Special Dilution Provision. (i) In the event the Company proposes to issue additional shares of capital stock, the Company shall deliver to each Shareholder a written notice (an “Issuance Notice”) of such proposed Issuance at least forty (40) Business Days prior to the date of the proposed issuance (the “Subscription Period”). Such Issuance Notice shall set forth all material terms of the proposed issuance in reasonable detail, including: (i) the number and class of shares proposed to be issued, (ii) the materials terms and conditions of the proposed issuance, (iii) the intended use of proceeds, (iv) the identity of any third party purchaser seeking to participate in the subscription and the terms of any agreement, term sheet or discussions with such purchaser, including pricing proposals, and (iv) the subscription price.
(ii) Within ten (10) days upon receipt of the Issuance Notice, TEMPR will notify the Company whether or not it will, at its own discretion and cost, appoint an internationally recognized investment bank selected from the list on Section 2.02(b) of the Disclosure Schedule for the Stock Purchase Agreement to undertake an external and independent equity valuation of the Company (the “Option Notice”). If that is the case, in preparing the equity valuation, the selected investment bank shall consider in the context of a non-public company seeking to raise equity (i) at least the following methods of valuation: discounted cash flows; comparable transactions; and trading prices of shares of comparable publicly-held companies (applying such methods consistently with the application of such valuation methods and standards in the personal communications networks industry) and (ii) the indebtedness of the Company. The Company shall cooperate in good faith with the investment bank, and provide all the documentation and information requested to perform the equity valuation. Upon receipt of the documentation and information necessary to complete the equity valuation, the investment bank shall present a report including its equity valuation within fifteen (15) Business Days of its selection by TEMPR, including, among other things, a fairness opinion as to the proposed subscription price addressed to TEMPR, as of the date of the equity valuation.
(iii) Upon the earlier to occur of (a) the receipt of the external equity valuation, or (b) the receipt of the Option Notice whereby TEMPR notifies that it will not request the external equity valuation, the Company shall deliver written n...
Special Dilution Provision. (a) If
(i) the Managers make a Capital Call in connection with a payment the Company is permitted or obligated to make under the HealthFirst Purchase Agreement (including payments under sections 1(c) and 8(e)-(g) of the HealthFirst Purchase Agreement), and
(ii) a Member fails to make the Capital Contribution requested of such Member in connection with a Capital Call referenced in Section 5.8(a)(i), then such Member will be diluted pursuant to Section 5.2(b); provided, however, not apply to such dilution.
(b) If, during any Contribution Agreement Year,
(i) Baylor is diluted under Section 5.8(a) in connection with a Capital Call necessary in connection with a payment the Company is obligated to make pursuant to section 1(e) of the HealthFirst Purchase Agreement (i.e., the HealthFirst earn-out payments), and,
(ii) On the Reconciliation Date that concludes such Contribution Agreement Year, Baylor is owed a Baylor Earn-Out Amount (as shown on the Reconciliation Statement related to such Contribution Year), then, on the Reconciliation Date that concludes such Contribution Agreement ear, Baylor must use the Baylor Earn-Out Amount to reverse Baylor's dilution (to the extent (x) of such Baylor Earn-Out Amount and (y) necessary to reverse any dilution occurring under Section 5.8(b) during such Contribution Agreement Year). Such reversal will occur in accordance with Section 5.2(b) (with "USP deemed to be the "Non-Contributing Member" with respect to the calculation related to such reversal); provided, however, Section 5.2(c) and Section 5.4 will not apply to such reversal.
(c) If, during any Contribution Agreement Year,
(i) Baylor is diluted under Section 5.8(a) as a result of a Capital Call necessary in connection with a payment the Company is obligated or permitted to make pursuant to any provision of the HealthFirst Purchase Agreement other than Section 1(c), and
(ii) Baylor is credited with a Net Earn-Out Amount in the Reconciliation Statement related to such Contribution Agreement Year, then, on the Reconciliation Date that concludes such Contribution Agreement Year, Baylor must use the credit associated with such Net Earn-Out Amount to reverse Baylor's dilution (to the extent (x) of such credit and (y) necessary to reverse any dilution Baylor has suffered under Section 5.8(a) during such Contribution Agreement Year). Such reversal will occur in accordance with Section 5.2(b) (with USP deemed to be the "Non-Contributing Member" with respect to the calculation r...
