Initial Public Offering. (a) In the event that at any time after the date hereof, the Board of Directors determines that it shall facilitate an offering of Equity Securities in the Company or a successor through an Initial Public Offering, then the Board of Directors shall have the power to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution of the securities being offered in the Initial Public Offering. (b) If applicable, the Members holding Units shall receive, in exchange for their Units of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering. (c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation). (d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable. (e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act. (f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with the Initial Public Offering, as such managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements to the foregoing effect if so, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members shall be released from such restrictions pro-rata. (g) Notwithstanding anything to the contrary set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offering.
Appears in 4 contracts
Sources: Limited Liability Company Agreement (Jpmorgan Chase & Co), Limited Liability Company Agreement (HG Vora Capital Management, LLC), Limited Liability Company Agreement (Hudson Bay Capital Management LP)
Initial Public Offering. (a) In the event that at any time after the date hereof, the Board of Directors determines that it shall facilitate an offering of Equity Securities in the Company or a successor through an Initial Public Offering, then the Board of Directors shall have the power to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution of the securities being offered in the Initial Public Offering.
(b) If applicable, the Members holding Units shall receive, in exchange for their Units of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable Notwithstanding anything to the Units, contrary contained herein but subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation4.01(d).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory approved in accordance with this Agreement, the Members hereby agree to such Member that all officers and directors discuss in good faith whether any of the rights and obligations of the parties hereto and the Company and all holdersunder this Agreement should be amended, collectively with their Affiliates and Approved Fundsrestructured or terminated, including, without limitation, whether any of one percent (1%the rights set forth in Section 4.01(d) or greater 8.04 hereof should be terminated or made subject to any time limitations (or time and volume limitations in the case of Equity Securities of the Company shall enter into similar agreementsSection 5.04 hereof), thereby agreeing not in order to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with permit the Initial Public OfferingOffering to be effected in a manner consistent with applicable Law, market custom and the recommendations of the Global Coordinators in light of market conditions at such time and the listing requirements of the exchange or market on which the Initial Public Offering is to be effected, taking into account, among other things, the rights of the Preferred Members hereunder and their goal and expectation that the Preferred Payment be effected as such managing underwriter promptly as practicable after the date hereof; provided, however, that this sentence shall specify reasonably and not in good faith. Each Member shall enter into customary letter agreements to any way either (x) obligate any of the foregoing effect if so, requested by Members or the Company and to agree to any amendment, restructuring or termination of any such rights or (y) affect or nullify any rights or obligations of the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by Members or the Company and the managing underwriter, if any, from the restrictions contemplated by under this Section 3.8(f), all other Members shall be released from such restrictions pro-rataAgreement.
(gb) Notwithstanding anything to the contrary set forth contained herein but subject to Section 4.01(d), in connection with any Initial Public Offering of the Company (or its successor corporation) or any newly formed corporation as described below, approved in accordance with this Agreement, and upon the restrictions contained request of the Board of Managers, each of the Members hereby agrees that it will, at the expense of the Entity subject to such Public Offering, take such action and execute such documents as may reasonably be necessary to effect such Public Offering as expeditiously as possible, including, without limitation, taking all such actions and executing such documents as may reasonably be necessary to convert the Company into a corporation or to contribute its respective Securities to a newly formed corporation, in this Agreement each case substantially concurrently with the closing of such Public Offering; provided, however, that in connection with any such conversion or contribution (i) each Preferred Member shall not apply be entitled to Units, any other Equity Securities receive preferred stock of the corporation whose shares of common stock are being sold in connection with such Public Offering with the same economic rights as such Preferred Member was entitled to prior to such conversion or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Membercontribution, including acquired by any of their respective Affiliates or Approved Fundswith an aggregate liquidation preference equal to the amount such Preferred Member would be entitled to receive, following the effective date in respect of the first registration statement Preferred Units which such Preferred Member held in the Company immediately prior to such conversion or contribution, under Section 5.02 hereof if a liquidation of the Company covering common stock (or other securities) had occurred immediately prior to be sold on behalf the consummation of such Public Offering with the proceeds in such liquidation equal in amount to the implied aggregate equity valuation of the Company (as reasonably determined by the Board of Managers in an underwritten public offering.good faith with the reasonable agreement of a Majority in Interest of the Preferred Members) immediately prior to the consummation of such
Appears in 4 contracts
Sources: Limited Liability Company Agreement, Limited Liability Company Agreement, Limited Liability Company Agreement
Initial Public Offering. (a) In the event that at any time after the date hereof, the Board of Directors determines that it shall facilitate an offering of Equity Securities in the Company or a successor through an Initial Public Offering, then the Board of Directors shall have the power to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution of the securities being offered in the Initial Public Offering.
(b) If applicable, the Members holding Units shall receive, in exchange for their Units of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable Notwithstanding anything to the Units, contrary contained herein but subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation4.01(d).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory approved in accordance with this Agreement, the Members hereby agree to such Member that all officers and directors discuss in good faith whether any of the rights and obligations of the parties hereto and the Company and all holdersunder this Agreement should be amended, collectively with their Affiliates and Approved Fundsrestructured or terminated, including, without limitation, whether any of one percent (1%the rights set forth in Section 4.01(d) or greater of Equity Securities of the Company shall enter into similar agreements8.04 hereof should be terminated or made subject to any time limitations, thereby agreeing not in order to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with permit the Initial Public OfferingOffering to be effected in a manner consistent with applicable Law, market custom and the recommendations of the Global Coordinators in light of market conditions at such time and the listing requirements of the exchange or market on which the Initial Public Offering is to be effected, taking into account, among other things, the rights of the Preferred Members hereunder and their goal and expectation that the Senior Preferred Redemption and the Junior Preferred Payment be effected as such managing underwriter promptly as practicable after the date hereof; provided, however, that this sentence shall specify reasonably and not in good faith. Each Member shall enter into customary letter agreements to any way either (x) obligate any of the foregoing effect if so, requested by Members or the Company and to agree to any amendment, restructuring or termination of any such rights or (y) affect or nullify any rights or obligations of the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by Members or the Company and the managing underwriter, if any, from the restrictions contemplated by under this Section 3.8(f), all other Members shall be released from such restrictions pro-rataAgreement.
(gb) Notwithstanding anything to the contrary set forth contained herein but subject to Section 4.01(d), in connection with any Initial Public Offering of the Company (or its successor corporation) or any newly formed corporation as described below, approved in accordance with this Agreement, and upon the restrictions contained request of the Board of Managers, each of the Members hereby agrees that it will, at the expense of the Entity subject to such Public Offering, take such action and execute such documents as may reasonably be necessary to effect such Public Offering as expeditiously as possible, including, without limitation, taking all such actions and executing such documents as may reasonably be necessary to convert the Company into a corporation or to contribute its respective Securities to a newly formed corporation, in this Agreement each case substantially concurrently with the closing of such Public Offering; provided, however, that in connection with any such conversion or contribution (i) each Preferred Member shall not apply be entitled to Units, any other Equity Securities receive preferred stock of the corporation whose shares of common stock are being sold in connection with such Public Offering with the same economic rights as such Preferred Member was entitled to prior to such conversion or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Membercontribution, including acquired by any of their respective Affiliates or Approved Fundswith an aggregate liquidation preference equal to the amount such Preferred Member would be entitled to receive, following the effective date in respect of the first registration statement Preferred Units which such Preferred Member held in the Company immediately prior to such conversion or contribution, under Section 5.03 hereof if a liquidation of the Company covering common stock (or other securities) had occurred immediately prior to be sold on behalf the consummation of such Public Offering with the proceeds in such liquidation equal in amount to the implied aggregate equity valuation of the Company (as reasonably determined by the Board of Managers in good faith with the reasonable agreement of a Majority in Interest of the Preferred Members) immediately prior to the consummation of such Public Offering; (ii) the Common Members shall be entitled to receive that value of common stock of the corporation whose shares of common stock are being sold in connection with such Public Offering as equals the amount such Common Member would be entitled to receive, relative to the Common Units which such Member held in the Company immediately prior to such conversion or contribution, under Section 5.03 hereof if a liquidation of the Company had occurred immediately prior to the consummation of such Public Offering with the proceeds in such liquidation equal in amount to the implied aggregate equity valuation of the Company (as reasonably determined by the Board of Managers in good faith with the reasonable agreement of a Majority in Interest of the Preferred Members) immediately prior to the consummation of such Public Offering; and (iii) each of the parties hereto and the Entity whose Securities will be the subject of such Initial Public Offering shall enter into, as a condition thereto, a shareholders agreement on substantially the same terms and conditions, mutatis mutandis, as set forth herein; provided further that, in connection with any such conversion or contribution, at any time and from time to time following the expiration of any lock-up period for an underwritten public offering.Initial Public Offering agreed to between the Preferred Members and the underwriters of any Initial Public Offering (but
Appears in 4 contracts
Sources: Limited Liability Company Agreement, Limited Liability Company Agreement, Limited Liability Company Agreement
Initial Public Offering. Notwithstanding anything to the contrary contained herein, (ai) In the event that at any time after the date hereof, the Board of Directors determines that Managers deems it shall facilitate an offering of Equity Securities advisable and in the Company or a successor through an Initial Public Offering, then the Board best interests of Directors shall have the power to cause the Company to that the Company be reorganized as converted into a corporation pursuant to the Plan of Conversion in substantially the same form attached hereto as Exhibit B (such corporation or other issuer entity being hereinafter referred to as a the “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “ConversionPlan”), the Certificate of Incorporation attached as an exhibit to the Plan and the Members shall use their commercially reasonable efforts to effectuate such Certificate of Conversion and take such actions as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution of the securities being offered in the Initial Public Offering.
(b) If applicable, the Members holding Units shall receive, in exchange for their Units of a particular class, shares of stock in the Public Vehicle of the relevant class having substantially the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in form attached hereto as Exhibit C (the case “Certificate of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tackConversion”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and in accordance with the Act, and (ii) the Members hereby consent to such conversion of the Company into a corporation in connection with any Initial Public Offering and in accordance with the Act and the Plan and authorize, approve and adopt the Plan, the Certificate of Incorporation attached as an exhibit to the Plan and the Certificate of Conversion. Notwithstanding anything to the contrary contained herein, in connection with any Initial Public Offering, and upon confirmation the request of the Board of Managers, each of the Members hereby agrees that it will, at the expense of the Company, take such action and execute such documents as may reasonably satisfactory be necessary to effect such Initial Public Offering. Either in connection with an Initial Public Offering or prior to the expiration of the later of (i) 180 days following the consummation of the Initial Public Offering or (ii) the expiration of any underwriter lock-up period, the Board of Managers will liquidate the Company and distribute to the Members shares of common stock of the corporate successor of the Company which effects the Initial Public Offering; provided that (a) fifty percent (50%) of the shares of common stock held by each Member shall become eligible for sale by such Member on the date that is 180 days following the expiration of any underwriter lock-up period applicable to such Member and the remaining fifty percent (50%) of such Member’s shares shall become eligible for sale by such Member on the date that all officers is 271 days following the expiration of such underwriter lock-up period and directors (b) the Members have entered into an agreement acceptable to the Company not to sell such shares of common stock except as set forth in clause (a) above or pursuant to the exercise of registration rights (as set forth in Annex A). The number of shares of common stock of the corporate successor of the Company and all holders, collectively to be received by each Member shall be determined in accordance with their Affiliates and Approved Funds, of one percent (1%) Section 8.03 hereof. In connection with any such distribution or greater of Equity Securities of in the event that the Company shall enter is converted into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with a corporation that effects the Initial Public Offering, as such managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements to the foregoing effect if so, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members shall be released from such restrictions pro-rata.
(g) Notwithstanding anything entitled to the contrary registration rights set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offeringAnnex A hereto.
Appears in 4 contracts
Sources: Merger Agreement (STR Holdings (New) LLC), Merger Agreement (STR Holdings, Inc.), Limited Liability Company Agreement (STR Holdings (New) LLC)
Initial Public Offering. (a) In the event that at any time after (i) the date hereofCompany files a registration statement under the Act prior to October 15, the Board of Directors determines that it shall facilitate an 2014 in connection with its initial underwritten public offering of Equity Securities in shares of Common Stock (the Company or a successor through an Initial Public Offering, then the Board of Directors shall have the power to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “ConversionIPO”), and such registration statement has an estimated price range and (ii) Investors holding at least a majority of the Members then outstanding Shares (which majority shall include WCAS) notify the Company in writing of such Investors’ election to abandon the consummation of the sale and purchase of the Additional Shares at the Second Closing, each Investor, or its designee, shall purchase such number of registered public shares of Common Stock in the IPO equal to such Investor’s Second Closing Commitment divided by the price per share of Common Stock offered to the public (the “IPO Shares”). The Company shall use their its commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete cause the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution managing underwriter(s) of the securities being offered IPO to direct to the Investors a number of registered public shares of Common Stock in the Initial Public Offering.
(b) If applicableIPO equal the total IPO Shares. The Investors acknowledge that, despite the Company’s use of its commercially reasonable efforts, the Members holding Units shall receivemanaging underwriter(s) may determine in their sole discretion that it is not advisable to designate all such IPO Shares as directed shares in the IPO, in exchange for their Units which case the number of a particular classIPO Shares may be reduced or no directed shares may be designated, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event as applicable. Any such reduction shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth pro rata among all participating Investors. Nothing in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public VehicleSection 1.2(c) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree Investors to use their commercially reasonable efforts to structure consummate the Conversion to maximize the ability sale and purchase of the Members to aggregate (or “tack”Additional Shares in accordance with Section 1.2(b) if the period during which they hold their Units together with the period during which they hold shares of capital stock Investors holding at least a majority of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
then outstanding Shares (fwhich majority must include WCAS) Each Member (including any Transferee thereof) agrees, if requested by have not notified the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory writing to such Member that all officers and directors consummate the purchase of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with the Initial Public Offering, IPO Shares as such managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements to the foregoing effect if so, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f)1.2(c) in lieu of the Second Closing. For clarity, all other Members shall in no event will any Investor be released from such restrictions pro-rata.
(g) Notwithstanding anything obligated to purchase Additional Shares or IPO Shares, as the contrary set forth case may be, in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any excess of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offeringSecond Closing Commitment.
Appears in 3 contracts
Sources: Consent, Waiver and Amendment Agreement (Valeritas Inc), Stock Purchase Agreement (Valeritas Inc), Stock Purchase Agreement (Valeritas Inc)
Initial Public Offering. (a) In the event that If at any time after the date hereof, the Board of Directors determines that it shall facilitate an offering of Equity Securities in the Company or Members representing a successor through an Initial Public Offering, then the Board of Directors shall have the power to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution of the securities being offered in the Initial Public Offering.
(b) If applicable, the Members holding Units shall receiveMajority Interest approve, in exchange for their Units anticipation of a particular class, shares of stock or otherwise in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive connection with an Initial Public Offering by the Company, a Successor Entity (and do not otherwise adversely affect defined below) or any Affiliate (the ability to effectuate the Initial Public Offering“IPO Entity”), (a) to continue to apply to the Public Vehicle, the stockholders a Transfer of all or substantially all of the Public Vehicle and the capital stock assets or outstanding Membership Interests of the Public VehicleCompany, including directly or indirectly, to a newly organized or other corporation or other business entity (ia “Successor Entity”), (b) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations a merger or consolidation of the Members contained herein Company into or with a Successor Entity, (which mayc) any other business combination, at the election conversion, continuance, joint venture, restructuring of all or substantially all of the holders assets or outstanding Membership Interests of the Company with or into a Majority Class A InterestSuccessor Entity, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right a Successor Entity or power to veto, vote for or against, amend, modify or delay a Conversion or the its Affiliate effecting an Initial Public Offering. In furtherance Offering through the use of an UPREIT structure or similar structure or approach to allow for the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect deferral of any vote or approval recognition of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested tax by the Company and a managing underwriteror the Members, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory including through the Transfer of Membership Interests or other securities to such Member that all officers Successor Entity or its Affiliate, which may include terms and directors conditions whereby the Membership Interests or other securities are convertible into or exchangeable for securities of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with entity that effects the Initial Public Offering, or (e) any combination of the foregoing (such transactions described in clauses (a) through (e) of this Section 14.4 collectively, the “IPO Restructuring Transactions”), each Member and Permitted Transferee will consent to, vote for, and raise no objections against, and waive dissenters and appraisal rights (if any) with respect to, the IPO Restructuring Transactions, and if the IPO Restructuring Transactions are structured as a sale of Membership Interests, each Member and Permitted Transferee will agree to sell and will be permitted to sell all of such managing underwriter shall specify reasonably Member’s and in good faithPermitted Transferee’s Membership Interest on the terms and conditions approved by the Members representing a Majority Interest. Each Member and Permitted Transferee will take all necessary or desirable actions permissible under applicable law in connection with the consummation of the IPO Restructuring Transactions. In connection with any such Initial Public Offering, the IPO Entity and the Members shall enter into or adopt a customary letter agreements registration rights agreement granting to the foregoing effect if so, requested by the Company each holder of Membership Interests specified demand registration rights and the managing underwriter, if anypiggyback registration rights. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members shall be released from such restrictions pro-rata.
(g) Notwithstanding anything to the contrary set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offering.Active 14598351.7 43
Appears in 2 contracts
Sources: Limited Liability Company Agreement, Limited Liability Company Agreement (Delek Logistics Partners, LP)
Initial Public Offering. (a) In the event that at any time after the date hereofUpon a determination to effect an Initial Public Offering pursuant to Section 5.1(a)(iii), the Board of Directors determines that it shall facilitate an offering of Equity Securities in the Company or a successor through an Initial Public Offering, then the Board of Directors shall have the power to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete structure the Initial Public Offering IPO in a manner designed reasonably acceptable to achieve a fair price and broad the Members, including, without limitation, causing the public distribution offering of the securities being offered stock of an existing or newly formed Subsidiary of the Company or any of the Transfers, mergers, consolidations or restructurings pursuant to Section 12.9(b) and making any such amendments to this Agreement (subject to Section 14.12) as may be deemed by the Board in the Initial Public Offeringgood faith solely as necessary to facilitate such IPO.
(b) If applicable, In the Members holding Units shall receive, in exchange for their Units event of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate determination by the Board (after compliance with Section 5.1(a)(iii)) to cause (i) a Transfer of Directors as a result all or substantially all of (x) the assets of the Conversion Company or if advisable in order (y) the Interests to effectuate a newly organized stock corporation or other business entity with the Initial Public Offering.
ownership interests therein allocated as specified herein (c“Newco”), (ii) In such event, the Public Vehicle and the Members (in their capacities as stockholders a merger of the Public VehicleCompany into Newco by merger or consolidation or (iii) shall enter into a stockholders’ agreement providing for any other restructuring of the Interests, in any such terms and conditions as are necessary for the rights and obligations and provisions case, whether in anticipation of this Agreement that survive an Initial Public Offering or otherwise, each Member shall take such reasonable steps to effect such Transfer, merger, consolidation or other restructuring as may reasonably be requested by the Company on terms that are substantially the same (and do not otherwise adversely affect the ability no less favorable) in respect of such Member’s Interests as other holders of corresponding Interests in respect of such corresponding Interests, including, without limitation, if requested, transferring such Member’s Interests to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the Newco in exchange for capital stock of Newco; provided, that in the Public Vehicleevent of such an exchange, including (i) an agreement to vote all each Interest would be exchanged for a number of shares of capital Newco stock held by determined in a manner such stockholders to elect that each Member is treated no less favorably than such Member would have been treated upon an Exit Event (assuming the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations value of the consideration to be received by the Members contained herein (which may, at in the election Exit Event is the midpoint of the holders of a Majority Class A Interest, be contained filing range in the Public Vehicle’s certificate IPO, to the extent such exchange is in anticipation of incorporationan IPO).
(d) Except as otherwise provided in this Section 3.8. Notwithstanding the preceding sentence, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members shall be required to give take any action or omit to take any action to the extent such action or omission violates applicable law. If the Board determines to effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted an IPO pursuant to this Section 3.8(d12.9(b) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold receive shares of capital stock of the Public Vehicle for purposes of the United States securities lawsNewco pursuant to any such Transfer, including Rule 144 under the Securities Act.
(f) Each merger, consolidation or restructuring, each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory agrees to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar (A) a Registration Rights Agreement and (B) any other customary agreements, thereby agreeing including, without limitation, an underwriters’ lock-up agreement for a period not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) exceed 360 days following the effective date consummation of the relevant registration statement filed under the Securities Act in connection with the Initial Public Offeringsuch IPO, as such managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements to any event provides for the foregoing effect if so, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), same lock-up period for all other Members shall be released from such restrictions pro-rataMembers.
(g) Notwithstanding anything to the contrary set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offering.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (DMC Global Inc.), Limited Liability Company Agreement (DMC Global Inc.)
Initial Public Offering. (a) In the event that at any time after the date hereof, the Board and the holders of Directors determines that it shall facilitate an offering of Equity Securities in the Company or a successor through an Initial Public Offering, then the Board of Directors shall have the power to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law majority of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution of the securities being offered in the Initial Public Offering.
(b) If applicable, the Members holding Common Units shall receive, in exchange for their Units of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive then outstanding approve an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders as contemplated by Section 15.7 of the Public Vehicle and the capital stock of the Public VehicleLLC Agreement, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained Securityholder Units shall take all necessary or desirable actions in connection with the Public Vehicle’s certificate consummation of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any event that such Initial Public Offering is an underwritten offering and upon confirmation reasonably satisfactory to such Member the managing underwriters advise the Company in writing that all officers and directors in their opinion the Company's capital structure would adversely affect the marketability of the Company and all holders, collectively with their Affiliates and Approved Funds, offering:
(i) each Securityholder who is a holder of one percent (1%) or greater of Equity Securities units of the Company Company's Class A Preferred Units shall enter into similar agreementsconsent to and vote for a recapitalization, thereby agreeing not to Transfer any Equity Securities reorganization and/or exchange of the Company held by it for one hundred eighty (180) days following Company's Class A Preferred Units into securities or other consideration that the effective date managing underwriters, the Board and the holders of at least a majority of the relevant registration statement filed under the Securities Act units of Class A Preferred Units then outstanding find acceptable and shall take all necessary or desirable actions in connection with the Initial Public Offeringconsummation of the recapitalization, as such reorganization and/or exchange;
(ii) each Securityholder who is a holder of units of the Company's Class B Preferred Units shall consent to and vote for a recapitalization, reorganization and/or exchange of the Company's Class B Preferred Units into securities that the managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements to underwriters, the foregoing effect if so, requested by the Company Board and the holders of at least 70% of the units of Class B Preferred Units then outstanding find acceptable and shall take all necessary or desirable actions in connection with the consummation of the recapitalization, reorganization and/or exchange; provided that each holder of Class B Preferred Units shall receive the same type of security with the same value per unit;
(iii) each Securityholder who is a holder of units of the Company's Class C Preferred Units shall consent to and vote for a recapitalization, reorganization and/or exchange of the Company's Class C Preferred Units into securities that the managing underwriterunderwriters, if any. Notwithstanding the foregoing, in the event any Member is released by the Company Board and the managing underwriterholders of a majority of the units of Class C Preferred Units then outstanding find acceptable and shall take all necessary or desirable actions in connection with the consummation of the recapitalization, if any, from reorganization and/or exchange; provided that each holder of Class C Preferred Units shall receive the restrictions contemplated by this Section 3.8(f), all other Members shall be released from such restrictions pro-rata.same type of security with the same value per unit; and
(giv) Notwithstanding anything each Securityholder who is a holder of units of the Company's Common Units shall consent to and vote for a recapitalization, reorganization and/or exchange of the contrary set forth in this AgreementCompany's Common Units into securities that the managing underwriters, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any Board and the holders of their respective Affiliates or Approved Funds, following the effective date a majority of the first registration statement units of Common Units then outstanding find acceptable and shall take all necessary or desirable actions in connection with the consummation of the Company covering common stock (or other securities) to be sold on behalf recapitalization, reorganization and/or exchange; provided that each holder of Common Units shall receive the Company in an underwritten public offeringsame type of security with the same value per unit.
Appears in 2 contracts
Sources: Securityholders Agreement (Coinmach Laundry Corp), Securityholders Agreement (Coinmach Corp)
Initial Public Offering. (a) In the event that at any time after the date hereof, The members of the Board of Directors determines that it shall facilitate an offering of Equity Securities in the Company or a successor through immediately ----------------------- prior to an Initial Public Offering, then Offering shall amend the Company's Bylaws to increase the size of the Board of Directors by two members and two independent members shall have be appointed to the power Board as necessary to cause the Company to be reorganized as a corporation (such corporation comply with applicable stock exchange or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law stock market regulations. The members of the State Board immediately prior to an Initial Public Offering shall also amend the Company's Certificate of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), Incorporation to increase the Company's authorized capital as necessary and the Members shall use their commercially reasonable efforts advisable prior to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete the Initial Public Offering and TCE and Gemstar shall vote their Voting Securities in a manner designed to achieve a fair price and broad public distribution favor of such amendment. If the securities being offered in the Initial Public Offering.
(b) If applicable, the Members holding Units shall receive, in exchange for their Units of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary managing underwriter for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering"Managing Underwriter") to continue to apply to the Public Vehicle, the stockholders advises that amendment of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) Agreement is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act advisable in connection with the Initial Public Offering, as such managing underwriter shall specify reasonably or if an amendment is necessary to comply with law or the rules or regulations of a stock exchange or stock market, TCE and Gemstar agree to cooperate in good faithfaith to so amend this Agreement (and the Company's Certificate of Incorporation (including voting their Voting Securities in favor of such amendment) and Bylaws, if necessary). Each Member shall enter into customary letter agreements If the Managing Underwriter advises that the Foreign Corporation needs to be combined with the Company in connection with the Initial Public Offering, then each Stockholder hereby agrees to exchange its shares of the Company for shares of the Foreign Corporation or cause its Affiliates to exchange its shares of the Foreign Corporation for shares of the Company, as the case may be, depending upon the Managing Underwriter's advice as to whether the Foreign Corporation or the Company, respectively, is the better entity in which to sell shares to the public in connection with the Initial Public Offering. For purposes of this Agreement, the terms "Public Offering" and "Initial Public Offering" shall be construed to include a post-combination offering of either the Company's voting securities or those of the Foreign Corporation. The parties hereby agree that the foregoing effect if so, requested by exchange of securities shall be made based upon a valuation of the Company and the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released Foreign Corporation performed by the Company and Selected Investment Banking Firm (as defined below). The "Selected Investment Banking Firm" shall mean the managing underwriter, if any, investment banking firm selected by TCE within five days after TCE's receipt from the restrictions contemplated Gemstar of a list of five nationally recognized investment banking firms selected by this Section 3.8(f), all other Members shall be released from such restrictions pro-rataGemstar.
(g) Notwithstanding anything to the contrary set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offering.
Appears in 2 contracts
Sources: Stockholders Agreement (Gemstar International Group LTD), Stockholders Agreement (Gemstar International Group LTD)
Initial Public Offering. 9.1 The Company shall use its reasonable best efforts to consummate a Qualified IPO on or prior to the fourth (a4th) In the event that at any time after the date hereof, the Board of Directors determines that it shall facilitate an offering of Equity Securities in the Company or a successor through an Initial Public Offering, then the Board of Directors shall have the power to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law year anniversary of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”)Initial Closing Date, and each of the Members Existing Shareholders and the Investors shall use their its commercially reasonable efforts to effectuate assist the Company with the consummation of such Conversion and take such actions as are reasonably necessary or desirable to complete Qualified IPO within the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution of foregoing timeframe. The Parties agree that the securities being offered in the Initial Public Offering.
(b) If applicable, the Members holding Units shall receive, in exchange for their Units lock-up period after consummation of a particular classQualified IPO shall be the period as required by the relevant Governmental Authorities (including the relevant stock exchange) or underwriters, shares of stock in pursuant to the Public Vehicle rules and regulations of the relevant class having Governmental Authorities and stock exchange or customary market practice on which the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case Ordinary Shares of the Class A UnitsCompany are or are to be listed, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and if not otherwise agreed in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable relation to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public OfferingQualified IPO.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability 9.2 Each Party hereby agrees to effectuate the Initial Public Offering) use its commercially reasonable efforts to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement support and facilitate the consummation of a Qualified IPO on or prior to vote all shares the fourth (4th) year anniversary of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1Initial Closing Date, and (ii) cooperate in good faith and take any and all measures within its powers reasonably required to comply with any applicable Laws, and steps and measures as advised by the rights competent Governmental Authorities, and obligations professional external advisors engaged by the Company for the purpose of consummating a Qualified IPO.
9.3 In the event that the Company fails to consummate a Qualified IPO on or prior to the fourth (4th) year anniversary of the Members contained herein Initial Closing Date (which mayirrespective of any reasons) pursuant to Clause 9.1, at (a) no Investor shall have any right to require the election Company or any other Shareholders to redeem or buy back any or all of the holders of a Majority Class A Interest, be contained Shares held by such Investor in the Public Vehicle’s certificate of incorporation).
Company; and (db) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorneythe Investors shall, for it upon such failure, communicate and discuss with each other in its namegood faith regarding the reasonable and appropriate arrangements, place and stead and for its use and benefit, to act as its proxy solutions or actions in respect of any vote or approval the development and additional financing of Members required to give effect to this Section 3.8the Company, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (final satisfactory arrangements, solutions or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company actions shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with the Initial Public Offering, as such managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements to the foregoing effect if so, requested be agreed by the Company and the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members shall be released from such restrictions pro-rataSupermajority Preferred Shareholders.
(g) Notwithstanding anything to the contrary set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offering.
Appears in 2 contracts
Sources: Shareholder Agreement (ZEEKR Intelligent Technology Holding LTD), Shareholder Agreement (ZEEKR Intelligent Technology Holding LTD)
Initial Public Offering. (a) In the event that at any time after the date hereofCompany ----------------------- undertakes an initial public offering of its capital stock with aggregate gross proceeds to the Company of not less than five million dollars ($5,000,000) and with a price per share of not less than $5.00 (a "Qualified IPO"), the Board Company shall give notice of Directors determines that it shall facilitate an offering of Equity Securities in the Company or a successor through an Initial Public Offering, then the Board of Directors shall have the power to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution of the securities being offered in the Initial Public Offering.
(b) If applicable, the Members holding Units shall receive, in exchange for their Units of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations intention (and in no event shall otherwise communicate with the Holder during the pendency of such interest, rights or obligations be less favorable to such Member than the terms of their respective Unitstransaction) in the Public Vehicle same manner as are set forth in this Agreement applicable it communicates with the holders of a majority of the issued and outstanding shares of Series A Preferred Stock; if the Warrant is otherwise exercisable pursuant to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result provisions of the Conversion Warrant, the Holder may, in its discretion, exercise same and request registration of the shares in the Qualified IPO pursuant to the registration rights granted to the Holder in Section 7 below; if the Warrant is not so exercised, then, in addition to such Company obligations under such registration rights the Company shall give the Holder not less than twenty (20) business days notice of the expected date of closing of the Qualified IPO (the "Closing"); the Holder shall, not less than three (3) business days prior to the Closing, deliver an irrevocable notice under Section 3 below or if advisable deposit an amount of money equal to the aggregate exercise price of this Warrant into the trust account of the Company's attorneys with irrevocable instructions to pay such amount to the Company immediately prior to the Closing of the Qualified IPO; in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle and Holder shall be deemed to have exercised the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply Warrant immediately prior to the Public VehicleClosing and simultaneously converted the shares of Series A Preferred Stock into shares of Common Stock; at or promptly following the Closing, the stockholders of Company shall cause its transfer agent to deliver to the Public Vehicle and Holder a certificate representing the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect Common Stock so purchased; the Board of Directors of such resulting corporation in accordance with Warrant shall expire upon the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted Closing if not previously exercised pursuant to this Section 3.8(d1.3(a) is a special proxy coupled with an interest or otherwise pursuant to the terms of the Warrant; if the Closing does not occur, the Warrant shall be deemed to continue pursuant to the other terms and is irrevocable.
(e) The Company restrictions of the Warrant, and the Members hereby agree to use their commercially reasonable efforts to structure irrevocable notice given under Section 3 below or the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together funds deposited with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company Company's attorneys shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with the Initial Public Offering, as such managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements be promptly returned to the foregoing effect if so, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members shall be released from such restrictions pro-rataHolder.
(g) Notwithstanding anything to the contrary set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offering.
Appears in 1 contract
Sources: Warrant Agreement (Usweb Corp)
Initial Public Offering. (a) In the event that at any time after the date hereof, the Board of Directors determines that it shall facilitate an offering of Equity Securities in the Company or a successor through connection with an Initial Public Offering, then each Limited Partner agrees to cooperate with the Board of Directors shall have General Partner and the power KKR Group and to take all such action as may reasonably be required by the General Partner or the KKR Group in connection therewith to effect, or cause the Company to be reorganized effected, the Initial Public Offering, including, if determined by the General Partner, (i) subject to Section 16.5, amendment of this Agreement, including amendments that alter the capital structure of the Partnership, whether through the issuance, conversion or exchange of equity securities or otherwise so long as a corporation all Class A-1 and A-2 Units are treated the same in any IPO Conversion, (such corporation ii) merger, conversion or consolidation of the Partnership, (iii) the formation of Subsidiaries and the distribution to Partners of equity or other issuer entity being hereinafter referred interests in such Subsidiaries, (iv) transferring, domesticating or otherwise moving the Partnership to another U.S. jurisdiction and (v) taking such other steps as it deems necessary, advisable or convenient to create a “Public Vehicle”) under suitable vehicle to serve as the General Corporation Law IPO Corporation, in each case for the express purpose of an initial offering of the State securities of Delaware by incorporationsuch IPO Corporation for sale to the public in an IPO (any such action, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a an “IPO Conversion”). If the General Partner elects to undertake an IPO Conversion, and the Members Partners shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are may be reasonably necessary required and otherwise cooperate in good faith with the General Partner, including taking all actions required or desirable desired by the General Partner in connection with consummating the IPO Conversion. In connection therewith, the General Partner and each Limited Partner agree to complete cooperate with the other Partners in good faith in order to effectuate the IPO Conversion and ensure that each of the Limited Partners receives shares (or other equity securities) in connection with such Initial Public Offering with substantially equivalent economic interest, governance, priority and other rights and privileges as such Limited Partner has with respect to its Units immediately prior to such Initial Public Offering (except, for the avoidance of doubt, any rights provided herein that terminate pursuant to this Agreement upon, or otherwise terminate in a manner designed to achieve a fair price and broad public distribution of the securities being offered in the connection with, an Initial Public Offering); provided, however, that this Section 4.6(a) shall not be construed as modifying the obligations of, covenants of and/or restrictions already imposed on, any Management Limited Partner to which such Management Limited Partner has already agreed to be bound (whether under this Agreement in accordance with the terms hereof or otherwise or under another plan, contract or arrangement); and the parties to this Agreement further agree that the provisions of this Section 4.6 are intended to operate solely to prevent inappropriate enlargement or dilution of a Partner’s rights with respect to such Partner’s Units in connection with an IPO Conversion.
(b) If applicableIn connection with an Initial Public Offering, the Members holding (i) Class A-2 Units shall receivebe converted, exchanged or redeemed into or for shares (or other equity securities, options and/or other rights) of the IPO Corporation in the same manner and in the same proportion to the Class A-1 Units, if any, are so converted, exchanged or redeemed in such Initial Public Offering; provided that, unless such holder is otherwise compensated, such conversion, exchange for their or redemption of Class A-2 Units of a particular class, into shares of stock in the Public Vehicle IPO Corporation (but not such other equity securities, options or other rights) is structured, to the extent permitted by applicable law, to be tax free for the holder of such Class A-2 Units; provided, further, that the preceding proviso shall not imply any additional obligation upon the Partnership to trace the gain of such shares of the relevant class having IPO Corporation to the same relative seniorityClass A-2 Units to which they were exchanged and (ii) (x) at the option of the General Partner, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case all or any portion of the Class A UnitsB Profits Interest Units may be converted, exchanged or redeemed into or for IPO Corporation Shares having a value based upon the value of cash or other characteristics property, if any, that would have been distributed in respect of such Class B Profits Interest Units under Section 13.2(c) had a Dissolution Event occurred immediately prior to the time of such conversion, redemption or exchange and (y) the IPO Corporation shall make a grant of nonqualified options on such IPO Corporation Shares with a per share exercise price equal to the offering price pursuant to the Initial Public Offering (the “IPO Options”). The IPO Corporation Shares and IPO Options received in respect of the Class A UnitsB Profits Interests pursuant to the preceding sentence shall represent the same percentage interest in the IPO Corporation immediately following the IPO Conversion that such Class B Profits Interest Units represented in the Partnership immediately prior to such IPO Conversion, votingwith substantially equivalent economic interest, management and consent rightsgovernance, economic interest priority and other rights and obligations (and privileges as in no event shall such interest, rights or obligations be less favorable effect immediately prior to such Member than conversion, exchange or redemption (except, for the terms avoidance of their respective Units) in the Public Vehicle as are set forth in doubt, any rights provided herein that terminate pursuant to this Agreement applicable to the Unitsupon, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable otherwise terminate in order to effectuate the Initial Public Offering.
(c) In such eventconnection with, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) (determined without regard to continue any tax consequences to apply each Partner of the receipt and ownership of such shares, equity securities, IPO Options or other rights; provided that, unless such holder is otherwise compensated, such conversion, exchange or redemption of Class B Profits Interest Units into IPO Corporation Shares (but not such other equity securities, IPO Options or other rights) is structured, to the Public Vehicleextent permitted by applicable law, to be tax free for the stockholders holder of such Class B Profits Interest and preserve the holding period and character as a capital asset of the Public Vehicle shares (but not such other equity securities, IPO Options or other rights) received in exchange therewith, in each case solely for United States federal income tax purposes), but providing that dilution to the holders of Class B Profits Interest Units is not disproportionate to the dilution experienced by Limited Partners holding Class A-1 Units and Class A-2 Units and each Limited Partner shall take such steps to effect the capital stock foregoing as may be requested by the General Partner. If the General Partner does not make the election in clause (ii)(x) in the first sentence of the Public Vehiclethis Section 4.6(b), including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, Class B Profits Interest Units may at the election of the holders of a Majority Class A Interestholder be exchanged (i) for IPO Corporation Shares (or other equity securities, be contained options and/or other rights) at all times in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it same manner and in its name, place and stead and for its use and benefit, the same proportion to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriterClass A-1 Units, if any, in connection with any Initial Public Offering are so exchanged thereafter and (ii) if Class A-1 Units are not so exchanged, for IPO Corporation Shares upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with the Initial Public Offering, as such managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements to the foregoing effect if so, requested by the Company and the managing underwriter, if anyIPO. Notwithstanding the foregoingother provisions of this Agreement, in the event any Member is released by General Partner may cause the Company and the managing underwritervesting, if anyclawback, from the restrictions contemplated by this Section 3.8(f), all repurchase rights or forfeiture or other Members shall be released from such restrictions pro-rata.
(g) Notwithstanding anything to the contrary obligations set forth in this Agreement, the restrictions contained in this Agreement shall not apply Profits Interest Plan and the applicable Class B Profits Interest Unit Award Agreements and applicable to Unitsthe Management Interests converted, any other Equity Securities exchanged or any securities convertible into or exercisable or exchangeable redeemed for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock IPO Corporation Shares (or other equity securities, IPO Options and/or other rights) of the IPO Corporation to apply mutatis mutandis to the IPO Corporation Shares (or other equity securities, IPO Options and/or other rights) to be sold on behalf of the Company issued to each relevant Partner in an underwritten public offeringexchange for consideration therefor.
Appears in 1 contract
Sources: Limited Partnership Agreement (BrightView Holdings, Inc.)
Initial Public Offering. If BMCA or its parent sells common stock in a public offering (the "IPO") pursuant to a registration statement under the Act (other than a registration statement filed with respect to employee benefit plans), then the following shall occur:
(a) In With respect to the event that Class A Common Stock held by you at the time of the IPO, you shall sell to BMCA or such other entity determined by BMCA, and BMCA or such other entity shall purchase from you, all of these shares for an amount in cash equal to the Book Value per share (without taking into consideration any time after gain from the IPO) of Class A Common Stock as of the last day of the fiscal quarter immediately preceding the date hereofof the IPO;
(b) With respect to the Class B Common Stock held by you at the time of the IPO, the terms of the Class B Common Stock shall be amended, if necessary, to have the same rights as the holders of the shares of common stock being sold in the IPO, with the total number of shares owned by you being adjusted for any recapitalization, reorganization or similar transaction occurring in connection with the IPO;
(c) With respect to the Class B Common Stock held by you at the time of the IPO, the terms of the Class B Common Stock shall be further amended, if necessary, if in connection with an IPO, a recapitalization reorganization or similar transaction of BMCA (or its parent's stockholders, if the parent's shares are sold in the IPO) occurs such that dividends are paid to BMCA (or its parent, as per the case may be) stockholders prior to, and in connection with, the IPO. The adjustments referred to in the foregoing sentence shall be those which are necessary, in the reasonable judgment of the Board of Directors determines of BMCA, to ensure that it shall facilitate an offering of Equity Securities in the Company or a successor through an Initial Public Offering, then the Board of Directors shall have the power to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution of the securities being offered in the Initial Public Offering.
(b) If applicable, the Members holding Units shall receive, in exchange for their Units of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case value of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and B Common Stock held by you is not adversely affected in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board of Directors material way as a result of such transaction. Under no circumstances shall BMCA have any liability to you resulting from the Conversion pricing of the common stock in the IPO or if advisable in order to effectuate the Initial Public Offering.its performance thereafter;
(cd) For a period of 18 months following the consummation of IPO, you shall not be permitted to sell 50% of the Common Stock that you own as of the date of such consummation (the "Restricted Stock"). The Restricted Stock shall not be subject to forfeiture under any circumstance. In such eventaddition, pursuant to the Public Vehicle and share incentive plan adopted in connection with the Members IPO, you shall receive a grant of an option to purchase shares of common stock (in their capacities as stockholders the discretion of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation entity) in an amount designed, in the reasonable judgment of the Board of Directors of such entity, to provide you with a potential appreciation in value equal to that anticipated to be realized by the Class A Common Stock held by you prior to the IPO. Such option shall have an exercise price equal to the price of Common Stock sold to the public in the IPO and shall vest in accordance with the substance terms of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation)such incentive plan.
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with the Initial Public Offering, as such managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements to the foregoing effect if so, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members shall be released from such restrictions pro-rata.
(g) Notwithstanding anything to the contrary set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offering.
Appears in 1 contract
Sources: Termination of Agreements (Building Materials Corp of America)
Initial Public Offering. (a) In If the event that Company at any time after the date hereof, the Board of Directors determines that it shall facilitate an offering of Equity Securities in the Company or a successor through an proposes its Initial Public Offering, then it will give notice to the Board Founders of Directors shall have its intention to do so. Upon the power written request of any Founder to register any of its Restricted Stock, the Company will use its best efforts to cause the Company Restricted Stock as to which registration shall have been so requested to be reorganized as a corporation (such corporation included in the securities to be covered by the registration statement proposed to be filed by the Company, all to the extent requisite to permit the sale or other issuer entity being hereinafter referred disposition by the Founder of such Restricted Stock so registered. The number of shares of Restricted Stock to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete be included in the Initial Public Offering in a manner designed may be reduced (pro rata among the requesting Founders based upon the number of shares of Restricted Stock owned by the Founders) if and to achieve a fair price and broad public distribution the extent that the managing underwriter shall be of the opinion that such inclusion would adversely affect the marketing of the securities being offered to be sold by the Company therein, provided, however, that such number of shares of Restricted Stock shall not be reduced if any shares are to be included in such underwriting for the Initial Public Offering.
(b) If applicableaccount of any person other than the Company or the Founders. For purposes of this Section 2.3 and Sections 2.4, 2.5, 2.6, 6.1 and 6.4, the Members holding Units term “Restricted Stock” shall receive, in exchange for their Units be deemed to include the number of a particular class, shares of stock in the Public Vehicle Restricted Stock which would be issuable to a holder of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case Preferred Shares upon conversion of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect Preferred Stock; provided, however, that the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (only securities which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreementsbe required to register pursuant hereto shall be shares of Common Stock; provided, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with the Initial Public Offeringfurther, as such managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements to the foregoing effect if sohowever, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoingthat, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions underwritten public offering contemplated by this Section 3.8(f)2.3 or Sections 2.4, all other Members 2.5 and 2.6, the holders of Preferred Shares shall be released from entitled to sell such restrictions pro-rata.
(g) Notwithstanding anything Preferred Shares to the contrary set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable underwriters for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date conversion and sale of the first registration statement shares of the Company covering common stock (Common Stock issued upon conversion or other securities) to be sold on behalf of the Company in an underwritten public offeringexercise and conversion, as applicable, thereof.
Appears in 1 contract
Initial Public Offering. 8.1.1 The Promoter and the Company undertake that they shall, on or before the Deadline Date create an exit for the Investors through an IPO on a recognised stock exchange. The Promoters and the Company agree that they shall seek the consent of the Investors for conducting the IPO (aas an Investor Reserved Matter) only after the SEBI Category-I merchant banker has preliminarily determined the valuation and manner at which such IPO would be conducted.
8.1.2 In the event that at any time after the date hereofCompany decides to list its Securities pursuant to an IPO, by way of a fresh issue of Equity Shares or an offer for sale, which satisfies the minimum listing requirements in accordance with Applicable Law, the Board Company and each member of Directors determines the Promoter Group shall take all actions (including obtaining any Approvals and / or clearances from Governmental Authorities) which lie within their power, to ensure that it shall facilitate an offering the Securities of Equity Securities in the Company are listed on any recognised stock exchange or any other exchange acceptable to the Investors pursuant to an IPO undertaken by the Company.
8.1.3 If any offer for sale component is recommended by the appointed merchant banker, the Investors shall have the right (but not the obligation) to participate in such offer for sale on a successor through an Initial Public Offeringpro-rata basis to their respective Shareholding Percentage, in which event such offer or contribution by the Investors shall take precedence over all other Shareholders to the extent permissible under Applicable Law.
8.1.4 For the purpose of any such IPO, to the extent permissible under Applicable Law, the Securities held by the Investors shall not be subjected to a lock-in or other restriction on Transfer as applicable to Promoter Group’s “promoters contribution” under any Applicable Law, the guidelines of SEBI or of any other statutory or regulatory authority as applicable from time to time. If any Securities are to be made subject to any lock-in in connection with any IPO, then the Board Promoter Group shall offer their Equity Shares towards such lock-in.
8.1.5 The Company and the Promoter, jointly and severally, undertake to seek the requisite statutory and regulatory Approvals for such IPO, and, in connection therewith, take all steps as regards such IPO such that the requisite number of Directors Securities shall have be contributed or offered by all Shareholders, other than the power Investors, so as to cause meet any minimum listing requirements (but, including all or part of the respective Investor Securities, only if so desired by the respective Investors in which event such offer or contribution by the Investors of all or part of the Investor Securities shall take precedence over all other Shareholders) and are, subject to this Agreement, offered to the public and the same are listed at the concerned stock exchange. Without limiting the generality of the foregoing, for this purpose, the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under and the General Corporation Law of the State of Delaware by incorporationPromoter Group shall, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”)jointly and severally, and the Members Investors shall use their commercially provide all reasonable efforts support to effectuate such Conversion and the Company to:
8.1.1.1. take such actions as are reasonably necessary or desirable all requisite steps to complete commence the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution procedure of an IPO;
8.1.1.2. not unduly withhold approvals for listing of the securities being offered in Securities on the Initial Public Offering.
(b) If applicable, the Members holding Units shall receive, in exchange for their Units of a particular class, shares of concerned registered stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Unitsexchange(s) in the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect as per the ability to effectuate Applicable Laws;
8.1.1.3. conduct, any road shows, finalization of prospectus, proposals for increase in the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders Share Capital of the Public Vehicle Company, issue amount, issue price, and mode of issue before approaching the concerned competent authorities for Approvals;
8.1.1.4. provide all material information and ensure compliance with all applicable provisions under all Applicable Law in force at the time of the IPO and the capital stock subsequent listing of the Public VehicleSecurities of the Company for trading on the recognised stock exchange(s); and
8.1.1.5. do all acts and deeds required to achieve the listing on the recognized stock exchange(s) in terms of this Agreement and as per the Applicable Law.
8.1.6 The Parties expressly understand, including acknowledge and agree that the Company shall be responsible and liable for: (i) an agreement all costs, charges, fees or expenses relating to vote all shares of capital the IPO and consequent listing on any stock held exchange shall be borne and paid by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, Company; and (ii) the rights and obligations subject to Applicable Law, including principles governing financial assistance, for any breach of the Members contained herein (which mayCompany’s representations, warranties, covenants, obligations and undertakings set forth in any contract, instrument and other document in relation to the IPO.
8.1.7 It is understood and agreed that the Investors shall at all times, and shall always be deemed to, represent and warrant only as to its title to the election Securities held by them and shall not provide any other representation, warranty, covenant, obligation and / or undertaking.
8.1.8 The Promoter Group understands and recognize that the IPO is an important part of the holders Company’s financing plans and shall provide all cooperation including, the exercise of a Majority Class A Interesttheir Shareholder rights as is required by the Company from time to time in connection with the IPO and causing their nominees on the Board to pass such resolutions as may be necessary or required for this purpose. As and when the Company carries out an IPO, it shall ensure that the Securities held by the Investors and / or their Affiliates shall be contained in listed and fully capable of being traded on each of the Public Vehiclerecognized stock exchanges where the Company’s certificate Securities are being listed pursuant to the IPO, and simultaneously with the listing of incorporation)the Company’s Securities pursuant to the IPO.
(d) Except as otherwise provided 8.1.9 Nothing in this Section 3.8, no Member will have Agreement shall require the right Investors and / or power their Affiliates to veto, vote for do or against, amend, modify or delay omit to do any act that may result in them becoming a Conversion or the Initial Public Offering. In furtherance “promoter” of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act, the SEBI guidelines or any other Applicable Law. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby Promoter undertake, agree and confirm that the Investors and / or their Affiliates shall not be named or deemed to use their commercially reasonable efforts to structure the Conversion to maximize the ability be or held out or represented as a “promoter” in any of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock books and records of the Public Vehicle Company, the prospectus or any other documents of the Company related to an IPO, a public offering or otherwise and shall not be required to offer or make available their Securities for any such purpose whatsoever including, without limitation, for the purposes of the United States securities laws, including Rule 144 compliance with any mandatory lock-in requirements as applicable to a “promoter” under the SEBI guidelines / regulations in respect of an IPO, any public offerings or otherwise. The Promoter and the Company shall ensure that the Investors and / or their Affiliates are not classified as a “promoter” of the Company for any purpose whatsoever and the Investor Securities Actand / or their Affiliates are not subject to any lock-in or other restrictions except to the extent required under Applicable Law or this Agreement or to any statutory or regulatory moratorium imposed in connection with an offering made by the Company. The Company shall at its own cost make any and all applications to statutory and regulatory authorities that may be required to obtain any necessary authorizations for exemption.
(f) Each Member (including any Transferee thereof) agrees8.1.10 Unless the Investors agree otherwise in writing, the Company shall at its own cost ensure that the IPO is fully underwritten.
8.1.11 Subject to Applicable Law, if requested by the Company and a managing underwriter, if any, any prospectus in connection with any Initial Public Offering offering made by the Company refers to the Investors by name or otherwise as the holder of any Securities of the Company, then the Investors shall have the right to require: (i) the insertion therein of language, in form and upon confirmation reasonably satisfactory substance to the satisfaction of the Investors to the effect that the holding by it of such Member Securities is not to be construed as a recommendation by it of the investment quality of the Company's Securities covered thereby and that such holding does not imply that the Investors will assist in meeting any future financial requirements of the Company; or (ii) in the event that such reference to the Investors by name or otherwise is not required by the Applicable Law, the deletion of the reference to the Investors.
8.1.12 The Company and Promoter Group also undertake to ensure compliance with the listing requirements of the stock exchanges, all officers applicable regulatory authorities and directors to ensure compliance with all Applicable Laws, all applicable provisions of the Act, the relevant guidelines / regulations of SEBI, the listing agreement of the relevant stock exchanges and other regulations prevailing at the time of the IPO.
8.1.13 The Company and Promoter agree to the extent necessary, to obtain permission from banks and other financial institutions that allow the Company to conduct and consummate a listing as required to achieve the IPO on or prior to the Deadline Date.
8.1.14 The valuation, timing, mode and exchange for the IPO shall be decided by the Board in consultation with the appointed lead merchant banker(s).
8.1.15 Increase in Share Capital for the IPO: If an IPO is to be made and if the minimum Paid up Equity Share Capital required at the relevant time for the purpose of listing the Company’s Securities is more than the Paid up Equity Share Capital of the Company and all holders(inclusive of any additional Securities to be issued through the IPO), collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of then the Company shall enter into similar agreementsshall, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with the Initial Public Offering, as such managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements subject to the foregoing effect if soInvestors’ consent under Article 11, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members shall be released from issue such restrictions pro-ratabonus Securities as are required to meet such listing preconditions.
(g) Notwithstanding anything to the contrary set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offering.
Appears in 1 contract
Sources: Shareholders Agreement
Initial Public Offering. (a) In the event that at any time after the date hereof, the Board of Directors determines that it shall facilitate an offering of Equity Securities in the Company or a successor through an Initial Public Offering, then the Board of Directors shall have the power to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution of the securities being offered in the Initial Public Offering.
(b) If applicable, the Members holding Units shall receive, in exchange for their Units of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable Notwithstanding anything to the Units, contrary contained herein but subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation4.01(d).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory approved in accordance with this Agreement, the Members hereby agree to such Member that all officers and directors discuss in good faith whether any of the rights and obligations of the parties hereto and the Company and all holdersunder this Agreement should be amended, collectively with their Affiliates and Approved Fundsrestructured or terminated, including, without limitation, whether any of one percent (1%the rights set forth in Sections 4.01(d) or greater 8.04 hereof should be terminated or made subject to any time limitations (or time and volume limitations in the case of Equity Securities of the Company shall enter into similar agreementsSection 5.04 hereof), thereby agreeing not in order to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with permit the Initial Public OfferingOffering to be effected in a manner consistent with applicable Law, market custom and the recommendations of the Global Coordinators in light of market conditions at such time and the listing requirements of the exchange or market on which the Initial Public Offering is to be effected, taking into account, among other things, the rights of the Preferred Members hereunder and their goal and expectation that the Preferred Payment be effected as such managing underwriter promptly as practicable after the date hereof; provided, however, that this sentence shall specify reasonably and not in good faith. Each Member shall enter into customary letter agreements to any way either (x) obligate any of the foregoing effect if so, requested by Members or the Company and to agree to any amendment, restructuring or termination of any such rights or (y) affect or nullify any rights or obligations of the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by Members or the Company and the managing underwriter, if any, from the restrictions contemplated by under this Section 3.8(f), all other Members shall be released from such restrictions pro-rataAgreement.
(gb) Notwithstanding anything to the contrary set forth contained herein but subject to Section 4.01(d), in connection with any Initial Public Offering of the Company (or its successor corporation) or any newly formed corporation as described below, approved in accordance with this Agreement, and upon the restrictions contained request of the Board of Managers, each of the Members hereby agrees that it will, at the expense of the Entity subject to such Public Offering, take such action and execute such documents as may reasonably be necessary to effect such Public Offering as expeditiously as possible, including, without limitation, taking all such actions and executing such documents as may reasonably be necessary to convert the Company into a corporation or to contribute its respective Securities to a newly formed corporation, in this Agreement each case substantially concurrently with the closing of such Public Offering; provided, however, that in connection with any such conversion or contribution, (i) each Preferred Member shall not apply be entitled to Units, any other Equity Securities receive preferred stock of the corporation whose shares of common stock are being sold in connection with such Public Offering with the same economic rights as such Preferred Member was entitled to prior to such conversion or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Membercontribution, including acquired by any of their respective Affiliates or Approved Fundswith an aggregate liquidation preference equal to the amount such Preferred Member would be entitled to receive, following the effective date in respect of the first registration statement Preferred Units which such Preferred Member held in the Company immediately prior to such conversion or contribution, under Section 5.02 hereof if a liquidation of the Company covering common stock (or other securities) had occurred immediately prior to be sold on behalf the consummation of such Public Offering with the proceeds in such liquidation equal in amount to the implied aggregate equity valuation of the Company (as reasonably determined by the Board of Managers in good faith with the reasonable agreement of a Majority in Interest of the Preferred Members) immediately prior to the consummation of such Public Offering; (ii) the Common Members shall be entitled to receive that value of common stock of the corporation whose shares of common stock are being sold in connection with such Public Offering as equals the amount such Common Member would be entitled to receive, relative to the Common Units which such Member held in the Company immediately prior to such conversion or contribution, under Section 5.02 hereof if a liquidation of the Company had occurred immediately prior to the consummation of such Public Offering with the proceeds in such liquidation equal in amount to the implied aggregate equity valuation of the Company (as reasonably determined by the Board of Managers in good faith with the reasonable agreement of a Majority in Interest of the Preferred Members) immediately prior to the consummation of such Public Offering; and (iii) each of the parties hereto and the Entity whose Securities will be the subject of such Initial Public Offering shall enter into, as a condition thereto, a shareholders agreement on substantially the same terms and conditions, mutatis mutandis, as set forth herein; provided further, that in connection with any such conversion or contribution, at any time and from time to time following the expiration of any lock-up period for an underwritten public offering.Initial Public Offering agreed between the Preferred Members and the underwriters of any Initial Public Offering (but in no event more than 180 days after the consummation thereof), (A) with respect to the FRBNY Member, for as long as the FRBNY Member owns any Preferred Units, the FRBNY Member shall, at any time (i) during the Initial Period, upon prior consultation with, and during the 12-
Appears in 1 contract
Sources: Purchase Agreement (American International Group Inc)
Initial Public Offering. (a) In The Company shall complete a Qualified Initial Public Offering on or before March 31, 2023 (the event that at any time after “Long Stop QIPO Date”). The Company shall and the date hereofFounders shall cause the Company, to seek the Board of Directors determines that it shall facilitate an offering of Equity Securities in the Company or a successor through an requisite statutory and regulatory approvals for such Qualified Initial Public Offering, then and, in connection therewith, take all steps as regards such Qualified Initial Public Offering such that the Board requisite number of Directors Equity Shares shall have be contributed or offered by all Shareholders, other than the power Investors so as to cause meet any minimum listing requirements (but, including an Investor’s Shares, only if so desired by such Investor) and are, subject to this Agreement, offered to the public and the same are listed at the concerned registered stock exchange(s). For the purposes of this Clause, Equity Shares shall include the equity shares of the Subsidiaries, from time to time. Without limiting the generality of the foregoing, the Company and the Founders shall, and the Shareholders shall provide all reasonable support to the Company to:
(i) take all requisite steps to commence and complete the procedure of a Qualified Initial Public Offering within the timelines stipulated by the Investors;
(ii) not unduly withhold approvals for listing of the Equity Shares on the concerned registered stock exchange(s) in terms of this Agreement as per the Applicable Laws;
(iii) take all the necessary steps for, and conduct, any road shows, finalization of prospectus, proposals for increase in Equity Share capital, issue amount, issue price, and mode of issue before approaching the concerned competent authorities for approvals;
(iv) engage the services of a reputed Category 1 merchant banker for advice on the Qualified Initial Public Offering;
(v) ensure that the total offer of Equity Shares to the public shall constitute not less than the minimum required and as prescribed under the prevalent rules at the time of the Qualified Initial Public Offering of the total post issue paid-up Equity Share capital of the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under comply with the General Corporation Law listing requirements of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), concerned registered stock exchange(s) and the Members shall use their commercially reasonable efforts to effectuate such Conversion Securities Regulator;
(vi) provide all material information and take such actions as are reasonably necessary or desirable to complete ensure compliance with all applicable provisions under all Applicable Laws in force at the time of the Qualified Initial Public Offering in a manner designed and the subsequent listing of the Equity Shares of the Company for trading on the concerned registered stock exchange(s); and
(vii) do all acts and deeds required to achieve a fair price the listing on the concerned registered stock exchange(s) in terms of this Agreement and broad public distribution of as per the securities being offered in the Initial Public OfferingApplicable Laws.
(b) If applicableThe Parties expressly understand, acknowledge and agree that subject to Applicable Laws including principles governing financial assistance, the Members holding Units Company shall receive, in exchange be responsible and liable for their Units of a particular class, shares of stock in the Public Vehicle any breach of the relevant class having the same relative seniorityCompany’s representations, preferencewarranties, accumulated dividendscovenants, dividend rate, dividend accumulation obligations and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are undertakings set forth in this Agreement applicable any agreement, instrument and other document in relation to the UnitsQualified Initial Public Offering; Provided However That, subject if any Shareholder offers Equity Shares for sale pursuant to the Qualified Initial Public Offering, such Shareholder shall solely be responsible for any modifications deemed appropriate breach of its representations, warranties, covenants, obligations and undertakings set forth in any agreement, instrument and other document, and shall also be responsible for the underwriting discounts, commissions and legal costs as regards the sale of its / his / her Equity Shares in such offer for sale, in relation to the Qualified Initial Public Offering, on a pro-rata basis. It is hereby clarified that, except with respect to the expenses to be borne by a Shareholder with respect to the Board of Directors Equity Shares offered for sale by such Investor in a Qualified Initial Public Offering, as a result of stipulated above, the Conversion or if advisable Company shall be responsible and liable for all costs and expenses incurred in order to effectuate connection with the Qualified Initial Public Offering.
(c) In It is understood and agreed that the Investors shall represent and warrant only as to their respective title to the Equity Shares held by them and offered by such event, Investors for sale in the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Qualified Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehiclein respect of no other representation, the stockholders of the Public Vehicle warranty, covenant, obligation and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation)/ or undertaking.
(d) Except as otherwise provided in this Section 3.8, no Member will have In the right or power event the merchant bankers to veto, vote for or against, amend, modify or delay a Conversion the issue or the Initial Public Offering. In furtherance Securities Regulator, require that immediately prior to the issue of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, a draft red ▇▇▇▇▇▇▇ prospectus for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Qualified Initial Public Offering all agreements between or among Shareholders including pre-emptive rights, voting restrictions, and upon confirmation reasonably satisfactory restrictions or prohibitions on the Transfer of Shares shall be terminated, then the relevant provisions of this Agreement shall, only to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date extent of the relevant registration statement filed under the Securities Act in connection with the Initial Public Offeringrequirement be terminated, as such managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements to the foregoing effect if so, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoing, provided that in the event any Member that the Qualified Initial Public Offering is released by thereafter called off or the Company otherwise is not listed within 30 (thirty) days of such termination, the Company, the Founders and the managing underwriter, if any, from other Shareholders shall execute fresh agreements on the restrictions contemplated by this Section 3.8(f), all other Members shall be released from such restrictions pro-ratasame terms as the agreements which have been terminated.
(g) Notwithstanding anything to the contrary set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offering.
Appears in 1 contract
Sources: Shareholders’ Agreement
Initial Public Offering. (a) In the event that at any time after the date hereof, the Board of Directors determines that it shall facilitate an offering of Equity Securities in the Company or a successor through an Initial Public Offering, then the Board of Directors shall have the power to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members Buyer shall use their commercially reasonable efforts to effectuate such Conversion and take such actions file a registration statement on Form SB-2 under the Securities Act on substantially the same terms as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution of the securities being offered in the Initial Public OfferingLOI.
(b) If applicableEach of the Sellers and the Company shall use commercially reasonable efforts to cooperate in connection with Buyer's proposed initial public offering of shares of Class A Common Stock, including, without limitation, (i) assisting the Company and the Underwriter in preparing and filing a registration statement on Form SB-2 in respect of the proposed initial public offering of such shares and responding to comments by the Securities and Exchange Commission ("SEC") in respect of such registration statement; (ii) providing any documents or materials, including, without limitation, financial statements in respect of the Company and the Business, necessary to prepare and file such registration statement; (iii) causing the Company's independent accountants to be available to, and to cooperate with, Buyer, the Members holding Units shall receiveUnderwriter and the SEC in connection therewith and (iv) reaffirming to Buyer, in exchange for their Units of a particular classand not to any other person or entity, shares of stock in the Public Vehicle representations and warranties of the relevant class having Sellers and the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation Company in Section 2.1 hereof on and compounding and, in as of (A) the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations date ten (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units10) in the Public Vehicle as are set forth in this Agreement applicable days prior to the Unitseffective date of such registration statement, subject (B) the day prior to the effective date of such registration statement and (C) the Closing of such initial public offering; provided, however, that neither the Sellers nor the Company shall have any modifications deemed appropriate by liability with respect to the Board inaccuracy of Directors any such representations or warranties except as a result may be provided in Section 7 of the Conversion or if advisable in order to effectuate the Initial Public Offeringthis Agreement.
(c) In connection with such eventproposed initial public offering, the Public Vehicle and the Members (in their capacities as stockholders each of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public VehicleSellers agrees, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1LOI, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorneyrefrain, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(deighteen (18) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following months after the effective date of the relevant registration statement filed under the Securities Act in connection with therewith or such lesser period as the Initial Public OfferingUnderwriter may agree (the "Lock-Up Period"), from making any public sale or distribution of any of their shares of Buyer Common Stock or Additional Buyer Common Stock, as applicable, without the prior written consent of the Underwriter (the "Underwriter's Consent") and to execute and deliver any agreement to such managing underwriter shall specify effect reasonably and in good faith. Each Member shall enter into customary letter agreements to the foregoing effect if so, requested by the Company and the managing underwriterUnderwriter; provided, if any. Notwithstanding the foregoinghowever, that (i) in the event any Member shareholder of Buyer that is released by the Company and beneficial or record owner of less than 100,000 shares of Class A Common Stock (or securities convertible into such number of shares of Class A Common Stock) is permitted to sell shares of Class A Common Stock prior to the managing underwriterexpiration of Sellers' Lock-Up Period, if any, from the restrictions contemplated by this Section 3.8(f), all other Members each Seller shall be released from the lock-up with respect to a minimum of 50,000 shares per three month period commencing on the date such other shareholder is permitted to sell shares, (ii) no stockholder of Buyer holding 100,000 shares of Class A Common Stock (or securities convertible into such number of shares of Class A Common Stock) shall have lock-up restrictions prothat are more favorable (in terms of length, scope or otherwise) than those applicable to Sellers and (iii) the Lock-rata.
Up Period shall immediately terminate in the event that any holder of 100,000 shares or more of Class A Common Stock (gor securities convertible into such number of shares of Class A Common Stock) Notwithstanding anything to is released, in whole or in part, from the contrary applicable lock-up restrictions. The share numbers set forth in this AgreementSection 3.3(c) shall be subject to proportionate adjustment in the event of any stock splits, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units reclassifications or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offeringsuch similar events.
Appears in 1 contract
Sources: Stock Purchase Agreement (Access Integrated Technologies Inc)
Initial Public Offering. (ai) In During the event that at any time period beginning on the fourth (4th) anniversary of the date of this Agreement and ending on the seventh (7th) anniversary of the date of this Agreement, if the Named Executive Members and (ii) on and after the date hereofseventh (7th) anniversary of this Agreement, if the Board Sponsor Member provides Station with written notice of Directors determines that it shall facilitate an offering of Equity Securities in the Company or a successor through its desire to pursue an Initial Public Offering, then each Equityholder shall support and do all things within its power to approve, and to cause the Board of Directors to approve, the Initial Public Offering. The Board of Directors and the officers of Station shall be responsible for all aspects of the Initial Public Offering. Upon the consummation of an Initial Public Offering, Sections 2.1, 3.5.1, 3.5.2 and 3.5.3 hereof shall no longer be applicable; provided, that if such Initial Public Offering is consummated by a Subsidiary of Station or successor thereof (including Newco) in accordance with this Agreement, (i) the governance structure set forth in Article 2 hereof shall continue to be applicable to Station, (ii) a Class A Member shall have the power right, exercisable at any time and from time to cause time at such Member’s discretion, to exchange Class A Units of FCP or ▇▇▇▇▇▇▇▇ Partners for shares of common stock of such Subsidiary or successor, and (iii) the Company to be reorganized as Board of Directors, including a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law Supermajority of the State Board of Delaware by incorporationDirectors, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”)if required, and the Members shall use their commercially reasonable efforts Equityholders hereby agree to effectuate such Conversion and take such actions other actions, including amendments to this Agreement, as are may be reasonably necessary or desirable to complete the required in connection with such Initial Public Offering in a manner designed to achieve a fair price give effect to the relative rights and broad public distribution obligations of the securities being offered Equityholders contained herein, which remain in the effect following an Initial Public Offering.
(b) If applicable, the Members holding Units shall receive, in exchange for their Units of a particular class, shares of stock The Equityholders acknowledge and agree that in the Public Vehicle event of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle Units of FCP and the Members (in their capacities as stockholders of the Public Vehicle) ▇▇▇▇▇▇▇▇ Partners shall enter be converted into a stockholders’ agreement providing for such terms cash and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation Newco in accordance with the substance of Section 6.1, and (ii) the rights and obligations terms of the Members contained herein (which mayFCP Operating Agreement and the ▇▇▇▇▇▇▇▇ Partners Operating Agreement. Further, at the election Equityholders acknowledge and agree that no public offering of the holders Units of a Majority Class A InterestFCP, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right ▇▇▇▇▇▇▇▇ Partners or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with the Initial Public Offering, as such managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements to the foregoing effect if so, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members respective corporate successors shall be released from such restrictions pro-rataeffected.
(g) Notwithstanding anything to the contrary set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offering.
Appears in 1 contract
Initial Public Offering. (a) In Notwithstanding anything to the event that contrary in this Agreement (including Sections 7.2 and 12.5) and subject solely to the satisfaction of the IPO Conditions (unless waived in whole or in part in writing by, with respect to the Class A IPO Condition, any member of the Class A Group holding Limited Partner Interests or by, with respect to the Class AQ IPO Condition, the Class AQ Group or by, with respect to the Class X IPO Condition, the Class X Group), the Initial Public Offering may be initiated and approved at any time after by the date hereof, General Partner without the Board consent of Directors determines that it shall facilitate an offering of Equity Securities in any other Partner. In connection with the Company or a successor through an Initial Public Offering, then (i) the Board of Directors Partners shall have amend and restate this Agreement in the power to cause form attached hereto as Exhibit B (the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “ConversionFourth A&R LPA”), and with such changes thereto as the Members General Partner shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably deem necessary or desirable appropriate in its sole discretion; (ii) the Units outstanding immediately prior to complete the Initial Public Offering shall be converted into an aggregate number of Common Units and Subordinated Units as the General Partner shall determine is appropriate (such aggregate number of Common Units and Subordinated Units, the “Total IPO Units”) with each Class A Preferred Unit, Class AQ Unit, Class X Unit and Class B Preferred Unit converting into such number of Common Units and/or Subordinated Units as is provided in a manner designed Sections 6.6(b), Section 6.6(c), Section 6.6(d) and Section 6.6(e), respectively, and (iii) the General Partner shall be authorized to achieve a fair price cause the Partnership to negotiate, prepare, execute and broad public distribution deliver such other agreements, documents and other instruments (including with any Affiliates of the securities being offered Partnership or any Partner), and take such other actions (including the issuance of any securities), as the General Partner shall deem necessary or appropriate in its sole discretion to effect the Initial Public Offering. GPM PETROLEUM LP THIRD AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP
(b) In connection with the Initial Public Offering, each Class A Preferred Unit shall convert into a number of Common Units equal to “X” multiplied by “Y,” where “X” equals a fraction, the numerator of which is the total number of Class A Preferred Units outstanding immediately prior to such conversion and the denominator of which is the total number of Units outstanding at such time, and “Y” equals a fraction, the numerator of which is the number of Total IPO Units and the denominator of which is the total number of Class A Preferred Units outstanding immediately prior to such conversion; provided, however, that if the value of the Common Unit(s) into which each outstanding Class A Preferred Unit would convert in accordance with the foregoing formula (based on the Initial Unit Price) is less than (the amount of such shortfall, the “IPO Shortfall”) the sum of (i) the Preferred Return of such Class A Preferred Unit as of the date of conversion plus (ii) the Cumulative Class A Preferred Unit Arrearage, if any, with respect to such Class A Preferred Unit as of the date of conversion plus (iii) the Current Distributions on such Class A Preferred Unit as of the date of conversion (collectively, the “Class A IPO Condition”), then the Class A Preferred Units shall convert (subject to the proviso below) into such number of Common Units as is required to cause the Class A IPO Condition to be satisfied (such Common Units into which the Class A Preferred Units convert in accordance with the foregoing, as adjusted, if applicable, pursuant to the proviso below, the “Class A IPO Common Units”); provided, further, the General Partner shall be entitled, in its sole discretion, to cause all or a portion of the IPO Shortfall to be satisfied by the payment of cash to the holders of Class A Preferred Units.
(c) In connection with the Initial Public Offering, each Class AQ Unit shall convert into a number of Common Units equal to “X” multiplied by “Y,” where “X” equals a fraction, the numerator of which is the total number of Class AQ Units outstanding immediately prior to such conversion and the denominator of which is the total number of Units outstanding at such time, and “Y” equals a fraction, the numerator of which is the number of Total IPO Units and the denominator of which is the total number of Class AQ Units outstanding immediately prior to such conversion; provided, however, that if the value of the Common Unit(s) into which each outstanding Class AQ Unit would convert in accordance with the foregoing formula (based on the Initial Unit Price) is less than (the amount of such shortfall, the “Class AQ IPO Shortfall”) the Class AQ Unit Purchase Price (the “Class AQ IPO Condition”), then the Class AQ Units shall convert (subject to the proviso below) into such number of Common Units as is required to cause the Class AQ IPO Condition to be satisfied (such Common Units into which the Class AQ Units convert in accordance with the foregoing, as adjusted, if applicable, pursuant to the proviso below, the “Class AQ IPO Common Units”); provided, further, the General Partner shall be entitled, in its sole discretion, to cause all or a portion of the Class AQ IPO Shortfall to be satisfied by the payment of cash to the holders of Class AQ Units.
(d) In connection with the Initial Public Offering, each Class X Unit shall convert into a number of Common Units equal to “X” multiplied by “Y,” where “X” equals a fraction, the numerator of which is the total number of Class X Units outstanding immediately prior to such conversion and the denominator of which is the total number of Units outstanding at such time, and “Y” equals a fraction, the numerator of which is the number of Total IPO Units and the denominator of which is the total number of Class X Units outstanding immediately prior to such conversion; provided, however, that if the GPM PETROLEUM LP THIRD AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP value of the Common Unit(s) into which each outstanding Class X Unit would convert in accordance with the foregoing formula (based on the Initial Unit Price) is less than (the amount of such shortfall, the “Class X IPO Shortfall”) the Class X Unit Purchase Price (the “Class X IPO Condition”), then the Class X Units shall convert (subject to the proviso below) into such number of Common Units as is required to cause the Class X IPO Condition to be satisfied (such Common Units into which the Class X Units convert in accordance with the foregoing, as adjusted, if applicable, pursuant to the proviso below, the “Class X IPO Common Units”); provided, further, the General Partner shall be entitled, in its sole discretion, to cause all or a portion of the Class X IPO Shortfall to be satisfied by the payment of cash to the holders of Class X Units.
(e) In connection with the Initial Public Offering, each Class B Preferred Unit shall convert into a number of Units (as defined in the Fourth A&R LPA) equal to “X” divided by “Y,” where “X” equals the number of Total IPO Units less the number of Class A IPO Common Units less the number of Class AQ IPO Common Units less the number of Class X IPO Common Units and “Y” equals the total number of Class B Preferred Units outstanding immediately prior to such conversion (the “Class B IPO Units”). The General Partner shall be entitled, in its sole discretion, to determine the number of Class B IPO Units that shall be Common Units and the number of Class B IPO Units that shall be Subordinated Units.
(f) In connection with the Initial Public Offering, all of the Incentive Distribution Rights shall be issued to the General Partner as set forth in the Fourth A&R LPA.
(g) In connection with the Initial Public Offering approved in accordance with this Agreement, each Partner, upon the request of the lead underwriter(s), shall enter into a customary lock-up agreement at the time of the Initial Public Offering covering the Common Units, if any, to be received by such Partner pursuant to Section 6.6(a) for a lock-up period of no longer than 180 days.
(h) Each member of the Class A Group shall be required to sell up to 50% of its Common Units in the Initial Public Offering, as determined by the General Partner in its sole discretion; provided, that the Partnership will (a) pay all fees and expenses incurred by the Partnership in connection with the Initial Public Offering and (b) reimburse the members of the Class A Group for (i) the reasonable, documented out-of-pocket expenses incurred by members of the Class A Group in connection with the Initial Public Offering, including fees and expenses of attorneys, accountants and advisors retained by the Class A Group, up to a maximum, with respect to such expenses incurred by members of the Class A Group, of $50,000 and (ii) the Class A Group’s pro rata portion of all underwriting discounts and commissions received by the underwriters in the Initial Public Offering.
(bi) If applicableNotwithstanding anything in Sections 6.6(b), the Members holding Units shall receive6.6(c), in exchange for their Units of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights 6.6(d) or obligations be less favorable to such Member than the terms of their respective Units6.6(e) in the Public Vehicle as are set forth in this Agreement applicable to the Unitscontrary, subject if prior to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering.
(cOffering the Partnership effects a Reclassification Event in a manner that is not applied consistently and on a pro rata basis to all classes of Partnership Interests outstanding at the time of such Reclassification Event, then the GPM PETROLEUM LP THIRD AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP formulas in Sections 6.6(b), 6.6(c), 6.6(d) In and 6.6(e) shall be adjusted to negate any dilutive effects of such event, Reclassification Event. Such an adjustment shall be made at the Public Vehicle and the Members (in their capacities as stockholders time of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to take into account all such Member Reclassification Events that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with the Initial Public Offering, as such managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements have occurred prior to the foregoing effect if so, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members shall be released from such restrictions pro-ratadate thereof.
(g) Notwithstanding anything to the contrary set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offering.
Appears in 1 contract
Initial Public Offering. (a) In the event that at any time after the date hereofSubject to Article V, the Board Manager shall control all aspects of Directors determines that it any initial Public Offering, including any initial Public Offering of Manager Common Stock (an "IPO"), including without limitation the timing and pricing thereof. In connection with an IPO, the Manager may formulate a reorganization or restructuring plan (the "Reorganization Plan") to restructure or reorganize one or more of the Issuers. Each holder of Securities shall facilitate an offering take whatever action is required under such Reorganization Plan to effect the transactions contemplated therein so long as such plan does not affect such holding in a manner which is materially adverse and disproportionate to the manner in which such plan affects other holders of Equity securities of the same class. Any Reorganization Plan may, without limitation, provide that: (i) all Common Units (other than Common Units held by PIC) and PIC Common Stock be contributed to the Manager without consideration therefor on a tax-deferred basis pursuant to Section 351 of the Code, (ii) all shares or amounts of Preferred Securities in be exchanged for or converted into stock of the Company Manager or a successor through an Initial Public Offering, then the Board of Directors shall have the power to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation whether of a corporate Subsidiary series with similar or other permissible manner different economic terms (a “Conversion”), and including Manager Common Stock) but provided that the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions fair market value (as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution of the securities being offered determined in the Initial Public Offering.
(b) If applicable, the Members holding Units shall receive, in exchange for their Units good faith judgement of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of the Manager) of such resulting corporation in accordance with stock shall not be less than the substance Preference Amount of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, such Preferred Securities at the election time of such transaction) and/or (iii) PIC and/or the holders LLC merge with and into the Manager or sell all of a Majority Class A Interest, be contained in its assets to the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise Manager; provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, that if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Reorganization Plan voting Equity Securities of the Manager are exchanged for Units, at the request of any holder of Class B Common Stock, the Company shall enter into similar agreements, thereby agreeing not offer to Transfer any such holder of Class B Common Stock non-voting Equity Securities of the Company held by it for one hundred eighty Manager which possess the same rights (180other than with respect to voting) days following the effective date of the relevant registration statement filed under the Securities Act in connection with the Initial Public Offering, and preferences as such managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements to the foregoing effect if so, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members shall be released from such restrictions pro-ratavoting Equity Securities.
(g) Notwithstanding anything to the contrary set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offering.
Appears in 1 contract
Initial Public Offering. (a) In The Company, subject to market conditions, shall (i) cause the event that at IPO Registration Statement to be filed with the Commission substantially concurrently with the Exchange Offer Registration Statement (such date being the “IPO Filing Deadline”), (ii) make application to list the Class A Common Stock on the NASDAQ Global Market substantially concurrently with the filing of the IPO Registration Statement, (iii) use its commercially reasonable efforts to resolve any time after comments to the IPO Registration Statement from the Commission within 180 days of the date hereof, of the Board Consummation of Directors determines that it shall facilitate an offering of Equity Securities in the Company or a successor through an Initial Public Private Offering, then the Board of Directors shall have the power (iv) use its commercially reasonable efforts to cause the Company IPO to be reorganized as a corporation Consummated not later than the 12-month anniversary of the date of the consummation of the Private Offering (such corporation or other issuer entity date being hereinafter referred to as a the “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “ConversionIPO Consummation Deadline”), and (v) in connection with the Members shall foregoing, use their its commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution of the securities being offered in the Initial Public Offering.
(bA) If applicable, the Members holding Units shall receive, in exchange for their Units of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable file all pre-effective amendments to such Member than the terms of their respective Units) in the Public Vehicle IPO Registration Statement as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable may be necessary in order to effectuate cause it to become effective, (B) file, if applicable, a post-effective amendment to such IPO Registration Statement pursuant to Rule 430A under the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, Act and (iiC) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwritercause all necessary filings, if any, in connection with any Initial Public Offering the registration and upon confirmation reasonably satisfactory to such Member that all officers and directors qualification of the Company and all holdersClass A Common Stock to be made under the blue sky laws of such jurisdictions as are necessary to permit Consummation of the IPO; provided, collectively with their Affiliates and Approved Fundshowever, of one percent (1%) or greater of Equity Securities of that the Company shall enter into similar agreements, thereby agreeing not be required to Transfer take any Equity Securities action that would subject it to general service of the Company held by process or taxation in any jurisdiction where it for one hundred eighty is not already so subject.
(180i) days following the effective date of the relevant registration statement filed under the Securities Act in In connection with the Initial Public OfferingOffering described in the foregoing paragraph 5(a), the Company shall give written notice to each holder (a “Piggyback Holder”) of Transfer Restricted Securities (or Exchange Securities received in exchange for such Transfer Restricted Securities in the Exchange Offer) of its intention to publicly file the IPO Registration Statement within twenty (20) Business Days of such public filing date, and such notice shall offer each Piggyback Holder the opportunity to register (a “Piggyback Registration”) on the same terms and conditions such number of shares of Class A Common Stock held by the Piggyback Holder as the Piggyback Holder may request. The Company shall include in such managing underwriter registration all shares of Class A Common Stock with respect to which the Company has received a written request for inclusion therein from the Piggyback Holders within ten (10) Business Days after such Piggyback Holder’s receipt of the Company’s notice, provided, however, that the number of shares of Class A Common Stock to be sold by Piggyback Holders (excluding any Initial Purchaser that is a Piggyback Holder) shall be limited to 50% of the total number of shares proposed to be sold pursuant to the IPO Registration Statement and subject to the limitations described below in Section 5(b)(ii). Such requests for inclusion shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements the number of shares of Class A Common Stock intended to the foregoing effect if so, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members shall be released from such restrictions pro-ratadisposed of.
(gii) Notwithstanding anything to If the contrary set forth managing underwriter(s) of the Initial Public Offering advise the Company in this Agreementwriting that, in their judgment, the restrictions contained number of shares of Class A Common Stock requested by Piggyback Holders to be included in this Agreement the IPO Registration Statement are such that the success of the Initial Public Offering would be materially and adversely affected, the Company shall not apply include any securities the Company is so advised can be sold in such Piggyback Registration in the following order: (a) first, the shares of Class A Common Stock which the Company proposes to Unitssell; (b) second, on a pro rata basis the Class A Shares requested to be included in such registration by the Piggyback Holders (excluding any Initial Purchaser that is a Piggyback Holder), provided, that if the managing underwriters determine in good faith that a lower number of shares of Class A Common Stock should be included than those requested to be included by Piggyback Holders pursuant to paragraph (b)(i) above, then the Company shall be required to include in such registration only that lower number of shares of Class A Common Stock; and (c) third, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any shares of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) Class A Common Stock proposed to be sold on behalf of included in the Company in IPO Registration Statement (including any Class A Common Stock held by a Piggyback Holder that is an underwritten public offeringInitial Purchaser).
Appears in 1 contract
Sources: Registration Rights Agreement (Paragon Shipping Inc.)
Initial Public Offering. (a) 16.1 If so requested by a by a Qualified A Majority and a Qualified B majority, the Company and the Shareholders shall attempt to have all or part of the Shares offered to the public by way of an Initial Public Offering.
16.2 In the event that at any time after the date hereof, the Board of Directors determines that it shall facilitate an offering of Equity Securities in the Company or a successor through an Initial Public Offering, then the Board all Shareholders shall be treated equally, subject to applicable law and any regulatory requirements.
16.3 In view of Directors shall have the power to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), an ordinary exit and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution of the securities being offered in the upon an Initial Public Offering.
(b) If applicable, the Members holding Units shall receive, in exchange for their Units of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby Shareholders agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (be bound by regulatory stock exchange lock-up restrictions applicable or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act standard in connection with the Initial Public Offering, as such managing underwriter Offering and shall specify reasonably execute standard agreements and undertakings in good faiththis respect. Each Member shall enter into customary letter agreements to the foregoing effect if so, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members Shareholder shall be released pro rata from any such restrictions prolock-rataup if any other Shareholder is released from his lock-up.
16.4 In the event that an Initial Public Offering requires the restructuring of the Company (g) Notwithstanding anything e.g. a transfer of the Shares to a foreign holding company), the Shareholders shall, and shall procure that the Directors shall, exercise all voting power and other power of control available to them directly or indirectly in relation to the contrary set forth Company to do such acts and actions and to make such declarations as required to effect such restructuring to the extent that such acts, actions and declarations shall not result in this Agreementunreasonable tax burden for the Company and/or any of the Shareholders.
16.5 Upon the occurrence of an Initial Public Offering, the restrictions on Transfer of Shares contained in this Agreement Article 6, the right of first refusal contained in Article 8, the drag-along and tag-along rights contained in Articles 9 and 10 shall not apply apply. In addition, as provided for in Article 7.1, all Shareholders waive and agree to Units, waive all pre-emptive rights (droit de souscription préférentiel) with respect to any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any issuance of their respective Affiliates or Approved Funds, following the effective date Shares in connection with an Initial Public Offering.
16.6 The Common Shares and shares issuable on conversion of the first Preferred Shares will be entitled, if applicable, to standard demand registration statement of the rights, Form S-3 registration rights and piggyback rights. The Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offeringshall pay all registration expenses for demand, piggyback and S-3 registrations, as applicable.
Appears in 1 contract
Sources: Shareholder Agreement (ObsEva SA)
Initial Public Offering. Notwithstanding any provision of this subparagraph (aC) In to the event that at any time after contrary, following the date hereof, earlier to occur of (1) the Board first closing of Directors determines that it shall facilitate an offering offer and sale of Equity Securities in the Company or a successor through an Initial Public Offering, then the Board of Directors shall have the power to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law shares of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution of the securities being offered in the Initial Public Offering.
(b) If applicable, the Members holding Units shall receive, in exchange for their Units of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital common stock of the Public VehicleFox Family Worldwide (whether such shares are sold by Fox Family Worldwide, including (iexisting stockholders or both) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted cash pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree firmly underwritten public offering effected pursuant to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested a registration statement filed by the Company with the Securities and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed Exchange Commission under the Securities Act of 1933, as amended, (or such successor legislation as shall then be in connection effect), or (2) the date upon which the shares of common stock of Fox Family Worldwide are first authorized for quotation on the Nasdaq National Market, or listed on the New York Stock Exchange (either event, an "initial public offering"):
(A) the provisions of subparagraphs (viii) and (ix) shall terminate and be of no further force or effect;
(B) the provisions of any voting trust agreement entered into pursuant to subparagraph (iv) shall not prevent or restrict Employee's right to sell and transfer any of the Option Shares free and clear of the obligations therein set forth;
(C) the Option shall terminate and expire, to the extent not theretofore exercised, (x) if Employee's employment with the Initial Public OfferingCompany is terminated for any reason other than for "cause" pursuant to Paragraphs 8(a), as (b) or (d) hereof, on the first anniversary of the date of such managing underwriter termination, and (y) if Employee's employment with the Company is terminated for "cause" pursuant to Paragraph 8(c) hereof, on the thirtieth (30th) day following the date of such termination; and
(D) after Employee's employment with the Company is terminated for any reason, Fox Family Worldwide shall specify reasonably have the right and in good faith. Each Member shall enter into customary letter agreements option, exercisable at any time prior to the foregoing effect date of expiration of the Option by delivery of written notice of such exercise to Employee, to purchase from Employee, and if sosuch option is exercised, requested Employee shall sell to Fox Family Worldwide, any and all Option Shares owned by Employee on the date of receipt of the notice of exercise (or acquired thereafter upon exercise of the Option and prior to the closing of such purchase) and the Option granted to Employee hereunder for an amount (the "IPO Termination Purchase Price") equal to (a) the fair market value per share of the Class B Common Stock of Fox Family Worldwide, multiplied by the Company number of Option Shares owned by Employee plus the fair market value per share of the Class B Common Stock of Fox Family Worldwide, multiplied by the number of Option Shares with respect to which Employee's Option has not been exercised, less (B) Employee's purchase price, determined under subparagraph (i) above, for the Option Shares with respect to which Employee's Option has not been exercised; for purposes of this subparagraph, IPO Termination Purchase Price shall equal the greater of (x) the average of the closing sale prices of Fox Family Worldwide's common stock over the 180 trading days preceding the date of giving of written notice and (y) the managing underwriteraverage of the closing sale prices of Fox Family Worldwide's common stock over the five trading days preceding the date of giving of written notice; and within ten (10) days after the determination of the fair market value of the Option Shares, if any. Notwithstanding Fox Family Worldwide shall pay the foregoingIPO Termination Purchase Price to Employee, against delivery by Employee to Fox Family Worldwide of an assignment separate from certificate for the Option Shares, in the event each case free and clear of any Member is released by the Company and the managing underwriterall liens, if anyclaims, from the encumbrances and restrictions contemplated by this Section 3.8(f)of any type, all other Members shall be released from such restrictions pro-ratakind or nature.
(g) Notwithstanding anything to the contrary set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offering.
Appears in 1 contract
Initial Public Offering. (a) In The Company and the event Members acknowledge and agree that at any time after time, subject to the date hereofprovisions of Section 9.1.11, the Board may request (or any of Directors determines its Subsidiaries if approved by the Board), or the WP Member pursuant to Section 7.6 and 7.7 may require, that it shall facilitate an offering of Equity Securities in the Company or a successor through initiate an Initial Public Offering, then the Board of Directors shall have the power to cause the . The Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially be deemed to have approved any Initial Public Offering initiated in accordance with the prior sentence and the process related thereto, which Initial Public Offering shall be effected in accordance with this Section 10.6. Subject to Section 9.1.11, the Company and each of the Members shall take all reasonable efforts actions (i) to effectuate such Conversion cause the Issuer to file a registration statement on Form S-1 to effect an Initial Public Offering (or to consummate a similar initial public offering pursuant to a comparable process under applicable foreign securities laws) and take such actions as are reasonably necessary or desirable to complete (ii) in connection with the consummation of any Reorganization and the Initial Public Offering in as the Board so requests, including (x) the approval of a manner designed to achieve a fair price and broad public distribution merger or conversion of the securities being offered in Company or one or more of its Subsidiaries with and into a corporation or other entity, (y) the execution of applicable customary holdback and underwriting agreements, and (z) compliance with the requirements of all laws, exchanges and other regulatory and self-regulatory organizations that are applicable to, or have jurisdiction over, such Initial Public Offering.
(b) If applicableAny Initial Public Offering relating to the Company or its Subsidiaries may be effected at the Company level or at the level of a Subsidiary of the Company (the applicable entity, including any successor entity to the Company or any Subsidiary thereof, the “Issuer”). In connection with an Initial Public Offering approved in accordance with the terms of this Agreement, the Board may approve a reorganization of the Company or any of its Subsidiaries, whether involving a merger, contribution of equity securities, share exchange or otherwise (a “Reorganization”). Pursuant to such Reorganization, if so determined by the Board, the Members holding Units shall receive, receive common stock of the Issuer in exchange for their Units the Equity Securities of the Company then held by the Members. Notwithstanding anything to the contrary contained herein, in connection with an Initial Public Offering, the Board may cause the Company implement an “Up-C Structure” in which the business of the Company is continued to be conducted by the Company as a particular classlimited liability company with the Issuer being admitted as the manager or any similar structure, shares including by causing any direct or indirect holder of stock interests in the Public Vehicle Founder Member that is taxable as a corporation for U.S. federal income tax purposes to be the Issuer (the “Up-C Structure”). Any amount paid by the Issuer under a tax receivables or similar agreement in connection with the Up-C Structure shall be shared among the Members based on a pro rata utilization of the relevant class having tax benefits provided to the same relative Issuer by the Members. Notwithstanding the foregoing, at any time that the Board determines to effect a Reorganization or implement an Up-C Structure pursuant to this Section 10.6(b), each Member shall be entitled to exchange its Units for securities of the Issuer which reflect and are consistent with the terms of the Units as in effect immediately prior to such Reorganization or implementation of Up-C Structure with respect to seniority, preference, accumulated dividendseconomic interest, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent board rights, economic interest approval rights and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offeringobligations.
(c) In such event, Until immediately prior to the Public Vehicle and the Members (in their capacities as stockholders consummation of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders all of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein under this Agreement and in connection with any Reorganization shall be preserved (which mayeither by entering into a shareholders agreement with the Registered Entity, at the election of the holders of a Majority Class A Interestkeeping this Agreement in effect, be contained including corresponding provisions in the Public VehicleRegistered Entity’s certificate of incorporationincorporation or other organizational documents or otherwise). Following the Initial Public Offering, all of the rights of such Members under this Agreement and in connection with any Reorganization that do not terminate by their terms prior to or concurrent with consummation of the Initial Public Offering shall be preserved as nearly as practicable for a publicly traded company (by entering into a new shareholder agreement with the Registered Entity including corresponding provisions in the Registered Entity’s certificate of incorporation or other organizational documents or otherwise).
(d) Except as otherwise provided In connection with an Initial Public Offering, the Company or its successor entity (the “Registering Entity”) will enter into a registration rights agreement in this Section 3.8the form of Exhibit D attached hereto. The Members hereby agree that, during the period of duration (up to, but not exceeding, 180 days) specified by the Issuer and the underwriter of equity securities of the Issuer, following the date of the final prospectus (or comparable document under applicable foreign securities laws) distributed in connection with an Initial Public Offering, no Member will have shall, to the right extent requested by the Issuer and such underwriter, directly or power indirectly sell, offer to vetosell, vote contract to sell (including any short sale or other hedging transaction), pledge, grant any option to purchase or otherwise Transfer any equity securities held by such Member at any time during such period except for or against, amend, modify or delay a Conversion or such equity securities as shall be included in such registration. If requested by the Initial Public Offering. In furtherance of the foregoingunderwriter, each Member hereby makes, constitutes and appoints shall execute an agreement in the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect form provided by the underwriter containing terms which are essentially consistent with the provisions of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable10.6(d).
(e) The Company From and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for after one hundred eighty (180) days following such Initial Public Offering, WP Member shall be entitled to (i) make a demand registration at any time (but no more than twice in any calendar year) on Form S-1 (or a successor form) or other similar long-form registration statement, and (ii) customary piggyback registration rights on all demand registrations and the effective date of the relevant registration statement filed under the Securities Act in connection with Registering Entity registrations (including “shelf” registration, but excluding the Initial Public Offering), as such managing underwriter shall specify reasonably and in good faith. Each provided that, any block trade to be made by the WP Member shall enter into customary letter agreements not be subject to the foregoing effect if so, requested by the Company and the managing underwriter, if anyany piggyback registration rights of any other party. Notwithstanding the foregoing, in In the event any that the number of shares of securities requested to be included in a demand registration exceeds the number of shares of securities that can be sold in such offering, the WP Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members shall be released from entitled to participate first over any other equityholders of the Registering Entity to be included in such restrictions pro-rata.
(g) Notwithstanding anything to the contrary set forth in this Agreement, the restrictions contained in this Agreement registration and shall not apply be subject to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold pro rata cutbacks based on behalf of the Company in an underwritten public offeringownership percentage.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Calumet Specialty Products Partners, L.P.)
Initial Public Offering. (a) In If the event that Company at any time after the date hereof, the Board of Directors determines that it shall facilitate an offering of Equity Securities in the Company or a successor through an proposes its Initial Public Offering, then it will give notice to the Board Founders of Directors shall have its intention to do so. Upon the power written request of any Founder to register any of its Restricted Stock, the Company will use its best efforts to cause the Company Restricted Stock as to which registration shall have been so requested to be reorganized as a corporation (such corporation included in the securities to be covered by the registration statement proposed to be filed by the Company, all to the extent requisite to permit the sale or other issuer entity being hereinafter referred disposition by the Founder of such Restricted Stock so registered. The number of shares of Restricted Stock to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete be included in the Initial Public Offering in a manner designed may be reduced (pro rata among the requesting Founders based upon the number of shares of Restricted Stock owned by the Founders) if and to achieve a fair price and broad public distribution the extent that the managing underwriter shall be of the opinion that such inclusion would adversely affect the marketing of the securities being offered to be sold by the Company therein, provided, however, that such number of shares of Restricted Stock shall not be reduced if any shares are to be included in such underwriting for the Initial Public Offering.
(b) If applicableaccount of any person other than the Company or the Founders. For purposes of this Section 2.3 and Sections 2.4, 2.5, 2.6, 6.1 and 6.4, the Members holding Units term "Restricted Stock" shall receive, in exchange for their Units be deemed to include the number of a particular class, shares of stock in the Public Vehicle Restricted Stock which would be issuable to a holder of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case Preferred Shares upon conversion of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect Preferred Stock; provided, however, that the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (only securities which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreementsbe required to register pursuant hereto shall be shares of Common Stock; provided, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with the Initial Public Offeringfurther, as such managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements to the foregoing effect if sohowever, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoingthat, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions underwritten public offering contemplated by this Section 3.8(f)2.3 or Sections 2.4, all other Members 2.5 and 2.6, the holders of Preferred Shares shall be released from entitled to sell such restrictions pro-rata.
(g) Notwithstanding anything Preferred Shares to the contrary set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable underwriters for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date conversion and sale of the first registration statement shares of the Company covering common stock (Common Stock issued upon conversion or other securities) to be sold on behalf of the Company in an underwritten public offeringexercise and conversion, as applicable, thereof.
Appears in 1 contract
Initial Public Offering. (a) In the event that at any time after Rentech Parent intends to commence a firm commitment, initial public offering on a registration statement on Form S-1 or its equivalent under the date hereof, the Board of Directors determines that it shall facilitate Securities Act (an offering of Equity Securities in the Company or a successor through an “Initial Public Offering”) by a Subsidiary of Rentech Parent that owns or, then that upon consummation of a sale pursuant to this Section 6.6.6 will own, a Wood Pellet Mill (the Board of Directors shall have the power to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “ConversionEntity”), Rentech shall provide written notice thereof to Graanul at least 30 days prior to the filing of such registration statement with the Securities and Exchange Commission. Rentech shall not be required to include any information in such written notice if it determines in good faith that inclusion of such information would violate applicable law or the Members shall use their commercially reasonable efforts to effectuate such Conversion rules and take such actions as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution regulations of the securities being offered in the Initial Public OfferingSecurities and Exchange Commission.
(b) If applicableUpon delivery of such written notice, Rentech and Graanul, acting jointly, may (but shall not be obligated to) cause any Project Entity, without the Members holding Units shall receiveconsent of the Board or any other Member, in exchange to offer for sale or contribution its or their Units of a particular class, shares of stock Equity Interests in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable Project Entity that owns an Approved Project to such Member than Public Entity (either before or after the terms consummation of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) for such consideration and on such terms as shall be determined by the Board. Until the end of the Exclusivity Period, if the Board cannot agree on the consideration to continue to apply to be received from the Public VehicleEntity for the offered Equity Interests, such consideration shall equal the stockholders Appraised Price plus warrants exercisable for common units representing limited partner interests (or an equivalent class of Equity Interests) of the Public Vehicle and Entity (the capital stock “Public Entity Warrants”). The “Appraised Price” means the average of the Public Vehicle, including fair market values of the Equity Interests in the applicable Project Entity as determined by (i) a good faith appraisal made by an agreement to vote all shares of capital stock held appraiser selected by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, Rentech and (ii) a good faith appraisal made by an appraiser selected by Graanul, provided that if the rights difference between the respective fair market values determined by such appraisals is more than 15%, a third appraisal shall be performed in good faith by an appraiser mutually agreed between Rentech and obligations Graanul and the offering price shall be determined by excluding the appraisal with the largest difference in fair market value from the average fair market value of the Members contained herein (which may, at three appraisals and then averaging the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation)two remaining appraisals.
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with the Initial Public Offering, as such managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements to the foregoing effect if so, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members shall be released from such restrictions pro-rata.
(g) Notwithstanding anything to the contrary set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offering.
Appears in 1 contract
Sources: Joint Venture and Operating Agreement (Rentech Inc /Co/)
Initial Public Offering. (a) In At any time following the event that third anniversary of the date of this Agreement, if the Preferred Member is unable to sell its Membership Interest after a good faith effort to do so, or at any other time after upon the date hereofwritten agreement of the Preferred Member and CSSE, with such agreement not to be unreasonably withheld, then, if requested in writing by the Preferred Member, the Board of Directors determines that it shall facilitate an authorize a public offering of Equity Securities in equity securities of the Company by one or a successor through an more underwriters, including Ladenburg T▇▇▇▇▇▇▇ & Co., Inc., and on such other terms and conditions to be agreed between the Preferred Member and CSSE (the “Initial Public Offering, then the Board of Directors shall have the power to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution of the securities being offered in the Initial Public Offering.
(b) If applicable, The Initial Public Offering may include the Members holding Units shall receive, in exchange for their Units resale of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate equity interests held by the Board of Directors as a result of Members, provided that (i) such selling Members enter into an underwriting agreement in customary form with the Conversion underwriter or if advisable in order to effectuate underwriters selected for the Initial Public OfferingOffering and (ii) if the underwriters advise the Company and the selling Members in writing that the dollar amount or number of Units which the selling Members desire to sell, taken together with all of the Units or other equity interests proposed to be sold by the Company, exceeds the maximum dollar amount or maximum number of shares that can be sold in the Initial Public Offering without adversely affecting the proposed offering price, the timing, the distribution method, or the probability of success of such offering (the “Maximum Number of Shares”), then the Company shall reduce the number of Units proposed to be sold by selling Members in the Initial Public Offering to the Maximum Number of Shares; provided that the number of Units held by the Preferred Member to be included in the Initial Public Offering shall not be reduced unless all Units held by any other Member are first entirely excluded therefrom.
(c) In such eventThe Company shall use its commercially reasonable best efforts to list, or cause to be listed, the Public Vehicle and shares sold in the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of on a Majority Class A Interest, be contained national securities exchange in the Public Vehicle’s certificate of incorporation)United States.
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company will pay all expenses and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act fees in connection with the Initial Public Offering, as such managing underwriter shall specify reasonably other than underwriters’ fees and in good faith. Each Member shall enter into customary letter agreements to the foregoing effect if so, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members shall be released from such restrictions pro-ratacommissions.
(g) Notwithstanding anything to the contrary set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offering.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Chicken Soup for the Soul Entertainment, Inc.)
Initial Public Offering. At any time upon the determination of the Board that an Initial Public Offering is in the best interests of the Company and the Members, and upon approval by a Supermajority Vote of the Board if such Initial Public Offering does not constitute a Qualified Public Offering, subject to applicable Law and receipt of applicable regulatory approvals, either (a) In the event that at any time after the date hereof, the Board of Directors determines that it shall facilitate an offering of Equity Securities in the Company shall be required to contribute all or a successor through specified portion of the assets of the Company to a corporation newly formed under the Laws of the State of Delaware (the “New Company”), or (b) the Members shall be required to contribute their Interests to the New Company, in each case in exchange for shares of the New Company’s stock having substantially the same equity interests and voting rights as the Interests being contributed (“New Company Shares”), and the Company shall cause the New Company to file and use its best efforts to have declared effective a registration statement under the Securities Act for an Initial Public Offering, then the Board of Directors shall have the power and to cause the New Company and its officers and employees to be reorganized as use their best efforts to market the New Company Shares, subject to all applicable Securities Act restrictions. To the extent required by the underwriters managing a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law registered public offering of the State of Delaware by incorporationNew Company Shares, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable each Member agrees to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution of the securities being offered in the Initial Public Offering.
(b) If applicable, the Members holding Units shall receive, in exchange for their Units of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation execute all customary questionnaires and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than similar documents so required under the terms of their respective Units) in such underwriting agreements. Upon the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board consummation of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with the Initial Public Offering, as such managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements to the foregoing effect if so, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f8.1(d), all this Article XI, Schedule 8.1(i)(v), and such other Members provisions as the Board may determine, including this Agreement in its entirety, shall terminate automatically and be released from such restrictions pro-rata.
(g) of no further force and effect. Notwithstanding anything to the contrary set forth in this Agreementherein, as a condition to an Initial Public Offering, the restrictions contained in this Agreement Company or any successor thereto shall not apply enter into a registration rights agreement, upon commercially reasonable terms, with any Member requesting such agreement with respect to Units, any other the registration of its Equity Securities or any securities convertible into or exercisable or exchangeable with customary terms and conditions and in form and substance reasonably satisfactory to the Board and such Member; provided that such registration rights agreement shall include (i) demand registration rights that apply (A) equally to all Members, (B) only after an Initial Public Offering, and (C) subject to customary minimum thresholds and (ii) piggyback registration rights for Units or other Equity Securities acquired by any Member, including acquired by any of all Members on a pro rata basis in proportion with their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering relative common stock (or other securities) to be sold on behalf of the Company in an underwritten public offering.equity interests.
Appears in 1 contract
Sources: Limited Liability Company Agreement
Initial Public Offering. (a) In the event that at any time Promptly after the date hereof, the Board of Directors determines that it shall facilitate OnCore or an Affiliate thereof consummates a firm-commitment underwritten initial public offering of Equity Securities in the Company stock, OnCore will issue to, or a successor through an Initial Public Offering, then the Board of Directors shall have the power to cause the Company to be reorganized issued to, NeuroVive a number of shares of common stock of the publicly-traded entity that is equal to $[***] divided by the average of the opening and closing price of the publicly traded stock on the first day of trading (the “OnCore Securities”). Upon the request of OnCore or the managing underwriters of OnCore’s initial public offering, NeuroVive shall not sell, transfer, make any short sale of, grant any option for the purchase of, or enter into any hedging or similar transaction with the same economic effect as a corporation sale (such corporation or other issuer entity being hereinafter referred including sales pursuant to as a “Public Vehicle”Rule 144) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “ConversionSale Transaction”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution of the securities being offered in the Initial Public Offering.
(b) If applicable, the Members holding Units shall receive, in exchange for their Units of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8OnCore Securities, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with the Initial Public Offering, as such managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements to the foregoing effect if so, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members shall be released from such restrictions pro-rata.
(g) Notwithstanding anything to the contrary set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exchangeable or exercisable or exchangeable for Units or other Equity Securities acquired by any MemberOnCore Securities, including acquired by any of their respective Affiliates or Approved Funds, following during the period beginning on the effective date of the first registration statement relating to OnCore’s initial public offering and through the date that is [***] days after the effective date of OnCore’s initial public offering (the “Holdback Period”). The Holdback Period may be extended as requested by OnCore or an underwriter to accommodate regulatory restrictions on (a) the publication or other distribution of research reports, and (b) analyst recommendations and opinions, including, but not limited to, the restrictions contained in FINRA Rule 2711(f)(4) or NYSE Rule 472(f)(4), or any successor provisions or amendments thereto (such period referred to herein as the “Holdback Extension”). OnCore may impose stop transfer instructions with respect to OnCore Securities subject to the foregoing restriction until the end of the Company covering common stock (or other securities) to be sold on behalf of Holdback Period and the Company in an underwritten public offeringHoldback Extension.
Appears in 1 contract
Initial Public Offering. Ladies & Gentlemen: The undersigned, an owner of record or beneficially of certain shares of common stock, par value $0.001 per share (a“Shares”), of OncoMed Pharmaceuticals, Inc. (the “Company”), or of securities convertible into or exchangeable or exercisable for Shares, understands that the Company proposes to conduct a public offering of Shares (the “Offering”). The undersigned recognizes that the Offering will benefit each of the Company and the undersigned. The undersigned acknowledges that, in approving the terms of the Offering and matters relating to the Offering, including an underwriting agreement (the “Underwriting Agreement”) with Jefferies LLC (“Jefferies”) and Leerink ▇▇▇▇▇ LLC (“Leerink”), as the representatives of the several underwriters listed therein, the Company’s board of directors (the “Board”) may be relying on the representations and agreements of the undersigned contained in this letter agreement. Annex A sets forth definitions for capitalized terms used in this letter agreement that are not defined in the body of this agreement. Those definitions are a part of this agreement. In consideration of the event foregoing, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned hereby agrees that, during the Lock-up Period, the undersigned will not (and will use reasonable best efforts to cause any Immediate Family Member not to), subject to the exceptions set forth in this letter agreement, without the prior approval of at least a majority of the Board: • Sell or Offer to Sell any Shares or Related Securities currently or hereafter owned either of record or beneficially (as defined in Rule 13d-3 under the Exchange Act) by the undersigned or such Immediate Family Member, • enter into any Swap, • make any demand for, or exercise any right with respect to, the registration under the Securities Act of the offer and sale of any Shares or Related Securities, or cause to be filed a registration statement, prospectus or prospectus supplement (or an amendment or supplement thereto) with respect to any such registration, or • publicly announce any intention to do any of the foregoing. The foregoing will not apply to the registration of the offer and sale of the Shares, and the sale of the Shares to the underwriters, in each case as contemplated by the Underwriting Agreement. In addition, the foregoing restrictions shall not apply to (i) the transfer of Shares or Related Securities by gift, or by will or intestate succession to the legal representative, heir, beneficiary or any Family Member or to a trust whose beneficiaries consist exclusively of one or more of the undersigned and/or a Family Member, (ii) transfers or dispositions of the undersigned’s Shares or Related Securities to any corporation, partnership, limited liability company or other entity all of the beneficial ownership interests of which are held by the undersigned or any Family Member, (iii) distributions of the undersigned’s Shares or Related Securities to partners, members or stockholders of the undersigned, and (iv) the transfer of Shares by operation of law, including pursuant to a domestic order or a negotiated divorce settlement; provided, however, that in any such case, it shall be a condition to such transfer or distribution that: • each transferee or distributee executes and delivers to the Company an agreement in form and substance satisfactory to at least a majority of the Board stating that such transferee or distributee is receiving and holding such Shares and/or Related Securities subject to the provisions of this letter agreement and agrees not to Sell or Offer to Sell such Shares and/or Related Securities, engage in any time after Swap or engage in any other activities restricted under this letter agreement except in accordance with this letter agreement (as if such transferee had been an original signatory hereto), and • with respect to clauses (i) through (iii) only, prior to the expiration of the Lock-up Period, no public disclosure or filing under the Exchange Act by any party to the transfer or distribution (donor, donee, transferor or transferee) shall be required, or made voluntarily, reporting a reduction in beneficial ownership of Shares in connection with such transfer or distribution. Furthermore, notwithstanding the restrictions imposed by this letter agreement, the undersigned may, without the prior approval of at least a majority of the Board, (i) exercise an option to purchase Shares granted under any stock incentive plan or stock purchase plan of the Company, provided that the underlying Shares shall continue to be subject to the restrictions on transfer set forth in this letter agreement, (ii) establish a trading plan pursuant to Rule 10b5-1 under the Exchange Act for the transfer of Shares, provided that such trading plan does not provide for any transfers of Shares during the Lock-up Period, and (iii) transfer or dispose of Shares acquired in the Offering or on the open market following the Offering. The undersigned also agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar against the transfer of Shares or Related Securities held by the undersigned and the undersigned’s Immediate Family Members, if any, except in compliance with the foregoing restrictions. The undersigned shall automatically be released from the restrictions imposed by this letter agreement: • with respect to twenty-five percent (25%) of the Shares held by the undersigned as of the date hereof, at the Board close of Directors determines trading on the date that it shall facilitate an offering is the six-month anniversary of Equity Securities the date of the Prospectus (as defined in the Company Underwriting Agreement), or if such date is not a successor through Trading Day, at 11:59 p.m. California time on such date; • with respect to an Initial Public Offeringadditional fifty percent (50%) of the Shares held by the undersigned as of the date hereof, then at the Board close of Directors shall have trading on the power date that is the one-year anniversary of the date of the Prospectus, or if such date is not a Trading Day, at 11:59 p.m. California time on such date; • with respect to cause the remaining twenty percent (25%) of the Shares held by the undersigned as of the date hereof, at the close of trading on the date that is the 18-month anniversary of the date of the Prospectus, or if such date is not a Trading Day, at 11:59 p.m. California time on such date; and • with respect to all Shares held by the undersigned, at the close of trading on the date that is the 20th consecutive Trading Day on which the market capitalization of the Company is at least $2,000,000,000 (as determined by multiplying the number of Shares outstanding at the closing of trading on each such Trading Day by the closing price per Share on each such Trading Day). Notwithstanding anything herein to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution of the securities being offered in the Initial Public Offering.
(b) If applicable, the Members holding Units shall receive, in exchange for their Units of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding andcontrary, in the case event that more than an aggregate of the Class A Units$500,000 of Shares held by executive officers, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights directors and/or 5% or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as greater stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as Company are necessary for released from the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply lock-up restrictions described above, other than pursuant to the Public Vehicleimmediately preceding paragraph (the value of such released Shares to be determined based on the closing price on the date that the applicable Shares are approved for release), the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares the same percentage of capital stock Shares of the Company’s securities held by such stockholders persons that are so released from the lock-up restrictions shall automatically be released with respect to elect the Board of Directors of such resulting corporation in accordance with Shares held by the substance of Section 6.1, undersigned concurrently therewith and (ii) the rights Company shall promptly notify the undersigned of such release. It is understood that, if (i) the Company notifies Jefferies and obligations Leerink in writing that it does not intend to proceed with the Offering, (ii) the Underwriting Agreement relating to the Offering is not executed by December 31, 2013, or (iii) the Underwriting Agreement (other than the provisions thereof which survive termination) shall terminate or be terminated for any reason prior to payment for and delivery of the Members contained herein (which mayShares to be sold thereunder, at the election of the holders of a Majority Class A Interest, this letter agreement shall immediately be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company terminated and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company undersigned shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with the Initial Public Offering, as such managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements to the foregoing effect if so, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members shall automatically be released from such restrictions pro-rata.
(g) Notwithstanding anything all of his or her obligations under this letter agreement. The undersigned hereby represents and warrants that the undersigned has full power, capacity and authority to enter into this letter agreement. This letter agreement is irrevocable and will be binding on the contrary set forth undersigned and the successors, heirs, personal representatives and assigns of the undersigned. This letter agreement shall be governed by, and construed in this Agreementaccordance with, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date laws of the first registration statement State of the Company covering common stock (or other securities) to be sold on behalf California. Signature Printed Name of the Company in an underwritten public offering.Person Signing
Appears in 1 contract
Sources: Supplemental Lock Up Agreement (OncoMed Pharmaceuticals Inc)
Initial Public Offering. (a) In Upon an initial public offering of ----------------------- CCT, CCA, CCE or any successor in interest to CCT, CCA, or CCE, CCE's obligations to Cencom set forth in Sections 1-3 will terminate and CCT and CCE will be obligated to cause to be issued to Cencom equity securities of the event that at any time after entity which is making such initial public offering of the same type which are being offered to the public and having an aggregate fair market value equal to the amount which would be payable to Cencom pursuant to Section 1 if as of the date hereofof such initial public offering the Partnerships sold 100% of their assets for fair market value for cash and distributed the net proceeds to their partners. For purposes of this Section 4, "fair market value" will be determined with reference to the Board of Directors determines that it shall facilitate an initial public offering of Equity Securities in the Company or a successor through an Initial Public Offering, then the Board of Directors shall have the power to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law price of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution of the equity securities being offered in to the Initial Public Offeringpublic by such entity making an initial public offering.
(b) If applicable, Notwithstanding the Members holding Units shall receive, in exchange for their Units provisions of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding andSection 4(a), in the case event that an issuance of the Class A Units, the other characteristics equity securities to Cencom pursuant to Section 4(a) would cause Cencom or any of the Class A Units, voting, management its affiliates to have an attributable interest in a cable operator for purposes of 47 C.F.R. (section section)76.1000 - 76.1003 and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result any of Gaylord's Entertainment Company's cable networks would be prohibited from offering programming on an exclusive basis to cable delivery systems, then, at Cencom's option, CCT and CCE will cause such number of equity securities to be issued to Cencom as, in the Conversion opinion of Cencom's counsel, will not result in Cencom or if advisable in order to effectuate its affiliates having such an attributable interest and CCT and CCE will have the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including option either (i) an agreement to vote all shares pay or to cause to be paid to - Cencom in cash the fair market value of capital stock held by such stockholders to elect the Board of Directors balance of such resulting corporation in accordance equity securities otherwise issuable pursuant to Section 4(a) up to the amount of the net proceeds from the initial public offering received by the entity making such initial public offering, with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriterbalance, if any, payable in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to a subordinated note of such Member that all officers and directors of the Company and all holdersentity, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with the Initial Public Offering, as such managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements to the foregoing effect if so, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members shall be released from such restrictions pro-rata.
(g) Notwithstanding anything to the contrary set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into equity securities with appropriate registration rights, or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any (ii) to cause the balance of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securitiessuch equity securities otherwise -- issuable pursuant to Section 4(a) to be sold on behalf of Cencom in such initial public offering. In any event, Cencom will be entitled to have such number of its securities registered and sold in such initial public offering in the Company same proportion as the number of securities owned by ▇▇▇▇▇ and Charter bears to the number of securities to be registered and sold by ▇▇▇▇▇ and Charter in an underwritten such initial public offering.
Appears in 1 contract
Sources: Contingent Payment Agreement (Cencom Cable Entertainment Inc /New)
Initial Public Offering. (a) In the event that at any time after the date hereof, the Board of Directors determines that it shall facilitate an offering of Equity Securities in the Company or a successor through an Initial Public Offering, then the Board of Directors Investors shall have the power to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete participate in the Initial Public Offering pro rata in a manner designed to achieve a fair price and broad public distribution of the securities being offered in the Initial Public Offering.
(b) If applicable, the Members holding Units shall receive, in exchange for their Units of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable proportion to the Units, subject to any modifications deemed appropriate number of Registrable Securities requested by the Board of Directors as a result of the Conversion or if advisable Investors to be included in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoingconnection with a planned Initial Public Offering, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and shall deliver prompt written notice (which notice shall be given (i) in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by event that the Company and a managing underwriterhas publicly disclosed such proposed Initial Public Offering, if any, in connection with any at least thirty (30) calendar days prior to such proposed Initial Public Offering and upon confirmation reasonably satisfactory to such Member (ii) in the event that all officers and directors of the Company and all holdershas not publicly disclosed such proposed Initial Public Offering (a “Non-Public IPO Registration Notice”), collectively with their Affiliates and Approved Funds, no more than ten (10) Business Days prior to the filing of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant such proposed Initial Public Offering registration statement filed under the Securities Act in connection with the SEC (such period not in excess of ten (10) Business Days, the “Non-Public IPO Registration Notice Period”)) to all Investors of its intention to undertake such Initial Public Offering, describing in reasonable detail the proposed offering and distribution (including the anticipated range of the proposed offering price, the class and number of securities proposed to be registered and the distribution arrangements) and of such Investor’s right to participate in such registration under this Section 2(b) as herein provided. If the Investor elects to participate in such managing underwriter proposed Initial Public Offering, the Investor shall keep the contents of any Non-Public IPO Registration Notice confidential prior to the filing of such proposed Initial Public Offering with the SEC and if the Investor has elected not to participate in such proposed Initial Public Offering, the Investor shall keep the contents of any Non-Public IPO Registration Notice confidential during the Non-Public IPO Registration Notice Period. Subject to the other provisions of this paragraph, upon the written request of any Investor made within twenty (20) calendar days, or in the case of a Non-Public IPO Registration Notice, within five (5) Business Days, after the receipt of such written notice (which request shall specify reasonably and the amount of Registrable Securities to be sold), the Company shall allow the Investors to participate in good faithsuch offering. Each Member shall enter into customary letter agreements Immediately upon notification to the foregoing effect if soCompany from the underwriter of the price at which such securities are to be sold, requested by the Company shall so advise each participating Investor. The Investors requesting to participate may, at any time prior to the effectiveness of the registration statement for the Initial Public Offering (and the managing underwriterfor any reason), if any. Notwithstanding the foregoing, in the event any Member is released revoke such request by delivering written notice to the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members shall be released from revoking such restrictions pro-ratarequested inclusion.
(g) Notwithstanding anything to the contrary set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offering.
Appears in 1 contract
Sources: Registration Rights Agreement (Qiao Xing Universal Telephone Inc)
Initial Public Offering. (a) In the event that at any time after the date hereofThe Company, the Board of Directors determines that it subject to market conditions, shall facilitate an offering of Equity Securities in the Company or a successor through an Initial Public Offering, then the Board of Directors shall have the power to (i) cause the Company IPO Registration Statement to be reorganized as a corporation filed with the Commission substantially concurrently with the Exchange Offer Registration Statement (such corporation or other issuer entity date being hereinafter referred the "IPO Filing Deadline"), (ii) make application to as a “Public Vehicle”) under list the General Corporation Law Class A Common Stock on the NASDAQ Global Market substantially concurrently with the filing of the State of Delaware by incorporationIPO Registration Statement, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall iii) use their its commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable resolve any comments to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution IPO Registration Statement from the Commission within 180 days of the securities being offered in the Initial Public Offering.
(b) If applicable, the Members holding Units shall receive, in exchange for their Units of a particular class, shares of stock in the Public Vehicle date of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case Consummation of the Class A UnitsPrivate Offering, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Unitsiv) in the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company use its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure cause the Conversion IPO to maximize be Consummated not later than the ability 12-month anniversary of the Members to aggregate date of the consummation of the Private Offering (or “tack”such date being the "IPO Consummation Deadline"), and (v) the period during which they hold their Units together in connection with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities lawsforegoing, including use its commercially reasonable efforts to (A) file all pre-effective amendments to such IPO Registration Statement as may be necessary in order to cause it to become effective, (B) file, if applicable, a post-effective amendment to such IPO Registration Statement pursuant to Rule 144 430A under the Securities Act.
Act and (fC) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwritercause all necessary filings, if any, in connection with any Initial Public Offering the registration and upon confirmation reasonably satisfactory to such Member that all officers and directors qualification of the Company and all holdersClass A Common Stock to be made under the blue sky laws of such jurisdictions as are necessary to permit Consummation of the IPO; provided, collectively with their Affiliates and Approved Fundshowever, of one percent (1%) or greater of Equity Securities of that the Company shall enter into similar agreements, thereby agreeing not be required to Transfer take any Equity Securities action that would subject it to general service of the Company held by process or taxation in any jurisdiction where it for one hundred eighty is not already so subject.
(180i) days following the effective date of the relevant registration statement filed under the Securities Act in In connection with the Initial Public Offering described in the foregoing paragraph 5(a), the Company shall give written notice to each holder of Transfer Restricted Securities other than Innovation Holdings (a "Piggyback Holder") of its intention to publicly file the IPO Registration Statement as soon as practicable, and such notice shall offer each Piggyback Holder the opportunity to include (a "Piggyback Registration") in the prospectus contained in such IPO Registration Statement on the same terms and conditions such number of shares of Class A Common Stock held by the Piggyback Holder as the Piggyback Holder may request. The Company shall include in such prospectus all shares of Class A Common Stock with respect to which the Company has received a written request for inclusion therein from a Piggyback Holder within (10) Business Days after such Piggyback Holder's receipt of the Company's notice, provided, however, that the number of shares of Class A Common Stock to be sold by Piggyback Holders, together with other holders of outstanding Class A Common Stock, shall be limited to 50% of the total number of shares of Class A Common Stock to be sold upon exercise of any over-allotment option (an "Option") granted to the Underwriters in respect of the Initial Public Offering, as and the number of shares of Class A Common Stock each such managing underwriter Piggyback Holder may sell, if the Underwriters elect to exercise such Option, shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements equal (A) one half of the total number of shares of Class A Common Stock to be sold to the foregoing effect if soUnderwriters in the Initial Public Offering pursuant to the exercise of such Option multiplied by (B) a fraction (i) the numerator of which is the total number of shares of Class A Common Stock owned by such stockholder, requested by and (ii) the denominator of which is 9,287,656. No Piggyback Holder may sell any shares of Class A Common Stock upon exercise of the Option unless and until the Piggyback Holder furnishes to the Company and an executed agreement in substantially the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members shall be released from such restrictions pro-rataform of Exhibit A hereto.
(gii) Notwithstanding anything to If the contrary set forth managing underwriter(s) of the Initial Public Offering advise the Company in this Agreementwriting that, in their judgment, the restrictions contained number of shares of Class A Common Stock requested by Piggyback Holders to be included in this Agreement the IPO Registration Statement are such that the success of the Initial Public Offering would be materially and adversely affected, the Company shall not apply include any securities the Company is so advised can be sold in such Piggyback Registration in the following order: (a) first, the shares of Class A Common Stock which the Company proposes to Unitssell; (b) second, on a pro rata basis the Class A Shares requested to be included in such registration by the Piggyback Holders (excluding any Initial Purchaser that is a Piggyback Holder), provided, that if the managing underwriters determine in good faith that a lower number of shares of Class A Common Stock should be included than those requested to be included by Piggyback Holders pursuant to paragraph (b)(i) above, then the Company shall be required to include in such registration only that lower number of shares of Class A Common Stock; and (c) third, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any shares of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) Class A Common Stock proposed to be sold on behalf of included in the Company in IPO Registration Statement (including any Class A Common Stock held by a Piggyback Holder that is an underwritten public offeringInitial Purchaser).
Appears in 1 contract
Sources: Registration Rights Agreement (Paragon Shipping Inc.)
Initial Public Offering. (a) In part to fund the event that at any time after payment of the date hereofCash Consideration, the Board of Directors determines that it shall facilitate an offering of Equity Securities in the Company or a successor Acquiror intends to effect through an underwriter or underwriters a public sale of shares of its Common Stock or other equity securities (other than warrants or options) convertible into shares of Common Stock at a gross selling price to the public prior to the deduction of any underwriting commissions, discounts and expenses of not less than Seven Million, Five Hundred Thousand Dollars ($7,500,000). The offer and sale (the "Initial Public Offering") of such securities and the shares issuable upon the conversion of any convertible securities included therein will be registered by means of a filing with the Securities and Exchange Commission (the "Commission") under Section 5 of the Securities Act of 1933 (the "Securities Act") of the Registration Statement of the Acquiror (the "Registration Statement"). The Acquiror agrees to file the Registration Statement on or prior to December 31, then the Board of Directors shall have the power 1995 and, upon such filing, will use its best efforts to cause the Company Registration Statement to be reorganized declared effective by the Commissioner.
(b) Acquiror agrees to provide Stockholder with a copy, and reasonable time to review and provide comments as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law initial material draft and of each materially revised draft of the State Registration Statement and of Delaware by incorporationthe Registration Statement to be filed and each substantative amendment thereto five days prior to the filing thereof with the Commission. The Stockholder agrees to review such draft or drafts, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), particularly with respect to the disclosures contained therein as to AFA and the Members shall use their commercially reasonable efforts Stockholder. Acquiror agrees to effectuate incorporate or effect such Conversion changes in the Registration Statement prior to the filing thereof or the Stockholder may request with respect to the disclosures therein or to the business, management, financial condition and take such actions as are reasonably necessary or desirable prospects of AFA in order to complete comply with the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution requirements of the securities being offered in application form of Registration Statement required by the rules of the Commission with respect to the Initial Public Offering.
(b) If applicable, the Members holding Units shall receive, in exchange for their Units of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with the Initial Public Offering, as such managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements to the foregoing effect if so, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members shall be released from such restrictions pro-rata.
(g) Notwithstanding anything to the contrary set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offering.
Appears in 1 contract
Sources: Merger Agreement (Rade Stephen)
Initial Public Offering. 12.1 After the Accreditation (and in any event not prior to the fifth (5th) anniversary of the Effective Date), and subject to the Shareholder Reserved Matters, the readiness of the Company and the suitability of market conditions, the Parties will in good faith discuss an initial public offering of the common shares of the Company (“IPO”) on the Saudi Arabian Main Market (Tadawul) or any other reputable stock exchange, whether through a primary or secondary offering of Shares.
12.2 In connection with any IPO, the common shares to be included in the offering shall consist of the following: (a) In first, all new (primary) common shares that the event Company wishes to be included in such offering; and (b) second, any additional common shares that at NV, PIC or any time after the date hereof, the Board of Directors determines that it shall facilitate an offering of Equity Securities other shareholder wishes to include in the offering (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among the Shareholders in accordance with their Shareholding as compared to the total number of outstanding common Shares held by all such Shareholders immediately prior to the completion of the IPO).
12.3 Should the Parties mutually agree to pursue an IPO, each Shareholder agrees to use its reasonable endeavours to cooperate with the Company or a successor through an Initial Public Offering, then (and any IPO advisers retained by the Board of Directors shall have the power Company) to cause such IPO to occur, and each Shareholder and the Company agree to be reorganized as a corporation take all actions customarily required in connection with the consummation thereof, including by:
(such corporation or other issuer entity being hereinafter referred a) cooperating to as a “Public Vehicle”) under obtain the General Corporation Law approval of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts relevant regulators in relation to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution of the securities being offered in the Initial Public Offering.IPO;
(b) If applicableassisting with the appointment of appropriate advisers to the Company (provided that that engagement of any such advisers shall be on financial and other terms customary in the industry and all fees and expenses of such advisers shall be borne by the Company);
(c) assisting in the production, negotiation and execution of such documentation as is required to effect an IPO (including a prospectus and underwriting agreement);
(d) providing reasonable assistance to those advisers advising the Members holding Units shall receiveCompany or any Shareholder in relation to an IPO or potential IPO;
(e) approving any resolutions of the Shareholders as may be reasonably necessary in connection with an IPO, including resolutions to convert the legal form of the Company, increase the authorised share capital of the Company, confer on the Managers the authority to allot Shares, dis-apply any applicable statutory pre-emption rights, reclassify/reorganise the share capital of the Company, issue any new Shares or classes of Shares or other securities or adopt new constitutional documents (as the case may be), in exchange for their Units of a particular classeach case in form reasonably acceptable to such Shareholder;
(f) agreeing to such customary representations and warranties (subject to customary limitations) as are reasonably required in relation to the IPO, shares of stock such representations and warranties:
(i) in the Public Vehicle respect of the relevant class having Company, to cover such areas as the same relative seniorityCompany’s affairs, preferencebusiness, accumulated dividendsoperations or otherwise as reasonably required in connection with an IPO; and
(ii) in respect of each Shareholder, dividend rate, dividend accumulation to be limited to warranties in relation to such Shareholder’s title to sell its Shares free from any Encumbrance at completion of the IPO and compounding and, its capacity to sell such Shares;
(g) in the case of each Shareholder only:
(i) agreeing to such undertakings in relation to the Class A Unitsretention, disposal or manner of disposal (known as “lock-ups”) of its Shares or securities received as consideration for Shares in such IPO in accordance with then-current market practice and as are considered by the financial advisers (or the relevant competent regulator) necessary or desirable in connection with such IPO;
(ii) agreeing to exchange, convert or re-designate any Shares or other characteristics securities in the Company (including loan notes) into shares or other securities of the Class A Unitsequivalent rank in, voting, management and consent rights, economic interest and other bearing substantially similar rights and obligations (and in no event shall such interestwith respect to, rights any holding company or obligations subsidiary that is to be less favorable to such Member than the terms of their respective Units) listed in the Public Vehicle same proportion as are set forth the proportion exchanged, converted or re-designated by such Shareholder, if so required, including by agreeing to transfer their Shares to a holding company established for the purposes of effecting an IPO; in this Agreement applicable to each case as reasonably necessary and appropriate, taking into account the Units, subject to any modifications deemed appropriate by the Board of Directors as a result proposed form and structure of the Conversion or if advisable in order to effectuate the Initial Public OfferingIPO.
(c) In such event12.4 To the extent permitted by Applicable Law, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) Company shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary be responsible for the rights reasonable and obligations documented out-of-pocket fees, costs and provisions of this Agreement that survive an Initial Public Offering expenses (excluding underwriting discounts and do not otherwise adversely affect the ability to effectuate the Initial Public Offeringcommissions) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held incurred by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, Shareholder in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with the Initial Public Offering, as such managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements to the foregoing effect if so, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members shall be released from such restrictions pro-rataIPO.
(g) Notwithstanding anything to the contrary set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offering.
Appears in 1 contract
Initial Public Offering. (a) In the event that at any time after the date hereof, the Board and the holders of Directors determines that it shall facilitate an offering of Equity Securities in the Company or a successor through an Initial Public Offering, then the Board of Directors shall have the power to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law majority of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution of the securities being offered in the Initial Public Offering.
(b) If applicable, the Members holding Common Units shall receive, in exchange for their Units of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive then outstanding approve an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders as contemplated by Section 15.7 of the Public Vehicle and the capital stock of the Public VehicleLLC Agreement, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained Securityholder Units shall take all necessary or desirable actions in connection with the Public Vehicle’s certificate consummation of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any event that such Initial Public Offering is an underwritten offering and upon confirmation reasonably satisfactory to such Member the managing underwriters advise the Company in writing that all officers and directors in their opinion the Company’s capital structure would adversely affect the marketability of the Company and all holders, collectively with their Affiliates and Approved Funds, offering:
(i) each Securityholder who is a holder of one percent (1%) or greater of Equity Securities units of the Company Company’s Class A Preferred Units shall enter into similar agreementsconsent to and vote for a recapitalization, thereby agreeing not to Transfer any Equity Securities reorganization and/or exchange of the Company held by it for one hundred eighty (180) days following Company’s Class A Preferred Units into securities or other consideration that the effective date managing underwriters, the Board and the holders of at least a majority of the relevant registration statement filed under the Securities Act units of Class A Preferred Units then outstanding find acceptable and shall take all necessary or desirable actions in connection with the Initial Public Offeringconsummation of the recapitalization, as such reorganization and/or exchange;
(ii) each Securityholder who is a holder of units of the Company’s Class B Preferred Units shall consent to and vote for a recapitalization, reorganization and/or exchange of the Company’s Class B Preferred Units into securities that the managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements to underwriters, the foregoing effect if so, requested by the Company Board and the holders of at least 70% of the units of Class B Preferred Units then outstanding find acceptable and shall take all necessary or desirable actions in connection with the consummation of the recapitalization, reorganization and/or exchange; provided that each holder of Class B Preferred Units shall receive the same type of security with the same value per unit;
(iii) each Securityholder who is a holder of units of the Company’s Class C Preferred Units shall consent to and vote for a recapitalization, reorganization and/or exchange of the Company’s Class C Preferred Units into securities that the managing underwriterunderwriters, if any. Notwithstanding the foregoing, in the event any Member is released by the Company Board and the managing underwriterholders of a majority of the units of Class C Preferred Units then outstanding find acceptable and shall take all necessary or desirable actions in connection with the consummation of the recapitalization, if any, from reorganization and/or exchange; provided that each holder of Class C Preferred Units shall receive the restrictions contemplated by this Section 3.8(f), all other Members shall be released from such restrictions pro-rata.same type of security with the same value per unit; and
(giv) Notwithstanding anything each Securityholder who is a holder of units of the Company’s Common Units shall consent to and vote for a recapitalization, reorganization and/or exchange of the contrary set forth in this AgreementCompany’s Common Units into securities that the managing underwriters, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any Board and the holders of their respective Affiliates or Approved Funds, following the effective date a majority of the first registration statement units of Common Units then outstanding find acceptable and shall take all necessary or desirable actions in connection with the consummation of the Company covering common stock (or other securities) to be sold on behalf recapitalization, reorganization and/or exchange; provided that each holder of Common Units shall receive the Company in an underwritten public offeringsame type of security with the same value per unit.
Appears in 1 contract
Initial Public Offering. (a) In the event that at any time after the date hereofIf, on or before January 31, 2002, the Board of Directors determines that it shall facilitate an offering of Equity Securities in the Company or a successor through has not completed an Initial Public Offering of shares equal to at least 10% of the then outstanding common stock of the Company (a "Qualified Initial Public Offering"), then the Board of Directors then:
(1) each TMG Trustee shall have the power to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such three votes on all stockholder actions as which are reasonably necessary or desirable to complete a Qualified Initial Public Offering; provided, that the TMG Trustees shall not have the right to:
(A) change the composition of the board of directors from that specified in Section 9(a) above, except (i) to add up to four independent directors effective upon the closing of a Qualified Initial Public Offering in or (ii) to add up to three independent directors prior to the closing of a manner designed Qualified Initial Public Offering if and only if the TLG Directors refuse to achieve sign an SEC registration statement for a fair price and broad public distribution Qualified Initial Public Offering (other than on the grounds that the TLG Directors reasonably believe that the registration statement presented to the board of directors for signature contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading);
(B) elect or remove any of the securities being offered officers listed in Section 9(b)(1) above;
(C) change the composition of the Voting Trustees provided for in this Agreement; or
(D) amend this Agreement.
(2) each TMG Director shall have three votes on all actions by the board of directors which are reasonably necessary to complete a Qualified Initial Public Offering.
(b3) If applicableThe foregoing notwithstanding, if the Members holding Units need for or reasonableness of any stockholder or board action in connection with a Qualified Initial Public Offering is disputed by the TLG Trustees, then the TMG Trustees shall receive, in exchange not take such action unless and until the need for their Units and reasonableness of such action has been confirmed by written advice of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other nationally recognized investment banking firm. The special voting rights and obligations (and in no event granted under this Section 9(d) shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board of Directors as terminate immediately following a result of the Conversion or if advisable in order to effectuate the Qualified Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with the Initial Public Offering, as such managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements to the foregoing effect if so, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members shall be released from such restrictions pro-rata.
(g) Notwithstanding anything to the contrary set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offering.
Appears in 1 contract
Initial Public Offering. (a) In the event that at any time after the date hereof, the Board of Directors determines that it shall facilitate an offering of Equity Securities in the Company or a successor through an Initial Public Offering, then the Board of Directors shall have the power to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution of the securities being offered in the Initial Public Offering.
(b) If applicable, the Members holding Units shall receive, in exchange for their Units of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable Notwithstanding anything to the Units, contrary contained herein but subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation4.01(d).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory approved in accordance with this Agreement, the Members hereby agree to such Member that all officers and directors discuss in good faith whether any of the rights and obligations of the parties hereto and the Company and all holdersunder this Agreement should be amended, collectively with their Affiliates and Approved Fundsrestructured or terminated, including, without limitation, whether any of one percent (1%the rights set forth in Sections 4.01(d) or greater of Equity Securities of the Company shall enter into similar agreements8.04 hereof should be terminated or made subject to any time limitations, thereby agreeing not in order to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with permit the Initial Public OfferingOffering to be effected in a manner consistent with applicable Law, market custom and the recommendations of the Global Coordinators in light of market conditions at such time and the listing requirements of the exchange or market on which the Initial Public Offering is to be effected, taking into account, among other things, the rights of the Preferred Members hereunder and their goal and expectation that the Senior Preferred Redemption and the Junior Preferred Payment be effected as such managing underwriter promptly as practicable after the date hereof; provided, however, that this sentence shall specify reasonably and not in good faith. Each Member shall enter into customary letter agreements to any way either (x) obligate any of the foregoing effect if so, requested by Members or the Company and to agree to any amendment, restructuring or termination of any such rights or (y) affect or nullify any rights or obligations of the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by Members or the Company and the managing underwriter, if any, from the restrictions contemplated by under this Section 3.8(f), all other Members shall be released from such restrictions pro-rataAgreement.
(gb) Notwithstanding anything to the contrary set forth contained herein but subject to Section 4.01(d), in connection with any Initial Public Offering of the Company (or its successor corporation) or any newly formed corporation as described below, approved in accordance with this Agreement, and upon the restrictions contained request of the Board of Managers, each of the Members hereby agrees that it will, at the expense of the Entity subject to such Public Offering, take such action and execute such documents as may reasonably be necessary to effect such Public Offering, as expeditiously as possible, including, without limitation, taking all such actions and executing such documents as may reasonably be necessary to convert the Company into a corporation or to contribute its respective Securities to a newly formed corporation, in this Agreement each case substantially concurrently with the closing of such Public Offering; provided, however, that in connection with any such conversion or contribution, (i) each Preferred Member shall not apply be entitled to Units, any other Equity Securities receive preferred stock of the corporation whose shares of common stock are being sold in connection with such Public Offering with the same economic rights as such Preferred Member was entitled to prior to such conversion or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Membercontribution, including acquired by any of their respective Affiliates or Approved Fundswith an aggregate liquidation preference equal to the amount such Preferred Member would be entitled to receive, following the effective date in respect of the first registration statement Preferred Units which such Preferred Member held in the Company immediately prior to such conversion or contribution, under Section 5.03 hereof if a liquidation of the Company covering common stock (or other securities) had occurred immediately prior to be sold on behalf the consummation of such Public Offering with the proceeds in such liquidation equal in amount to the implied aggregate equity valuation of the Company (as reasonably determined by the Board of Managers in an underwritten public offering.good faith with the reasonable agreement of a Majority in Interest of the Preferred Members) immediately prior to the consummation of such Public Offering; (ii) the Common Members shall be entitled to receive that value of common stock of the corporation whose shares of common stock are being sold in connection with such Public Offering as equals the amount such Common Member would be entitled to receive, relative to the Common Units which such Member held in the Company immediately prior to such conversion or contribution, under Section 5.03 hereof if a liquidation of the Company had occurred immediately prior to the consummation of such Public Offering with the proceeds in such liquidation equal in amount to the implied aggregate equity valuation of the Company (as reasonably determined by the Board of Managers in good faith with the reasonable agreement of a Majority in Interest of the Preferred Members) immediately prior to the consummation of such
Appears in 1 contract
Sources: Purchase Agreement (American International Group Inc)
Initial Public Offering. (a) In Notwithstanding anything to the event that contrary in this Agreement (including Sections 7.2 and 12.5) and subject solely to the satisfaction of the IPO Conditions (unless waived in whole or in part in writing by, with respect to the Class A IPO Condition, any member of the Class A Group holding Limited Partner Interests or by, with respect to the Class AQ IPO Condition, the Class AQ Group), the Initial Public Offering may be initiated and approved at any time after by the date hereof, General Partner without the Board consent of Directors determines that it shall facilitate an offering of Equity Securities in any other Partner. In connection with the Company or a successor through an Initial Public Offering, then (i) the Board of Directors Partners shall have amend and restate this Agreement in the power to cause form attached hereto as Exhibit B (the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “ConversionThird A&R LPA”), and with such changes thereto as the Members General Partner shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably deem necessary or desirable appropriate in its sole discretion; (ii) the Units outstanding immediately prior to complete the Initial Public Offering shall be converted into an aggregate number of Common Units and Subordinated Units as the General Partner shall determine is appropriate (such aggregate number of Common Units and Subordinated Units, the “Total IPO Units”) with each Class A Preferred Unit, Class AQ Unit and Class B Preferred Unit converting into such number of Common Units and/or Subordinated Units as is provided in a manner designed Sections 6.6(b), Section 6.6(c) and Section 6.6(d), respectively, and (iii) the General Partner shall be authorized to achieve a fair price cause the Partnership to negotiate, prepare, execute and broad public distribution deliver such other agreements, documents and other instruments (including with any Affiliates of the securities being offered Partnership or any Partner), and take such other actions (including the issuance of any securities), as the General Partner shall deem necessary or appropriate in its sole discretion to effect the Initial Public Offering.
(b) If applicable, the Members holding Units shall receive, in exchange for their Units of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate In connection with the Initial Public Offering, each Class A Preferred Unit shall convert into a number of Common Units equal to “X” multiplied by “Y,” where “X” equals a fraction, the numerator of which is the total number of Class A Preferred Units outstanding immediately prior to such conversion and the denominator of which is the GPM PETROLEUM LP SECOND AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP total number of Units outstanding at such time, and “Y” equals a fraction, the numerator of which is the number of Total IPO Units and the denominator of which is the total number of Class A Preferred Units outstanding immediately prior to such conversion; provided, however, that if the value of the Common Unit(s) into which each outstanding Class A Preferred Unit would convert in accordance with the foregoing formula (based on the Initial Unit Price) is less than (the amount of such shortfall, the “IPO Shortfall”) the sum of (i) the Preferred Return of such Class A Preferred Unit as of the date of conversion plus (ii) the Cumulative Class A Preferred Unit Arrearage, if any, with respect to such Class A Preferred Unit as of the date of conversion plus (iii) the Current Distributions on such Class A Preferred Unit as of the date of conversion (collectively, the “Class A IPO Condition”), then the Class A Preferred Units shall convert (subject to the proviso below) into such number of Common Units as is required to cause the Class A IPO Condition to be satisfied (such Common Units into which the Class A Preferred Units convert in accordance with the foregoing, as adjusted, if applicable, pursuant to the proviso below, the “Class A IPO Common Units”); provided, further, the General Partner shall be entitled, in its sole discretion, to cause all or a portion of the IPO Shortfall to be satisfied by the payment of cash to the holders of Class A Preferred Units.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate connection with the Initial Public Offering) , each Class AQ Unit shall convert into a number of Common Units equal to continue to apply to the Public Vehicle“X” multiplied by “Y,” where “X” equals a fraction, the stockholders numerator of which is the total number of Class AQ Units outstanding immediately prior to such conversion and the denominator of which is the total number of Units outstanding at such time, and “Y” equals a fraction, the numerator of which is the number of Total IPO Units and the denominator of which is the total number of Class AQ Units outstanding immediately prior to such conversion; provided, however, that if the value of the Public Vehicle and the capital stock of the Public Vehicle, including (iCommon Unit(s) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation into which each outstanding Class AQ Unit would convert in accordance with the substance foregoing formula (based on the Initial Unit Price) is less than (the amount of Section 6.1such shortfall, and (iithe “Class AQ IPO Shortfall”) the rights and obligations Class AQ Unit Purchase Price (the “Class AQ IPO Condition”), then the Class AQ Units shall convert (subject to the proviso below) into such number of Common Units as is required to cause the Class AQ IPO Condition to be satisfied (such Common Units into which the Class AQ Units convert in accordance with the foregoing, as adjusted, if applicable, pursuant to the proviso below, the “Class AQ IPO Common Units”); provided, further, the General Partner shall be entitled, in its sole discretion, to cause all or a portion of the Members contained herein (which may, at Class AQ IPO Shortfall to be satisfied by the election payment of cash to the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation)AQ Units.
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or In connection with the Initial Public Offering. In furtherance of the foregoing, each Member hereby makesClass B Preferred Unit shall convert into a number of Units (as defined in the Third A&R LPA) equal to “X” divided by “Y,” where “X” equals the number of Total IPO Units less the number of Class A IPO Common Units less the number of Class AQ IPO Common Units and “Y” equals the total number of Class B Preferred Units outstanding immediately prior to such conversion (the “Class B IPO Units”). The General Partner shall be entitled, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefitsole discretion, to act as its proxy in respect determine the number of any vote or approval Class B IPO Units that shall be Common Units and the number of Members required to give effect to this Section 3.8, including any vote or approval required under the ActClass B IPO Units that shall be Subordinated Units. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.GPM PETROLEUM LP SECOND AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP
(e) The Company and In connection with the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability Initial Public Offering, all of the Members Incentive Distribution Rights shall be issued to aggregate (or “tack”) the period during which they hold their Units together with General Partner as set forth in the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities ActThird A&R LPA.
(f) Each Member (including any Transferee thereof) agreesIn connection with the Initial Public Offering approved in accordance with this Agreement, if requested by each Partner, upon the Company and request of the lead underwriter(s), shall enter into a managing underwritercustomary lock-up agreement at the time of the Initial Public Offering covering the Common Units, if any, to be received by such Partner pursuant to Section 6.6(a) for a lock-up period of no longer than 180 days.
(g) Each member of the Class A Group shall be required to sell up to 50% of its Common Units in the Initial Public Offering, as determined by the General Partner in its sole discretion; provided, that the Partnership will (a) pay all fees and expenses incurred by the Partnership in connection with any the Initial Public Offering and upon confirmation reasonably satisfactory to such Member that all officers and directors (b) reimburse the members of the Company and all holdersClass A Group for (i) the reasonable, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities documented out-of-pocket expenses incurred by members of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act Class A Group in connection with the Initial Public Offering, as such managing underwriter shall specify reasonably including fees and in good faith. Each Member shall enter into customary letter agreements to the foregoing effect if soexpenses of attorneys, requested accountants and advisors retained by the Company Class A Group, up to a maximum, with respect to such expenses incurred by members of the Class A Group, of $50,000 and (ii) the managing underwriter, if any. Notwithstanding Class A Group’s pro rata portion of all underwriting discounts and commissions received by the foregoing, underwriters in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members shall be released from such restrictions pro-rataInitial Public Offering.
(gh) Notwithstanding anything in Sections 6.6(b), 6.6(c) or 6.6(d) to the contrary set forth contrary, if prior to the Initial Public Offering the Partnership effects a Reclassification Event in this Agreementa manner that is not applied consistently and on a pro rata basis to all classes of Partnership Interests outstanding at the time of such Reclassification Event, then the restrictions contained formulas in this Agreement Sections 6.6(b), 6.6(c) and 6.6(d) shall not apply be adjusted to Units, negate any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any dilutive effects of their respective Affiliates or Approved Funds, following such Reclassification Event. Such an adjustment shall be made at the effective date time of the first registration statement of Initial Public Offering and take into account all such Reclassification Events that have occurred prior to the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offeringdate thereof.
Appears in 1 contract
Initial Public Offering. (a) In As a material part of the event that at any time after consideration for Legacy entering into this Agreement, subject to the date hereofterms and conditions of this Article 11, Legacy shall have the Board of Directors determines that it shall facilitate an offering of Equity Securities in right and option to reorganize the Company as a "C" corporation, a Real Estate Investment Trust or other entity suitable for a successor through an public offering (the "Corporation") and in conjunction therewith, offer a significant portion of the initial issuance of the common stock of the Corporation for sale to the general public ("Initial Public Offering"). In connection with the foregoing, then the Board of Directors shall have the power Legacy may, at any time, exercise its rights with respect to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution of shall determine the securities being offered in the Initial Public Offering.
(b) If applicable, the Members holding Units shall receive, in exchange for their Units of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with the Initial Public Offering, as such managing underwriter shall specify reasonably including, without limitation: (i) the timing for the Initial Public Offering, (ii) the valuation of the Corporation, (iii) the authorized number of shares of common stock of the Corporation constituting the Initial Authorized Issuance, (iv) the offering price of the individual shares of common stock of the Corporation, and in good faith. Each Member shall enter into customary letter agreements (v) other related terms and conditions with respect to the foregoing effect if so, requested by the Company and the managing underwriter, if anyInitial Public Offering. Notwithstanding the foregoing, in connection with Legacy's determination and approval of the event any Member is released terms and conditions of the Initial Public Offering, all of the Members acknowledge and agree that such terms and conditions will be based on a variety of factors, many of which are outside the control of the Company, the Managers and/or the Members. In connection with the foregoing, in making its determination as to the terms and conditions of the Initial Public Offering, Legacy hereby agrees that such terms and conditions shall be commercially reasonable and, in connection therewith, Legacy hereby agrees to and shall in good faith carefully consider and take into account the strategies, recommendations, and advice given to Legacy by all underwriters, legal counsel, accountants, financial advisors, and other professionals retained by Legacy in connection with such Initial Public Offering. In conjunction with the exercise by Legacy of the rights granted to Legacy pursuant to this Article 11, G II hereby agrees to execute all documents and undertake all steps necessary to complete the reorganization of the Company and to accomplish the Initial Public Offering in accordance with the terms and conditions of this Article 11. Legacy may exercise its election to proceed with the Initial Public Offering by delivering written notice to the Mangers and to G II of such election pursuant to this Section 11.1 ("Legacy's Notice"). Within thirty (30) calendar days following the date of Legacy's Notice, or as soon as commercially reasonable thereafter the Mangers and the Members shall complete the reorganization of the Company. In connection with the reorganization of the Company and the managing underwritersubsequent Initial Public Offering, if anysubject to the approval of Legacy, from the restrictions contemplated by this Section 3.8(f)Corporation shall authorize the number of shares of common stock of the Corporation to be issued with respect to: (i) the initial issuance of the shares of the common stock of the Corporation to be issued as part of the formation, all other Members reorganization and capitalization of the Corporation, which shares shall be released from such restrictions pro-rata.
(g) Notwithstanding anything issued to the contrary set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement former Members of the Company covering pursuant to Section 11.2 hereof ("Initial Authorized Issuance"); and (ii) the subsequent issuance of the shares of the common stock (or other securities) to be sold on behalf of the Corporation required for, and subject to, the authorized plan for the Initial Public Offering established pursuant to this Section 11. Following the satisfaction of the terms and conditions of Section 11.2 hereof, the Company in an underwritten shall prepare and process the appropriate applications, registrations and other documents, agreements and instruments necessary to secure approval for the Initial Public Offering, and commence to offer such shares for sale to the general public offeringpursuant to the authorized plan for the Initial Public Offering.
Appears in 1 contract
Initial Public Offering. (a) In the event that at any time after the date hereof, the Board of Directors determines The Company represents that it shall facilitate an offering of Equity Securities in the Company or a successor through an Initial Public Offering, then the Board of Directors shall have the power to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete the will pursue its Initial Public Offering in good faith and in a manner designed lawful manner. The Company represents and promises that it will not represent to achieve a fair price and broad public distribution prospective purchasers that the involvement of the securities being offered in Physician Parties, through the Initial Public Offering.
(b) If applicable, the Members holding Units shall receive, in exchange for their Units of a particular class, shares of stock in the Public Vehicle sale of the relevant class having Clinics and through the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case involvement of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable Physician Parties pursuant to the UnitsConsulting Agreement, subject to guarantees any modifications deemed appropriate by the Board particular level of Directors as a result of the Conversion profitability or if advisable in order to effectuate the Initial Public Offering.
(c) In such eventreturn on investment. The Company further represents that it will properly, the Public Vehicle effectively and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms lawfully comply with any and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect registration requirements of any vote or approval of Members required Governmental Authority necessary to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with pursue the Initial Public Offering, as such managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements including but not limited to the foregoing effect if soUnited States Securities and Exchange Commission and the Texas State Securities Board. The Company represents that it will make full disclosure of all risks associated with an investment in the Initial Public Offering and that it will not represent to prospective investors that the participation of the Physician Parties will or can be expected to reduce any of such risks. The provision of information by the Physician Parties for inclusion in the Form S-1 will not be deemed waivers of or defenses to any claim arising out of the breach of this representation. The Company further represents that it will retain the services of licensed and competent attorneys, requested certified public accountants or tax advisors, as necessary, to determine that the Initial Public Offering and Form S-1 are proper and lawful. The Company represents that it will use such services to review all statements, information, memoranda, books and records, account information, leases, bank statements, tax returns, contracts, agreements, corporate documents, licenses, matters, disclosures, representations, warranties and statements of the Physician Parties to determine whether any and all representations made in the Form S-1 are correct, legal and not misleading, whether through commission or omission. In particular, and without limitation, such experts retained by the Company and the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if anyshall determine, from the restrictions contemplated organization of the new PA, from the materials provided by this Section 3.8(f)the Physician Parties and from the Company’s own investigation that the Transaction Documents do not violate any law, all other Members shall be released from such restrictions pro-rata.
(g) Notwithstanding anything rule, or regulation relating to the contrary set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any corporate practice of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offeringmedicine.
Appears in 1 contract
Sources: Master Transaction Agreement (Basic Care Networks Inc)
Initial Public Offering. (a) In the event that at the Board determines to consummate an IPO involving the Company (or the business conducted by the Company Entities), then notwithstanding anything to the contrary in this Agreement, (x) the SL Partners, the Indigo Partners and certain other parties designated by the SL Partners shall enter into the Registration Rights Agreement substantially in the form attached hereto as Exhibit D and (y) the Partners agree to cooperate to effect such reorganization or other transaction and to take or cause to be taken any time after and all actions as may be reasonably requested by the Board in connection with the consummation of those actions contemplated by this Section 7.1, including, but not limited to:
(a) entering into such agreements that the Board determines are necessary or appropriate to effect such IPO, including any agreements providing for (i) the exchange of Units as contemplated by Section 7.1(b) (and consents and waivers of claims in connection therewith), (ii) customary lock-up and resale restrictions requested by the managing underwriter of an IPO covering the period commencing on the date hereof, of the Board of Directors determines that it shall facilitate an offering of Equity Securities final prospectus relating to the registration statement on Form S-1 and ending on the date determined by the managing underwriter and specified in the Company or a successor through an Initial Public Offering, then the Board of Directors shall have the power to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner applicable lock-up agreement (a “ConversionLock-Up Agreement”); provided, that, the SL Partners, the Indigo Partners and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution all other holders of at least five percent (5%) of the securities being offered in the Initial Public Offering.
then-outstanding Units (b) If applicable, the Members holding Units shall receive, in exchange for their Units of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the excluding any such Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective B Units) in the Public Vehicle as are set forth in this Agreement applicable to the Units, bound by and have entered into similar agreements and subject to any modifications deemed appropriate by release from the Board lock-up period of Directors as a result Partner applying to other Partners pro rata based on ownership of the Conversion or if advisable in order to effectuate the Initial Public Offering.
Units (c) In such eventexcluding Class B Units), the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (iiii) an agreement to vote all Conversion Shares held by them to elect persons designated by the Board as the directors of the new entity and (iv) any other agreements as are appropriate and customary; and
(b) (i) effecting any reorganization of any Company Entity as the Board deems appropriate, reasonably necessary or advisable in preparation for the IPO, (ii) exchanging its Units for equity interests in a new holding company, or common shares of capital stock held a newly formed corporation or other public vehicle (the entity used to effectuate an IPO, as designated by such stockholders to elect the Board, the “IPO Entity”) with substantially the same value as determined by the Board of Directors in good faith (such shares, “Conversion Shares”), (iii) reasonably assisting in conducting road shows, (iv) entering into appropriate and necessary agreements as are customary, (v) providing all information and documents reasonably necessary to prepare the offer documents, (vi) making the relevant filings with appropriate Governmental Authorities, (vii) providing all such assistance in furtherance of such resulting corporation in accordance with IPO as reasonably requested by the substance of Section 6.1Board, and (iiviii) causing its designee on the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right Board to take or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of approve any vote or approval of Members other action required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocablesuch IPO.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with the Initial Public Offering, as such managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements to the foregoing effect if so, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members shall be released from such restrictions pro-rata.
(g) Notwithstanding anything to the contrary set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offering.
Appears in 1 contract
Initial Public Offering. (a) In the event that The Company shall give each holder of Series D Shares prompt written notice at any time after the date hereof, the Board of Directors determines that it shall facilitate an offering of Equity Securities in the Company or a successor through an Initial Public Offering, then the Board of Directors shall have the power to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution of the securities being offered in the Initial Public Offering.
(b) If applicable, the Members holding Units shall receive, in exchange for their Units of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable least 15 days prior to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect filing of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act Registration Statement in connection with the Initial Public Offering, . Such notice shall offer each holder of Series D Shares the opportunity to include in such Registration Statement such number of Registrable Securities as such managing underwriter each holder of Series D Shares may request. Upon the written request of each holder of Series D Shares made within 15 days after the receipt of the Company’s notice (which request shall specify reasonably the number of Registrable Securities intended to be disposed of by each holder of Series D Shares and in good faith. Each Member shall enter into customary letter agreements the intended method of disposition thereof), the Company will use its reasonable best efforts to effect the Registration under the Securities Act of all Registrable Securities which the Company has been so requested to register by each holder of Series D Shares; provided, however, that (x) if such Registration involves an underwritten offering, each holder of Series D Shares must sell its Registrable Securities to the foregoing effect if so, requested underwriters selected by the Company on the same terms and conditions as apply to the managing underwriterCompany; and (y) if, if any. Notwithstanding at any time after giving written notice of its intention to register any securities pursuant to this Section 2.2(a) and prior to the foregoingEffective Date of the Registration Statement filed in connection with such Registration, in the event any Member is released by the Company shall determine for any reason not to register such securities, the Company shall give written notice to each holder of Series D Shares and shall thereupon be relieved of its obligation to register any Registrable Securities in connection with such Registration (without prejudice, however, to rights of the managing underwriter, if any, from the restrictions contemplated by holders of Series D Shares under Section 2.1). If a Registration pursuant to this Section 3.8(f), all other Members shall be released from such restrictions pro-rata.
(g2.2(a) Notwithstanding anything to the contrary set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in involves an underwritten public offering, any holder of Series D Shares may elect, in writing prior to the Effective Date of the Registration Statement filed in connection with such Registration, not to register such Registrable Securities in connection with such Registration. No Registration effected under this Section 2.2(a) shall relieve the Company of its obligations to effect Registrations upon request under Section 2.1 or Section 2.3. The Company shall pay all Registration Expenses in connection with each Registration of Registrable Securities requested pursuant to this Section 2.2(a).
Appears in 1 contract
Initial Public Offering. (a) In the event that If at any time after the date hereof, the Board desires to cause (i) a transfer of Directors determines that it shall facilitate an offering all or a substantial portion of Equity Securities in (A) the assets of the Company or (B) the Units to a successor through newly organized corporation or other business entity (“Newco”), (ii) a merger or consolidation of the Company into or with a Newco as provided under Section 18-209 of the Delaware Act or otherwise or (iii) another restructuring of all or substantially all of the assets or Units of the Company into Newco, in any case in anticipation of or otherwise in connection with a registered initial public offering of securities of the Company, Newco or any of its Affiliates (an “Initial Public Offering”), each Member shall take such steps to effect such transfer, merger, consolidation, distribution or other restructuring as may be reasonably requested by the Board, including, without limitation, transferring or tendering such Member’s Units to Newco in exchange or consideration for shares of capital stock or other equity interests of Newco, determined in accordance with the valuation procedures set forth in Section 10.8(c). Such shares or other equity interests shall be subject to restrictions on, and have rights with respect to, Transfer that are substantially the same as those contained in this Agreement to the extent applicable.
(b) Notwithstanding the foregoing provisions of Section 10.8(a), an Initial Public Offering shall be structured in a reasonably tax efficient manner, taking into account the interests of the Members, as determined by the Board. Notwithstanding anything to the contrary herein, in the event a Member may incur any tax liability in connection with an Initial Public Offering, then the Board of Directors shall have the power will use reasonable best efforts to cause the Company underwriters to be reorganized agree to provide priority as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law sale of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete Member’s Units in connection with the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution of the securities being offered in the Initial Public Offering.
(b) If applicable, the Members holding Units shall receive, in exchange extent necessary for their Units of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate offset such tax liability with proceeds from the Initial Public Offering.
(c) In such eventconnection with a transaction described in Sections 10.8(a) or (b), the Public Vehicle Board shall, in good faith, determine the Fair Market Value of the assets and/or Units transferred to or merged into Newco, the aggregate Fair Market Value of Newco and the Members (in their capacities as stockholders number of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders or other equity interests to elect be issued to each Member in exchange or consideration therefor; provided, that, the Board shall take into account the imposition of Directors an exercise price when considering the number of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority stock options to be issued to any Member holding Unvested Class A Interest, be contained in the Public Vehicle’s certificate of incorporation)B Common Units.
(d) Except as otherwise provided in this Section 3.8Each Member, no Member will have excluding the right or power to vetoCarmike Members, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company Company, with full power of substitution and resubstitution, its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.810.8, including any vote or approval required under Section 18-209 of the Delaware Act. The proxy granted pursuant to this Section 3.8(d10.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with the Initial Public Offering, as such managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements to the foregoing effect if so, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members shall be released from such restrictions pro-rata.
(g) Notwithstanding anything to the contrary set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offering.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Carmike Cinemas Inc)
Initial Public Offering. (a) In the event that at At any time after the date hereofexpiration of the Standstill Period, provided that no Auction Bid Process shall have been initiated in the last twelve (12) months, (i) the Financial Investors, the Board of Directors determines that it shall facilitate ▇▇▇▇▇▇ Parties, (iii) the ▇▇▇▇▇ Parties or (iv) the Gras Parties may propose to the other Shareholders to initiate an initial public offering of Equity Securities in the Company or a successor through on an Initial Public Offering, then the Board of Directors shall have the power to cause the Company to be reorganized as a corporation Eligible Stock Exchange (such corporation or other issuer entity being hereinafter referred to as a an “Public VehicleIPO”) under as soon as reasonably practicable, subject to the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution of the securities being offered in the Initial Public OfferingQualified Requisite Consent.
(b) If applicable, The Supervisory Board shall appoint a first ranked investment bank for the Members holding Units purpose of carrying out such IPO as sponsoring bank / lead manager and shall receive, in exchange for their Units promptly notify the Direct Parties of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offeringits choice.
(c) In such eventThe Parties shall cooperate in good faith in order to complete the IPO as soon as reasonably practicable and shall procure that their nominees on the Supervisory Board approve any decisions as may be required by Law.
(d) The Supervisory Board shall, the Public Vehicle and the Members (in their capacities as stockholders after consultation of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for Executive Committee, determine with the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including sponsoring bank (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation definitive offering price for the Shares in accordance with the substance of Section 6.1, IPO and (ii) the rights number of new Shares to be issued by the Company (the “New Offered Shares”), if any, and obligations the number of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, existing Shares proposed to be contained included in the Public Vehicle’s certificate of incorporationIPO (the “Existing Offered Shares”).
(d) Except as otherwise provided , in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes accordance with applicable Laws and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocableregulations.
(e) The Company Supervisory Board shall notify each Direct Party of the number of New Offered Shares and the Members hereby agree number of Existing Offered Shares that may be sold pursuant to use their commercially reasonable efforts the IPO and the proposed offering price and each Direct Party shall have the right to structure sell pursuant to such IPO a number of Shares equal to the Conversion to maximize product of (i) the ability number of the Members to aggregate Existing Offered Shares and (or “tack”ii) the period during which they hold their Units together with fraction having as its numerator (x) the period during which they hold shares number of capital stock Shares held by such Direct Party on a Fully Diluted Basis (prior to any conversion of the Public Vehicle for purposes Subordinated Convertible Bonds) and as its denominator (y) the total number of Shares on a Fully Diluted Basis (prior to any conversion of the United States securities lawsSubordinated Convertible Bonds) prior to the issue of any New Offered Shares, including Rule 144 under subject to the Securities Actcustomary lock-up agreements that may be required by the sponsoring bank(s) and/or the Governmental Authority monitoring the chosen Eligible Stock Exchange.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, The Parties shall cooperate in connection with any Initial Public Offering and upon confirmation reasonably satisfactory good faith in order to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreementsany underwriting and offering agreements which are required or customary for an IPO, thereby agreeing and hereby acknowledge and agree that such agreements may include lock-up undertakings. It is specified that any undertakings under such agreements shall not to Transfer any Equity Securities of be more restrictive for the Company held by it ▇▇▇▇▇▇ Parties than for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with the Initial Public Offering, as such managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements to the foregoing effect if so, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members shall be released from such restrictions pro-rataFinancial Investors.
(g) Notwithstanding anything It is expressly agreed that it is the common intention of the Parties that the Company shall be the Group Company to be listed if the contrary set forth in this AgreementSupervisory Board decides to launch an IPO.
(h) To the extent possible pursuant to applicable Laws, the restrictions contained in this Agreement shall not apply Direct Parties undertake to Units, any other Equity Securities or any securities convertible take all Applicable Actions to merge the ▇▇▇▇▇ Parties into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offeringorder to allow the ▇▇▇▇▇ Shareholders to take part to the IPO as if they were the direct owners of Securities, provided that:
(i) none of the ▇▇▇▇▇ Parties is a Defaulting Party;
(ii) there are no significant liability on the balance sheet of any of the ▇▇▇▇▇ Parties;
(iii) the ▇▇▇▇▇ Shareholders make any reasonable representations and warranties as may be required by the Company with respect to the conduct of the business of the ▇▇▇▇▇ Parties (including the place of effective management of the ▇▇▇▇▇ Parties or the compliance by the ▇▇▇▇▇ Parties with their tax obligations);
(iv) the ▇▇▇▇▇ Parties undertake to indemnify the Company for any loss resulting from undisclosed liabilities of the ▇▇▇▇▇ Parties or from a breach or inaccuracy of the above mentioned representations and warranties and such obligation of indemnification shall be secured by cash collateral or a first demand guarantee issued by a first rank bank; and
(v) none of the ▇▇▇▇▇ Parties is involved in litigation proceedings with a Third Party or a ▇▇▇▇▇ Shareholders.
(i) All fees and expenses in relation to the IPO (whether achieved or not achieved) shall be borne by the Company to the fullest extent permitted by applicable Law.
Appears in 1 contract
Initial Public Offering. (a) In the event that at any time after the date hereof, the Board of Directors determines that it shall facilitate an offering of Equity Securities in the Company or a successor through an Initial Public Offering, then the Board of Directors shall have the power to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution of the securities being offered in the Initial Public Offering.
(b) If applicable, the Members holding Units shall receive, in exchange for their Units of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with the Initial Public Offering, as such managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements to the foregoing effect if so, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members shall be released from such restrictions pro-rata.
(g) Notwithstanding anything to the contrary set forth in this Agreement, in the restrictions contained in this Agreement shall not apply event that the Managing Member determines to Unitseffect a Qualified IPO, any the Members agree to cooperate to effect such reorganization or other Equity Securities transaction and enter into such other agreements that the Managing Member determines are necessary or appropriate to effect such Qualified IPO, including all actions that the Managing Member determines are necessary to (i) cause the conversion of all or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement portion of the Company covering common stock (or other securities) to be sold on behalf any Subsidiary of the Company into a corporation, by (A) the direct or indirect transfer of all of the assets of the Company, subject to the Company’s liabilities, or of any portion of such assets and liabilities, to one or more corporations in an underwritten exchange for shares of any such corporations, (B) the conversion of the Company or a Subsidiary of the Company into a corporation pursuant to Section 18-216 of the Act (or any successor section thereto) or (C) the transfer by each Member of Units held by such Member to one or more corporations in exchange for shares of any such corporation (including by merger of the Company into a corporation) or (ii) cause the Company to use any other structure or means by which to effect a Qualified IPO; provided, that, in each case the relative rights, preferences, privileges, and powers to which the Class B Members are entitled hereunder shall not be modified in a manner materially adverse to the holder thereof as compared to the rights, preferences, privileges, or powers to which such holder is entitled hereunder. In connection therewith, each Member agrees (if directed by the Managing Member) to exchange its Units for equity interests in a new holding company, or common shares of a corporation or other public offeringvehicle (the entity used to effectuate a Qualified IPO, as designated by the Managing Member, the “IPO Entity”), which equity interests or shares shall have the relative rights, preferences, privileges, and powers to which such holder is entitled hereunder, and shall be issued to the Members in a manner which maintains the relative Percentage Interest of each such Member (such exchanged shares, “Conversion Shares”).
(b) Promptly following the determination of the number of Conversion Shares to be received in respect of each Unit under Section 7.05(a) (if any), each Member shall deliver to the Company the certificates, if any, representing the Units to be converted into Conversion Shares, duly endorsed or assigned in blank or to the Company (if required by it) and stating the name or names (with address) in which certificates or certificates for the Conversion Shares, if any, are to be issued.
(c) The Members shall, and hereby agree to take any and all actions deemed necessary or appropriate by the Managing Member in connection with the consummation of those actions contemplated by this Section 7.05 (subject to the terms and conditions hereof), including entering into agreements (i) providing for the exchange of Units as contemplated by Section 7.05(a) (and consents and waivers of claims in connection therewith), (ii) containing customary lock-up and resale restrictions and (iii) to vote all Conversion Shares held by them to elect persons designated by the Managing Member as the directors of the IPO Entity. In connection with a Qualified IPO contemplated by this Section 7.05, the Company, the IPO Entity and the applicable Members shall enter into a customary registration rights agreement, which shall include customary piggyback registration rights; provided, however, that no such registration rights agreement shall be required to include demand registration rights for any holder of Class B Units or its Affiliates. The rights and restrictions set forth in Article 7 will expire immediately prior to the closing of such Qualified IPO, and the Conversion Shares issued to the Members shall be subject to (x) applicable restrictions under federal and state securities laws, and (y) any restrictions set forth in the agreements or other instruments relating to the Qualified IPO or any transfer, merger, consolidation or other restructuring or reorganization transaction entered into in anticipation or contemplation of such Qualified IPO. For the avoidance of doubt, no exchange or conversion of any Unit (or any portion thereof) contemplated by this Section 7.05 shall be deemed a “Disposition” for purposes of this Agreement.
(d) When determining what structure to implement for the Qualified IPO and what actions to be undertaken to facilitate the Qualified IPO, the Managing Member shall use commercially reasonable efforts to implement a structure that the Managing Member determines in good faith to be reasonably tax-efficient for the Members and their direct and indirect equityholders (taken as a whole); provided, that, for the avoidance of doubt, no Member shall be required to make any Capital Contribution or other investment in connection with any of the foregoing (other than to exchange its Units for Conversion Shares); provided, further, that, in connection with a Qualified IPO, (x) any amendment, modification or other changes to this Agreement or the Delaware Certificate and (y) any merger, recapitalization, share contributions or other restructurings or reorganizations shall all be contingent on the consummation of such Qualified IPO.
Appears in 1 contract
Initial Public Offering. (a) In the event that If, at any time after following the date hereoffourth anniversary of the Effective Time, the Non-K/M Directors, in good faith and consistent with their fiduciary duties, unanimously resolve to pursue or commence registration for an Initial Public Offering for which the Board of Directors determines have received advice from a nationally recognized investment banking firm selected by the Non-K/M Directors and reasonably acceptable to the Board of Directors that it shall facilitate such Initial Public Offering is reasonably likely to be consummated within fifteen (15) months following such resolution of the Non-K/M Directors and to result in an offering price per share that would imply a net equity valuation of Equity Securities in the Company of at least $400,000,000, then the members of the Board of Directors designated by Kirin and Mitsui shall not object to the pursuit or commencement of such Initial Public Offering and the Designated Holders shall not unreasonably withhold any stockholder consent required to pursue or consummate such Initial Public Offering; provided, however, that, notwithstanding the foregoing, the foregoing commitment of the members of the Board of Directors designated by Kirin and Mitsui shall cease to apply and the Designated Holders shall have the right to withhold any consent with respect to such Initial Public Offering or revoke any consent previously granted if at any time before such Initial Public Offering has occurred, the managing underwriter indicates that such Initial Public Offering is not likely to result in an offering price per share that would imply a successor through an net equity valuation of the Company of at least $400,000,000 (such decrease in valuation, a “Downward Valuation Adjustment”). So long as no Downward Valuation Adjustment has occurred, the Designated Holders (i) shall not interfere with any steps reasonably undertaken by the Company with respect to such Initial Public Offering; (ii) shall, as may be necessary to facilitate the approval, authorization or recommendation of any such Initial Public Offering, then replace any members of the Board of Directors designated by Kirin and Mitsui who do not vote in favor of, authorize or recommend a proposal to pursue or commence such Initial Public Offering; and (iii) shall have the power to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law vote their shares in favor of the State consummation of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably transactions necessary or desirable to complete the such Initial Public Offering in a manner designed and otherwise consent to achieve a fair price and broad public distribution raise no objection to the consummation of such transactions; provided that, notwithstanding the securities being offered in foregoing, neither Designated Holder nor any Affiliate thereof shall be required to terminate or otherwise amend or modify any commercial or other agreements that such Designated Holder or such Affiliate has entered into with the Company or any of its Affiliates, except to the extent necessary to remove prohibitions on, or to permit the authorization of, the consummation of such Initial Public OfferingOffering (it being understood and agreed that nothing herein will require the Designated Holders to terminate, amend or modify any rights granted pursuant to Section 2.6(b)). The Company shall keep the Designated Holders reasonably informed with respect to such Initial Public Offering (including, without limitation, the status, timing, pricing and other terms thereof) and shall deliver to the Designated Holders copies of all material documents (including drafts thereof and comments thereto) and correspondence to or from the managing underwriter and the SEC related to such Initial Public Offering (with such delivery to be at substantially the same time as when such documents and correspondence are distributed or received by the Company), including without limitation the prospectus, registration statement and drafts and ▇▇▇▇-ups of definitive agreements.
(b) If applicable, The Company (i) shall promptly notify (the Members holding Units “IPO Notification”) the Designated Holders in writing if the conditions triggering an Initial Public Offering described in Section 2.6(a) have been satisfied and (ii) shall receive, promptly notify (the “Adjustment Notification”) the Designated Holders if any Downward Valuation Adjustment has occurred. The IPO Notification shall describe in exchange for their Units of a particular class, shares of stock in reasonable detail the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the material terms of their respective Units) in such Initial Public Offering, including the proposed Initial Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate Offering valuation (which shall have been reasonably determined by the Board of Directors as following consultation with a result nationally recognized investment banking firm), the name and address of the Conversion proposed managing underwriter, the expected offering date, and the proposed national securities exchange for such Initial Public Offering, and shall include a copy of all documents exchanged with the proposed managing underwriter. The Adjustment Notification shall describe in reasonable detail the reason for the Downward Valuation Adjustment and the revised terms and pricing of such Initial Public Offering. Following the delivery of any IPO Notification, the Designated Holders shall have one hundred twenty (120) days to elect and commit in writing to purchase all Securities not held by the Designated Holders at the proposed Initial Public Offering valuation. If the Designated Holders elect and commit in writing to purchase all such Securities, then each Stockholder shall be required to sell its Securities to the Designated Holders, and the Designated Holders shall be required to purchase such Securities, at a per Security purchase price (which, for the avoidance of doubt, shall be reduced by the exercise price payable with respect to any option, warrant or if advisable similar Security) based on the proposed Initial Public Offering valuation (in order case of a Downward Valuation Adjustment, such valuation shall be reduced as reflected in the Adjustment Notification) and pursuant to effectuate purchase and sale documents in customary form reasonably acceptable to the Designated Holders and at a closing date reasonably agreed by the Board of Directors and the Designated Holders. If the consummation of the Initial Public Offering.
(c) In such eventOffering provided for in the IPO Notification does not occur for any reason, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with the Initial Public Offering, as such managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements to the foregoing effect if so, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members shall be released from such restrictions pro-rata.
(g) Notwithstanding anything to the contrary set forth in this Agreement, the restrictions contained in this Agreement Section 2.6(b) shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Membercontinue, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement obligation of the Company covering common stock (or other securities) to be sold on behalf provide the IPO Notification and the right of the Company in an underwritten public offeringDesignated Holders to purchase all Securities not held by the Designated Holders at the proposed Initial Public Offering valuation. Following the delivery of any Adjustment Notification, the Designated Holders shall have ten (10) Business Days to revoke any prior stockholder consent to the extent such revocation is permitted pursuant to Section 2.6(a).
Appears in 1 contract
Initial Public Offering. (a) In the event that at any time As promptly as practicable after the date hereof, Newco shall use its reasonable efforts to (i) file the Registration Statement with the SEC, (ii) cause such Registration Statement (as it may be amended or supplemented in response to comments received from the SEC staff or as otherwise deemed necessary or appropriate by Parent and Newco) to be declared effective under the Securities Act and (iii) effect the proposed underwritten initial public offering of shares of its Common Stock substantially as contemplated by the Registration Statement at the time that it becomes effective under the Securities Act (including for this purpose the information deemed to be contained in such Registration Statement pursuant to Rule 430A or Rule 434 under the Securities Act and by any post-effective amendment thereto) and otherwise on terms and conditions which are materially less favorable to Newco than customary terms and conditions ("IPO"); provided, however, that Newco's obligation to take -------- ------- the actions described in clauses (ii) and (iii) above shall be suspended during any period when (x) in Parent's good faith judgment it is highly likely that any of the conditions to Closing set forth in Sections 6.1 and 6.2 (other than Section 6.2(d)) would not be satisfied at the time when, if Newco were to so proceed, the closing of the proposed IPO would otherwise be expected to occur or (y) after consultation with the firms designated as the managing underwriters of the proposed IPO, the Board of Directors of Parent, or a duly constituted committee thereof, determines that it shall facilitate an offering of Equity Securities in good faith that, based upon then current conditions in the United States securities markets, factors related to the proposed business of Newco and the REIT Partnership or other relevant factors, it is reasonably likely that the proposed IPO will not meet the "IPO Criteria" (as such term is defined in that certain letter agreement dated the date hereof between Parent and the Company). Newco shall promptly notify the Company or a successor through an Initial Public Offering, then the Board of Directors if its obligations under this Section 5.8(a) shall have been suspended pursuant to the power to cause proviso set forth in the preceding sentence. The Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially its reasonable efforts to effectuate assist Newco in complying with its covenants in the first sentence of this Section 5.8(a), by promptly providing such Conversion information (including, without limitation, financial information) with respect to the Company reasonably requested by Newco in connection with the Registration Statement (as it may be amended and take supplemented) or the proposed IPO and by causing its counsel to deliver such actions opinions, its auditors to deliver such "comfort" letters and its officers to deliver such certificates, in each case as are reasonably necessary or desirable to complete customary in connection with underwritten public offerings such as the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution of the securities being offered in the Initial Public Offeringproposed IPO.
(b) If applicable, Newco agrees to provide to the Members holding Units shall receive, in exchange for their Units of a particular class, shares of stock in the Public Vehicle Company copies of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case Registration Statement (including any amendments thereto) a reasonable time before filing. Each of the Class A Units, Company and Newco agrees promptly to notify the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no if at any time any event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board of Directors have occurred as a result of which the Conversion preliminary or if advisable final prospectus contained in the Registration Statement as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to effectuate make the Initial Public Offering.
(c) In such eventstatements therein, the Public Vehicle and the Members (in their capacities as stockholders light of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required circumstances under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities lawswere made, including Rule 144 under the Securities Actnot misleading.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with the Initial Public Offering, as such managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements to the foregoing effect if so, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members shall be released from such restrictions pro-rata.
(g) Notwithstanding anything to the contrary set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offering.
Appears in 1 contract
Initial Public Offering. (a) In respect of an Initial Public Offering that has received approval by each Board and such approvals as may be required pursuant to Section 3.02(b) of the event that at any time after the date hereof, Beethoven Topco LLC Agreements or has been initiated pursuant to Section 8.04(a) or Section 8.04(b) the Board of Directors determines each approving Beethoven Topco shall provide each Member a written notice (an “IPO Notice”) that it shall facilitate an offering of Equity Securities in the Company or Beethoven Entities have received a successor through request to consummate an Initial Public OfferingOffering with respect to the Beethoven Tax Partnership. Following receipt of an IPO Notice, then the Board of Directors shall have the power to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), Beethoven Entities and the Members shall use their commercially reasonable best efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete effect the Initial Public Offering as promptly as practicable following the receipt of the IPO Notice, and the IPO Entity shall be obligated to draft, submit and file a registration statement and amendments thereto on the applicable form and enter into customary agreements (on terms and conditions reasonably determined by the Board or the Members, as applicable (the “IPO Initiating Person”)), to effect the Initial Public Offering. The IPO Initiating Person shall have the right to control and direct the Initial Public Offering process, including by selecting the underwriters (and their roles) in connection with the Initial Public Offering. Each Member shall keep each other Member reasonably informed and allow such Member to reasonably participate in connection with the Initial Public Offering process.
(b) Notwithstanding anything to the contrary contained herein, in connection with an Initial Public Offering, and upon the request of the IPO Initiating Person, as applicable, each of the Members hereby agrees that it will, at the expense of the IPO Entity, take such action and execute such documents, including a customary registration rights agreement, as may reasonably be necessary to effect the Initial Public Offering, including taking all such actions and executing such documents as may be reasonably necessary to form or create the IPO Entity and to effect the Initial Public Offering and, upon the request of a Member holding its Interest through a Blocker Entity, each of the Members hereby agrees that it will take such action and execute such documents as may reasonably be necessary to merge or contribute such Blocker Entity into the IPO Entity in a manner designed tax-free transaction prior to achieve a fair price and broad public distribution the consummation of the securities being offered Initial Public Offering. Furthermore, the Members will cooperate to structure an Initial Public Offering as tax-efficiently as possible, including through the use of an “Up-C” structure, and any amounts paid under a so-called “tax receivables agreement” or similar agreement shall be shared pro rata among the Members in proportion to the amount each such Member would receive under Section 9.03 at the time of the Initial Public Offering if the Beethoven Tax Partnership were to liquidate at such time (and the proceeds therefrom were distributed to the Members pursuant to Section 5.02(a)). In connection with forming, creating or continuing the IPO Entity, the IPO Initiating Person in its sole discretion and acting alone, and without the need for any action or consent of any other Person, may, as applicable, take any and all actions reasonably necessary or advisable to create and implement the Initial Public Offering, including: (i) merging, converting or consolidating the Beethoven Entities or any Subsidiary thereof into each other or into a new IPO Entity; (ii) transferring, domesticating or otherwise moving the Beethoven Entities, any Subsidiary thereof or the IPO Entity to another jurisdiction; (iii) assigning or transferring assets between Beethoven Entities in order to form a single IPO Entity; and (iv) taking such other steps as it deems necessary or advisable to create a suitable vehicle to be the IPO Entity and otherwise to facilitate the consummation of the Initial Public Offering, including, at the request of a Member, merging or contributing its Blocker Entity into the IPO Entity, in each case for the purpose of an offering of equity Securities of the IPO Entity for sale to the public in the Initial Public Offering.
(b) If applicable. In connection with such Initial Public Offering, each Member shall be entitled to receive common stock of, or similar equity interests in, the IPO Entity or a related operating partnership with an economic value equal to the value (if any) that such Member would be entitled to receive on account of such Member’s Interests if the Beethoven Tax Partnership was liquidated pursuant to Section 9.03 (and the proceeds therefrom were distributed to the Members holding Units shall receivepursuant to Section 5.02(a)) at an implied aggregate equity valuation equal to the implied aggregate equity valuation of the IPO Entity in the Initial Public Offering based on the gross offering price (before underwriters’ discounts, in exchange for their Units commissions or similar fees) of a particular class, the shares of common stock in of, or similar equity interests in, the Public Vehicle IPO Entity as set forth on the cover page of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable final prospectus relating to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering.
(c) In such eventIf requested by the representative of the underwriters in connection with any underwritten Initial Public Offering, each Member hereby agrees not to sell or otherwise transfer or dispose of (except in accordance with exceptions, which shall include customary exceptions, agreed to by the representative of the underwriter or underwriters) any shares of common stock of, or similar equity interests in, the Public Vehicle IPO Entity (except for any shares of common stock of, or similar equity interest in, the IPO Entity that are included in such registration statement) during the one hundred eighty (180)-day period following the effective date of a registration statement of the IPO Entity filed under the Securities Act or such shorter period as may be agreed by the representatives of the underwriters (such periods are subject to extension on customary terms if required by the representative of the underwriters to take into account the issuance or potential issuance of research or similar reports); provided that such agreement is subject to all executive officers and directors of the IPO Entity entering into similar agreements. If requested by the representative of the underwriters, the IPO Entity and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into execute a stockholders’ separate agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation)foregoing effect.
(d) Except as otherwise provided Notwithstanding anything contained herein to the contrary, if the managing underwriter(s) of any underwritten Initial Public Offering advise(s) the IPO Entity and the Members selling shares of common stock or similar equity interests in this Section 3.8the IPO Entity, no Member will have in writing, that the right aggregate number of shares of common stock or power similar equity interests to veto, vote for or against, amend, modify or delay a Conversion or be sold by the IPO Entity and such Members requested to be included in the Initial Public Offering. In furtherance Offering exceeds the number of shares of common stock or similar equity interests that can be sold in such Initial Public Offering or that the number of shares of common stock or similar equity interests proposed to be included in any registration statement would adversely affect the price per share of the foregoingcommon stock or similar equity interests to be sold in such Initial Public Offering, each Member hereby makesthen the aggregate number of shares of common stock or similar equity interests to be sold by the IPO Entity and common stock or similar equity interests to be sold by the Members shall be reduced to the amount recommended by such managing underwriter(s). Such reduction shall be achieved by, constitutes and appoints first, reducing, or eliminating if necessary, the Company its true and lawful attorney, for it and in its name, place and stead and shares of common stock or similar equity interests to be sold by the IPO Entity for its use own account and benefitthen, if necessary, reducing the number of shares of common stock or similar equity interests requested to act as its proxy be included by the Members pro rata based on the number of shares of common stock or similar equity interests requested to be included in respect such Initial Public Offering; provided that the number of any vote shares of common stock or approval of similar equity interests to be sold by the Members required to give effect to this Section 3.8, including any vote or approval required under shall not be reduced unless all other securities are first entirely excluded from the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocableunderwriting.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in In connection with the Initial Public Offering, as the IPO Entity shall pay all customary registration and offering expenses incurred, regardless of whether the registration statement is declared effective or such managing underwriter shall specify reasonably offering is completed, including: (i) all registration and filing fees; (ii) fees and expenses of compliance with securities or “blue sky” laws (including reasonable fees and disbursements of counsel in good faith. Each connection with blue sky qualifications of the common stock or similar equity interests to be sold in such Initial Public Offering); (iii) printing, duplicating, word processing, messenger, telephone, facsimile and delivery expenses (including expenses of printing certificates for the common stock or similar equity interests to be sold in such Initial Public Offering in a form eligible for deposit with The Depository Trust Company and of printing prospectuses, supplements or amendments relating to any registration statement); (iv) internal expenses of the IPO Entity (including all salaries and expenses of its officers and employees performing legal or accounting duties in connection with such Initial Public Offering); (v) the fees and expenses incurred in connection with the listing of the common stock or similar equity interests to be sold in such Initial Public Offering; (vi) the fees and disbursements of legal counsel for the IPO Entity and customary fees and expenses for independent certified public accountants retained by the IPO Entity, including in connection with the preparation of comfort letters, and any transfer agent and registrar fees; (vii) the reasonable fees and disbursements of one (1) legal counsel for the BCSS Member shall enter into customary letter agreements and one (1) legal counsel for the Warner Member, in each case, to the foregoing effect if soextent participating in such Initial Public Offering; (viii) all applicable rating agency fees with respect to the common stock or similar equity interests to be sold in such Initial Public Offering; (ix) any reasonable fees and disbursements of underwriters customarily paid by issuers or sellers of securities; (x) all expenses related to the “road-show” for the Initial Public Offering, requested including all reasonable travel, meals and lodging expenses; (xi) the reasonable fees and expenses of any special experts retained by the Company IPO Entity in connection with such registration statement and the managing underwriter, if any. Notwithstanding the foregoing, in the event Initial Public Offering; and (xii) any Member is released other fees and disbursements customarily paid by the Company and issuers of securities. The IPO Entity shall have no obligation to pay any transfer taxes or underwriting, brokerage or other similar fees, discounts or commissions attributable to the managing underwriter, if any, from sale of common stock or similar equity interests to be sold by the restrictions contemplated by this Section 3.8(f), all other Members in such Initial Public Offering (which expenses shall be released from such restrictions proborne by the Members) or, except for the fees and disbursements described in clause (vii) or (x) above, out-rataof-pocket expenses borne by the Members or the underwriters.
(gf) Notwithstanding anything to the contrary set forth in this Agreementcontained herein, the restrictions contained in this Agreement Section 8.07 shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offeringInitial Public Offering.
Appears in 1 contract
Sources: Master Operations and Economics Agreement (Warner Music Group Corp.)
Initial Public Offering. (a) In the event that at any time after the date hereof, the Board of Directors determines that it shall facilitate an offering of Equity Securities in the Company or a successor through an Initial Public Offering, then the Board of Directors Investors shall have the power to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete participate in the Initial Public Offering pro rata in a manner designed to achieve a fair price and broad public distribution of the securities being offered in the Initial Public Offering.
(b) If applicable, the Members holding Units shall receive, in exchange for their Units of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable proportion to the Units, subject to any modifications deemed appropriate number of Registrable Securities requested by the Board of Directors as a result of the Conversion or if advisable Investors to be included in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoingconnection with a planned Initial Public Offering, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and shall deliver prompt written notice (which notice shall be given (i) in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by event that the Company and a managing underwriterhas publicly disclosed such proposed Initial Public Offering, if any, in connection with any at least thirty (30) calendar days prior to such proposed Initial Public Offering and upon confirmation reasonably satisfactory to such Member (ii) in the event that all officers and directors of the Company and all holdershas not publicly disclosed such proposed Initial Public Offering (a "NON-PUBLIC IPO REGISTRATION NOTICE"), collectively with their Affiliates and Approved Funds, no more than ten (10) Business Days prior to the filing of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant such proposed Initial Public Offering registration statement filed under the Securities Act in connection with the SEC (such period not in excess of ten (10) Business Days, the "NON-PUBLIC IPO REGISTRATION NOTICE PERIOD")) to all Investors of its intention to undertake such Initial Public Offering, describing in reasonable detail the proposed offering and distribution (including the anticipated range of the proposed offering price, the class and number of securities proposed to be registered and the distribution arrangements) and of such Investor's right to participate in such registration under this Section 2(b) as herein provided. If the Investor elects to participate in such managing underwriter proposed Initial Public Offering, the Investor shall keep the contents of any Non-Public IPO Registration Notice confidential prior to the filing of such proposed Initial Public Offering with the SEC and if the Investor has elected not to participate in such proposed Initial Public Offering, the Investor shall keep the contents of any Non-Public IPO Registration Notice confidential during the Non-Public IPO Registration Notice Period. Subject to the other provisions of this paragraph, upon the written request of any Investor made within twenty (20) calendar days, or in the case of a Non-Public IPO Registration Notice, within five (5) Business Days, after the receipt of such written notice (which request shall specify reasonably and the amount of Registrable Securities to be sold), the Company shall allow the Investors to participate in good faithsuch offering. Each Member shall enter into customary letter agreements Immediately upon notification to the foregoing effect if soCompany from the underwriter of the price at which such securities are to be sold, requested by the Company shall so advise each participating Investor. The Investors requesting to participate may, at any time prior to the effectiveness of the registration statement for the Initial Public Offering (and the managing underwriterfor any reason), if any. Notwithstanding the foregoing, in the event any Member is released revoke such request by delivering written notice to the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members shall be released from revoking such restrictions pro-ratarequested inclusion.
(g) Notwithstanding anything to the contrary set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offering.
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Sources: Registration Rights Agreement (Qiao Xing Mobile Communication Co., Ltd.)