Common use of Acquisition of Units Clause in Contracts

Acquisition of Units. (a) The Company hereby grants to each Impala Holder the right (the “Purchase Right”) to purchase up to its Pro Rata Portion of any Units that are proposed to be issued to Gazelle Holdco pursuant to Section 3.04 (other than any Units issuable in respect of any Excluded Securities or shares of Common Stock or other Equity Securities of Parent issued pursuant to Section 3.03), provided that solely with respect to any issuance of Common Units with respect to the issuance by Parent of shares of Common Stock, such right shall terminate automatically if Impala (i) exchanges any Common Units pursuant to the Exchange Agreement or (ii) otherwise Transfers any Common Units to any Person other than to a Permitted Transferee. (b) The Company shall give written notice (an “Issuance Notice”) of any proposed issuance or sale described in Section 3.05(a) to each Impala Holder no less than ten (10) Business Days prior to the date of the proposed issuance or sale of any Equity Securities of Parent to which the Purchase Right would be applicable. The Issuance Notice shall set forth the material terms and conditions of the proposed issuance, including: (i) the number and class of Parent Equity Securities and associated Units to be issued; (ii) if the Units to be issued are not Common Units, a description of the material terms and conditions of such Units; (iii) the proposed issuance date; and (iv) the proposed purchase price per Unit (or equivalent purchase price per Equity Security), or a statement that Units are to be issued on account of Equity Securities of Parent to be issued in an underwritten offering. (c) Subject to Section 3.05(d), each Holder shall for a period of ten (10) Business Days following the receipt of an Issuance Notice have the right to elect irrevocably to purchase up to its Pro Rata Portion of the Units proposed to be issued to Gazelle Holdco by delivering a written notice to Parent (an “Exercise Notice”). If, at the termination of such ten (10) Business Day period, a Holder shall not have delivered an Exercise Notice to Parent, such Holder shall be deemed to have waived all of its rights under this Section 3.05 with respect to the purchase of such Equity Securities of Parent. (d) The purchase price for each Unit as to which an Exercise Notice is delivered shall be the purchase price set forth in the Issuance Notice, provided that in the case of an underwritten offering the purchase price for each such Unit shall equal the purchase price payable by investors for each such Equity Security in such underwritten offering, without deduction for any underwriting discount or commission. To the extent an Exercise Notice has been delivered, (i) Parent shall reduce the number of Equity Securities offered by the number of Equity Securities with respect to which an Exercise Notice has been received and (ii) the applicable Impala Holder shall be entitled to purchase from the Company a number of Units (including, if applicable, Common Units) equal to the number of Equity Securities as to which such Impala Holder has delivered an Exercise Notice, with such Units being substantially equivalent to the Equity Securities issued by Parent. Parent shall use commercially reasonable efforts to notify each Impala Holder of any change in the number of Equity Securities proposed to be issued in an underwritten offering, and Parent and such Impala Holder shall make equitable adjustments to the Pro Rata Portion applicable to each Impala Holder that are consistent with the purposes of this Section 3.05. (e) The closing of any purchase by the Impala Holders who have delivered an Exercise Notice shall be consummated concurrently with the consummation of the issuance or sale described in the Issuance Notice; provided, however, that the closing of any purchase by a Holder may be extended beyond the closing of the transaction in the Issuance Notice to the extent necessary to obtain any required approval or consent of a governmental authority or any other third party (and Parent and the Impala Holders shall use their respective reasonable best efforts to obtain such approvals). (f) Upon the expiration of the ten (10) Business Day period described in Section 3.05(c), Parent shall be free to sell such Equity Securities that the Impala Holders have not elected irrevocably to purchase on terms and conditions no more favorable to the purchasers thereof than those offered to the Holders in the Issuance Notice delivered in accordance with Section 3.05(b). (g) For the avoidance of doubt, the Purchase Right and the other provisions of this Section 3.05 shall be applicable to any issuance of Equity Securities by Parent, mutatis mutandis, in which case the Exercise Notice delivered by an Impala Holder may elect, other than with respect to an offering of shares of Common Stock (for which the Purchase Right may only be exercised to purchase Common Units), that the Purchase Right is to be exercised by purchasing such Equity Securities of Parent, and upon such an election Section 3.05(d)(ii) shall be inapplicable with respect to such exercise.