Rights of First Offer New Securities Tag Along Sales Sample Clauses

Open Split View

Download

Share

Cite

Rights of First Offer New Securities Tag Along Sales 

Sample 1

Save

Copy

Related to Rights of First Offer New Securities Tag Along Sales

• Rights of First Offer (a) At any time or from time to time prior to a Qualifying Public Equity Offering, in the event that (x) at any time following the first anniversary of the date hereof (provided, however, that, prior to the second anniversary of the date hereof, such Rollover Investor does not in the good faith judgment of the Company jeopardize the "recapitalization" accounting treatment afforded the Company in the Recapitalization Merger), a Rollover Investor desires to Transfer, or (y) at any time following the date hereof, a HIP Co-Investor desires to Transfer, all or part of its Common Stock ("Offered Shares"), other than pursuant to Section 3.02(a), 3.02(d), 4.02 or 4.03 of this Agreement, such Rollover Investor or HIP Co-Investor (individually, an "Investor") shall give prompt written notice (an "Investor's Notice") of its desire to sell the Offered Shares to the Company and Sponsor. The Investor's Notice shall identify (i) the number of Offered Shares and (ii) all other material terms and conditions of the proposed Transfer including the purchase price and the form of the consideration. (b) The Company shall have the right, but not the obligation, to purchase all, but not less than all, the Offered Shares (the "First Option") on the same terms and conditions as set forth in the Investor's Notice, which option shall be exercised by delivering to such Investor irrevocable written notice of its commitment to purchase the Offered Shares within fifteen (15) business days after receipt of the Investor's Notice (the "Company Option Period"). Failure by the Company to give such notice within such fifteen (15) business day period shall be deemed an election by the Company not to purchase the Offered Shares. (c) In the event that the Company decides not to purchase the Offered Shares pursuant to Section 4.01(b), then Sponsor shall have the right, but not the obligation, to purchase all, but not less than all, the Offered Shares (the "Second Option") on the same terms and conditions as set forth in the Investor's Notice, which option shall be exercised by delivering to such Investor irrevocable written notice of its commitment to purchase the Offered Shares within ten (10) business days after the termination of the Company Option Period (the "Sponsor Option Period"); provided that Sponsor may, at its sole option, assign its rights to purchase an Investor's Offered Shares pursuant to this Section 4.01 to another Shareholder or a Permitted Transferee of Sponsor (such person an "Assignee"); provided that if the Assignee is a HIP Co-Investor, each HIP Co-Investor will be able to participate in such assignment on a pro rata basis. Failure by Sponsor or its Assignee to give such notice within such ten (10) business day period shall be deemed an election by Sponsor or its Assignee not to purchase the Offered Shares. (d) Delivery of written notice by the Company, Sponsor or its Assignee accepting the First Option or the Second Option, as the case may be, shall constitute a contract between the Company, Sponsor or its Assignee, on the one hand, and such Investor on the other hand, for the purchase and sale of the Offered Shares on the terms and conditions set forth in the Investor's Notice. The purchase of any shares pursuant to the exercise of the First Option or the Second Option, as the case may be, shall be completed not later than forty-five (45) days following receipt of the Investor's Notice with respect to the Offered Shares, subject to receipt of any required material third-party or governmental approvals, compliance with applicable laws and the absence of any injunction or similar legal order preventing such transaction (collectively, the "Conditions") in which case the purchase of the Offered Shares shall be delayed pending the satisfaction of the Conditions up to an additional thirty (30) days. As a condition to entering into the contract referred to above, the Company, Sponsor and its Assignee will agree to use commercially reasonable efforts to satisfy the Conditions as soon as possible. In the event that neither the First Option nor the Second Option is exercised, the Investor shall have the right for a period of seventy-five (75) days after the termination of the Sponsor Option Period to Transfer (the "Investor Sale") the Offered Shares at a price not less than ninety percent (90%) of the price contained in, and otherwise on terms and conditions no less favorable to such Investor than those set forth in, the Investor's Notice, except that the purchase of the Offered Shares may be delayed up to an additional thirty (30) days pending satisfaction of the Conditions; provided that the Transferee agrees to execute a Joinder Agreement. If the Investor Sale is not consummated pursuant to the terms of the immediately preceding sentence, the Investor will not effect Transfer of any of the Offered Shares without commencing de novo the procedures set forth in this Section 4.01.

• Rights of First Refusal The Company is not obligated to offer the securities offered hereunder on a right of first refusal basis or otherwise to any third parties including, but not limited to, current or former stockholders of the Company, underwriters, brokers, agents or other third parties.

• Right of First Offer Subject to the provisions of this Section 2.8, Tenant shall have a one-time right of first offer (the “Right of First Offer”) on the then-available portions of Floor 1 of Building A (each, a “ROFO Space”) upon the following terms and conditions. This Right of First Offer is subject and subordinate to (i) the rights of third parties existing as of the date of this Lease, (ii) the rights, if any, of each tenant in such ROFO Space granted in the Initial Lease-Up (as defined below) with respect to a ROFO Space, and (iii) the right of Landlord or any affiliate of Landlord to use or occupy such ROFO Space. Landlord will notify Tenant of its plans to market a ROFO Space (the “ROFO Notice”) for lease to any party unrelated to Landlord (it being acknowledged and agreed that the Right of First Offer shall not be applicable to space Landlord intends to occupy and/or provide to affiliates of Landlord), which ROFO Notice shall specify the location and square footage for such ROFO Space, Landlord’s estimate of the fair market rent for such ROFO Space, the date of availability of such ROFO Space and all other material terms and conditions which will apply to such ROFO Space. The term of any ROFO Space shall be coterminous with the Lease Term for the Premises; provided, however, that in the event less than thirty (30) full calendar months remain in the Lease Term as of the date of availability of such ROFO Space, then (i) if the Extension Term has not yet been exercised, Tenant’s exercise of such Right of First Offer shall be subject to Tenant’s simultaneous exercise of the Extension Term (which shall thereupon be applicable to such ROFO Space) and (ii) if no Extension Term remains or is exercisable by Tenant, then this Section 2.8 shall be of no force or effect and Tenant shall have no further Rights of First Offer. Within ten (10) Business Days following its receipt of any ROFO Notice, Tenant shall have the right to accept the same by written notice to Landlord (the “ROFO Acceptance Notice”), provided that if Tenant disputes Landlord’s estimate of the fair market rent in the ROFO Acceptance Notice, the fair market rent for such space shall be determined as set forth in Section 4.7 below. If Tenant timely delivers a ROFO Acceptance Notice, Landlord and Tenant shall execute an amendment to the Lease incorporating the ROFO Space into the Premises upon the terms contained in the ROFO Notice within ten (10) Business Days following Landlord’s delivery to Tenant of a form therefor (and if the Landlord’s determination of fair market rent was disputed in the ROFO Notice and not agreed to as of the commencement of the term for such ROFO Space, then rent shall be Landlord’s determination of fair market rent until the finalization of the fair market rent appraisal, and any change in such rent amount shall be adjusted — with applicable credits or reimbursement for any underpayment or overpayment - thereafter). If Tenant fails to timely deliver a ROFO Acceptance Notice within said ten (10) Business Day period or fails to execute Landlord’s form of amendment for such ROFO Space within ten (10) Business Days of receipt from Landlord, Tenant shall be deemed to have waived its rights with respect to a ROFO Space and Landlord shall be entitled, but not required, to lease all or any portion of such ROFO Space to any party or parties on such terms and conditions, including, without limitation, options to extend the term of such lease and/or expand the premises under such lease, and for such rent as Landlord determines, all in its sole discretion, and the Right of First Offer with respect to such ROFO Space in such ROFO Notice shall be of no further force or effect. Notwithstanding any contrary provision of this Lease, any Right of First Offer, and any exercise by Tenant of any Right of First Offer shall be void and of no effect unless on the date Tenant timely delivers a ROFO Acceptance Notice to Landlord and on the commencement date of the amendment for a ROFO Space (as applicable): (i) this Lease is in full force and effect, (ii) no Event of Default has occurred under this Lease which remains continuing and uncured after any applicable notice and opportunity to cure and (iii) except with respect to a Permitted Transfer, Tenant shall not have assigned this Lease and there shall not be any sublease or subleases then in effect. Tenant acknowledges and agrees that Tenant’s Right of First Offer with respect to any space that is not subject to a third-party lease on the date hereof (the “Vacant Space”) shall not be of any force or effect until such time as such Vacant Space has been initially leased to a third-party tenant after the date hereof (the “Initial Lease-Up”) and such lease (and any rights held by such tenant in any part of the Building consisting of a ROFO Space) has subsequently expired.

• Fees and Rights of First Refusal The Company is not obligated to offer the securities offered hereunder on a right of first refusal basis or otherwise to any third parties including, but not limited to, current or former shareholders of the Company, underwriters, brokers, agents or other third parties.

• Co-Sale Rights (a) In the event any Member (for purposes of this Section 11.15, the “Selling Member”) proposes to Transfer all or any portion of its Units (for purposes of this Section 11.15, the “Co-Sale Units”) other than pursuant to a Permitted Transfer, the Selling Member shall deliver a written notice (the “Co-Sale Notice”) to each other Member (each, a “Co-Sale Offeree”) at least thirty (30) days prior to making such Transfer describing the general terms and conditions of the proposed Transfer, including the purchase price for the Co-Sale Units, the proposed purchaser(s), the closing date for the sale and the portion of the Selling Member’s Units to be Transferred (the “Co-Sale Participation Percentage”). Each Co-Sale Offeree may elect to participate in the contemplated Transfer at the same price and on the same terms and conditions by delivering written notice to the Selling Member within fifteen (15) days after delivery of the Co-Sale Notice, which notice shall specify the percentage of its Units that such Co-Sale Offeree desires to include in such proposed Transfer, provided that such percentage shall not exceed the Co-Sale Participation Percentage. If a Co-Sale Offeree does not give such notice prior to the expiration of the fifteen (15)-day period for giving such notice, then the Selling Member may Transfer the Co-Sale Units to any Person on terms and conditions that are no more favorable to the Selling Member than those set forth in the Co-Sale Notice at any time within ninety (90) days after expiration of such fifteen (15)-day period for giving notice (provided, that if any governmental or other third party approval is required with respect to such Transfer, then such period shall be extended until a reasonable time after such approvals are obtained). Any Co-Sale Units not Transferred by the Selling Member during such ninety (90)-day period (as such period may be extended pursuant to the immediately preceding sentence) shall again be subject to the provisions of this Section 11.15 prior to any subsequent Transfer. (b) To the extent that one or more Co-Sale Offerees exercises its right of participation pursuant to Section 11.15(a), then, at the Selling Member’s option, either the percentage of Units that the Selling Member and each other participating Co-Sale Offeree may sell in the transaction shall be reduced below the applicable Co-Sale Participation Percentage to a percentage equal to the Selling Member’s or the participating Co-Sale Offeree’s (as applicable) pro rata percentage of the total Units proposed to be sold in the Transfer, or the aggregate Units to be sold in the transaction shall be increased to accommodate the Units of those participating Co-Sale Offerees pursuant to this Section 11.15. (c) The Selling Member shall not Transfer any Co-Sale Units to any prospective transferee if such prospective transferee declines to purchase Units from participating Co-Sale Offerees, unless the Selling Member acquires from each such participating Co-Sale Offeree (on the terms set forth in the Co-Sale Notice) its pro rata percentage of the total Units proposed to be sold in the Transfer (or, if less, the percentage of its Units that such Co-Sale Offeree requested to Transfer to such transferee) on the same price, terms and conditions as would be applicable in a direct sale of such Units to the proposed transferee. The Selling Member will endeavor to facilitate the purchase by any prospective transferee of Units held by a Co-Sale Offeree which are not eligible for co-sale pursuant to this Section 11.15 if and to the extent such Co-Sale Offeree wishes to include such interests in the Transfer, but neither the Selling Member nor any other Person shall be liable if the prospective transferee declines to do so.

• First Refusal Rights The Company may elect to purchase all (but -------------------- not less than all) of the shares of Executive Stock to be transferred upon the same terms and conditions as those set forth in the Sale Notice by delivering a written notice of such election to Executive and the Investors within 10 days after the Sale Notice has been delivered to the Company. If the Company has not elected to purchase all of the Executive Stock to be transferred, the Investors may elect to purchase all (but not less than all) of the Executive Stock to be transferred upon the same terms and conditions as those set forth in the Sale Notice by delivering written notice of such election to Executive within 10 days after the Sale Notice has been given to the Investors. If more than one Investor elects to purchase the Executive Stock, the shares of Executive Stock to be sold shall be allocated among the Investors pro rata according to the number of shares of Common Stock owned by each Investor on a fully-diluted basis. If neither the Company nor the Investors elect to purchase all of the shares of Executive Stock specified in the Sale Notice, Executive may transfer the shares of Executive Stock specified in the Sale Notice at a price and on terms no more favorable to the transferee(s) thereof than specified in the Sale Notice during the 60-day period immediately following the Authorization Date. Any shares of Executive Stock not transferred within such 60-day period shall be subject to the provisions of this paragraph 4(c) upon subsequent transfer. If the Company or any of the Investors have elected to purchase shares of Executive Stock hereunder, the transfer of such shares shall be consummated as soon as practical after the delivery of the election notice(s) to Executive, but in any event within 15 days after the expiration of the Election Period. The Company may pay the purchase price for such shares by offsetting amounts outstanding under the Executive Note issued to the Company hereunder and any other bona fide debts owed by Executive to the Company.

• General Partner Right of First Refusal The transferring Partner shall give written notice of the proposed transfer to the General Partner, which notice shall state (i) the identity of the proposed transferee, and (ii) the amount and type of consideration proposed to be received for the transferred Partnership Units. The General Partner shall have ten (10) days upon which to give the transferring Partner notice of its election to acquire the Partnership Units on the proposed terms. If it so elects, it shall purchase the Partnership Units on such terms within ten (10) days after giving notice of such election. If it does not so elect, the transferring Partner may transfer such Partnership Units to a third party, on economic terms no more favorable to the transferee than the proposed terms, subject to the other conditions of this Section 11.3.

• Company Right of First Refusal (a) Before the Warrant, any portion thereof or any Shares may be sold or otherwise transferred by the Holder, the Company shall have a right of first refusal to purchase the Warrant, such portion thereof and/or any such Shares, as the case may be, on the terms and conditions set forth in this Section 11. (b) If the Holder proposes to sell or otherwise transfer the Warrant, any portion thereof or any number of the Shares it holds at such time to any third party other than one that it controls, is controlled by, or is under common control with (each an "Affiliate"), the Holder shall deliver to the Company a written notice ("Sale Notice"), in accordance with Section 15, stating (i) the Holder's bona fide intention to sell or otherwise transfer the Warrant, any portion thereof or a certain number of Shares (collectively, the "Transfer Interests"), as the case may be, (ii) the name of the proposed purchaser or other transferee (the "Proposed Buyer"), and (iii) the bona fide cash price or other consideration for which the Holder proposes to transfer the Transfer Interests (the "Offered Price"), and the Holder shall offer to sell the Transfer Interests to the Company at the Offered Price. (c) The Company may, at any time within sixty (60) days after receipt by the Company of a Sale Notice, elect to purchase the Transfer Interests by giving written notice to the Holder, in accordance with Section 15, at a purchase price equal to the Offered Price (the "Purchase Price"). If the Offered Price includes consideration other than cash, the cash equivalent value of the non-cash consideration shall be determined by the board of directors of the Company in good faith. (d) Payment of the Purchase Price shall be made in cash (by check) within sixty (60) days after the date of the Company's election to purchase the Transfer Interests. (e) If the Transfer Interests are not purchased by the Company as provided herein, then the Holder may sell or otherwise transfer the Transfer Interests to the Proposed Buyer at the Offered Price or at a higher price, provided that such sale or other transfer (i) is consummated within six (6) months after the date of the Sale Notice, and (ii) is in accordance with all the terms of this Agreement and all other agreements between the Holder and the Company. If the Transfer Interests are not transferred to the Proposed Buyer within such six-month period in accordance with the preceding sentence, a new Sale Notice shall be given to the Company, and the Company shall again be offered a right of first refusal under this Section 11 before the Warrant, any portion thereof or any Shares, as the case may be, may be sold or otherwise transferred.

• Right of First Refusal and Co-Sale Agreement Each Purchaser and the other stockholders of the Company named as parties thereto shall have executed and delivered the Right of First Refusal and Co-Sale Agreement.

• Default Not Exceeding 10% of Firm Securities or Option Securities If any Underwriter or Underwriters shall default in its or their obligations to purchase the Firm Securities or the Option Securities, if the Over-allotment Option is exercised hereunder, and if the number of the Firm Securities or Option Securities with respect to which such default relates does not exceed in the aggregate 10% of the number of Firm Securities or Option Securities that all Underwriters have agreed to purchase hereunder, then such Firm Securities or Option Securities to which the default relates shall be purchased by the non-defaulting Underwriters in proportion to their respective commitments hereunder.