Right of Participation. The Company acknowledges and agrees that the right set forth in this Section 4.7 is a right granted by the Company, separately, to the Purchaser, provided that the Purchaser owns no fewer than One Hundred and Twenty (120) Shares. (a) 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 ten (10) 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 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 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 the Purchaser within five (5) Business Days after the Company’s delivery to the Purchaser of such Pre-Notice, and only upon a written request by the Purchaser, the Company shall promptly, but no later than one (1) Business Day after such request, deliver to 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 the Purchaser in accordance with the terms of the Offer such number of Offered Securities entitling the Purchaser to maintain its percentage beneficial ownership of the Company held prior to the Subsequent Placement (the “Participation Amount”). As used in this Section 4.7, the word “Purchaser” includes its assigns. (b) To accept an Offer, in whole or in part, the Purchaser must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after the Purchaser’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of the Purchaser’s Participation Amount that the Purchaser elects to purchase. 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 the Purchaser a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after the Purchaser’s receipt of such new Offer Notice. (c) 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 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 after the 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 O&G Venture such as geology, seismic, or comparable well information in the same field as the proposed drilling prospect (the “O&G Additional Information”). As used in this Section 4.7, the word “Purchaser” includes its assigns, except as apparent from the context. (d) To accept an O&G Offer, in whole or in part, the Purchaser must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after the Purchaser’s receipt of the O&G Additional Information (the “O&G Offer Period”), setting forth the portion of the Purchaser’s O&G Participation Amount that the Purchaser elects to purchase. 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 after the Purchaser’s receipt of such new O&G Offer Notice.
Appears in 1 contract
Samples: Securities Purchase Agreement (Ecoark Holdings, Inc.)
Right of Participation. The Company acknowledges and agrees that the right set forth in this Section 4.7 is a right granted by the Company, separately, to the each Purchaser, provided that the Purchaser owns no fewer than One Hundred and Twenty (120) Shares.
(ai) 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 At least ten five (105) 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 the each 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 the such 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 the a Purchaser within five (5) Business Days business days after the Company’s delivery to the such Purchaser of such Pre-Notice, and only upon a written request by the such Purchaser, the Company shall promptly, but no later than one (1) Business Day business day after such request, deliver to the such 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 the such Purchaser in accordance with the terms of the Offer such Purchaser’s pro rata portion of 50% of the Offered Securities, provided that the number of Offered Securities entitling which such Purchaser shall have the Purchaser right to maintain its percentage beneficial ownership subscribe for under this Section 4.7 shall be (x) based on such Purchaser’s pro rata portion of the Company held prior to aggregate original amount of the Subsequent Placement Shares purchased hereunder by all Purchasers (the “Participation Basic Amount”). As used in this Section 4.7, and (y) with respect to each Purchaser that elects to purchase its Basic Amount, any additional portion of the word Offered Securities attributable to the Basic Amounts of other Purchasers as such Purchasers shall indicate it will purchase or acquire should the other Purchasers subscribe for less than their Basic Amounts (the “Purchaser” includes its assignsUndersubscription Amount”).
(bii) To accept an Offer, in whole or in part, the such Purchaser must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after the such Purchaser’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of the such Purchaser’s Participation Basic Amount that the such Purchaser elects to purchase and, if such Purchaser shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers are less than the total of all of the Basic Amounts, then such 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 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 Purchaser bears to the total Basic Amounts of all 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 the each Purchaser a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after the such Purchaser’s receipt of such new Offer Notice.
(ciii) If The Company shall have five (5) Business Days from the Company expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any Subsidiary including White River or any Subsidiaries part of White River decide such Offered Securities as to drill or participate in the drilling which a Notice of Acceptance has not been given by a third party of an oil and gas well Purchaser (an O&G Venturethe “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the Company shall 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 offerees described in the division order which is supplied to the midstream carrier selected to purchase the well’s production. By way of example, Offer Notice (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 so described therein) 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 only upon terms 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 conditions (including, without limitation, MNPIunit prices and interest rates) other than: 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 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 4.7(iii) above), then such 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 Purchaser elected to purchase pursuant to Section 4.7(ii) above multiplied by a fraction, (A) a statement that the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or intends exchange (including Offered Securities to invest in an O&G Venture, be issued or sold to Purchasers pursuant to this Section 4.7 prior to such reduction) and (B) a statement the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser so elects to reduce the statement number or amount of Offered Securities specified in clause 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 Purchasers in accordance with Section 4.7(i) above.
(Av) above does not constitute MNPI and (C) a statement informing Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser that it is entitled to invest in an O&G Venture and (D) an itemized list of estimated drilling and completion expensesshall acquire from the Company, 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 after the 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 promptlyissue to such Purchaser, but no later than one (1) Business Day after the number or amount of Offered Securities specified in its Notice of Acceptance. The purchase by such request, deliver Purchaser of any Offered Securities is subject in all cases to the Purchaser any additional readily available or reasonably obtainable information so requested preparation, execution and delivery by the Company and such Purchaser of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser and its counsel.
(vi) Any Offered Securities not acquired by a Purchaser or other persons in accordance with this Section 4.7 may not be issued, sold or exchanged until they are again offered to such Purchaser under the procedures specified in this Agreement.
(vii) The Company and each Purchaser agree that if any 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 Purchaser shall be required to agree to any restrictions on the drilling prospect trading as to any securities of the O&G Venture such as geology, seismicCompany or be required to consent to any amendment to or termination of, or comparable well information grant any waiver, release or the like under or in connection with, any agreement previously entered into with the same field as Company or any instrument received from the proposed drilling prospect Company.
(viii) Notwithstanding anything to the “O&G Additional Information”). As used contrary in this Section 4.74.7 and unless otherwise agreed to by such Purchaser, the word “Purchaser” includes Company shall either confirm in writing to such Purchaser that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its assigns, except as apparent from intention to issue the context.
(d) To accept an O&G OfferOffered Securities, in whole or either case, in partsuch a manner such that such Purchaser will not be in possession of any material, the Purchaser must deliver a written notice to the Company prior to the end of non-public information, by the fifth (5th) Business Day after the Purchaser’s receipt business day following delivery of the O&G Additional Information (the “O&G Offer Period”), setting forth the portion of the Purchaser’s O&G Participation Amount that the Purchaser elects to purchaseNotice. 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 If by such fifth (5th) Business Day after business day, no public disclosure regarding a transaction with respect to the Purchaser’s receipt Offered Securities has been made, and no notice regarding the abandonment of such new O&G transaction has been received by such Purchaser, such transaction shall be deemed to have been abandoned and such 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 Purchaser with another Offer NoticeNotice in accordance with, and subject to, the terms of this Section 4.7 and such Purchaser will again have the right of participation set forth in this Section 4.7 The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.7(ii). The Right of Participation set forth in this Section 4.7 shall terminate immediately after such time as the Company closes a financing in which the Company has received gross proceeds of at least $1,000,000.
Appears in 1 contract
Right of Participation. The Company acknowledges and agrees that the right set forth in this Section 4.7 is a right granted by the Company, separately, to the Purchaser, provided that the Purchaser owns no fewer than One Hundred and Twenty Ten Thousand (12010,000) Preferred Shares.
(a) If the Company has delivered to the Purchaser or its assigns a notice (an “MNPI Pre-Notice 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 ten (10) 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 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 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 the Purchaser within five (5) Business Days after the Company’s delivery to the Purchaser of such Pre-Notice, and only upon a written request by the Purchaser, the Company shall promptly, but no later than one (1) Business Day after such request, deliver to 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 the Purchaser in accordance with the terms of the Offer such number of Offered Securities entitling the Purchaser to maintain its percentage beneficial ownership of the Company held prior to the Subsequent Placement (the “Participation Amount”). As used in this Section 4.7, the word “Purchaser” includes its assigns.
(b) To accept an Offer, in whole or in part, the Purchaser must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after the Purchaser’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of the Purchaser’s Participation Amount that the Purchaser elects to purchase. 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 the Purchaser a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after the Purchaser’s receipt of such new Offer Notice.
(c) If . Notwithstanding anything herein to the Company or any Subsidiary including White River or any Subsidiaries of White River decide to drill or participate contrary, in the drilling by a third party of event that the Subsequent Placement is an oil and gas well “overnight” registered offering (an O&G Venture“RDO”), there shall be no Pre-Notice required to be delivered to the Company shall offer Purchaser; provided that the Purchaser Subsequent Placement is delivered between the time period of 4:00 pm (New York City time) and 6:00 pm (New York City time) on the 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 designee 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 Notice shall describe in reasonable detail the proposed terms of such 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 the right desiring 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 after the 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 O&G Venture such as geology, seismic, or comparable well information in the same field as the proposed drilling prospect (the “O&G Additional Information”). As used in this Section 4.7, the word “Purchaser” includes its assigns, except as apparent from the context.
(d) To accept an O&G Offer, in whole or in part, the Purchaser Subsequent Placement must deliver a provide written notice to the Company prior by 6:30 am (New York City time) on the Trading Day following the date on which the Offer Notice is delivered to the end of the fifth (5th) Business Day after the Purchaser’s receipt of the O&G Additional Information such Purchaser (the “O&G Offer PeriodNotice Termination Time”)) that such Purchaser is willing to participate in the Subsequent Placement, setting forth the portion amount of the such Purchaser’s O&G Participation Amount participation, and representing and warranting that such Purchaser has such funds ready, willing, and available for investment on the Purchaser elects to purchaseterms set forth in the Offer Notice. Notwithstanding the foregoing, if If the Company desires receives no such notice from a Purchaser as of such Notice Termination Time, such Purchaser shall be deemed to modify or amend the terms and conditions of the O&G Offer prior to the expiration of the O&G Offer Period, have notified the Company may deliver that it does not elect to the Purchaser a new O&G Offer Notice participate in which case the new O&G Offer Period shall expire on the fifth (5th) Business Day after the Purchaser’s receipt of such new O&G Offer NoticeSubsequent 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 4.7 4.16 is a right granted by the Company, separately, to the each Purchaser, provided that during the period such Purchaser owns no fewer than One Hundred and Twenty (120) holds non-converted Shares.
(ai) 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 At least ten five (105) 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 other than an Exempt Issuance other than (v) thereof (each, a “Subsequent Placement”), the Company shall deliver to the each 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 the such 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 the a Purchaser within five (5) Business Days after the Company’s delivery to the such Purchaser of such Pre-Notice, and only upon a written request by the such Purchaser, the Company shall promptly, but no later than one (1) Business Day after such request, deliver to the such 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 the such Purchaser in accordance with the terms of the Offer such Purchaser’s pro rata portion of 100% of the Offered Securities, provided that the number of Offered Securities entitling which such Purchaser shall have the right to subscribe for under this Section 4.16 shall be (x) based on the ratio of the number of non-converted Shares then held by such Purchaser to maintain its percentage beneficial ownership the aggregate original amount of the Company held prior to the Subsequent Placement Shares purchased hereunder by all Purchasers (the “Participation Basic Amount”). As used in this Section 4.7, and (y) with respect to each Purchaser that elects to purchase its Basic Amount, any additional portion of the word Offered Securities attributable to the Basic Amounts of other Purchasers as such Purchasers shall indicate it will purchase or acquire should the other Purchasers subscribe for less than their Basic Amounts (the “Purchaser” includes its assignsUndersubscription Amount”).
(bii) To accept an Offer, in whole or in part, the such Purchaser must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after the such Purchaser’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of the such Purchaser’s Participation Basic Amount that the such Purchaser elects to purchase and, if such Purchaser shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers are less than the total of all of the Basic Amounts, then such 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 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 Purchaser bears to the total Basic Amounts of all 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 the each Purchaser a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after the such Purchaser’s receipt of such new Offer Notice.
(ciii) If The Company shall have five (5) Business Days from the Company expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any Subsidiary including White River or any Subsidiaries part of White River decide such Offered Securities as to drill or participate in the drilling which a Notice of Acceptance has not been given by a third party of an oil and gas well Purchaser (an O&G Venturethe “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the Company shall 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 offerees described in the division order which is supplied to the midstream carrier selected to purchase the well’s production. By way of example, Offer Notice (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 so described therein) 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 only upon terms 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 conditions (including, without limitation, MNPIunit prices and interest rates) other than: 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 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 4.16(iii) above), then such 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 Purchaser elected to purchase pursuant to Section 4.16(ii) above multiplied by a fraction, (A) a statement that the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or intends exchange (including Offered Securities to invest in an O&G Venture, be issued or sold to Purchasers pursuant to this Section 4.16 prior to such reduction) and (B) a statement the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser so elects to reduce the statement number or amount of Offered Securities specified in clause 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 Purchasers in accordance with Section 4.16(i) above.
(Av) above does not constitute MNPI and (C) a statement informing Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser that it is entitled to invest in an O&G Venture and (D) an itemized list of estimated drilling and completion expensesshall acquire from the Company, 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 after the 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 promptlyissue to such Purchaser, but no later than one (1) Business Day after the number or amount of Offered Securities specified in its Notice of Acceptance. The purchase by such request, deliver Purchaser of any Offered Securities is subject in all cases to the Purchaser any additional readily available or reasonably obtainable information so requested preparation, execution and delivery by the Company and such Purchaser of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser and its counsel.
(vi) Any Offered Securities not acquired by a Purchaser or other persons in accordance with this Section 4.16 may not be issued, sold or exchanged until they are again offered to such Purchaser under the procedures specified in this Agreement.
(vii) The Company and each Purchaser agree that if any 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 Purchaser shall be required to agree to any restrictions on the drilling prospect trading as to any securities of the O&G Venture such as geology, seismicCompany or be required to consent to any amendment to or termination of, or comparable well information grant any waiver, release or the like under or in connection with, any agreement previously entered into with the same field as Company or any instrument received from the proposed drilling prospect Company.
(viii) Notwithstanding anything to the “O&G Additional Information”). As used contrary in this Section 4.74.16 and unless otherwise agreed to by such Purchaser, the word “Purchaser” includes Company shall either confirm in writing to such Purchaser that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its assigns, except as apparent from intention to issue the context.
(d) To accept an O&G OfferOffered Securities, in whole or either case, in partsuch a manner such that such Purchaser will not be in possession of any material, the Purchaser must deliver a written notice to the Company prior to the end of non-public information, by the fifth (5th) Business Day after the Purchaser’s receipt following delivery of the O&G Additional Information (the “O&G Offer Period”), setting forth the portion of the Purchaser’s O&G Participation Amount that the Purchaser elects to purchaseNotice. 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 If by such fifth (5th) Business Day after Day, no public disclosure regarding a transaction with respect to the Purchaser’s receipt Offered Securities has been made, and no notice regarding the abandonment of such new O&G transaction has been received by such Purchaser, such transaction shall be deemed to have been abandoned and such 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 Purchaser with another Offer NoticeNotice in accordance with, and subject to, the terms of this Section 4.16 and such Purchaser will again have the right of participation set forth in this Section 4.16 The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.16(ii). The Right of Participation set forth in this Section 4.16 shall (x) 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 4.7 is a right granted by the Company, separately, to the Purchaser, provided that the Purchaser owns no fewer than One Two Hundred and Twenty Fifty (120250) Preferred Shares.
(a) If the Company has delivered to the Purchaser or its assigns a notice (an “MNPI Pre-Notice 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 ten (10) 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 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 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 the Purchaser within five (5) Business Days after the Company’s delivery to the Purchaser of such Pre-Notice, and only upon a written request by the Purchaser, the Company shall promptly, but no later than one (1) Business Day after such request, deliver to 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 the Purchaser in accordance with the terms of the Offer such number of Offered Securities entitling the Purchaser to maintain its percentage beneficial ownership of the Company held prior to the Subsequent Placement (the “Participation Amount”). As used in this Section 4.7, the word “Purchaser” includes its assigns.
(b) To accept an Offer, in whole or in part, the Purchaser must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after the Purchaser’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of the Purchaser’s Participation Amount that the Purchaser elects to purchase. 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 the Purchaser a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after the Purchaser’s receipt of such new Offer Notice.
(c) If . Notwithstanding anything herein to the Company or any Subsidiary including White River or any Subsidiaries of White River decide to drill or participate contrary, in the drilling by a third party of event that the Subsequent Placement is an oil and gas well “overnight” registered offering (an O&G Venture“RDO”), there shall be no Pre-Notice required to be delivered to the Company shall offer Purchaser; provided that the Purchaser Subsequent Placement is delivered between the time period of 4:00 pm (New York City time) and 6:00 pm (New York City time) on the 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 designee 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 Notice shall describe in reasonable detail the proposed terms of such 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 the right desiring 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 after the 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 O&G Venture such as geology, seismic, or comparable well information in the same field as the proposed drilling prospect (the “O&G Additional Information”). As used in this Section 4.7, the word “Purchaser” includes its assigns, except as apparent from the context.
(d) To accept an O&G Offer, in whole or in part, the Purchaser Subsequent Placement must deliver a provide written notice to the Company prior by 6:30 am (New York City time) on the Trading Day following the date on which the Offer Notice is delivered to the end of the fifth (5th) Business Day after the Purchaser’s receipt of the O&G Additional Information such Purchaser (the “O&G Offer PeriodNotice Termination Time”)) that such Purchaser is willing to participate in the Subsequent Placement, setting forth the portion amount of the such Purchaser’s O&G Participation Amount participation, and representing and warranting that such Purchaser has such funds ready, willing, and available for investment on the Purchaser elects to purchaseterms set forth in the Offer Notice. Notwithstanding the foregoing, if If the Company desires receives no such notice from a Purchaser as of such Notice Termination Time, such Purchaser shall be deemed to modify or amend the terms and conditions of the O&G Offer prior to the expiration of the O&G Offer Period, have notified the Company may deliver that it does not elect to the Purchaser a new O&G Offer Notice participate in which case the new O&G Offer Period shall expire on the fifth (5th) Business Day after the Purchaser’s receipt of such new O&G Offer NoticeSubsequent Placement.
Appears in 1 contract
Samples: Securities Purchase Agreement (Ault Alliance, Inc.)
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 4.7 is a right granted by the Company, separately, to the Purchaser, provided that the Purchaser owns no fewer than One Hundred and Twenty Twenty-Five (12025) Preferred Shares.
(a) 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 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 ten (10) 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 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 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 the Purchaser within five (5) Business Days after the Company’s delivery to the Purchaser of such Pre-Notice, and only upon a written request by the Purchaser, the Company shall promptly, but no later than one three (13) Business Day Days after such request, deliver to 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 the Purchaser in accordance with the terms of the Offer such number of Offered Securities entitling the Purchaser to maintain its percentage beneficial ownership of the Company held prior to the Subsequent Placement (the “Participation Amount”). As used in this Section 4.7, the word “Purchaser” includes its assigns.
(b) To accept an Offer, in whole or in part, the Purchaser must deliver a written notice to the Company prior to the end of the fifth third (5th3rd) Business Day after the Purchaser’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of the Purchaser’s Participation Amount that the Purchaser elects to purchase. 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 the Purchaser a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after the Purchaser’s receipt of such new Offer Notice.
(c) If . Notwithstanding anything herein to the Company or any Subsidiary including White River or any Subsidiaries of White River decide to drill or participate contrary, in the drilling by a third party of event that the Subsequent Placement is an oil and gas well “overnight” registered offering (an O&G Venture“RDO”), there shall be no Pre-Notice required to be delivered to the Company shall offer Purchaser; provided that the Purchaser Subsequent Placement is delivered between the time period of 4:00 pm (New York City time) and 6:00 pm (New York City time) on the 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 designee 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 Notice shall describe in reasonable detail the proposed terms of such 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 the right desiring 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 after the 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 O&G Venture such as geology, seismic, or comparable well information in the same field as the proposed drilling prospect (the “O&G Additional Information”). As used in this Section 4.7, the word “Purchaser” includes its assigns, except as apparent from the context.
(d) To accept an O&G Offer, in whole or in part, the Purchaser Subsequent Placement must deliver a provide written notice to the Company prior by 6:30 am (New York City time) on the Trading Day following the date on which the Offer Notice is delivered to the end of the fifth (5th) Business Day after the Purchaser’s receipt of the O&G Additional Information such Purchaser (the “O&G Offer PeriodNotice Termination Time”)) that such Purchaser is willing to participate in the Subsequent Placement, setting forth the portion amount of the such Purchaser’s O&G Participation Amount participation, and representing and warranting that such Purchaser has such funds ready, willing, and available for investment on the Purchaser elects to purchaseterms set forth in the Offer Notice. Notwithstanding the foregoing, if If the Company desires receives no such notice from a Purchaser as of such Notice Termination Time, such Purchaser shall be deemed to modify or amend the terms and conditions of the O&G Offer prior to the expiration of the O&G Offer Period, have notified the Company may deliver that it does not elect to the Purchaser a new O&G Offer Notice participate in which case the new O&G Offer Period shall expire on the fifth (5th) Business Day after the Purchaser’s receipt of such new O&G Offer NoticeSubsequent Placement.
Appears in 1 contract
Samples: Securities Purchase Agreement (Alzamend Neuro, Inc.)
Right of Participation. The Company acknowledges and agrees that the right set forth in this Section 4.7 5(h) is a right granted by the Company, separately, to each Subscriber who purchases at least $100,000 of Units in the Purchaser, provided that the Purchaser owns no fewer than One Hundred and Twenty (120) SharesOffering.
(ai) 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 At least ten (10) 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 other than an Exempt Issuance other than (v) thereof (each, a “Subsequent Placement”), the Company shall deliver to the Purchaser 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 the Purchaser 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 the Purchaser a Subscriber within five (5) Business Days after the Company’s delivery to the Purchaser such Subscriber of such Pre-Notice, and only upon a written request by the Purchasersuch Subscriber, the Company shall promptly, but no later than one (1) Business Day business day after such request, deliver to the Purchaser 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 the Purchaser such Subscriber in accordance with the terms of the Offer such Subscriber’s pro rata portion of 50% of the Offered Securities, provided that the number of Offered Securities entitling which such Subscriber shall have the Purchaser right to maintain its percentage beneficial ownership subscribe for under this Section 5(h) shall be (x) based on such Subscriber’s pro rata portion of the Company held prior to aggregate original amount of the Subsequent Placement Units purchased hereunder by all Subscribers (the “Participation Basic Amount”). As used in this Section 4.7, and (y) with respect to each Subscriber that elects to purchase its Basic Amount, any additional portion of the word 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 “Purchaser” includes its assignsUndersubscription Amount”).
(bii) To accept an Offer, in whole or in part, the Purchaser such Subscriber must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after the Purchasersuch Subscriber’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of the Purchasersuch Subscriber’s Participation Basic Amount that the Purchaser 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 the Purchaser each Subscriber a new Offer Notice and the Offer Period shall expire on the fifth (5thfifth(5th) Business Day after the Purchasersuch Subscriber’s receipt of such new Offer Notice.
(ciii) If The Company shall have five (5) Business Days from the Company expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any Subsidiary including White River or any Subsidiaries part of White River decide such Offered Securities as to drill or participate in the drilling which a Notice of Acceptance has not been given by a third party of an oil and gas well Subscriber (an O&G Venturethe “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the Company shall 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 offerees described in the division order which is supplied to the midstream carrier selected to purchase the well’s production. By way of example, Offer Notice (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 so described therein) 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 only upon terms 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 conditions (including, without limitation, MNPIunit prices and interest rates) other than: 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(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(h)(ii)1(a)(ii) above multiplied by a fraction, (A) a statement that the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or intends exchange (including Offered Securities to invest in an O&G Venture, be issued or sold to Subscribers pursuant to this Section 5(h) prior to such reduction) and (B) a statement the denominator of which shall be the original amount of the Offered Securities. In the event that any Subscriber so elects to reduce the statement number or amount of Offered Securities specified in clause 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(h)(i) above.
(Av) above does not constitute MNPI and (C) a statement informing Upon the Purchaser that it is entitled to invest in an O&G Venture and (D) an itemized list closing of estimated drilling and completion expensesthe issuance, sale or exchange of all or less than all of the Refused Securities, such Subscriber shall acquire from the Company, 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 after the 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 promptlyissue to such Subscriber, but no later than one (1) Business Day after the number or amount of Offered Securities specified in its Notice of Acceptance. The purchase by such request, deliver Subscriber of any Offered Securities is subject in all cases to the Purchaser any additional readily available or reasonably obtainable information so requested preparation, execution and delivery by the Purchaser 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(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 the drilling prospect trading as to any securities of the O&G Venture such as geology, seismicCompany or be required to consent to any amendment to or termination of, or comparable well information grant any waiver, release or the like under or in connection with, any agreement previously entered into with the same field as Company or any instrument received from the proposed drilling prospect Company.
(viii) Notwithstanding anything to the “O&G Additional Information”). As used contrary in this Section 4.75(h) and unless otherwise agreed to by such Subscriber, the word “Purchaser” includes 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 assigns, except as apparent from intention to issue the context.
(d) To accept an O&G OfferOffered Securities, in whole or either case, in partsuch a manner such that such Subscriber will not be in possession of any material, the Purchaser must deliver a written notice to the Company prior to the end of non-public information, by the fifth (5th) Business Day after the Purchaser’s receipt business day following delivery of the O&G Additional Information (the “O&G Offer Period”), setting forth the portion of the Purchaser’s O&G Participation Amount that the Purchaser elects to purchaseNotice. 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 If by such fifth (5th) Business Day after business day, no public disclosure regarding a transaction with respect to the Purchaser’s receipt Offered Securities has been made, and no notice regarding the abandonment of such new O&G 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 NoticeNotice in accordance with, and subject to, the terms of this Section 5(h) and such Subscriber will again have the right of participation set forth in this Section 5(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(h)(ii). The Right of Participation set forth in this Section 5(h) shall terminate on the one year 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 4.7 5(j) is a right granted by the Company, separately, to the Purchaser, provided that the Purchaser owns no fewer than One Hundred and Twenty (120) Shareseach Subscriber.
(ai) 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 At least ten five (105) 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 the Purchaser 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 the Purchaser 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 the Purchaser a Subscriber within five (5) Business Days business days after the Company’s delivery to the Purchaser such Subscriber of such Pre-Pre- Notice, and only upon a written request by the Purchasersuch Subscriber, the Company shall promptly, but no later than one (1) Business Day business day after such request, deliver to the Purchaser 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 the Purchaser 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 entitling which such Subscriber shall have the Purchaser right to maintain its percentage beneficial ownership subscribe for under this Section 5(j) shall be (x) based on such Subscriber’s pro rata portion of the Company held prior to aggregate original amount of the Subsequent Placement Units purchased hereunder by all Subscribers (the “Participation Basic Amount”). As used in this Section 4.7, and (y) with respect to each Subscriber that elects to purchase its Basic Amount, any additional portion of the word 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 “Purchaser” includes its assignsUndersubscription Amount”).
(bii) To accept an Offer, in whole or in part, the Purchaser such Subscriber must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after the Purchasersuch Subscriber’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of the Purchasersuch Subscriber’s Participation Basic Amount that the Purchaser 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 the Purchaser each Subscriber a new Offer Notice and the Offer Period shall expire on the fifth (5thfifth(5th) Business Day after the Purchasersuch Subscriber’s receipt of such new Offer Notice.
(ciii) If The Company shall have five (5) Business Days from the Company expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any Subsidiary including White River or any Subsidiaries part of White River decide such Offered Securities as to drill or participate in the drilling which a Notice of Acceptance has not been given by a third party of an oil and gas well Subscriber (an O&G Venturethe “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the Company shall 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 offerees described in the division order which is supplied to the midstream carrier selected to purchase the well’s production. By way of example, Offer Notice (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 so described therein) 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 only upon terms 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 conditions (including, without limitation, MNPIunit prices and interest rates) other than: 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) a statement that the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or intends exchange (including Offered Securities to invest in an O&G Venture, be issued or sold to Subscribers pursuant to this Section 5(j) prior to such reduction) and (B) a statement the denominator of which shall be the original amount of the Offered Securities. In the event that any Subscriber so elects to reduce the statement number or amount of Offered Securities specified in clause 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.
(Av) above does not constitute MNPI and (C) a statement informing Upon the Purchaser that it is entitled to invest in an O&G Venture and (D) an itemized list closing of estimated drilling and completion expensesthe issuance, sale or exchange of all or less than all of the Refused Securities, such Subscriber shall acquire from the Company, 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 after the 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 promptlyissue to such Subscriber, but no later than one (1) Business Day after the number or amount of Offered Securities specified in its Notice of Acceptance. The purchase by such request, deliver Subscriber of any Offered Securities is subject in all cases to the Purchaser any additional readily available or reasonably obtainable information so requested preparation, execution and delivery by the Purchaser 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 the drilling prospect trading as to any securities of the O&G Venture such as geology, seismicCompany or be required to consent to any amendment to or termination of, or comparable well information grant any waiver, release or the like under or in connection with, any agreement previously entered into with the same field as Company or any instrument received from the proposed drilling prospect Company.
(viii) Notwithstanding anything to the “O&G Additional Information”). As used contrary in this Section 4.75(j) and unless otherwise agreed to by such Subscriber, the word “Purchaser” includes 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 assigns, except as apparent from intention to issue the context.
(d) To accept an O&G OfferOffered Securities, in whole or either case, in partsuch a manner such that such Subscriber will not be in possession of any material, the Purchaser must deliver a written notice to the Company prior to the end of non- public information, by the fifth (5th) Business Day after the Purchaser’s receipt business day following delivery of the O&G Additional Information (the “O&G Offer Period”), setting forth the portion of the Purchaser’s O&G Participation Amount that the Purchaser elects to purchaseNotice. 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 If by such fifth (5th) Business Day after business day, no public disclosure regarding a transaction with respect to the Purchaser’s receipt Offered Securities has been made, and no notice regarding the abandonment of such new O&G 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 NoticeNotice 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 4.7 5(i) is a right granted by the Company, separately, to the Purchaser, provided that the Purchaser owns no fewer than One Hundred and Twenty (120) Shareseach Subscriber.
(ai) 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 At least ten five (105) 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 the Purchaser 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 the Purchaser 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 the Purchaser a Subscriber within five (5) Business Days business days after the Company’s delivery to the Purchaser such Subscriber of such Pre-Notice, and only upon a written request by the Purchasersuch Subscriber, the Company shall promptly, but no later than one (1) Business Day business day after such request, deliver to the Purchaser 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 the Purchaser 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 entitling which such Subscriber shall have the Purchaser right to maintain its percentage beneficial ownership subscribe for under this Section 5(i) shall be (x) based on such Subscriber’s pro rata portion of the Company held prior to aggregate original amount of the Subsequent Placement Units purchased hereunder by all Subscribers (the “Participation Basic Amount”). As used in this Section 4.7, and (y) with respect to each Subscriber that elects to purchase its Basic Amount, any additional portion of the word 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 “Purchaser” includes its assignsUndersubscription Amount”).
(bii) To accept an Offer, in whole or in part, the Purchaser such Subscriber must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after the Purchasersuch Subscriber’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of the Purchasersuch Subscriber’s Participation Basic Amount that the Purchaser 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 the Purchaser each Subscriber a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after the Purchasersuch Subscriber’s receipt of such new Offer Notice.
(ciii) If The Company shall have five (5) Business Days from the Company expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any Subsidiary including White River or any Subsidiaries part of White River decide such Offered Securities as to drill or participate in the drilling which a Notice of Acceptance has not been given by a third party of an oil and gas well Subscriber (an O&G Venturethe “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the Company shall 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 offerees described in the division order which is supplied to the midstream carrier selected to purchase the well’s production. By way of example, Offer Notice (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 so described therein) 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 only upon terms 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 conditions (including, without limitation, MNPIunit prices and interest rates) other than: 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 (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent Placement Agreement or (II) 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(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(i)(ii) above multiplied by a fraction, (A) a statement that the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or intends exchange (including Offered Securities to invest in an O&G Venture, be issued or sold to Subscribers pursuant to this Section 5(i) prior to such reduction) and (B) a statement the denominator of which shall be the original amount of the Offered Securities. In the event that any Subscriber so elects to reduce the statement number or amount of Offered Securities specified in clause 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(i)(i) above.
(Av) above does not constitute MNPI and (C) a statement informing Upon the Purchaser that it is entitled to invest in an O&G Venture and (D) an itemized list closing of estimated drilling and completion expensesthe issuance, sale or exchange of all or less than all of the Refused Securities, such Subscriber shall acquire from the Company, 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 after the 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 promptlyissue to such Subscriber, but no later than one (1) Business Day after the number or amount of Offered Securities specified in its Notice of Acceptance. The purchase by such request, deliver Subscriber of any Offered Securities is subject in all cases to the Purchaser any additional readily available or reasonably obtainable information so requested preparation, execution and delivery by the Purchaser 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(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 the drilling prospect trading as to any securities of the O&G Venture such as geology, seismicCompany or be required to consent to any amendment to or termination of, or comparable well information grant any waiver, release or the like under or in connection with, any agreement previously entered into with the same field as Company or any instrument received from the proposed drilling prospect Company.
(viii) Notwithstanding anything to the “O&G Additional Information”). As used contrary in this Section 4.75(i) and unless otherwise agreed to by such Subscriber, the word “Purchaser” includes 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 assigns, except as apparent from intention to issue the context.
(d) To accept an O&G OfferOffered Securities, in whole or either case, in partsuch a manner such that such Subscriber will not be in possession of any material, the Purchaser must deliver a written notice to the Company prior to the end of non-public information, by the fifth (5th) Business Day after the Purchaser’s receipt business day following delivery of the O&G Additional Information (the “O&G Offer Period”), setting forth the portion of the Purchaser’s O&G Participation Amount that the Purchaser elects to purchaseNotice. 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 If by such fifth (5th) Business Day after business day, no public disclosure regarding a transaction with respect to the Purchaser’s receipt Offered Securities has been made, and no notice regarding the abandonment of such new O&G 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 NoticeNotice in accordance with, and subject to, the terms of this Section 5(i) and such Subscriber will again have the right of participation set forth in this Section 5(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(i)(ii). The Right of Participation set forth in this Section 5(i) shall terminate upon the conclusion of the Obligation Period.
Appears in 1 contract
Right of Participation. The Company acknowledges and agrees that the right set forth in this Section 4.7 4.16 is a right granted by the Company, separately, to the each Purchaser, provided that the Purchaser owns no fewer than One Hundred and Twenty (120) Shares.
(ai) 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 At least ten five (105) 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 other than an Exempt Issuance other than (v) thereof (each, a “Subsequent Placement”), the Company shall deliver to the each 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 the such 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 the a Purchaser within five (5) Business Days after the Company’s delivery to the such Purchaser of such Pre-Notice, and only upon a written request by the such Purchaser, the Company shall promptly, but no later than one (1) Business Day after such request, deliver to the such 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 the such Purchaser in accordance with the terms of the Offer such Purchaser’s pro rata portion of 100% of the Offered Securities, provided that the number of Offered Securities entitling which such Purchaser shall have the Purchaser right to maintain its percentage beneficial ownership subscribe for under this Section 4.16 shall be (x) based on such Purchaser’s pro rata portion of the Company held prior to aggregate original amount of the Subsequent Placement Shares purchased hereunder by all Purchasers (the “Participation Basic Amount”). As used in this Section 4.7, and (y) with respect to each Purchaser that elects to purchase its Basic Amount, any additional portion of the word Offered Securities attributable to the Basic Amounts of other Purchasers as such Purchasers shall indicate it will purchase or acquire should the other Purchasers subscribe for less than their Basic Amounts (the “Purchaser” includes its assignsUndersubscription Amount”).
(bii) To accept an Offer, in whole or in part, the such Purchaser must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after the such Purchaser’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of the such Purchaser’s Participation Basic Amount that the such Purchaser elects to purchase and, if such Purchaser shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers are less than the total of all of the Basic Amounts, then such 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 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 Purchaser bears to the total Basic Amounts of all 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 the each Purchaser a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after the such Purchaser’s receipt of such new Offer Notice.
(ciii) If The Company shall have five (5) Business Days from the Company expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any Subsidiary including White River or any Subsidiaries part of White River decide such Offered Securities as to drill or participate in the drilling which a Notice of Acceptance has not been given by a third party of an oil and gas well Purchaser (an O&G Venturethe “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the Company shall 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 offerees described in the division order which is supplied to the midstream carrier selected to purchase the well’s production. By way of example, Offer Notice (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 so described therein) 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 only upon terms 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 conditions (including, without limitation, MNPIunit prices and interest rates) other than: 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 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 4.16(iii) above), then such 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 Purchaser elected to purchase pursuant to Section 4.16(ii) above multiplied by a fraction, (A) a statement that the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell or intends exchange (including Offered Securities to invest in an O&G Venture, be issued or sold to Purchasers pursuant to this Section 4.16 prior to such reduction) and (B) a statement the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser so elects to reduce the statement number or amount of Offered Securities specified in clause 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 Purchasers in accordance with Section 4.16(i) above.
(Av) above does not constitute MNPI and (C) a statement informing Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser that it is entitled to invest in an O&G Venture and (D) an itemized list of estimated drilling and completion expensesshall acquire from the Company, 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 after the 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 promptlyissue to such Purchaser, but no later than one (1) Business Day after the number or amount of Offered Securities specified in its Notice of Acceptance. The purchase by such request, deliver Purchaser of any Offered Securities is subject in all cases to the Purchaser any additional readily available or reasonably obtainable information so requested preparation, execution and delivery by the Company and such Purchaser of a separate purchase agreement relating 22 to such Offered Securities reasonably satisfactory in form and substance to such Purchaser and its counsel.
(vi) Any Offered Securities not acquired by a Purchaser or other persons in accordance with this Section 4.16 may not be issued, sold or exchanged until they are again offered to such Purchaser under the procedures specified in this Agreement.
(vii) The Company and each Purchaser agree that if any 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 Purchaser shall be required to agree to any restrictions on the drilling prospect trading as to any securities of the O&G Venture such as geology, seismicCompany or be required to consent to any amendment to or termination of, or comparable well information grant any waiver, release or the like under or in connection with, any agreement previously entered into with the same field as Company or any instrument received from the proposed drilling prospect Company.
(viii) Notwithstanding anything to the “O&G Additional Information”). As used contrary in this Section 4.74.16 and unless otherwise agreed to by such Purchaser, the word “Purchaser” includes Company shall either confirm in writing to such Purchaser that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its assigns, except as apparent from intention to issue the context.
(d) To accept an O&G OfferOffered Securities, in whole or either case, in partsuch a manner such that such Purchaser will not be in possession of any material, the Purchaser must deliver a written notice to the Company prior to the end of non-public information, by the fifth (5th) Business Day after the Purchaser’s receipt following delivery of the O&G Additional Information (the “O&G Offer Period”), setting forth the portion of the Purchaser’s O&G Participation Amount that the Purchaser elects to purchaseNotice. 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 If by such fifth (5th) Business Day after Day, no public disclosure regarding a transaction with respect to the Purchaser’s receipt Offered Securities has been made, and no notice regarding the abandonment of such new O&G transaction has been received by such Purchaser, such transaction shall be deemed to have been abandoned and such 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 Purchaser with another Offer NoticeNotice in accordance with, and subject to, the terms of this Section 4.16 and such Purchaser will again have the right of participation set forth in this Section 4.16 The Company shall not be permitted to deliver more than one such Offer Notice to such Purchaser in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4.16(ii). The Right of Participation set forth in this Section 4.16 shall (x) terminate immediately on the twenty four (24) month anniversary of the Closing Date 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 the right rights set forth in this Section 4.7 6(e) is a right granted by the CompanyOffering Entity (as defined below), separately, to the each Purchaser, provided that the Purchaser owns no fewer than One Hundred and Twenty (120) Shares.
(ai) 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 At least ten five (105) 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 other than an Exempt Issuance other than (v) thereof (each, a “Subsequent Placement”), the Company Offering Entity shall deliver to the each 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 the such 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 the a Purchaser within five (5) Business Days business days after the CompanyOffering Entity’s delivery to the such Purchaser of such Pre-Notice, and only upon a written request by the such Purchaser, the Company Offering Entity shall promptly, but no later than one (1) Business Day business day after such request, deliver to the such 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 the such Purchaser in accordance with the terms of the Offer such Purchaser’s pro rata portion of 100% of the Offered Securities, provided that the number of Offered Securities entitling which such Purchaser shall have the Purchaser right to maintain its percentage beneficial ownership subscribe for under this Section 6(e) shall be (x) based on such Purchaser’s pro rata portion of the Company held prior to the Subsequent Placement aggregate original principal amount of Notes purchased hereunder by all Purchasers (the “Participation Basic Amount”). As used in this Section 4.7, and (y) with respect to each Purchaser that elects to purchase its Basic Amount, any additional portion of the word Offered Securities attributable to the Basic Amounts of other Purchasers as such Purchasers shall indicate it will purchase or acquire should the other Purchasers subscribe for less than their Basic Amounts (the “Purchaser” includes its assignsUndersubscription Amount”).
(bii) To accept an Offer, in whole or in part, the such Purchaser must deliver a written notice to the Company Offering Entity prior to the end of the fifth (5th) Business Day after the such Purchaser’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of the such Purchaser’s Participation Basic Amount that the such Purchaser elects to purchase and, if such Purchaser shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for by all Purchasers are less than the total of all of the Basic Amounts, then such 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 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 Purchaser bears to the total Basic Amounts of all Purchasers that have subscribed for Undersubscription Amounts, subject to rounding by the 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 the each Purchaser a new Offer Notice and the Offer Period shall expire on the fifth (5thfifth(5th) Business Day after the such Purchaser’s receipt of such new Offer Notice.
(ciii) If The Offering Entity shall have five (5) Business Days from the Company expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any Subsidiary including White River or any Subsidiaries part of White River decide such Offered Securities as to drill or participate in the drilling which a Notice of Acceptance has not been given by a third party of an oil and gas well Purchaser (an O&G Venturethe “Refused Securities”) pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the Company shall 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 offerees described in the division order which is supplied to the midstream carrier selected to purchase the well’s production. By way of example, Offer Notice (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 so described therein) 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 only upon terms 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 conditions (including, without limitation, MNPIunit prices and interest rates) other than: that are not more favorable to the acquiring person or persons or less favorable to the 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 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 6(e)(iii) above), then such 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 Purchaser elected to purchase pursuant to Section 6(e)(ii)0 above multiplied by a fraction, (A) a statement that the Company numerator of which shall be the number or amount of Offered Securities the Offering Entity actually proposes to issue, sell or intends exchange (including Offered Securities to invest in an O&G Venture, be issued or sold to Purchasers pursuant to this Section 6(e) prior to such reduction) and (B) a statement the denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser so elects to reduce the statement number or amount of Offered Securities specified in clause its Notice of Acceptance, the 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 Purchasers in accordance with Section 6(e)(i) above.
(Av) above does not constitute MNPI and (C) a statement informing Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Purchaser that it is entitled to invest in an O&G Venture and (D) an itemized list of estimated drilling and completion expensesshall acquire from the Offering Entity, and the Offering Entity shall issue to such Purchaser, the number or amount of Offered Securities specified in its Notice of Acceptance. The purchase by such Purchaser of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Offering Entity and such Purchaser of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Purchaser and its counsel.
(Evi) identification Any Offered Securities not acquired by a Purchaser or other persons in accordance with this Section 6(e) may not be issued, sold or exchanged until they are again offered to such Purchaser under the procedures specified in this Agreement.
(vii) The Offering Entity and each Purchaser agree that if any 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 Purchaser shall be required to agree to any restrictions on trading as to any securities of the proposed persons 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 Offering Entity or any instrument received from the Offering Entity.
(if knownviii) 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 after the Company’s delivery Notwithstanding anything 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 O&G Venture such as geology, seismic, or comparable well information in the same field as the proposed drilling prospect (the “O&G Additional Information”). As used contrary in this Section 4.76(e) and unless otherwise agreed to by such Purchaser, the word “Purchaser” includes Offering Entity shall either confirm in writing to such Purchaser that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its assigns, except as apparent from intention to issue the context.
(d) To accept an O&G OfferOffered Securities, in whole or either case, in partsuch a manner such that such Purchaser will not be in possession of any material, the Purchaser must deliver a written notice to the Company prior to the end of non-public information, by the fifth (5th) Business Day after the Purchaser’s receipt business day following delivery of the O&G Additional Information (the “O&G Offer Period”), setting forth the portion of the Purchaser’s O&G Participation Amount that the Purchaser elects to purchaseNotice. 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 If by such fifth (5th) Business Day after business day, no public disclosure regarding a transaction with respect to the Purchaser’s receipt Offered Securities has been made, and no notice regarding the abandonment of such new O&G transaction has been received by such Purchaser, such transaction shall be deemed to have been abandoned and such Purchaser shall not be in possession of any material, non-public information with respect to the Offering Entity or any of its subsidiaries. Should the Offering Entity decide to pursue such transaction with respect to the Offered Securities, the Offering Entity shall provide such Purchaser with another Offer NoticeNotice in accordance with, and subject to, the terms of this Section 6(e) and such Purchaser will again have the right of participation set forth in this Section 6(e) The Offering Entity shall not be permitted to deliver more than one such Offer Notice to such Purchaser in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 6(e)(ii). The Right of Participation set forth in this Section 6(e) shall terminate on the 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 Subject to the terms and conditions of this Section 4.1 and applicable securities laws, if the Company acknowledges and agrees that proposes to offer or sell any New Securities, the Company shall also offer the Investor the right set forth to participate in this Section 4.7 is a the purchase of such New Securities. The Investor shall be entitled to apportion the right of participation hereby granted by the Company, separately, to the Purchaser, provided that the Purchaser owns no fewer than One Hundred it among itself and Twenty (120) Sharesits Affiliates in such proportions as it deems appropriate.
(a) If At any time before or within thirty (30) days after 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 ten (10) trading days prior to any proposed or intended sale by the Company issuance 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”)New Securities, the Company shall deliver to 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 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 the Purchaser within five (5) Business Days after the Company’s delivery to the Purchaser of such Pre-Notice, and only upon a written request by the Purchaser, the Company shall promptly, but no later than one (1) Business Day after such request, deliver to the Purchaser 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 the Purchaser in accordance with the terms of the Offer such number of Offered Securities entitling the Purchaser to maintain its percentage beneficial ownership of the Company held prior to the Subsequent Placement (the “Participation Amount”). As used in this Section 4.7, the word “Purchaser” includes its assignsNew Securities.
(b) To accept an Offer, in whole or in part, the Purchaser must deliver a written notice By notification to the Company prior to the end of the fifth within twenty (5th20) Business Day days after the Purchaser’s receipt of the Offer Notice (is given, the “Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Period”)Notice, setting forth the that portion of the Purchaser’s Participation Amount New Securities that equals the proportion that the Purchaser elects Common Shares issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Series A Preferred Shares and any other Derivative Securities then held, by the Investor bears to purchase. Notwithstanding the foregoing, if total Common Shares of the Company desires then outstanding (assuming full conversion and/or exercise, as applicable, of all Series A Preferred Shares and other Derivative Securities). The closing of any sale pursuant to modify or amend the terms and conditions this Section 4.1(b) shall occur within sixty (60) days of the Offer prior to the expiration of date that the Offer Period, the Company may deliver to the Purchaser a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after the Purchaser’s receipt of such new Offer Noticeis given.
(c) If the Company or any Subsidiary including White River or any Subsidiaries of White River decide all New Securities referred to drill or participate in the drilling Offer Notice are not elected to be purchased or acquired by a third party of an oil and gas well (an O&G Venture”the Investor as provided in Section 4.1(b), the Company shall offer may, following the Purchaser or a designee expiration of the Purchaser period provided in Section 4.1(b), offer and sell the right to participate in such O&G Venture by investing up to 25% of the Company’s funding obligation remaining unsubscribed portion of such O&G Venture. If the O&G Venture is successfully drilled, loggedNew Securities to any Person or Persons at a price not less than, and completed and is determined upon terms no more favorable to be economically viable then the Purchaser or its designee will receive its proportionate ownership through an assigned working interest offeree than, those specified 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 after the 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 O&G Venture such as geology, seismic, or comparable well information in the same field as the proposed drilling prospect (the “O&G Additional Information”). As used in this Section 4.7, the word “Purchaser” includes its assigns, except as apparent from the contextOffer Notice.
(d) To accept an O&G Offer, The right of participation in whole or this Section 4.1 shall not be applicable to (i) Exempted Securities; and (ii) Common Shares issued in part, the Purchaser must deliver a written notice to the Company prior to the end of the fifth (5th) Business Day after the Purchaser’s receipt of the O&G Additional Information (the “O&G Offer Period”), setting forth the portion of the Purchaser’s O&G Participation Amount that the Purchaser elects to purchase. 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 after the Purchaser’s receipt of such new O&G Offer NoticeIPO.
Appears in 1 contract
Samples: Investor's Rights Agreement (Zoom Technologies Inc)
