Common use of Right to Purchase New Securities Clause in Contracts

Right to Purchase New Securities. (a) The Company hereby grants to each Member (the “Preemptive Participants”) the right to purchase its Preemptive Portion (calculated in accordance with Section 12.1(c)) of all or any part of New Securities that the Company may, from time to time, propose to sell or issue (the “Equity Purchase Right”). The number of New Securities that the Members may purchase pursuant to this Section 12.1(a) shall be referred to as the “Equity Purchase Units.” The Equity Purchase Right provided in this Section 12.1(a) shall apply at the time of issuance of any right, warrant or option or convertible or exchangeable security, and not to the conversion or exchange pursuant to its terms or exercise thereof. For the avoidance of doubt, in no event shall the Company or any Member be required to comply with both Section 9.4 and this Section 12.1 with respect to the same transaction. (b) The Company shall give written notice (the “Issuance Notice”) of a proposed issuance or sale described in Section 12.1(a) to the Preemptive Participants within five Business Days following any meeting of the Board at which any such issuance or sale is approved and at least 15 days prior to the proposed issuance or sale. The Issuance Notice shall set forth the material terms and conditions of such proposed transaction, including (i) the number or amount and description of the New Securities proposed to be issued, (ii) the proposed issuance date and (iii) the proposed purchase price per New Security, including a description of any non-cash consideration sufficiently detailed to permit the determination of the fair market value thereof. (c) The total number of New Securities that each Preemptive Participant shall be entitled to purchase shall be equal to the product of (i) the total number of New Securities to be issued by the Company on the applicable issuance date and (ii) a fraction (A) the numerator of which is the number of Units beneficially owned by such Preemptive Participant and its Affiliates immediately prior to such issuance and (B) the denominator of which is the total number of Units outstanding on such date immediately prior to such issuance (the “Preemptive Portion”). At any time during the 15-day period following the receipt of an Issuance Notice, the Preemptive Participants shall have the right to elect irrevocably to purchase their Preemptive Portion of the Equity Purchase Units at the purchase price set forth in the Issuance Notice (provided, that in the event any portion of the purchase price per Unit to be paid by the proposed purchaser is to be paid in non-cash consideration, the value of any such non-cash consideration per Unit shall be the fair market value thereof), and upon the other terms and conditions specified in the Issuance Notice, by delivering a written notice to the Company. Except as provided in the following sentence, such purchase shall be consummated concurrently with the consummation of the issuance or sale described in the Issuance Notice. The closing of any purchase by any Preemptive Participant may be extended beyond the closing of the transaction described in the Issuance Notice to the extent necessary to (1) obtain required governmental approvals and other required approvals, and the Company and the Preemptive Participants shall use their respective commercially reasonable efforts to obtain such approvals and (2) permit the Preemptive Participants or their Affiliates to complete their internal capital call process; provided, that the extension pursuant to this clause (2) shall not exceed 30 days. (d) Each Preemptive Participant exercising its right to purchase its respective portion of the Equity Purchase Units in full (an “Exercising Member”) shall have a right of over-allotment such that if any other Member fails to exercise its right hereunder to purchase its full Preemptive Portion of New Securities (a “Non-Purchasing Member”), such Exercising Member may purchase all or any part of such securities by giving written notice to the Company within 10 days from the date that the Company provides written notice of the amount of New Securities as to which such Non-Purchasing Members have failed to exercise their Equity Purchase Rights hereunder; provided, that in the event there are two or more such Exercising Members that choose to exercise the last-mentioned option for a total number of remaining Units in excess of the number available, the remaining Units available for purchase under this Section 12.1(d) shall be allocated among such Exercising Members pro rata based on the number of New Securities such Exercising Members elected to purchase pursuant to Section 12.1(c). (e) If any Preemptive Participants or Exercising Members fail to exercise fully their Equity Purchase Rights within the periods described above and after expiration of the 10-day period for exercise of the over-allotment provisions pursuant to Section 12.1(d), the Company shall be free to complete the proposed issuance or sale of the New Securities described in the Issuance Notice with respect to which Exercising Members failed to exercise the option set forth in this Section 12.1 on terms no less favorable to the Company than those set forth in the Issuance Notice (except that the amount of securities to be issued or sold by the Company may be reduced); provided, that (i) such issuance or sale is closed within 90 days after the expiration of the 10-day period described in Section 12.1(d) and (ii) the price at which the New Securities are issued must be equal to or higher than the purchase price described in the Issuance Notice. Such periods within which such issuance or sale must be closed shall be extended to the extent necessary to obtain required governmental approvals and other required approvals and the Company shall use its commercially reasonable efforts to obtain such approvals. In the event that the Company has not sold such New Securities within said 90-day period, the Company shall not thereafter issue or sell any New Securities, without first again offering such securities to the Members in the manner provided in this Section 12.1. (f) For convenience of administration, the Company may issue New Securities to the Greystone Member without first offering the other Preemptive Participants the opportunity to participate in such sale in compliance with this Section 12.1, so long as (i) each other Preemptive Participant is provided the opportunity to purchase its pro rata portion of such New Securities from the Greystone Member within thirty (30) Business Days of consummation of the Greystone Member’s purchase of such New Securities from the Company, on the same terms and conditions (including price and form of consideration) as the Greystone Member purchased such New Securities from the Company, (ii) if such opportunity is exercised, the purchase is actually consummated, and (iii) any distribution on such New Securities is (A) withheld until after completion of such purchase by such Preemptive Participant or (B) if paid prior to the completion of such purchase, is transferred together with the such New Securities to such Preemptive Participant.

Appears in 2 contracts

Samples: Limited Liability Company Agreement (Cushman & Wakefield PLC), Contribution Agreement (Cushman & Wakefield PLC)

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Right to Purchase New Securities. (a) The Company hereby grants In the event that Issuer proposes to each Member issue New Securities (the “Preemptive Participants”) prior to, and other than in connection with, an Initial Public Offering), Grantee shall have the right to purchase its Preemptive Portion (calculated in lieu of the Person to whom Issuer proposed to issue such New Securities, in accordance with Section 12.1(c)) of all or any part of New Securities that the Company may, from time to time, propose to sell or issue (the “Equity Purchase Right”). The number of New Securities that the Members may purchase pursuant to this Section 12.1(a) shall be referred to as the “Equity Purchase Units.” The Equity Purchase Right provided in this Section 12.1(a) shall apply at the time of issuance of any right, warrant or option or convertible or exchangeable security, and not to the conversion or exchange pursuant to its terms or exercise thereof. For the avoidance of doubt, in no event shall the Company or any Member be required to comply with both Section 9.4 and this Section 12.1 with respect to the same transaction. paragraph (b) The Company shall give written notice (the “Issuance Notice”) below, a number of a proposed issuance Shares or sale described in Section 12.1(a) to the Preemptive Participants within five Business Days following any meeting of the Board at which any such issuance or sale is approved and at least 15 days prior to the proposed issuance or sale. The Issuance Notice shall set forth the material terms and conditions of such proposed transaction, including (i) the number or amount and description of the other New Securities proposed which Issuer proposes to be issued, (ii) the proposed issuance date and (iii) the proposed purchase price per New Security, including a description of any non-cash consideration sufficiently detailed to permit the determination of the fair market value thereof. (c) The total number of New Securities that each Preemptive Participant shall be entitled to purchase shall be issue equal to the product of (i) the total number or amount of Shares or other New Securities which Issuer proposes to issue at such time and (ii) a fraction, the numerator of which shall be the total number of Shares which Grantee owns or is entitled to purchase on the fifth anniversary of the date of this Agreement or, if earlier, upon the occurrence of an Exercise Event, pursuant to this Warrant, and the denominator of which shall be the total number of Shares then outstanding plus the total number of Shares which Grantee is entitled to purchase on the fifth anniversary of the date of this Agreement or, if earlier upon the occurrence of an Exercise Event, pursuant to this Warrant. The rights given by Issuer under this Section 2.05 shall terminate if unexercised within 30 days after receipt of the Notice of Issuance referred to in paragraph (b) below. (b) In the event that Issuer proposes to undertake an issuance of New Securities (prior to an Initial Public Offering), it shall give written notice (a "Notice of Issuance") of its intention to Grantee, describing all material terms of the New Securities, the price and all material terms upon which Issuer proposes to issue such New Securities. The Grantee shall have 30 days from the date of the Notice of Issuance to agree to purchase all or any portion of its pro rata share of such New Securities (as determined pursuant to paragraph (a) above) for the same consideration, if such consideration shall consist solely of cash, or for cash, cash equivalents or [**]=Confidential Treatment requested for redacted portion marketable securities having an equivalent value to the consideration payable by the Person to whom Issuer proposes to issue such New Securities at the time of payment, and otherwise upon the terms specified in the Notice of Issuance by giving written notice to Issuer, and stating therein the quantity of New Securities to be issued by the Company on the applicable issuance date and (ii) a fraction (A) the numerator of which is the number of Units beneficially owned by such Preemptive Participant and its Affiliates immediately prior to such issuance and (B) the denominator of which is the total number of Units outstanding on such date immediately prior to such issuance (the “Preemptive Portion”). At any time during the 15-day period following the receipt of an Issuance Notice, the Preemptive Participants shall have the right to elect irrevocably to purchase their Preemptive Portion of the Equity Purchase Units at the purchase price set forth in the Issuance Notice (provided, that in the event any portion of the purchase price per Unit to be paid by the proposed purchaser is to be paid in non-cash consideration, the value of any such non-cash consideration per Unit shall be the fair market value thereof), and upon the other terms and conditions specified in the Issuance Notice, by delivering a written notice to the Company. Except as provided in the following sentence, such purchase shall be consummated concurrently with the consummation of the issuance or sale described in the Issuance Notice. The closing of any purchase by any Preemptive Participant may be extended beyond the closing of the transaction described in the Issuance Notice to the extent necessary to (1) obtain required governmental approvals and other required approvals, and the Company and the Preemptive Participants shall use their respective commercially reasonable efforts to obtain such approvals and (2) permit the Preemptive Participants or their Affiliates to complete their internal capital call process; provided, that the extension pursuant to this clause (2) shall not exceed 30 daysGrantee. (d) Each Preemptive Participant exercising its right to purchase its respective portion of the Equity Purchase Units in full (an “Exercising Member”) shall have a right of over-allotment such that if any other Member fails to exercise its right hereunder to purchase its full Preemptive Portion of New Securities (a “Non-Purchasing Member”), such Exercising Member may purchase all or any part of such securities by giving written notice to the Company within 10 days from the date that the Company provides written notice of the amount of New Securities as to which such Non-Purchasing Members have failed to exercise their Equity Purchase Rights hereunder; provided, that in the event there are two or more such Exercising Members that choose to exercise the last-mentioned option for a total number of remaining Units in excess of the number available, the remaining Units available for purchase under this Section 12.1(d) shall be allocated among such Exercising Members pro rata based on the number of New Securities such Exercising Members elected to purchase pursuant to Section 12.1(c). (e) If any Preemptive Participants or Exercising Members fail to exercise fully their Equity Purchase Rights within the periods described above and after expiration of the 10-day period for exercise of the over-allotment provisions pursuant to Section 12.1(d), the Company shall be free to complete the proposed issuance or sale of the New Securities described in the Issuance Notice with respect to which Exercising Members failed to exercise the option set forth in this Section 12.1 on terms no less favorable to the Company than those set forth in the Issuance Notice (except that the amount of securities to be issued or sold by the Company may be reduced); provided, that (i) such issuance or sale is closed within 90 days after the expiration of the 10-day period described in Section 12.1(d) and (ii) the price at which the New Securities are issued must be equal to or higher than the purchase price described in the Issuance Notice. Such periods within which such issuance or sale must be closed shall be extended to the extent necessary to obtain required governmental approvals and other required approvals and the Company shall use its commercially reasonable efforts to obtain such approvals. In the event that the Company has not sold such New Securities within said 90-day period, the Company shall not thereafter issue or sell any New Securities, without first again offering such securities to the Members in the manner provided in this Section 12.1. (f) For convenience of administration, the Company may issue New Securities to the Greystone Member without first offering the other Preemptive Participants the opportunity to participate in such sale in compliance with this Section 12.1, so long as (i) each other Preemptive Participant is provided the opportunity to purchase its pro rata portion of such New Securities from the Greystone Member within thirty (30) Business Days of consummation of the Greystone Member’s purchase of such New Securities from the Company, on the same terms and conditions (including price and form of consideration) as the Greystone Member purchased such New Securities from the Company, (ii) if such opportunity is exercised, the purchase is actually consummated, and (iii) any distribution on such New Securities is (A) withheld until after completion of such purchase by such Preemptive Participant or (B) if paid prior to the completion of such purchase, is transferred together with the such New Securities to such Preemptive Participant.

Appears in 1 contract

Samples: Warrant Agreement (Priceline Com Inc)

Right to Purchase New Securities. (a) The Company hereby grants With respect to each Member (the “Preemptive Participants”) the right to purchase its Preemptive Portion (calculated in accordance with Section 12.1(c)) of all or any part proposed issuance of New Securities that the Company mayto any third party on or prior to June 30, from time 2014, Amyris shall offer to time, propose to sell or issue (the “Equity Purchase Right”). The number of New Securities that the Members may purchase pursuant to this Section 12.1(a) shall be referred to as the “Equity Purchase Units.” The Equity Purchase Right provided in this Section 12.1(a) shall apply at the time of issuance of any right, warrant or option or convertible or exchangeable security, and not to the conversion or exchange pursuant to its terms or exercise thereof. For the avoidance of doubt, in no event shall the Company or any Member be required to comply with both Section 9.4 and this Section 12.1 with respect to the same transaction. (b) The Company shall give Total by written notice (the “Issuance Notice”) the right, for a period of not less than 15 days (or such longer period as may be provided to any other investor with similar rights to purchase new securities) following delivery of such Issuance Notice (the “Participation Exercise Period”), to subscribe for, at a proposed issuance or sale described in Section 12.1(a) subscription price per New Security equal to the Preemptive Participants within five Business Days subscription price for which the New Securities are proposed to be issued to such third party and otherwise upon the terms specified in the Issuance Notice, up to that number of New Securities necessary to permit Total to maintain its pro rata ownership of Amyris following any meeting of the Board at which any such issuance or sale is approved and at least 15 days that it had immediately prior to such issuance (calculated on an as-converted basis, and excluding any securities that are not then convertible) (“Pro Rata Share”) in accordance with paragraph (b) below; provided that the proposed issuance or saleaggregate New Securities purchased by Total pursuant to this Section 5.1 shall not exceed $15,747,816.63. The New Securities to be offered to Total pursuant to the Issuance Notice shall set forth be, at the material terms and conditions sole discretion of such proposed transactionAmyris, including (i) the number or amount and description either in lieu of the New Securities proposed to be issued to such third party or in addition to the New Securities proposed to be issued to such third party; provided that such offer shall in each case provide that Total shall be able to maintain its Pro Rata Share. The Issuance Notice shall include the aggregate number and type of New Securities proposed to be issued, (ii) the price per New Security and any other material terms of the proposed issuance date and (iii) the proposed purchase price per New Security, including a description of any non-cash consideration sufficiently detailed to permit the determination of the fair market value thereof. (c) The total number of New Securities that each Preemptive Participant shall be entitled to purchase shall be equal to the product of (i) the total number of New Securities to be issued by the Company on the applicable issuance date and (ii) a fraction (A) the numerator of which is the number of Units beneficially owned by such Preemptive Participant and its Affiliates immediately prior to such issuance and (B) the denominator of which is the total number of Units outstanding on such date immediately prior to such issuance (the “Preemptive Portion”). At any time during the 15-day period following the receipt of an Issuance Noticethird party; provided, the Preemptive Participants shall have the right to elect irrevocably to purchase their Preemptive Portion of the Equity Purchase Units at however, that the purchase price set forth in the Issuance Notice (provided, that in the event any portion of the purchase price per Unit to be paid by the proposed purchaser is to be paid in non-cash consideration, the value of any such non-cash consideration per Unit shall be the fair market value thereof), and upon the other terms and conditions specified in the Issuance Notice, by delivering a written notice to the Company. Except as provided in the following sentence, such purchase shall be consummated concurrently with the consummation of the issuance or sale described in the Issuance Notice. The closing of any purchase by any Preemptive Participant may be extended beyond the closing of the transaction described in the Issuance Notice to the extent necessary to (1) obtain required governmental approvals and other required approvals, and the Company and the Preemptive Participants shall use their respective commercially reasonable efforts to obtain such approvals and (2) permit the Preemptive Participants or their Affiliates to complete their internal capital call process; provided, that the extension pursuant to this clause (2) shall not exceed 30 days. (d) Each Preemptive Participant exercising its right to purchase its respective portion of the Equity Purchase Units in full (an “Exercising Member”) shall have a right of over-allotment such that if any other Member fails to exercise its right hereunder to purchase its full Preemptive Portion of New Securities (a “Non-Purchasing Member”), such Exercising Member may purchase all or any part of such securities by giving written notice to the Company within 10 days from the date that the Company provides written notice of the amount of New Securities as to which such Non-Purchasing Members have failed to exercise their Equity Purchase Rights hereunder; provided, that in the event there are two or more such Exercising Members that choose to exercise the last-mentioned option for a total number of remaining Units in excess of the number available, the remaining Units available for purchase under this Section 12.1(d) shall be allocated among such Exercising Members pro rata based on the number of New Securities such Exercising Members elected to purchase pursuant to Section 12.1(c). (e) If any Preemptive Participants or Exercising Members fail to exercise fully their Equity Purchase Rights within the periods described above and after expiration of the 10-day period for exercise of the over-allotment provisions pursuant to Section 12.1(d), the Company shall be free to complete the proposed issuance or sale of the New Securities described in the Issuance Notice with respect to which Exercising Members failed to exercise the option set forth in this Section 12.1 on terms no less favorable to the Company than those set forth in the Issuance Notice (except that the amount of securities to be issued or sold by the Company may be reduced); provided, that (i) such issuance or sale is closed within 90 days after the expiration of the 10-day period described in Section 12.1(d) and (ii) the price at which the New Securities are issued must be equal to or higher than the purchase price described in the Issuance Notice. Such periods within which such issuance or sale must be closed shall be extended to the extent necessary to obtain required governmental approvals and other required approvals and the Company shall use Total may acquire its commercially reasonable efforts to obtain such approvals. In the event that the Company has not sold such New Securities within said 90-day period, the Company shall not thereafter issue or sell any New Securities, without first again offering such securities to the Members in the manner provided in this Section 12.1. (f) For convenience of administration, the Company may issue New Securities to the Greystone Member without first offering the other Preemptive Participants the opportunity to participate in such sale in compliance with this Section 12.1, so long as (i) each other Preemptive Participant is provided the opportunity to purchase its pro rata portion of such New Securities from will be equal in value (as determined in good faith by the Greystone Member within thirty Amyris Board of Directors) but payable entirely in Securities (30) Business Days of consummation of as defined in the Greystone Member’s purchase of such New Securities from the Company, on the same terms and conditions (including price and form of considerationSPA) as provided below. Total’s rights under this Section 5.1(a) shall terminate if not exercised within the Greystone Member purchased such New Securities from the Company, (ii) if such opportunity is exercised, the purchase is actually consummated, and (iii) any distribution on such New Securities is (A) withheld until after completion of such purchase by such Preemptive Participant or (B) if paid prior to the completion of such purchase, is transferred together with the such New Securities to such Preemptive ParticipantParticipation Exercise Period.

Appears in 1 contract

Samples: Master Framework Agreement (Amyris, Inc.)

Right to Purchase New Securities. (a) The Company hereby grants With respect to each Member (the “Preemptive Participants”) the right to purchase its Preemptive Portion (calculated in accordance with Section 12.1(c)) of all or any part proposed issuance of New Securities that to any third party (i) on or prior to December 31, 2013 or (ii) on or after January 1, 2014, when there shall then exist a Larger Shareholder and the Company may, from time to time, propose to sell or issue (the “Equity Purchase Right”). The number of New Securities that the Members may purchase pursuant to this Section 12.1(a) No-Go Decision Date shall be referred to not have occurred and for so long as the “Equity Purchase Units.” The Equity Purchase Right provided in this Section 12.1(a) Notes are outstanding, Amyris shall apply at the time of issuance of any right, warrant or option or convertible or exchangeable security, and not offer to the conversion or exchange pursuant to its terms or exercise thereof. For the avoidance of doubt, in no event shall the Company or any Member be required to comply with both Section 9.4 and this Section 12.1 with respect to the same transaction. (b) The Company shall give Total by written notice (the “Issuance Notice”) the right, for a period of not less than 15 days (or such longer period as may be provided to any other investor with similar rights to purchase new securities) following delivery of such Issuance Notice (the “Participation Exercise Period”), to subscribe for, at a proposed issuance or sale described in Section 12.1(a) subscription price per New Security equal to the Preemptive Participants within five Business Days subscription price for which the New Securities are proposed to be issued to such third party and otherwise upon the terms specified in the Issuance Notice, up to that number of New Securities necessary to permit Total to maintain its pro rata ownership of Amyris following any meeting of the Board at which any such issuance or sale is approved and at least 15 days that it had immediately prior to the proposed such issuance or sale(calculated on an as-converted basis, and excluding any securities that are not then convertible) (“Pro Rata Share”) in accordance with paragraph (b) below. The New Securities to be offered to Total pursuant to the Issuance Notice shall set forth be, at the material terms and conditions sole discretion of such proposed transactionAmyris, including (i) the number or amount and description either in lieu of the New Securities proposed to be issued to such third party or in addition to the New Securities proposed to be issued to such third party; provided that such offer shall in each case provide that Total shall be able to maintain its Pro Rata Share. The Issuance Notice shall include the aggregate number and type of New Securities proposed to be issued, (ii) the price per New Security and any other material terms of the proposed issuance date and (iii) to such third party; provided, however, if the proposed sale price at which Amyris proposes to issue, deliver or sell any New Securities is to be paid with consideration other than cash, then the purchase price per at which Total may acquire its portion of such New Security, including a description Securities will be equal in value (as determined in good faith by the Amyris Board of any non-Directors) but payable entirely in either cash consideration sufficiently detailed to permit or Securities (as defined in the determination of SPA) as provided below. Total's rights under this Section 4.1(a) shall terminate if not exercised within the fair market value thereofParticipation Exercise Period. (cb) The total Total (or a Permitted Transferee (as defined in the SPA) thereof) may accept Amyris's offer as to the full number of New Securities that each Preemptive Participant shall be entitled offered to purchase shall be equal it or any lesser number by written notice thereof delivered by Total to Amyris prior to the product expiration of the Participation Exercise Period (i) the total number of New Securities to be issued by the Company on the applicable issuance date and (ii) a fraction (A) the numerator of which is the number of Units beneficially owned by such Preemptive Participant and its Affiliates immediately prior to such issuance and (B) the denominator of which is the total number of Units outstanding on such date immediately prior to such issuance (the an Preemptive PortionAcceptance Notice”). At any time during the 15-day period following the receipt of an Issuance Notice, the Preemptive Participants in which event Amyris shall have the right to elect irrevocably to purchase their Preemptive Portion of the Equity Purchase Units at the purchase price set forth in the Issuance Notice (provided, that in the event any portion of the purchase price per Unit to be paid by the proposed purchaser is to be paid in non-cash consideration, the value of any such non-cash consideration per Unit shall be the fair market value thereof)sell, and Total (or such Permitted Transferee thereof) shall buy, upon the other terms and conditions specified in the Issuance Notice, by delivering a written notice to the Company. Except as provided in the following sentence, such purchase shall be consummated concurrently with the consummation of the issuance or sale described in the Issuance Notice. The closing of any purchase by any Preemptive Participant may be extended beyond the closing of the transaction described in the Issuance Notice to the extent necessary to (1) obtain required governmental approvals and other required approvals, and the Company and the Preemptive Participants shall use their respective commercially reasonable efforts to obtain such approvals and (2) permit the Preemptive Participants or their Affiliates to complete their internal capital call process; provided, that the extension pursuant to this clause (2) shall not exceed 30 days. (d) Each Preemptive Participant exercising its right to purchase its respective portion of the Equity Purchase Units in full (an “Exercising Member”) shall have a right of over-allotment such that if any other Member fails to exercise its right hereunder to purchase its full Preemptive Portion of New Securities (a “Non-Purchasing Member”), such Exercising Member may purchase all or any part of such securities by giving written notice to the Company within 10 days from the date that the Company provides written notice of the amount of New Securities as to which such Non-Purchasing Members have failed to exercise their Equity Purchase Rights hereunder; provided, that in the event there are two or more such Exercising Members that choose to exercise the last-mentioned option for a total number of remaining Units in excess of the number available, the remaining Units available for purchase under this Section 12.1(d) shall be allocated among such Exercising Members pro rata based on the number of New Securities agreed to be purchased by Total (or such Exercising Members elected Permitted Transferee thereof) on a date not later than 5 days (or such longer period as may be provided to any other investor with similar rights to purchase pursuant to Section 12.1(c). (enew securities or is required by law) If any Preemptive Participants or Exercising Members fail to exercise fully their Equity Purchase Rights within the periods described above and after expiration of the 10-day period for exercise of the over-allotment provisions pursuant to Section 12.1(d), the Company shall be free to complete the proposed issuance or sale of the New Securities described in the Issuance Notice with respect to which Exercising Members failed to exercise the option set forth in this Section 12.1 on terms no less favorable to the Company than those set forth in the Issuance Notice (except that the amount of securities to be issued or sold by the Company may be reduced); provided, that (i) such issuance or sale is closed within 90 days after the expiration of the 10-day Participation Exercise Period. The purchase price of the first $30,000,000 of New Securities purchased by Total (or such Permitted Transferee thereof) pursuant to this Section 4.1 on or prior to December 31, 2013 shall be payable by delivering Securities in an aggregate principal amount equal (including any accrued and unpaid interest thereon) to such purchase price to Amyris, which Securities shall thereupon be cancelled and extinguished by Amyris. The purchase price of any New Securities purchased by Total (or such Permitted Transferee thereof) pursuant to this Section 4.1 on or prior to December 31, 2013 above $30,000,000, and the Purchase Price of any New Securities purchased by Total (or such Permitted thereof) pursuant to this Section 4.1 on or after January 1, 2014, shall be payable in cash. In the event any purchase by Total (or such Permitted Transferee thereof) is not consummated, other than as a result of the fault of Amyris, within the time period described in Section 12.1(d) specified above, and (ii) the price at which Amyris had elected that the New Securities are to be offered to Total pursuant to the Issuance Notice be in lieu of the New Securities proposed to be issued must be equal to such third party, Amyris may issue the New Securities subject to purchase by Total (or higher such Permitted Transferee thereof) to the third party to which Amyris intended to sell such New Securities on terms and conditions no less favorable to Amyris than the purchase price described terms specified in the Issuance Notice. Such periods within which such issuance or sale must be closed shall be extended to the extent necessary to obtain required governmental approvals and other required approvals and the Company shall use its commercially reasonable efforts to obtain such approvals. In the event that the Company has not sold such New Securities within said 90-day period, the Company shall not thereafter issue or sell any New Securities, without first again offering such securities to the Members in the manner provided in this Section 12.1. (f) For convenience of administration, the Company may issue New Securities to the Greystone Member without first offering the other Preemptive Participants the opportunity to participate in such sale in compliance with this Section 12.1, so long as (i) each other Preemptive Participant is provided the opportunity to purchase its pro rata portion of such New Securities from the Greystone Member within thirty (30) Business Days of consummation of the Greystone Member’s purchase of such New Securities from the Company, on the same terms and conditions (including price and form of consideration) as the Greystone Member purchased such New Securities from the Company, (ii) if such opportunity is exercised, the purchase is actually consummated, and (iii) any distribution on such New Securities is (A) withheld until after completion of such purchase by such Preemptive Participant or (B) if paid prior to the completion of such purchase, is transferred together with the such New Securities to such Preemptive Participant.

Appears in 1 contract

Samples: Master Framework Agreement (Amyris, Inc.)

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Right to Purchase New Securities. If the Company or any Subsidiary proposes to issue or sell New Securities (a) The as hereinafter defined), the Company hereby grants to will, or will cause such Subsidiary to, first offer each Class A Member (the “Preemptive Participants”) the right to purchase its Preemptive Portion (calculated in accordance with Section 12.1(c)) of all or any part of New Securities that the Company may, from time to time, propose to sell or issue (the “Equity Purchase Right”). The number of New Securities that the Members may purchase pursuant to this Section 12.1(a) shall be referred to as the “Equity Purchase Units.” The Equity Purchase Right provided in this Section 12.1(a) shall apply at the time of issuance of any right, warrant or option or convertible or exchangeable security, and not to the conversion or exchange pursuant to its terms or exercise thereof. For the avoidance of doubt, in no event shall the Company or any Member be required to comply with both Section 9.4 and this Section 12.1 with respect to the same transaction. (b) The Company shall give written notice (the “Issuance Notice”) of a proposed issuance or sale described in Section 12.1(a) to the Preemptive Participants within five Business Days following any meeting of the Board at which any such issuance or sale is approved and at least 15 days prior to the proposed issuance or sale. The Issuance Notice shall set forth the material terms and conditions of such proposed transaction, including (i) the number or amount and description of the New Securities proposed to be issued, (ii) the proposed issuance date and (iii) the proposed purchase price per New Security, including a description of any non-cash consideration sufficiently detailed to permit the determination of the fair market value thereof. (c) The total number of New Securities that each Preemptive Participant shall be entitled to purchase shall be equal to the product of (i) the total number of New Securities to be issued by the Company on the applicable issuance date and (ii) a fraction (A) the numerator of which is the number of Units beneficially owned by such Preemptive Participant and its Affiliates immediately prior to such issuance and (B) the denominator of which is the total number of Units outstanding on such date immediately prior to such issuance (the “Preemptive Portion”). At any time during the 15-day period following the receipt of an Issuance Notice, the Preemptive Participants shall have the right to elect irrevocably to purchase their Preemptive Portion of the Equity Purchase Units at the purchase price set forth in the Issuance Notice (provided, that in the event any portion of the purchase price per Unit to be paid by the proposed purchaser is to be paid in non-cash consideration, the value of any such non-cash consideration per Unit shall be the fair market value thereof), and upon the other terms and conditions specified in the Issuance Notice, by delivering a written notice to the Company. Except as provided in the following sentence, such purchase shall be consummated concurrently with the consummation of the issuance or sale described in the Issuance Notice. The closing of any purchase by any Preemptive Participant may be extended beyond the closing of the transaction described in the Issuance Notice to the extent necessary to (1) obtain required governmental approvals and other required approvals, and the Company and the Preemptive Participants shall use their respective commercially reasonable efforts to obtain such approvals and (2) permit the Preemptive Participants or their Affiliates to complete their internal capital call process; provided, that the extension pursuant to this clause (2) shall not exceed 30 days. (d) Each Preemptive Participant exercising its right to purchase its respective portion of the Equity Purchase Units in full (an “Exercising Member”) shall have a right of over-allotment such that if any other Member fails to exercise its right hereunder to purchase its full Preemptive Portion of New Securities (a “Non-Purchasing Member”), such Exercising Member may purchase all or any part of such securities by giving written notice to the Company within 10 days from the date that the Company provides written notice of the amount of New Securities as to which such Non-Purchasing Members have failed to exercise their Equity Purchase Rights hereunder; provided, that in the event there are two or more such Exercising Members that choose to exercise the last-mentioned option for a total number of remaining Units in excess of the number available, the remaining Units available for purchase under this Section 12.1(d) shall be allocated among such Exercising Members pro rata based on the number of New Securities such Exercising Members elected to purchase pursuant to Section 12.1(c). (e) If any Preemptive Participants or Exercising Members fail to exercise fully their Equity Purchase Rights within the periods described above and after expiration of the 10-day period for exercise of the over-allotment provisions pursuant to Section 12.1(d), the Company shall be free to complete the proposed issuance or sale of the New Securities described in the Issuance Notice with respect to which Exercising Members failed to exercise the option set forth in this Section 12.1 on terms no less favorable to the Company than those set forth in the Issuance Notice (except that the amount of securities to be issued or sold by the Company may be reduced); provided, that (i) such issuance or sale is closed within 90 days after the expiration of the 10-day period described in Section 12.1(d) and (ii) the price at which the New Securities are issued must be equal to or higher than the purchase price described in the Issuance Notice. Such periods within which such issuance or sale must be closed shall be extended to the extent necessary to obtain required governmental approvals and other required approvals and the Company shall use its commercially reasonable efforts to obtain such approvals. In the event that the Company has not sold such New Securities within said 90-day period, the Company shall not thereafter issue or sell any New Securities, without first again offering such securities to the Members in the manner provided in this Section 12.1. (f) For convenience of administration, the Company may issue New Securities to the Greystone Member without first offering the other Preemptive Participants the opportunity to participate in such sale in compliance with this Section 12.1, so long as (i) each other Preemptive Participant is provided the opportunity to purchase its pro rata portion of such New Securities from equal to a fraction, the Greystone Member within thirty numerator of which shall equal the number of Class A Units outstanding, on a fully diluted basis (30after assuming the exercise or conversion of all outstanding securities which are exercisable for or convertible into Class A Units) Business Days then held by such Member, and the denominator of consummation which shall equal the aggregate number of Class A Units then outstanding on a fully diluted basis (after assuming the exercise or conversion of all outstanding securities which are exercisable for or convertible into Class A Units) and held by all Class A Members (with such portion hereinafter referred to as each Class A Member’s “pro rata share” for purposes of this Section 9.05). For purposes of this Section 9.05, “New Securities” shall mean (x) any Units or other equity securities of the Greystone Member’s Company or any Subsidiary, whether now authorized or not, and rights, options or warrants to purchase equity securities of the Company or any Subsidiary, and other securities of the Company or any Subsidiary of any type whatsoever that are, or may become, convertible into, or exchangeable or exercisable for, equity securities of the Company or any Subsidiary and any borrowings, direct or indirect, from financial institutions or other persons by the Company or any Subsidiary, whether or not presently authorized, including any type of loan or payment endorsed by any type of debt instrument, but only to the extent such New Securities from borrowings contain any equity features and (y) any debt securities of the Company or any Subsidiary issued to any Member of the Company or any Affiliate of any Member of the Company; provided, on the same terms and conditions (including price and form of consideration) as the Greystone Member purchased such however, that “New Securities from the Company, (ii) if such opportunity is exercised, the purchase is actually consummated, and (iii) any distribution on such New Securities is (A) withheld until after completion of such purchase by such Preemptive Participant or (B) if paid prior to the completion of such purchase, is transferred together with the such New Securities to such Preemptive Participant.Securities” shall not include:

Appears in 1 contract

Samples: Limited Liability Company Agreement (MediaAlpha, Inc.)

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