purchaser will not be in possession of any material, non-public information, by the fifth (5th) business day Trading Day following delivery of the Offer NoticeSubsequent Financing Notice (or by 9:30 am (New York City time) on the second (2nd) Trading Day following date of delivery of the Subsequent Financing Notice in case of a Subsequent Financing structure as a public offering or as an ‘overnight’ deal or other similar transaction). If by such fifth (5th) business dayTrading Day (or by 9:30 am (New York City time) on the second (2nd) Trading Day following date of delivery of the Subsequent Financing Notice in case of a Subsequent Financing structure as a public offering or as an ‘overnight’ deal or other similar transaction), no public disclosure regarding a transaction with respect to the Offered Securities Subsequent Financing has been made, and no notice regarding the abandonment of such transaction has been received by such Subscriberthe Purchaser, such transaction shall be deemed to have been abandoned and such Subscriber the Purchaser shall not be deemed to be in possession of any material, non-public information with respect to the Company or any of its subsidiaries. Should Subsidiaries
(g) Notwithstanding the Company decide to pursue such transaction with respect to the Offered Securitiesforegoing, the Company shall provide such Subscriber with another Offer Notice in accordance with, and subject to, the terms of this Section 5(j4.1(g) and such Subscriber will again have the right of participation set forth in this Section 5(j) The Company shall not be permitted apply to deliver more than one such Offer Notice to such Subscriber in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 5(j)(ii). The Right of Participation set forth in this Section 5(j) shall terminate on the twenty four month anniversary of the Closing Datean Exempt Issuance.
Appears in 1 contract
Samples: Securities Purchase Agreement (Troika Media Group, Inc.)
Right of Participation. The Company acknowledges Subject to the terms and agrees that the right set forth in conditions of this Section 5(j) is a right granted by the Company4.1 and applicable securities laws, separately, to each Subscriber.
(i) At least five (5) trading days prior to any proposed or intended sale by if the Company of its Common Stock proposes to offer or other securities or equity linked debt obligations (each, a “Subsequent Placement”)sell any New Securities, the Company shall deliver also offer the Investor the right to each Subscriber a written notice participate in the purchase of its proposal or intention to effect a Subsequent Placement (each such notice, a “Pre-Notice”), which Pre-Notice New Securities. The Investor shall not contain any information (including, without limitation, material, non-public information) other than: (A) a statement that the Company proposes or intends to effect a Subsequent Placement, (B) a statement that the statement in clause (A) above does not constitute material, non-public information and (C) a statement informing such Subscriber that it is be entitled to receive an Offer Notice apportion the right of participation hereby granted to it among itself and its Affiliates in such proportions as it deems appropriate.
(as defined belowa) with respect to such Subsequent Placement upon its written request. Upon the written request of a Subscriber At any time before or within five thirty (530) business days after the Company’s delivery to such Subscriber issuance of such Pre-Notice, and only upon a written request by such SubscriberNew Securities, the Company shall promptly, but no later than one (1) business day after such request, deliver to such Subscriber an irrevocable written give notice (the “Offer Notice”) of any proposed to the Investor, stating (i) its bona fide intention to offer and sell, or intended issuance or sale or exchange (the “Offer”) of the securities being fact that it has offered (the “Offered Securities”) in a Subsequent Placementand sold, which Offer Notice shall (I) identify and describe the Offered such New Securities, as applicable, (IIii) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number of such New Securities offered or amount of the Offered Securities to be issued, sold or exchanged, (III) identify the persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (IViii) offer to issue the type, price and sell to or exchange with such Subscriber in accordance with the terms of the Offer such Subscriber’s pro rata portion of 100% of the Offered New Securities, provided that the number of Offered Securities which such Subscriber shall have the right to subscribe for under this Section 5(j) shall be (x) based on such Subscriber’s pro rata portion of the aggregate original amount of the Units purchased hereunder by all Subscribers (the “Basic Amount”), and (y) with respect to each Subscriber that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Subscribers as such Subscribers shall indicate it will purchase or acquire should the other Subscribers subscribe for less than their Basic Amounts (the “Undersubscription Amount”).
(iib) To accept an Offer, in whole or in part, such Subscriber must deliver a written notice By notification to the Company prior to the end of the fifth within twenty (5th20) Business Day days after such Subscriber’s receipt of the Offer Notice (is given, the “Offer Period”), setting forth the portion of such Subscriber’s Basic Amount that such Subscriber elects to purchase and, if such Subscriber shall Investor may elect to purchase all of its Basic Amountor otherwise acquire, at the Undersubscription Amount, if any, that such Subscriber elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Subscribers are less than the total of all of the Basic Amounts, then such Subscriber who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), such Subscriber who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Subscriber bears to the total Basic Amounts of all Subscribers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Subscriber a new Offer Notice and the Offer Period shall expire on the fifth(5th) Business Day after such Subscriber’s receipt of such new Offer Notice.
(iii) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Subscriber (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring person or persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (I) the execution of such Subsequent Placement Agreement, and (II) either (x) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (y) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 8-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(iv) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner price and on the terms specified in Section 5(j)(iii) above)the Offer Notice, then such Subscriber may, at its sole option and in its sole discretion, reduce the number or amount that portion of the Offered New Securities specified in its Notice of Acceptance to an amount that shall be not less than equals the number proportion that the Common Shares issued and held, or amount issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Offered Series A Preferred Shares and any other Derivative Securities that such Subscriber elected then held, by the Investor bears to purchase pursuant to Section 5(j)(ii)1(a)(ii) above multiplied by a fraction, (A) the numerator total Common Shares of which shall be the number or amount of Offered Securities the Company actually proposes to issuethen outstanding (assuming full conversion and/or exercise, sell or exchange (including Offered Securities to be issued or sold to Subscribers as applicable, of all Series A Preferred Shares and other Derivative Securities). The closing of any sale pursuant to this Section 5(j) prior to such reduction) and (B) the denominator of which shall be the original amount of the Offered Securities. In the event that any Subscriber so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Subscribers in accordance with Section 5(j)(i) above.
(v) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Subscriber shall acquire from the Company, and the Company shall issue to such Subscriber, the number or amount of Offered Securities specified in its Notice of Acceptance. The purchase by such Subscriber of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Subscriber of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Subscriber and its counsel.
(vi) Any Offered Securities not acquired by a Subscriber or other persons in accordance with this Section 5(j) may not be issued, sold or exchanged until they are again offered to such Subscriber under the procedures specified in this Agreement.
(vii) The Company and each Subscriber agree that if any Subscriber elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”4.1(b) shall include any term or provision whereby such Subscriber shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(viii) Notwithstanding anything to the contrary in this Section 5(j) and unless otherwise agreed to by such Subscriber, the Company shall either confirm in writing to such Subscriber that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Subscriber will not be in possession of any material, non-public information, by the fifth (5th) business day following delivery of the Offer Notice. If by such fifth (5th) business day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such Subscriber, such transaction shall be deemed to have been abandoned and such Subscriber shall not be in possession of any material, non-public information with respect to the Company or any of its subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Subscriber with another Offer Notice in accordance with, and subject to, the terms of this Section 5(j) and such Subscriber will again have the right of participation set forth in this Section 5(j) The Company shall not be permitted to deliver more than one such Offer Notice to such Subscriber in any occur within sixty (60) day period, except as expressly contemplated days of the date that the Offer Notice is given.
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired by the last sentence Investor as provided in Section 4.1(b), the Company may, following the expiration of the period provided in Section 5(j)(ii4.1(b). , offer and sell the remaining unsubscribed portion of such New 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.
(d) The Right right of Participation set forth participation in this Section 5(j4.1 shall not be applicable to (i) shall terminate on Exempted Securities; and (ii) Common Shares issued in the twenty four month anniversary of the Closing DateIPO.
Appears in 1 contract
Samples: Investor's Rights Agreement (Zoom Technologies Inc)
Right of Participation. The Company acknowledges and agrees that the right set forth in this Section 5(j) 4.7 is a right granted by the Company, separately, to each Subscriberthe Purchaser, provided that the Purchaser owns no fewer than One Hundred and Twenty (120) Shares.
(ia) At If the Company has delivered to the Purchaser or its assigns a MNPI Pre-Notice and the Purchaser or its assigns has delivered written notice that it will accept such MNPI and only in that event, at least five ten (510) trading days prior to any proposed or intended sale by the Company of its Common Stock or other securities or equity linked debt obligations other than an Exempt Issuance other than (v) thereof (each, a “Subsequent Placement”), the Company shall deliver to each Subscriber the Purchaser a written notice of its proposal or intention to effect a Subsequent Placement (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) a statement that the Company proposes or intends to effect a Subsequent Placement, (B) a statement that the statement in clause (A) above does not constitute material, non-public information and (C) a statement informing such Subscriber the Purchaser that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Subscriber the Purchaser within five (5) business days Business Days after the Company’s delivery to such Subscriber the Purchaser of such Pre-Notice, and only upon a written request by such Subscriberthe Purchaser, the Company shall promptly, but no later than one (1) business day Business Day after such request, deliver to such Subscriber the Purchaser an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (I) identify and describe the Offered Securities, (II) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (III) identify the persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (IV) offer to issue and sell to or exchange with such Subscriber the Purchaser in accordance with the terms of the Offer such Subscriber’s pro rata portion of 100% of the Offered Securities, provided that the number of Offered Securities which such Subscriber shall have entitling the right Purchaser to subscribe for under this Section 5(j) shall be (x) based on such Subscriber’s pro rata portion maintain its percentage beneficial ownership of the aggregate original amount of Company held prior to the Units purchased hereunder by all Subscribers Subsequent Placement (the “Basic Participation Amount”). As used in this Section 4.7, and (y) with respect to each Subscriber that elects to purchase the word “Purchaser” includes its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Subscribers as such Subscribers shall indicate it will purchase or acquire should the other Subscribers subscribe for less than their Basic Amounts (the “Undersubscription Amount”)assigns.
(iib) To accept an Offer, in whole or in part, such Subscriber the Purchaser must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such Subscriberthe Purchaser’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such Subscriberthe Purchaser’s Basic Participation Amount that such Subscriber the Purchaser elects to purchase and, if such Subscriber shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Subscriber elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Subscribers are less than the total of all of the Basic Amounts, then such Subscriber who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), such Subscriber who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Subscriber bears to the total Basic Amounts of all Subscribers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Subscriber the Purchaser a new Offer Notice and the Offer Period shall expire on the fifth(5thfifth (5th) Business Day after such Subscriberthe Purchaser’s receipt of such new Offer Notice.
(iiic) The If the Company or any Subsidiary including White River or any Subsidiaries of White River decide to drill or participate in the drilling by a third party of an oil and gas well (an O&G Venture”), the Company shall have offer the Purchaser or a designee of the Purchaser the right to participate in such O&G Venture by investing up to 25% of the Company’s funding obligation of such O&G Venture. If the O&G Venture is successfully drilled, logged, and completed and is determined to be economically viable then the Purchaser or its designee will receive its proportionate ownership through an assigned working interest in the division order which is supplied to the midstream carrier selected to purchase the well’s production. By way of example, if the Company has the right to invest $1 million in exchange for an 80% a working interest in an O&G Venture, the Purchaser may elect to invest $250,000 and receive a 20% working interest, or such proportionate percentage if it invests less than $250,000. For avoidance of doubt, the 25% right is a total for each of the Purchaser and its assigns. At least ten (10) calendar days prior to any proposed or intended investment in an O&G Venture, the Company or any Subsidiary (including a White River Subsidiary) shall deliver to the Purchaser a written notice of its proposal or intention to effect an investment in an O&G Venture (each such notice, an “Authority for Expenditure”), which Authority for Expenditure shall not contain any information (including, without limitation, MNPI) other than: (A) a statement that the Company proposes or intends to invest in an O&G Venture, (B) a statement that the statement in clause (A) above does not constitute MNPI and (C) a statement informing the Purchaser that it is entitled to invest in an O&G Venture and (D) an itemized list of estimated drilling and completion expenses, and (E) identification of the proposed persons (if known) and drilling or workover rig proposed for the O&G Venture, and finally, an offer the Purchaser the right to invest in the O&G Venture (the “O&G Participation Amount”). Upon the written request of the Purchaser within five (5) Business Days from after the expiration Company’s delivery to the Purchaser of such Authority for Expenditure, the Purchaser may request additional information about the O&G Venture, and thereafter the Company shall promptly, but no later than one (1) Business Day after such request, deliver to the Purchaser any additional readily available or reasonably obtainable information so requested by the Purchaser on the drilling prospect of the Offer Period above (A) to offerO&G Venture such as geology, issueseismic, sell or exchange all or any part of such Offered Securities comparable well information in the same field as to which a Notice of Acceptance has not been given by a Subscriber the proposed drilling prospect (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement AgreementO&G Additional Information”). As used in this Section 4.7, but only to the offerees described word “Purchaser” includes its assigns, except as apparent from the context.
(d) To accept an O&G Offer, in whole or in part, the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring person or persons or less favorable Purchaser must deliver a written notice to the Company than those set forth in the Offer Notice and (B) to publicly announce (I) the execution of such Subsequent Placement Agreement, and (II) either (x) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (y) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 8-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(iv) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 5(j)(iii) above), then such Subscriber may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Subscriber elected to purchase pursuant to Section 5(j)(ii)1(a)(ii) above multiplied by a fraction, (A) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Subscribers pursuant to this Section 5(j) prior to such reduction) and (B) the denominator end of which shall be the original amount of the Offered Securities. In the event that any Subscriber so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Subscribers in accordance with Section 5(j)(i) above.
(v) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Subscriber shall acquire from the Company, and the Company shall issue to such Subscriber, the number or amount of Offered Securities specified in its Notice of Acceptance. The purchase by such Subscriber of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Subscriber of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Subscriber and its counsel.
(vi) Any Offered Securities not acquired by a Subscriber or other persons in accordance with this Section 5(j) may not be issued, sold or exchanged until they are again offered to such Subscriber under the procedures specified in this Agreement.
(vii) The Company and each Subscriber agree that if any Subscriber elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Subscriber shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(viii) Notwithstanding anything to the contrary in this Section 5(j) and unless otherwise agreed to by such Subscriber, the Company shall either confirm in writing to such Subscriber that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Subscriber will not be in possession of any material, non-public information, by the fifth (5th) business day following delivery Business Day after the Purchaser’s receipt of the O&G Additional Information (the “O&G Offer NoticePeriod”), setting forth the portion of the Purchaser’s O&G Participation Amount that the Purchaser elects to purchase. If by such Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the O&G Offer prior to the expiration of the O&G Offer Period, the Company may deliver to the Purchaser a new O&G Offer Notice in which case the new O&G Offer Period shall expire on the fifth (5th) business day, no public disclosure regarding a transaction with respect to Business Day after the Offered Securities has been made, and no notice regarding the abandonment Purchaser’s receipt of such transaction has been received by such Subscriber, such transaction shall be deemed to have been abandoned and such Subscriber shall not be in possession of any material, non-public information with respect to the Company or any of its subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Subscriber with another new O&G Offer Notice in accordance with, and subject to, the terms of this Section 5(j) and such Subscriber will again have the right of participation set forth in this Section 5(j) The Company shall not be permitted to deliver more than one such Offer Notice to such Subscriber in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 5(j)(ii). The Right of Participation set forth in this Section 5(j) shall terminate on the twenty four month anniversary of the Closing DateNotice.
Appears in 1 contract
Samples: Securities Purchase Agreement (Ecoark Holdings, Inc.)
Right of Participation. The (a) From and after the Closing Date until the Right of Participation End Date, the Company acknowledges shall not, and agrees that the right set forth in Company shall not permit its Subsidiary to, directly or indirectly, effect any Subsequent Equity Placement unless the Company shall have first complied with this Section 5(j) is a right granted by the Company, separately, to each Subscriber4.18.
(i) At least five (5) trading days prior Prior to entering into any proposed or intended sale by Subsequent Equity Placement with any Person other than the Company of its Common Stock or other securities or equity linked debt obligations (each, a “Subsequent Placement”)Purchasers, the Company shall deliver to each Subscriber a written notice of its proposal or intention to effect a Subsequent Placement (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) a statement that the Company proposes or intends to effect a Subsequent Placement, (B) a statement that the statement in clause (A) above does not constitute material, non-public information and (C) a statement informing such Subscriber that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Subscriber within five (5) business days after the Company’s delivery to such Subscriber of such Pre-Notice, and only upon a written request by such Subscriber, the Company shall promptly, but no later than one (1) business day after such request, deliver to such Subscriber Purchaser an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered SecuritiesPlacement”) in a Subsequent Equity Placement, which Offer Notice shall (Iw) offer to issue and sell to or exchange with such Purchasers their respective Requisite Percentages of the Offered Placement (the “Purchaser Amount”), in each instance allocated among such Purchasers as indicated by the Purchasers, (x) identify and describe the Offered SecuritiesPlacement, (IIy) describe whether the price Offered Placement is at the market or provide a range (such range not to exceed fifteen percent (15%) above or below market) of the anticipated discount to market, including warrant coverage, and describe other material terms upon which they are to be issued, sold or exchangedexchanged (to the extent known), and the approximate number or amount of the securities or Indebtedness expected to comprise the Offered Securities Placement to be issued, sold or exchanged, exchanged and (IIIz) identify the persons or entities (if known) to which or with which the securities or Indebtedness comprising the Offered Securities Placement are to be offered, issued, sold or exchanged and (IV) offer to issue and sell to or exchange with such Subscriber in accordance with the terms of the Offer such Subscriber’s pro rata portion of 100% of the Offered Securities, provided that the number of Offered Securities which such Subscriber shall have the right to subscribe for under this Section 5(j) shall be (x) based on such Subscriber’s pro rata portion of the aggregate original amount of the Units purchased hereunder by all Subscribers (the “Basic Amount”), and (y) with respect to each Subscriber that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Subscribers as such Subscribers shall indicate it will purchase or acquire should the other Subscribers subscribe for less than their Basic Amounts (the “Undersubscription Amount”).
(ii) To accept an Offer, in whole whether of the entirety of the Purchaser Amount or in parta portion thereof, such Subscriber Purchaser must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such SubscriberPurchaser’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such SubscriberPurchaser’s Basic Amount that such Subscriber elects to purchase and, if such Subscriber shall elect to purchase all of its Basic Purchaser Amount, the Undersubscription which may be all or any portion of such Purchaser’s Purchaser Amount, if any, that such Subscriber Purchaser elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Subscribers are less than the total of all of the Basic Amounts, then such Subscriber who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition Notwithstanding anything to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), such Subscriber who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Subscriber bears to the total Basic Amounts of all Subscribers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoingcontrary contained herein, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Subscriber the Purchasers a new Offer Notice and the Offer Period shall expire on the fifth(5thfifth (5th) Business Day after such SubscriberPurchaser’s receipt of such new Offer Notice.
(iii) The Company shall have five ten (510) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange consummate the Subsequent Equity Placement with respect to all or any part of such Offered Securities Placement as to which a Notice of Acceptance has not been given by a Subscriber the Purchasers (the “Refused SecuritiesPlacement”) pursuant to a definitive agreement(s) agreement (the “Subsequent Placement Agreement”), ) but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest ratesrates (or within such range)) that are not more favorable to the acquiring person Person or persons Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (I) the execution of such Subsequent Placement Agreement, and (II) either (x) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (y) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 8-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits theretoNotice.
(iv) In the event the Company shall propose to sell less than 80% of all the securities or Indebtedness comprising the Refused Securities Placement (any such sale to be in the manner and on the terms specified in Section 5(j)(iii4.18(a)(iv) above), then prior to the end of the fifth (5th) Business Day after such Subscriber Purchaser’s receipt of written notice of the Company’s proposal to sell such reduced amount of securities or Indebtedness comprising the Refused Placement, each Purchaser may, at its sole option and in its sole discretion, reduce the number or amount of the securities or Indebtedness comprising the Offered Securities Placement specified in its Notice of Acceptance or revoke its Notice of Acceptance. In the event the Company shall propose to an amount that shall be not sell less than 100% but 80% or more of all the securities or Indebtedness comprising the Refused Placement (any such sale to be in the manner and on the terms specified in Section 4.18(a)(iv) above), then prior to the end of the fifth (5th) Business Day after such Purchaser’s receipt of written notice of the Company’s proposal to sell such reduced amount of securities or Indebtedness comprising the Refused Placement, each Purchaser may, at its sole option and in its sole discretion, proportionally reduce the number or amount of the Offered Securities that such Subscriber elected to purchase pursuant to Section 5(j)(ii)1(a)(ii) above multiplied by a fraction, (A) the numerator of which shall be the number securities or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Subscribers pursuant to this Section 5(j) prior to such reduction) and (B) the denominator of which shall be the original amount of Indebtedness comprising the Offered SecuritiesPlacement specified in its Notice of Acceptance. In the event that any Subscriber Purchaser so elects to reduce the number or amount of securities or Indebtedness comprising the Offered Securities Placement specified in its Notice of Acceptance or revoke its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities Placement unless and until such securities have again been offered to the Subscribers Purchasers in accordance with Section 5(j)(i4.18(a)(ii) above.
(v) Upon Any securities or Indebtedness comprising the closing of Offered Placement not acquired by the issuancePurchasers or other Persons in accordance with Section 4.18(a)(iv) above may not be issued, sale sold or exchange of all or less than all of exchanged until they are again offered to the Refused Securities, such Subscriber shall acquire from Purchasers under the Company, and the Company shall issue to such Subscriber, the number or amount of Offered Securities procedures specified in its Notice of Acceptance. this Agreement.
(vi) The purchase by such Subscriber the Purchasers of any securities comprising the Offered Securities Placement is subject in all cases to the preparation, execution and delivery by the Company and such Subscriber the Purchasers of a separate purchase agreement relating to such Offered Securities Placement reasonably satisfactory in form and substance to such Subscriber the Purchasers and its their respective counsel.
(vi) Any Offered Securities not acquired by a Subscriber or other persons in accordance with this Section 5(j) may not be issued, sold or exchanged until they are again offered to such Subscriber under the procedures specified in this Agreement.
(vii) . The Company and each Subscriber the Purchasers agree that if any Subscriber Purchaser elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision provisions whereby such Subscriber any Purchaser shall be required to agree to any restrictions on in trading as to any securities of the Company or be required owned by such Purchaser prior to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Companysuch Subsequent Equity Placement.
(viiivii) Notwithstanding anything to the contrary in this Section 5(j) 4.18 and unless otherwise agreed to by such Subscriberthe Purchasers, the Company shall either confirm in writing to such Subscriber the Purchasers that the transaction with respect to the proposed Subsequent Equity Placement has been abandoned or shall publicly disclose its intention to issue consummate the Offered Securitiestransactions contemplated by the proposed Subsequent Equity Placement, in either case, case in such a manner such that such Subscriber the Purchasers will not be in possession of any material, material non-public information, by the fifth twentieth (5th20th) business day Business Day following delivery of the any Offer Notice. If by such fifth the twentieth (5th20th) business day, Business Day following delivery of any Offer Notice no public disclosure regarding a transaction with respect to the Offered Securities proposed Subsequent Equity Placement has been made, and no notice regarding the abandonment of such transaction has been received by such Subscriberthe Purchasers, such transaction shall be deemed to have been abandoned and such Subscriber the Purchasers shall not be deemed to be in possession of any material, non-public information with respect to the Company or any of its subsidiariesCompany. Should the Company decide to pursue such transaction with respect to the Offered Securitiesproposed Subsequent Equity Placement, the Company shall provide such Subscriber each Purchaser with another Offer Notice in accordance with, and subject to, the terms of this Section 5(j) and such Subscriber each Purchaser will again have the right of participation set forth in this Section 5(j) 4.18(a). The Company shall not be permitted to deliver more than one such Offer Notice to such Subscriber the Purchasers in any sixty forty (6040) day Business Day period.
(b) The restrictions contained in this Section 4.18 shall not apply in connection with the issuance of any Excluded Securities. Notwithstanding anything to the contrary contained herein, except as expressly contemplated by the last sentence all rights of Section 5(j)(ii). The Right of Participation any Purchaser set forth in this Section 5(j4.18 shall be assignable at the election of any Purchaser to one or more of any Purchaser’s Affiliates, but not otherwise. For purposes of clarification, the provisions of this Section 4.18 are to apply to any Subsequent Equity Placement, including multiple Subsequent Equity Placements, whether related or unrelated, during the period covered hereby.
(c) shall terminate on If and to the twenty four month anniversary extent that any Purchaser, including Affiliates and Attribution Parties of the Closing DatePurchaser, has a right to participate in any offering of securities of the Company under any other agreement, including without limitation a right to participate arising under Section 4.18 of the 2012 Offering SPA or Section 4.18 of the 2014 Offering SPA (collectively, the "Prior Rights"), none of the rights hereunder shall modify, limit or supersede such Prior Rights; provided, however, that the securities that such Purchaser may purchase hereunder and pursuant to the Prior Rights shall not be aggregated.
Appears in 1 contract
Samples: Securities Purchase Agreement (Palatin Technologies Inc)
Right of Participation. The (a) From and after the Closing Date until the Right of Participation End Date, the Company acknowledges shall not, and agrees that the right set forth in Company shall not permit its Subsidiary to, directly or indirectly, effect any Subsequent Equity Placement unless the Company shall have first complied with this Section 5(j) is a right granted by the Company, separately, to each Subscriber4.18.
(i) At least five (5) trading days prior Prior to entering into any proposed or intended sale by Subsequent Equity Placement with any Person other than the Company of its Common Stock or other securities or equity linked debt obligations (each, a “Subsequent Placement”)Purchasers, the Company shall deliver to each Subscriber a written notice of its proposal or intention to effect a Subsequent Placement (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) a statement that the Company proposes or intends to effect a Subsequent Placement, (B) a statement that the statement in clause (A) above does not constitute material, non-public information and (C) a statement informing such Subscriber that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Subscriber within five (5) business days after the Company’s delivery to such Subscriber of such Pre-Notice, and only upon a written request by such Subscriber, the Company shall promptly, but no later than one (1) business day after such request, deliver to such Subscriber Purchaser an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered SecuritiesPlacement”) in a Subsequent Equity Placement, which Offer Notice shall (Iw) offer to issue and sell to or exchange with such Purchasers their respective Requisite Percentages of the Offered Placement (the “Purchaser Amount”), in each instance allocated among such Purchasers as indicated by the Purchasers, (x) identify and describe the Offered SecuritiesPlacement, (IIy) describe whether the price Offered Placement is at the market or provide a range (such range not to exceed fifteen percent (15%) above or below market) of the anticipated discount to market, including warrant coverage, and describe other material terms upon which they are to be issued, sold or exchangedexchanged (to the extent known), and the approximate number or amount of the securities or Indebtedness expected to comprise the Offered Securities Placement to be issued, sold or exchanged, exchanged and (IIIz) identify the persons or entities (if known) to which or with which the securities or Indebtedness comprising the Offered Securities Placement are to be offered, issued, sold or exchanged and (IV) offer to issue and sell to or exchange with such Subscriber in accordance with the terms of the Offer such Subscriber’s pro rata portion of 100% of the Offered Securities, provided that the number of Offered Securities which such Subscriber shall have the right to subscribe for under this Section 5(j) shall be (x) based on such Subscriber’s pro rata portion of the aggregate original amount of the Units purchased hereunder by all Subscribers (the “Basic Amount”), and (y) with respect to each Subscriber that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Subscribers as such Subscribers shall indicate it will purchase or acquire should the other Subscribers subscribe for less than their Basic Amounts (the “Undersubscription Amount”).
(ii) To accept an Offer, in whole whether of the entirety of the Purchaser Amount or in parta portion thereof, such Subscriber Purchaser must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such SubscriberPurchaser’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such SubscriberPurchaser’s Basic Amount that such Subscriber elects to purchase and, if such Subscriber shall elect to purchase all of its Basic Purchaser Amount, the Undersubscription which may be all or any portion of such Purchaser’s Purchaser Amount, if any, that such Subscriber Purchaser elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Subscribers are less than the total of all of the Basic Amounts, then such Subscriber who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition Notwithstanding anything to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), such Subscriber who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Subscriber bears to the total Basic Amounts of all Subscribers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoingcontrary contained herein, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Subscriber the Purchasers a new Offer Notice and the Offer Period shall expire on the fifth(5thfifth (5th) Business Day after such SubscriberPurchaser’s receipt of such new Offer Notice.
(iii) The Company shall have five ten (510) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange consummate the Subsequent Equity Placement with respect to all or any part of such Offered Securities Placement as to which a Notice of Acceptance has not been given by a Subscriber the Purchasers (the “Refused SecuritiesPlacement”) pursuant to a definitive agreement(s) agreement (the “Subsequent Placement Agreement”), ) but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest ratesrates (or within such range)) that are not more favorable to the acquiring person Person or persons Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (I) the execution of such Subsequent Placement Agreement, and (II) either (x) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (y) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 8-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits theretoNotice.
(iv) In the event the Company shall propose to sell less than 80% of all the securities or Indebtedness comprising the Refused Securities Placement (any such sale to be in the manner and on the terms specified in Section 5(j)(iii4.18(a)(iv) above), then prior to the end of the fifth (5th) Business Day after such Subscriber Purchaser’s receipt of written notice of the Company’s proposal to sell such reduced amount of securities or Indebtedness comprising the Refused Placement, each Purchaser may, at its sole option and in its sole discretion, reduce the number or amount of the securities or Indebtedness comprising the Offered Securities Placement specified in its Notice of Acceptance or revoke its Notice of Acceptance. In the event the Company shall propose to an amount that shall be not sell less than 100% but 80% or more of all the securities or Indebtedness comprising the Refused Placement (any such sale to be in the manner and on the terms specified in Section 4.18(a)(iv) above), then prior to the end of the fifth (5th) Business Day after such Purchaser’s receipt of written notice of the Company’s proposal to sell such reduced amount of securities or Indebtedness comprising the Refused Placement, each Purchaser may, at its sole option and in its sole discretion, proportionally reduce the number or amount of the Offered Securities that such Subscriber elected to purchase pursuant to Section 5(j)(ii)1(a)(ii) above multiplied by a fraction, (A) the numerator of which shall be the number securities or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Subscribers pursuant to this Section 5(j) prior to such reduction) and (B) the denominator of which shall be the original amount of Indebtedness comprising the Offered SecuritiesPlacement specified in its Notice of Acceptance. In the event that any Subscriber Purchaser so elects to reduce the number or amount of securities or Indebtedness comprising the Offered Securities Placement specified in its Notice of Acceptance or revoke its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities Placement unless and until such securities have again been offered to the Subscribers Purchasers in accordance with Section 5(j)(i4.18(a)(ii) above.
(v) Upon Any securities or Indebtedness comprising the closing of Offered Placement not acquired by the issuancePurchasers or other Persons in accordance with Section 4.18(a)(iv) above may not be issued, sale sold or exchange of all or less than all of exchanged until they are again offered to the Refused Securities, such Subscriber shall acquire from Purchasers under the Company, and the Company shall issue to such Subscriber, the number or amount of Offered Securities procedures specified in its Notice of Acceptance. this Agreement.
(vi) The purchase by such Subscriber the Purchasers of any securities comprising the Offered Securities Placement is subject in all cases to the preparation, execution and delivery by the Company and such Subscriber the Purchasers of a separate purchase agreement relating to such Offered Securities Placement reasonably satisfactory in form and substance to such Subscriber the Purchasers and its their respective counsel.
(vi) Any Offered Securities not acquired by a Subscriber or other persons in accordance with this Section 5(j) may not be issued, sold or exchanged until they are again offered to such Subscriber under the procedures specified in this Agreement.
(vii) . The Company and each Subscriber the Purchasers agree that if any Subscriber Purchaser elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision provisions whereby such Subscriber any Purchaser shall be required to agree to any restrictions on in trading as to any securities of the Company or be required owned by such Purchaser prior to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Companysuch Subsequent Equity Placement.
(viiivii) Notwithstanding anything to the contrary in this Section 5(j) 4.18 and unless otherwise agreed to by such Subscriberthe Purchasers, the Company shall either confirm in writing to such Subscriber the Purchasers that the transaction with respect to the proposed Subsequent Equity Placement has been abandoned or shall publicly disclose its intention to issue consummate the Offered Securitiestransactions contemplated by the proposed Subsequent Equity Placement, in either case, case in such a manner such that such Subscriber the Purchasers will not be in possession of any material, material non-public information, by the fifth twentieth (5th20th) business day Business Day following delivery of the any Offer Notice. If by such fifth the twentieth (5th20th) business day, Business Day following delivery of any Offer Notice no public disclosure regarding a transaction with respect to the Offered Securities proposed Subsequent Equity Placement has been made, and no notice regarding the abandonment of such transaction has been received by such Subscriberthe Purchasers, such transaction shall be deemed to have been abandoned and such Subscriber the Purchasers shall not be deemed to be in possession of any material, non-public information with respect to the Company or any of its subsidiariesCompany. Should the Company decide to pursue such transaction with respect to the Offered Securitiesproposed Subsequent Equity Placement, the Company shall provide such Subscriber each Purchaser with another Offer Notice in accordance with, and subject to, the terms of this Section 5(j) and such Subscriber each Purchaser will again have the right of participation set forth in this Section 5(j) 4.18(a). The Company shall not be permitted to deliver more than one such Offer Notice to such Subscriber the Purchasers in any sixty forty (6040) day Business Day period.
(b) The restrictions contained in this Section 4.18 shall not apply in connection with the issuance of any Excluded Securities. Notwithstanding anything to the contrary contained herein, except as expressly contemplated by the last sentence all rights of Section 5(j)(ii). The Right of Participation any Purchaser set forth in this Section 5(j4.18 shall be assignable at the election of any Purchaser to one or more of any Purchaser’s Affiliates, but not otherwise. For purposes of clarification, the provisions of this Section 4.18 are to apply to any Subsequent Equity Placement, including multiple Subsequent Equity Placements, whether related or unrelated, during the period covered hereby.
(c) shall terminate on If and to the twenty four month anniversary extent that any Purchaser, including Affiliates and Attribution Parties of the Closing DatePurchaser, has a right to participate in any offering of securities of the Company under any other agreement, including without limitation a right to participate arising under Section 4.18 of the 2012 Offering SPA (the "Prior Rights"), none of the rights hereunder shall modify, limit or supersede such Prior Rights; provided, however, that the securities that such Purchaser may purchase hereunder and pursuant to the Prior Rights shall not be aggregated.
Appears in 1 contract
Samples: Securities Purchase Agreement (Palatin Technologies Inc)
Right of Participation. The Company acknowledges and agrees that From the right set forth in this Section 5(j) is a right granted by the Company, separately, to each Subscriber.
(i) At least five (5) trading days prior to any proposed or intended sale by the Company of its Common Stock or other securities or equity linked debt obligations (each, a “Subsequent Placement”), the Company shall deliver to each Subscriber a written notice of its proposal or intention to effect a Subsequent Placement (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) a statement that the Company proposes or intends to effect a Subsequent Placement, (B) a statement that the statement in clause (A) above does not constitute material, non-public information and (C) a statement informing such Subscriber that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Subscriber within five (5) business days after the Company’s delivery to such Subscriber of such Pre-Notice, and only upon a written request by such Subscriber, the Company shall promptly, but no later than one (1) business day after such request, deliver to such Subscriber an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) date of the securities being offered (Initial Closing until the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (I) identify and describe date that is the Offered Securities, (II) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount one year anniversary of the Offered Securities to be issuedFinal Closing, sold or exchanged, (III) identify the persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (IV) offer to issue and sell to or exchange with such Subscriber in accordance with the terms of the Offer such Subscriber’s pro rata portion of 100% of the Offered Securities, provided that the number of Offered Securities which such Subscriber shall have the right to subscribe for under this Section 5(j) shall be (x) based on such Subscriber’s pro rata portion of the aggregate original amount of the Units purchased hereunder upon any issuance by all Subscribers (the “Basic Amount”), and (y) with respect to each Subscriber that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Subscribers as such Subscribers shall indicate it will purchase or acquire should the other Subscribers subscribe for less than their Basic Amounts (the “Undersubscription Amount”).
(ii) To accept an Offer, in whole or in part, such Subscriber must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such Subscriber’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such Subscriber’s Basic Amount that such Subscriber elects to purchase and, if such Subscriber shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Subscriber elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Subscribers are less than the total of all of the Basic Amounts, then such Subscriber who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), such Subscriber who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Subscriber bears to the total Basic Amounts of all Subscribers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Subscriber a new Offer Notice and the Offer Period shall expire on the fifth(5th) Business Day after such Subscriber’s receipt of such new Offer Notice.
(iii) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Subscriber (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring person or persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (I) the execution of such Subsequent Placement Agreement, and (II) either (x) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (y) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 8-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(iv) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 5(j)(iii) above), then such Subscriber may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Subscriber elected to purchase pursuant to Section 5(j)(ii)1(a)(ii) above multiplied by a fraction, (A) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Subscribers pursuant to this Section 5(j) prior to such reduction) and (B) the denominator of which shall be the original amount of the Offered Securities. In the event that any Subscriber so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Subscribers in accordance with Section 5(j)(i) above.
(v) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Subscriber shall acquire from the Company, and the Company shall issue to such Subscriber, the number or amount of Offered Securities specified in its Notice of Acceptance. The purchase by such Subscriber of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Subscriber of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Subscriber and its counsel.
(vi) Any Offered Securities not acquired by a Subscriber or other persons in accordance with this Section 5(j) may not be issued, sold or exchanged until they are again offered to such Subscriber under the procedures specified in this Agreement.
(vii) The Company and each Subscriber agree that if any Subscriber elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Subscriber shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(viii) Notwithstanding anything to the contrary in this Section 5(j) and unless otherwise agreed to by such Subscriber, the Company shall either confirm in writing to such Subscriber that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Subscriber will not be in possession of any material, non-public information, by the fifth (5th) business day following delivery of the Offer Notice. If by such fifth (5th) business day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such Subscriber, such transaction shall be deemed to have been abandoned and such Subscriber shall not be in possession of any material, non-public information with respect to the Company or any of its subsidiaries. Should subsidiaries of Common Stock, Common Stock Equivalents (as defined below) or a combination of units thereof for cash consideration or indebtedness (a “Subsequent Financing”), each Purchaser shall have the Company decide right to pursue such transaction participate on a pro-rata basis (with respect to other participating Purchasers and the Offered Securitiesnumber of Units purchased by them in the Offering) in up to an amount of the Subsequent Financing equal to either (x) 10% of the Subsequent Financing amount in the event between $400,000 and $999,999 of gross proceeds are raised in the Offering or (y) 25% of the Subsequent Financing amount in the event more than $999,999 of gross proceeds are raised in the Offering on the same terms, conditions and under the same documents, as are offered by the Company shall provide such Subscriber with another Offer Notice in accordance withto other prospective investors; provided, and subject tohowever, that the terms of this Section 5(j) and such Subscriber will again have the foregoing right of participation set forth shall not apply to Common Stock, restricted share units, options and/or convertible securities issued under the Company’s current or future equity incentive plans or issued to employees, directors, consultants or officers as compensation or consideration in this Section 5(j) the ordinary course of business. The Company shall notify the Purchaser in writing not less than two (2) Business Days prior to the proposed closing date of the Subsequent Financing (which date shall be permitted specified in such notice), which notice shall be accompanied by all agreements and other documents then in place to be delivered to or signed by other prospective investors in the Subsequent Financing, and if the Purchaser desires to participate in the Subsequent Financing, it shall so notify the Company in writing but not later than than two (2) Business days from its receipt of the original notice of the Subsequent Financing, and further shall execute all Subsequent Financing documents as required and deliver more than one them and the purchase price for such Offer Notice securities and such other items as are specified to be delivered under such Subscriber documents to the Company on or prior to the Subsequent Financing proposed closing date (or such later date as the Company may agree in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 5(j)(iiwriting). The Right of Participation set forth in this Section 5(j) shall terminate on the twenty four month anniversary “Common Stock Equivalents” mean any securities of the Closing DateCompany which would entitle the holder thereof to acquire at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock but excluding Exempted Issuances (as defined in the Warrant).
Appears in 1 contract
Samples: Subscription Agreement (Super League Enterprise, Inc.)
Right of Participation. The Company acknowledges and agrees that the right set forth in this Section 5(j) 4.7 is a right granted by the Company, separately, to each SubscriberPurchaser.
(i) At least five (5) trading days prior to any proposed or intended sale by the Company of its Common Stock or other securities or equity linked debt obligations (each, a “Subsequent Placement”), the Company shall deliver to each Subscriber Purchaser a written notice of its proposal or intention to effect a Subsequent Placement (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) a statement that the Company proposes or intends to effect a Subsequent Placement, (B) a statement that the statement in clause (A) above does not constitute material, non-public information and (C) a statement informing such Subscriber Purchaser that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Subscriber Purchaser within five (5) business days after the Company’s delivery to such Subscriber Purchaser of such Pre-Notice, and only upon a written request by such SubscriberPurchaser, the Company shall promptly, but no later than one (1) business day after such request, deliver to such Subscriber Purchaser an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (I) identify and describe the Offered Securities, (II) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (III) identify the persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (IV) offer to issue and sell to or exchange with such Subscriber Purchaser in accordance with the terms of the Offer such SubscriberPurchaser’s pro rata portion of 10050% of the Offered Securities, provided that the number of Offered Securities which such Subscriber Purchaser shall have the right to subscribe for under this Section 5(j) 4.7 shall be (x) based on such SubscriberPurchaser’s pro rata portion of the aggregate original amount of the Units Shares purchased hereunder by all Subscribers Purchasers (the “Basic Amount”), and (y) with respect to each Subscriber Purchaser that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Subscribers Purchasers as such Subscribers Purchasers shall indicate it will purchase or acquire should the other Subscribers Purchasers subscribe for less than their Basic Amounts (the “Undersubscription Amount”).
(ii) To accept an Offer, in whole or in part, such Subscriber Purchaser must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such SubscriberPurchaser’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such SubscriberPurchaser’s Basic Amount that such Subscriber Purchaser elects to purchase and, if such Subscriber Purchaser shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Subscriber Purchaser elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Subscribers Purchasers are less than the total of all of the Basic Amounts, then such Subscriber Purchaser who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), such Subscriber Purchaser who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Subscriber Purchaser bears to the total Basic Amounts of all Subscribers Purchasers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Subscriber Purchaser a new Offer Notice and the Offer Period shall expire on the fifth(5thfifth (5th) Business Day after such SubscriberPurchaser’s receipt of such new Offer Notice.
(iii) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Subscriber Purchaser (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring person or persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (I) the execution of such Subsequent Placement Agreement, and (II) either (x) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (y) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC Commission on a Current Report on Form 8-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(iv) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 5(j)(iii4.7(iii) above), then such Subscriber Purchaser may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Subscriber Purchaser elected to purchase pursuant to Section 5(j)(ii)1(a)(ii4.7(ii) above multiplied by a fraction, (A) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Subscribers Purchasers pursuant to this Section 5(j) 4.7 prior to such reduction) and (B) the denominator of which shall be the original amount of the Offered Securities. In the event that any Subscriber Purchaser so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Subscribers Purchasers in accordance with Section 5(j)(i4.7(i) above.
(v) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Subscriber Purchaser shall acquire from the Company, and the Company shall issue to such SubscriberPurchaser, the number or amount of Offered Securities specified in its Notice of Acceptance. The purchase by such Subscriber Purchaser of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Subscriber Purchaser of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Subscriber Purchaser and its counsel.
(vi) Any Offered Securities not acquired by a Subscriber Purchaser or other persons in accordance with this Section 5(j) 4.7 may not be issued, sold or exchanged until they are again offered to such Subscriber Purchaser under the procedures specified in this Agreement.
(vii) The Company and each Subscriber Purchaser agree that if any Subscriber Purchaser elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Subscriber Purchaser shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(viii) Notwithstanding anything to the contrary in this Section 5(j) 4.7 and unless otherwise agreed to by such SubscriberPurchaser, the Company shall either confirm in writing to such Subscriber Purchaser that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Subscriber Purchaser will not be in possession of any material, non-public information, by the fifth (5th) business day following delivery of the Offer Notice. If by such fifth (5th) business day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such SubscriberPurchaser, such transaction shall be deemed to have been abandoned and such Subscriber Purchaser shall not be in possession of any material, non-public information with respect to the Company or any of its subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Subscriber Purchaser with another Offer Notice in accordance with, and subject to, the terms of this Section 5(j) 4.7 and such Subscriber Purchaser will again have the right of participation set forth in this Section 5(j) 4.7 The Company shall not be permitted to deliver more than one such Offer Notice to such Subscriber Purchaser in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 5(j)(ii4.7(ii). The Right of Participation set forth in this Section 5(j) 4.7 shall terminate on immediately after such time as the twenty four month anniversary Company closes a financing in which the Company has received gross proceeds of the Closing Dateat least $1,000,000.
Appears in 1 contract
Right of Participation. The Following the Execution Date, for a period of two (2) years thereafter, the Company acknowledges and agrees that the right set forth in this Section 5(j) 4.7 is a right granted by the Company, separately, to each Subscriberthe Purchaser, provided that the Purchaser owns no fewer than Twenty-Five (25) Preferred Shares.
(ia) At If the Purchaser has been advised by the Company of a proposed offering but the Purchaser fails or declines to exercise its right of first refusal with respect thereto, and if the Company has delivered to the Purchaser or its assigns a notice (an “MNPI Pre-Notice”) and offer to deliver material non-public information (“MNPI”), and the Purchaser or its assigns has delivered written notice that it will accept such MNPI and only in that event, at least five ten (510) trading days prior to any proposed or intended sale by the Company of its Common Stock or other securities or equity linked debt obligations other than an Exempt Issuance other than (v) thereof (each, a “Subsequent Placement”), the Company shall deliver to each Subscriber the Purchaser a written notice of its proposal or intention to effect a Subsequent Placement (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) a statement that the Company proposes or intends to effect a Subsequent Placement, (B) a statement that the statement in clause (A) above does not constitute material, non-public information and (C) a statement informing such Subscriber the Purchaser that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Subscriber the Purchaser within five (5) business days Business Days after the Company’s delivery to such Subscriber the Purchaser of such Pre-Notice, and only upon a written request by such Subscriberthe Purchaser, the Company shall promptly, but no later than one three (13) business day Business Days after such request, deliver to such Subscriber the Purchaser an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (I) identify and describe the Offered Securities, (II) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (III) identify the persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (IV) offer to issue and sell to or exchange with such Subscriber the Purchaser in accordance with the terms of the Offer such Subscriber’s pro rata portion of 100% of the Offered Securities, provided that the number of Offered Securities which such Subscriber shall have entitling the right Purchaser to subscribe for under this Section 5(j) shall be (x) based on such Subscriber’s pro rata portion maintain its percentage beneficial ownership of the aggregate original amount of Company held prior to the Units purchased hereunder by all Subscribers Subsequent Placement (the “Basic Amount”), and (y) with respect to each Subscriber that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Subscribers as such Subscribers shall indicate it will purchase or acquire should the other Subscribers subscribe for less than their Basic Amounts (the “Undersubscription Participation Amount”).
(iib) To accept an Offer, in whole or in part, such Subscriber the Purchaser must deliver a written notice to the Company prior to the end of the fifth third (5th3rd) Business Day after such Subscriberthe Purchaser’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such Subscriberthe Purchaser’s Basic Participation Amount that such Subscriber the Purchaser elects to purchase and, if such Subscriber shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Subscriber elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Subscribers are less than the total of all of the Basic Amounts, then such Subscriber who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), such Subscriber who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Subscriber bears to the total Basic Amounts of all Subscribers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Subscriber the Purchaser a new Offer Notice and the Offer Period shall expire on the fifth(5thfifth (5th) Business Day after such Subscriberthe Purchaser’s receipt of such new Offer Notice.
. Notwithstanding anything herein to the contrary, in the event that the Subsequent Placement is an “overnight” registered offering (iii“RDO”), there shall be no Pre-Notice required to be delivered to the Purchaser; provided that the Subsequent Placement is delivered between the time period of 4:00 pm (New York City time) The Company shall have five and 6:00 pm (5New York City time) Business Days from on the expiration Trading Day immediately prior to the Trading Day of the expected announcement of the Subsequent Placement (or, if the Trading Day of the expected announcement of the Subsequent Placement is the first Trading Day following a holiday or a weekend (including a holiday weekend), between the time period of 4:00 pm (New York City time) on the Trading Day immediately prior to such holiday or weekend and 2:00 pm (New York City time) on the day immediately prior to the Trading Day of the expected announcement of the Subsequent Placement). The Offer Period above (A) to offer, issue, sell or exchange all or any part Notice shall describe in reasonable detail the proposed terms of such Offered Securities Subsequent Placement, the amount of proceeds intended to be raised thereunder and the Person or Persons through or with whom such Subsequent Placement is proposed to be effected and shall include a term sheet or similar document relating thereto as an attachment. In addition, in the event of an RDO, any Purchaser desiring to participate in such Subsequent Placement must provide written notice to the Company by 6:30 am (New York City time) on the Trading Day following the date on which a the Offer Notice of Acceptance has not been given by a Subscriber is delivered to such Purchaser (the “Refused SecuritiesNotice Termination Time”) pursuant that such Purchaser is willing to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described participate in the Offer Notice (if so described therein) Subsequent Placement, the amount of such Purchaser’s participation, and only upon representing and warranting that such Purchaser has such funds ready, willing, and available for investment on the terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring person or persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (I) the execution of such Subsequent Placement Agreement, and (II) either (x) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (y) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 8-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(iv) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 5(j)(iii) above), then such Subscriber may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Subscriber elected to purchase pursuant to Section 5(j)(ii)1(a)(ii) above multiplied by a fraction, (A) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Subscribers pursuant to this Section 5(j) prior to such reduction) and (B) the denominator of which shall be the original amount of the Offered Securities. In the event that any Subscriber so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Subscribers in accordance with Section 5(j)(i) above.
(v) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Subscriber shall acquire from the Company, and the Company shall issue to such Subscriber, the number or amount of Offered Securities specified in its Notice of Acceptance. The purchase by such Subscriber of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Subscriber of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Subscriber and its counsel.
(vi) Any Offered Securities not acquired by a Subscriber or other persons in accordance with this Section 5(j) may not be issued, sold or exchanged until they are again offered to such Subscriber under the procedures specified in this Agreement.
(vii) The Company and each Subscriber agree that if any Subscriber elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Subscriber shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(viii) Notwithstanding anything to the contrary in this Section 5(j) and unless otherwise agreed to by such Subscriber, the Company shall either confirm in writing to such Subscriber that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Subscriber will not be in possession of any material, non-public information, by the fifth (5th) business day following delivery of the Offer Notice. If by the Company receives no such fifth (5th) business day, no public disclosure regarding notice from a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment Purchaser as of such transaction has been received by such SubscriberNotice Termination Time, such transaction Purchaser shall be deemed to have been abandoned and such Subscriber shall not be in possession of any material, non-public information with respect to notified the Company or any of its subsidiaries. Should the Company decide that it does not elect to pursue participate in such transaction with respect to the Offered Securities, the Company shall provide such Subscriber with another Offer Notice in accordance with, and subject to, the terms of this Section 5(j) and such Subscriber will again have the right of participation set forth in this Section 5(j) The Company shall not be permitted to deliver more than one such Offer Notice to such Subscriber in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 5(j)(ii). The Right of Participation set forth in this Section 5(j) shall terminate on the twenty four month anniversary of the Closing DateSubsequent Placement.
Appears in 1 contract
Samples: Securities Purchase Agreement (Alzamend Neuro, Inc.)
Right of Participation. The Company acknowledges Subject to the terms and agrees that the right set forth conditions specified in this Section 5(jparagraph 2.3, the Company hereby grants to each Holder who holds at least 250,000 shares of Series A Preferred Stock (a “Major Investor”) is a right granted by the Company, separately, of participation with respect to each Subscriber.
(i) At least five (5) trading days prior to any proposed or intended sale future sales by the Company of its Common Stock shares of, or other securities convertible into or equity linked debt obligations (eachexercisable for any shares of, a “Subsequent Placement”), the Company shall deliver to each Subscriber a written notice any class of its proposal or intention to effect a Subsequent Placement capital stock (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) a statement that the Company proposes or intends to effect a Subsequent Placement, (B) a statement that the statement in clause (A) above does not constitute material, non-public information and (C) a statement informing such Subscriber that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Subscriber within five (5) business days after the Company’s delivery to such Subscriber of such Pre-Notice, and only upon a written request by such Subscriber, the Company shall promptly, but no later than one (1) business day after such request, deliver to such Subscriber an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (I) identify and describe the Offered Securities, (II) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (III) identify the persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (IV) offer to issue and sell to or exchange with such Subscriber in accordance with the terms of the Offer such Subscriber’s pro rata portion of 100% of the Offered Securities, provided that the number of Offered Securities which such Subscriber shall have the right to subscribe for under this Section 5(j) shall be (x) based on such Subscriber’s pro rata portion of the aggregate original amount of the Units purchased hereunder by all Subscribers (the “Basic Amount”), and (y) with respect to each Subscriber that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Subscribers as such Subscribers shall indicate it will purchase or acquire should the other Subscribers subscribe for less than their Basic Amounts (the “Undersubscription AmountShares”).
(a) The Company shall deliver a notice by certified mail (“Notice”) to the Major Investors stating (i) its bona fide intention to offer such Shares, (ii) To accept an Offer, in whole or in part, such Subscriber must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such Subscriber’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion number of such Subscriber’s Basic Amount that such Subscriber elects Shares to purchase andbe offered, if such Subscriber shall elect to purchase all of its Basic Amount, and (iii) the Undersubscription Amountprice and terms, if any, that upon which it proposes to offer such Subscriber elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Subscribers are less than the total of all of the Basic Amounts, then such Subscriber who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), such Subscriber who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Subscriber bears to the total Basic Amounts of all Subscribers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Subscriber a new Offer Notice and the Offer Period shall expire on the fifth(5th) Business Day after such Subscriber’s receipt of such new Offer NoticeShares.
(iiib) The Company shall have five Withi n fifteen (515) Business Days from calendar days after receiving the expiration of Notice, the Offer Period above (A) Major Investor may elect to offerpurchase or obtain, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Subscriber (at the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring person or persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (I) the execution of such Subsequent Placement Agreement, and (II) either (x) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (y) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 8-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(iv) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner price and on the terms specified in Section 5(j)(iii) above)the Notice, then up to that portion of such Subscriber may, at its sole option and in its sole discretion, reduce Shares that equals the proportion that the number of shares of common stock issued and held, or amount issuable upon conversion of the Offered Securities specified in its Notice Series A Preferred Stock then held, by such Major Investor bears to the total number of Acceptance shares of common stock issued and held, or issuable upon conversion of all convertible or exercisable securities then held, by all the Major Investors.
(c) If not all Shares that Investors are entitled to an amount that shall be not less than the number or amount of the Offered Securities that such Subscriber elected to purchase pursuant to Section 5(j)(ii)1(a)(ii) above multiplied by a fraction, (A) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Subscribers obtain pursuant to this Section 5(j2.3 (b) prior are elected to such reduction) and (B) the denominator of which shall be the original amount of the Offered Securities. In the event that any Subscriber so elects to reduce the number or amount of Offered Securities specified obtained as provided in its Notice of AcceptanceSection 2.3(b), the Company may not issuemay, sell or exchange more than during the reduced number or amount one hundred twenty (120) day period following the expiration of the Offered Securities unless period provided in Section 2.3(b) hereof, offer the remaining unsubscribed portion of such Shares to any person or persons at a price not less than, and until such securities have again been offered upon terms no more favorable to the Subscribers in accordance with Section 5(j)(i) above.
(v) Upon the closing of the issuanceofferee than, sale or exchange of all or less than all of the Refused Securities, such Subscriber shall acquire from the Company, and the Company shall issue to such Subscriber, the number or amount of Offered Securities those specified in its Notice of Acceptance. The purchase by such Subscriber of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Subscriber of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Subscriber and its counsel.
(vi) Any Offered Securities not acquired by a Subscriber or other persons in accordance with this Section 5(j) may not be issued, sold or exchanged until they are again offered to such Subscriber under the procedures specified in this Agreement.
(vii) The Company and each Subscriber agree that if any Subscriber elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Subscriber shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(viii) Notwithstanding anything to the contrary in this Section 5(j) and unless otherwise agreed to by such Subscriber, the Company shall either confirm in writing to such Subscriber that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Subscriber will not be in possession of any material, non-public information, by the fifth (5th) business day following delivery of the Offer Notice. If by the Company does not sell such fifth Shares or enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within sixty (5th60) business daydays of the execution thereof, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such Subscriber, such transaction right provided hereunder shall be deemed to have been abandoned be revived and such Subscriber Shares shall not be in possession of any material, non-public information with respect offered unless first reoffered to the Company or any of its subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Subscriber with another Offer Notice Major Investors in accordance with, and subject to, the terms of this Section 5(jherewith.
(d) and such Subscriber will again have the The right of participation set forth in this Section 5(j) The Company 2.3 shall not be permitted apply to deliver Shares issued or issuable: (i) upon conversion of shares of Series A Preferred Stock; (ii) upon conversion of Class B Common Stock into Class A Common Stock; (iii) to officers, directors or employees of, or consultants to, the Company pursuant to stock option or stock purchase plans or agreements on terms approved by the Board of Directors; (iv) in connection with equipment financings or similar transactions, or in connection with strategic investments or corporate partnering transactions, the terms of which are approved by the Board of Directors of the Corporation; (v) as a dividend or distribution on Series A Preferred Stock; (vi) under the terms of the Convertible Note; (vii) for which adjustment of the Conversion Price (as defined in the Company’s Statement of Rights and Preferences for the Series A Preferred Stock (the “Statement of Rights and Preferences”)) is made pursuant to the Statement of Rights and Preferences; (viii) in connection with a Qualified IPO; (ix) pursuant to the acquisition of another business entity or business segment of any such entity by the Company by merger, purchase of substantially all the assets or other reorganization whereby the Company will own more than one fifty percent (50%) of the voting power of such Offer Notice business entity or business segment of any such entity; (x) upon the exercise, conversion or exchange of any security outstanding as of the date hereof or securities issued or issuable pursuant to such Subscriber in subsections (i) through (ix) above; or (xi) any sixty right, option or warrant to acquire any security convertible into the securities issued or issuable pursuant to subsections (60i) day period, except as expressly contemplated by the last sentence of Section 5(j)(ii)through (x) above. The Right right of Participation first offer set forth in this Section 5(j2.3 may not be assigned or transferred, except that (a) shall terminate on such right is assignable by each Holder to any wholly owned subsidiary or parent of, or to any corporation or entity that is, within the twenty four month anniversary meaning of the Closing DateAct, controlling, controlled by or under common control with, any such Holder, and (b) such right is assignable between and among any of the Holders.
Appears in 1 contract
Right of Participation. The Company acknowledges and agrees that the right set forth in this Section 5(j5(h) is a right granted by the Company, separately, to each SubscriberSubscriber who purchases at least $100,000 of Units in the Offering.
(i) At least five ten (510) trading days Business Days prior to any proposed or intended sale to any entity other than Philou Ventures LLC and its affiliates by the Company of its Common Stock or other securities or equity linked debt obligations (each, a “Subsequent Placement”), the Company shall deliver to each Subscriber a written notice of its proposal or intention to effect a Subsequent Placement (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) a statement that the Company proposes or intends to effect a Subsequent Placement, (B) a statement that the statement in clause (A) above does not constitute material, non-public information and (C) a statement informing such Subscriber that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Subscriber within five (5) business days Business Days after the Company’s delivery to such Subscriber of such Pre-Notice, and only upon a written request by such Subscriber, the Company shall promptly, but no later than one (1) business day after such request, deliver to such Subscriber an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (I) identify and describe the Offered Securities, (II) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (III) identify the persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (IV) offer to issue and sell to or exchange with such Subscriber in accordance with the terms of the Offer such Subscriber’s pro rata portion of 10050% of the Offered Securities, provided that the number of Offered Securities which such Subscriber shall have the right to subscribe for under this Section 5(j5(h) shall be (x) based on such Subscriber’s pro rata portion of the aggregate original amount of the Units purchased hereunder by all Subscribers (the “Basic Amount”), and (y) with respect to each Subscriber that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Subscribers as such Subscribers shall indicate it will purchase or acquire should the other Subscribers subscribe for less than their Basic Amounts (the “Undersubscription Amount”).
(ii) To accept an Offer, in whole or in part, such Subscriber must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such Subscriber’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such Subscriber’s Basic Amount that such Subscriber elects to purchase and, if such Subscriber shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Subscriber elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Subscribers are less than the total of all of the Basic Amounts, then such Subscriber who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), such Subscriber who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Subscriber bears to the total Basic Amounts of all Subscribers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Subscriber a new Offer Notice and the Offer Period shall expire on the fifth(5th) Business Day after such Subscriber’s receipt of such new Offer Notice.
(iii) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Subscriber (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring person or persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (I) the execution of such Subsequent Placement Agreement, and (II) either (x) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (y) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 8-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(iv) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 5(j)(iii5(h)(iii) above), then such Subscriber may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Subscriber elected to purchase pursuant to Section 5(j)(ii)1(a)(ii5(h)(ii)1(a)(ii) above multiplied by a fraction, (A) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Subscribers pursuant to this Section 5(j5(h) prior to such reduction) and (B) the denominator of which shall be the original amount of the Offered Securities. In the event that any Subscriber so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Subscribers in accordance with Section 5(j)(i5(h)(i) above.
(v) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Subscriber shall acquire from the Company, and the Company shall issue to such Subscriber, the number or amount of Offered Securities specified in its Notice of Acceptance. The purchase by such Subscriber of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Subscriber of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Subscriber and its counsel.
(vi) Any Offered Securities not acquired by a Subscriber or other persons in accordance with this Section 5(j5(h) may not be issued, sold or exchanged until they are again offered to such Subscriber under the procedures specified in this Agreement.
(vii) The Company and each Subscriber agree that if any Subscriber elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) ), unless applicable to investors in the subsequent financing other than Subscribers, shall include any term or provision whereby such Subscriber shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(viii) Notwithstanding anything to the contrary in this Section 5(j5(h) and unless otherwise agreed to by such Subscriber, the Company shall either confirm in writing to such Subscriber that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Subscriber will not be in possession of any material, non-public information, by the fifth (5th) business day following delivery of the Offer Notice. If by such fifth (5th) business day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such Subscriber, such transaction shall be deemed to have been abandoned and such Subscriber shall not be in possession of any material, non-public information with respect to the Company or any of its subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Subscriber with another Offer Notice in accordance with, and subject to, the terms of this Section 5(j5(h) and such Subscriber will again have the right of participation set forth in this Section 5(j5(h) The Company shall not be permitted to deliver more than one such Offer Notice to such Subscriber in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 5(j)(ii5(h)(ii). The Right of Participation set forth in this Section 5(j5(h) shall terminate on the twenty four month one year anniversary of the Closing Date.
Appears in 1 contract
Right of Participation. The Company acknowledges and agrees From the date hereof until the date that is the right set forth in this Section 5(j) is a right granted by 6 month anniversary of the CompanyClosing Date, separately, to each Subscriber.
(i) At least five (5) trading days prior to any proposed or intended sale by the Company will not, directly or indirectly, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition of) any of its or its Subsidiaries’ equity or equity equivalent securities, including without limitation any debt, preferred stock or other instrument or security that is, at any time during its life and under any circumstances, convertible into or exchangeable or exercisable for shares of Common Stock or other securities Common Stock Equivalents (any such offer, sale, grant, disposition or equity linked debt obligations (each, announcement being referred to as a “Subsequent Placement”), unless the Company shall have first complied with this Section 3(e).
(i) The Company shall deliver to each Subscriber the Investor a written notice of its proposal or intention to effect a Subsequent Placement (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) a statement that the Company proposes or intends to effect a Subsequent Placement, (B) a statement that the statement in clause (A) above does not constitute material, non-public information and (C) a statement informing such Subscriber that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Subscriber within five (5) business days after the Company’s delivery to such Subscriber of such Pre-Notice, and only upon a written request by such Subscriber, the Company shall promptly, but no later than one (1) business day after such request, deliver to such Subscriber an irrevocable written notice (the “Offer Notice”) of any bona fide proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (Iw) identify and describe the Offered Securities, (IIx) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (IIIy) identify the persons or entities (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (IVz) offer to issue and sell to or exchange with such Subscriber in accordance with the terms of the Offer such Subscriber’s pro rata portion of 100% of the Offered Securities, provided that the number of Offered Securities which such Subscriber shall have the right to subscribe for under this Section 5(j) shall be (x) based on such Subscriber’s pro rata portion of the aggregate original amount of the Units purchased hereunder by all Subscribers (the “Basic Amount”), and (y) with respect to each Subscriber that elects to purchase its Basic Amount, any additional portion of Buyers the Offered Securities attributable in an amount equal to a dollar amount that is the equal to the Basic Amounts outstanding principal together with accrued and unpaid interest on, plus any other amounts due under, the Investor Debentures held by the undersigned Investor on the date of other Subscribers as such Subscribers shall indicate it will purchase or acquire should the other Subscribers subscribe for less than their Basic Amounts (the “Undersubscription Amount”)this Agreement.
(ii) To accept an Offer, in whole or in part, such Subscriber the Investor must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after such Subscriberthe Investor’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such Subscriber’s Basic Amount amount that such Subscriber elects to purchase and, if such Subscriber shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Subscriber Investor elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Subscribers are less than the total of all of the Basic Amounts, then such Subscriber who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), such Subscriber who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Subscriber bears to the total Basic Amounts of all Subscribers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Subscriber a new Offer Notice and the Offer Period shall expire on the fifth(5th) Business Day after such Subscriber’s receipt of such new Offer Notice.
(iii) The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Subscriber (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring person or persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (I) the execution of such Subsequent Placement Agreement, and (II) either (x) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (y) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 8-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.
(iv) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 5(j)(iii) above), then such Subscriber may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Subscriber elected to purchase pursuant to Section 5(j)(ii)1(a)(ii) above multiplied by a fraction, (A) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Subscribers pursuant to this Section 5(j) prior to such reduction) and (B) the denominator of which shall be the original amount of the Offered Securities. In the event that any Subscriber so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Subscribers in accordance with Section 5(j)(i) above.
(v) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Subscriber shall acquire from the Company, and the Company shall issue to such Subscriber, the number or amount of Offered Securities specified in its Notice of Acceptance. The purchase by such Subscriber the Investor of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Subscriber the Investor of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Subscriber the Investor and its counsel.
(vi) Any Offered Securities not acquired by a Subscriber or other persons in accordance with this Section 5(j) may not be issued, sold or exchanged until they are again offered to such Subscriber under the procedures specified in this Agreement.
(viiiv) The Company and each Subscriber agree that if any Subscriber elects to participate restrictions contained in Section 3(e) shall not apply, as set forth in the OfferSecurities Purchase Agreement, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term Exempt Issuances or provision whereby such Subscriber shall be required to agree pursuant to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into bona fide firm commitment underwritten public offering with the Company or any instrument received from the Companya nationally recognized and reputable underwriter.
(viii) Notwithstanding anything to the contrary in this Section 5(j) and unless otherwise agreed to by such Subscriber, the Company shall either confirm in writing to such Subscriber that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Subscriber will not be in possession of any material, non-public information, by the fifth (5th) business day following delivery of the Offer Notice. If by such fifth (5th) business day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been received by such Subscriber, such transaction shall be deemed to have been abandoned and such Subscriber shall not be in possession of any material, non-public information with respect to the Company or any of its subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Subscriber with another Offer Notice in accordance with, and subject to, the terms of this Section 5(j) and such Subscriber will again have the right of participation set forth in this Section 5(j) The Company shall not be permitted to deliver more than one such Offer Notice to such Subscriber in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 5(j)(ii). The Right of Participation set forth in this Section 5(j) shall terminate on the twenty four month anniversary of the Closing Date.
Appears in 1 contract
Samples: Waiver and Exchange Agreement (Pro Pharmaceuticals Inc)
Right of Participation. The Company acknowledges and agrees that the right set forth in this Section 5(j) is a right granted by the Company, separately, to each Subscriber.
(i) At least five (5) trading days Other than arrangements that are in place or disclosed in SEC Documents prior to any proposed the date of this Agreement, from the date of this Agreement until the later of (i) twelve (12) calendar months after the date of this Agreement or intended sale by (ii) the date that the Note is extinguished in its entirety, the Company will not, (i) directly or indirectly, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition of) any of its or its Subsidiaries’ debt, equity, or equity equivalent securities, including without limitation any debt, preferred shares or other instrument or security that is, at any time during its life and/or under any circumstances, convertible into, exchangeable, or exercisable for Common Stock (any such offer, sale, grant, disposition or other securities or equity linked debt obligations (each, announcement being referred to as a “Subsequent Placement”) or (ii) enter into any definitive agreement with regard to the foregoing, in each case unless the Company shall have first complied with this Section 4(d), the .
(ii) The Company shall deliver to each Subscriber a written notice of its proposal or intention to effect a Subsequent Placement (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) a statement that the Company proposes or intends to effect a Subsequent Placement, (B) a statement that the statement in clause (A) above does not constitute material, non-public information and (C) a statement informing such Subscriber that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Subscriber within five (5) business days after the Company’s delivery to such Subscriber of such Pre-Notice, and only upon a written request by such Subscriber, the Company shall promptly, but no later than one (1) business day after such request, deliver to such Subscriber Buyer an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (Iw) identify and describe the Offered SecuritiesSubsequent Placement, (IIx) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities securities in the Subsequent Placement to be issued, sold or exchangedsold, (III) identify the persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (IVy) offer to issue and sell to or exchange with such Subscriber the Buyer an amount of securities in accordance the Subsequent Placement with a purchase price equal to at least the terms of the Offer such Subscriber’s pro rata portion of 100% of the Offered Securities, provided that the number of Offered Securities which such Subscriber shall have the right to subscribe for under this Section 5(j) shall be (x) based on such Subscriber’s pro rata portion of the aggregate original principal amount of the Units purchased hereunder Note held by all Subscribers such Buyer (the in each case, an “Basic Amount”), and (y) with respect to each Subscriber that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Subscribers as such Subscribers shall indicate it will purchase or acquire should the other Subscribers subscribe for less than their Basic Amounts (the “Undersubscription AmountOffer”).
(iiiii) To accept an Offer, in whole or in part, such Subscriber the Buyer must deliver a written notice (the “Notice of Acceptance”) to the Company prior to the end of the fifth (5th) Business Trading Day (as defined in the Note) after such Subscriberthe Buyer’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such Subscriber’s Basic Amount amount that such Subscriber elects to purchase and, if such Subscriber shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Subscriber Buyer elects to purchase (in either case, the “Notice of AcceptanceSubscription Amount”). If the Basic Amounts subscribed for by all Subscribers are less than the total of all of the Basic Amounts, then such Subscriber who has set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), such Subscriber who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic Amount of such Subscriber bears to the total Basic Amounts of all Subscribers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Subscriber a new Offer Notice and the Offer Period shall expire on the fifth(5th) Business Day after such Subscriber’s receipt of such new Offer Notice.
(iii) The Company shall have five (5) Business Days from complete the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Subscriber (the “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only and issue and sell the Subscription Amount to the offerees described in the Offer Notice (if so described therein) and only Buyer upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring person or persons or less favorable to the Company than those set forth in the Offer Notice Notice, unless a change to such terms and conditions is agreed to in writing between the Company and Buyer. The Buyer may elect to exchange any amounts owed under the Note (B) to publicly announce (I) plus the execution of such Subsequent Placement Agreement, and (II) either (x) the consummation prepayment premiums provided for in Section 1.9 of the transactions contemplated by such Subsequent Placement Agreement Note if prior to the occurrence of an Event of Default (as defined in the Note) under the Note) in lieu of cash consideration with respect to all or (y) any portion of the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report on Form 8-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits theretoSubscription Amount.
(iv) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified in Section 5(j)(iii) above), then such Subscriber may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than the number or amount of the Offered Securities that such Subscriber elected to purchase pursuant to Section 5(j)(ii)1(a)(ii) above multiplied by a fraction, (A) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Subscribers pursuant to this Section 5(j) prior to such reduction) and (B) the denominator of which shall be the original amount of the Offered Securities. In the event that any Subscriber so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Subscribers in accordance with Section 5(j)(i) above.
(v) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Subscriber shall acquire from the Company, and the Company shall issue to such Subscriber, the number or amount of Offered Securities specified in its Notice of Acceptance. The purchase by such Subscriber of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Subscriber of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Subscriber and its counsel.
(vi) Any Offered Securities not acquired by a Subscriber or other persons in accordance with this Section 5(j) may not be issued, sold or exchanged until they are again offered to such Subscriber under the procedures specified in this Agreement.
(vii) The Company and each Subscriber agree that if any Subscriber elects to participate in the Offer, neither the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”) shall include any term or provision whereby such Subscriber shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, any agreement previously entered into with the Company or any instrument received from the Company.
(viii) Notwithstanding anything to the contrary in this Section 5(j) and unless otherwise agreed contained herein, if the Company desires to by modify or amend the terms or conditions of a Subsequent Placement at any time after the Offer Notice is given to Buyer (provided, however, that such Subscribermodification or amendment to the terms or conditions cannot occur during any Offer Period), the Company shall either confirm in writing to such Subscriber that the transaction with respect deliver to the Subsequent Placement has been abandoned or Buyer a new Offer Notice and the Offer Period of such new Offer shall publicly disclose its intention to issue expire at the Offered Securities, in either case, in such a manner such that such Subscriber will not be in possession end of any material, non-public information, by the fifth (5th) business day following delivery Trading Day after the Buyer’s receipt of such new Offer Notice.
(v) Notwithstanding the foregoing, the term “Subsequent Placement” shall exclude (a) shares of Common Stock or options to employees, officers, directors, advisors or independent contractors of the Offer Notice. If Company pursuant to any stock or option plan duly adopted for such purpose, (b) shares of Common Stock, warrants or options to advisors or independent contractors of the Company for compensatory purposes, (c) securities upon the exercise or exchange of or conversion of any Securities issued hereunder and/or other securities exercisable or exchangeable for or convertible into shares of Common Stock issued and outstanding on the date hereof, (d) securities issuable pursuant to any contractual anti-dilution obligations of the Company in effect as of the date hereof, provided that such obligations have not been materially amended since the date of hereof, and (e) securities issued pursuant to acquisitions or any other strategic transactions approved by the Board of Directors, provided that any such fifth (5th) business day, no public disclosure regarding issuance shall not include a transaction with respect in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (f) securities issued pursuant to the Offered Securities has been made, and no notice regarding EPA (as defined in the abandonment of such transaction has been received by such Subscriber, such transaction shall be deemed to have been abandoned and such Subscriber shall not be in possession of any material, non-public information with respect to the Company or any of its subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide such Subscriber with another Offer Notice in accordance with, and subject to, the terms of this Section 5(j) and such Subscriber will again have the right of participation set forth in this Section 5(j) The Company shall not be permitted to deliver more than one such Offer Notice to such Subscriber in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 5(j)(ii). The Right of Participation set forth in this Section 5(j) shall terminate on the twenty four month anniversary of the Closing DateRegistration Rights Agreement.
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Samples: Securities Purchase Agreement (Lytus Technologies Holdings PTV. Ltd.)