Limitations on Transfer. Subject to and except as provided in this Agreement and applicable Law, an Investor shall be permitted to Transfer from time to time any or all of the Series A Preferred Stock and Conversion Stock beneficially owned by it without the consent or approval of any Person. Each Stockholder hereby agrees that: (a) no Transfer of Capital Stock shall occur in any manner that violates the provisions of the Certificate of Incorporation or Bylaws of the Company, this Agreement, or any applicable Law, including federal or state securities Laws; (b) no Stockholder may Transfer any shares of Series A Preferred Stock starting at the close of business on a date not more than fifteen (15) days before the date of the anticipated commencement of a bona fide roadshow for QPO (which date is notified by the Company in writing to the Stockholders before such date) and ending on the earlier of (i) the initial settlement date of the QPO, (ii) twenty-one (21) days (or, if such roadshow includes in-person meetings in any jurisdiction outside the United States, thirty (30) days) after the first day of such roadshow and (iii) fifteen (15) days after such notification by the Company if the roadshow has not commenced by such date; provided, however, that, for so long as this Agreement remains in effect, the Company agrees not to terminate, amend or supplement (or agree to terminate, amend or terminate) any equivalent or substantially similar transfer restrictions in that certain Note Exchange Agreement dated April 15, 2016 among the Company and the other parties there in any way that is substantially more favorable to the Person(s) subject thereto than as set forth herein unless and until the Company terminates, amends or supplements the restrictions set forth in this Section 2.1(b). (c) during the period commencing on the effective time of a Public Offering and continuing until the earlier of (i) three hundred sixty-six (366) days from the effective time of such Public Offering and (ii) the date on which the shares of Series A Preferred Stock are converted into shares of Common Stock, each Stockholder agrees that it shall not enter into a transaction which would have the same effect, or enter into any swap, hedge or other similar arrangement that transfers, in whole or in part, any of the economic consequences of ownership of the Securities (but, for the avoidance of doubt, not the direct ownership of the shares of Series A Preferred Stock), whether any such aforementioned transaction or arrangement is to be settled by delivery of the Securities or such other securities, in cash or otherwise, or publicly disclose the intention to make any such offer, sale, pledge or disposition, or to enter into any such swap, hedge or other similar arrangement; (d) no Stockholder may Transfer any shares of Series A Preferred Stock to any Person (any such Person, a “Restricted Transferee”) that is (A) a Competitor of the Company as determined by the Board in its good faith reasonable discretion, (B) listed on Schedule 2.1(d), (C) that is a target of any economic sanctions administered by the Office of Foreign Assets Control of the United States Treasury Department (“Sanctions Target”), or (D) named on (x) a list promulgated by the United Nations Security Council or its committees pursuant to resolutions issued under Chapter VII of the United Nations Charter or (y) the World Bank Listing of Ineligible Firms; provided, however, that notwithstanding the foregoing, a Stockholder may at any time deliver to the Company’s General Counsel (with copies to the Company’s Chief Financial Officer, Treasurer and Corporate Secretary) a written list of potential transferees (including, for the avoidance of doubt, any potential Transferee the name of which is on any of the foregoing lists), and, if the Company does not indicate in writing within ten (10) Business Days after the submission of such list whether it considers, in the good faith reasonable judgment of the Board, all or any of such potential Transferees to be Restricted Transferee(s), then any such potential Transferee that has not been timely indicated by the Company to be a Restricted Transferee shall not be considered a Restricted Transferee and the Stockholder shall be permitted to Transfer to such Person pursuant to the terms of this Article II after the expiration of such ten (10) day period; and (e) no Stockholder may Transfer any shares of Series A Preferred Stock to any: (i) Person or member of such Person’s family (as the term “family” is defined in 34 C.F.R. Section 668.174(c)(4)), that alone or together, (i) exercises or exercised Substantial Control (as the term “substantial control” is defined in 34 C.F.R. § 668.174(c)(3)) over another educational institution or third-party servicer (as that term is defined in 34 C.F.R. Section 668.2) that owes a liability for a violation of a Title IV Program requirement or (ii) owes a liability for a Title IV Program violation; (ii) Person that has pled guilty to, pled nolo contendere, or been found guilty of, a crime involving the acquisition, use or expenditure of funds under the Title IV Programs or been judicially determined to have committed fraud involving funds under the Title IV Programs or has been administratively or judicially determined to have committed fraud or any other material violation of Law involving funds of any Governmental Authority or Educational Agency; or (iii) Person that has filed for relief in bankruptcy or had entered against it an order for relief in bankruptcy, or to the knowledge of such Person, has a Subsidiary that has filed for relief in bankruptcy or had entered against it an order for relief in bankruptcy. (f) Notwithstanding anything in this Agreement or any other Transaction Documents to the contrary, starting immediately after the pricing of a Public Offering and continuing until the earlier of (x) the date on which the Initial Follow-On Public Offering is consummated pursuant to the Certificate of Designations and the Registration Rights Agreement or (y) if then converted, the date which is 120 days (or if a registration is suspended, postponed or otherwise not available pursuant to the terms of the Registration Rights Agreement, then an additional number of days equal to the length of such suspension, postponement or lack of availability) after the date on which an amount of Conversion Stock equal to or more than the Priority Amount has been registered pursuant to an effective registration statement in accordance with the terms of the Registration Rights Agreement, or if earlier, the date on which at least the Priority Amount under such registration statement has been sold, neither Wengen nor ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ shall offer, sell or otherwise Transfer, or agree to offer, sell or otherwise Transfer, either directly or indirectly, any of such Person’s Equity Securities in the Company, including pursuant to a Registration Statement or in a Public Offering; provided, however, the foregoing restriction shall not apply with respect to ▇▇▇▇▇▇ Excluded Securities.
Appears in 3 contracts
Sources: Stockholders Agreement, Shareholder Agreement (Laureate Education, Inc.), Shareholder Agreements (Laureate Education, Inc.)
Limitations on Transfer. Subject to and except as provided in this Agreement and applicable Law, an Investor shall be permitted to Transfer from time to time any or all of the Series A Preferred Stock and Conversion Stock beneficially owned by it without the consent or approval of any Person. Each Stockholder hereby agrees that:
(a) no Transfer of Capital Stock shall occur in any manner Each Securityholder hereby agrees that violates the provisions of the Certificate of Incorporation it will not, directly or Bylaws of the Companyindirectly, this Agreement, or any applicable Law, including federal or state securities Laws;
(b) no Stockholder may Transfer any shares of Series A Preferred Common Stock starting at or FS Warrants (collectively, the close of business on a date not more than fifteen (15"Restricted Securities") days before unless such Transfer complies with the date of the anticipated commencement of a bona fide roadshow for QPO (which date is notified by the Company in writing to the Stockholders before such date) provisions hereof and ending on the earlier of (i) the initial settlement date of the QPO, (ii) twenty-one (21) days (or, if such roadshow includes in-person meetings in any jurisdiction outside the United States, thirty (30) days) after the first day of such roadshow and (iii) fifteen (15) days after such notification by the Company if the roadshow has not commenced by such date; provided, however, that, for so long as this Agreement remains in effect, the Company agrees not to terminate, amend or supplement (or agree to terminate, amend or terminate) any equivalent or substantially similar transfer restrictions in that certain Note Exchange Agreement dated April 15, 2016 among the Company and the other parties there in any way that Transfer is substantially more favorable to the Person(s) subject thereto than as set forth herein unless and until the Company terminates, amends or supplements the restrictions set forth in this Section 2.1(b).
(c) during the period commencing on the effective time of a Public Offering and continuing until the earlier of (i) three hundred sixty-six (366) days from the effective time of such Public Offering and (ii) the date on which the shares of Series A Preferred Stock are converted into shares of Common Stock, each Stockholder agrees that it shall not enter into a transaction which would have the same effect, or enter into any swap, hedge or other similar arrangement that transfers, in whole or in part, any of the economic consequences of ownership of the Securities (but, for the avoidance of doubt, not the direct ownership of the shares of Series A Preferred Stock), whether any such aforementioned transaction or arrangement is to be settled by delivery of the Securities or such other securities, in cash or otherwise, or publicly disclose the intention to make any such offer, sale, pledge or disposition, or to enter into any such swap, hedge or other similar arrangement;
(d) no Stockholder may Transfer any shares of Series A Preferred Stock to any Person (any such Person, a “Restricted Transferee”) that is (A) a Competitor of the Company as determined by the Board in its good faith reasonable discretion, (B) listed on Schedule 2.1(d), (C) that is a target of any economic sanctions administered by the Office of Foreign Assets Control of the United States Treasury Department (“Sanctions Target”), or (D) named on (x) a list promulgated by the United Nations Security Council or its committees pursuant to resolutions issued under Chapter VII of the United Nations Charter or (y) the World Bank Listing of Ineligible Firms; provided, however, that notwithstanding the foregoing, a Stockholder may at any time deliver to the Company’s General Counsel (with copies to the Company’s Chief Financial Officer, Treasurer and Corporate Secretary) a written list of potential transferees (including, for the avoidance of doubt, any potential Transferee the name of which is on any of the foregoing lists), and, if the Company does not indicate in writing within ten (10) Business Days after the submission of such list whether it considers, in the good faith reasonable judgment of the Board, all or any of such potential Transferees to be Restricted Transferee(s), then any such potential Transferee that has not been timely indicated by the Company to be a Restricted Transferee shall not be considered a Restricted Transferee and the Stockholder shall be permitted to Transfer to such Person pursuant to the terms of this Article II after the expiration of such ten (10) day period; and
(e) no Stockholder may Transfer any shares of Series A Preferred Stock to any:
(i) Person or member of such Person’s family (as the term “family” is defined in 34 C.F.R. Section 668.174(c)(4)), that alone or together, (i) exercises or exercised Substantial Control (as the term “substantial control” is defined in 34 C.F.R. § 668.174(c)(3)) over another educational institution or third-party servicer (as that term is defined in 34 C.F.R. Section 668.2) that owes a liability for a violation of a Title IV Program requirement or (ii) owes a liability for a Title IV Program violation;
(ii) Person that has pled guilty to, pled nolo contendere, or been found guilty of, a crime involving the acquisition, use or expenditure of funds under the Title IV Programs or been judicially determined to have committed fraud involving funds under the Title IV Programs or has been administratively or judicially determined to have committed fraud or any other material violation of Law involving funds of any Governmental Authority or Educational Agency; or
(iii) Person that has filed for relief in bankruptcy or had entered against it an order for relief in bankruptcy, or to the knowledge of such Person, has a Subsidiary that has filed for relief in bankruptcy or had entered against it an order for relief in bankruptcy.
(f) Notwithstanding anything in this Agreement or any other Transaction Documents to the contrary, starting immediately after the pricing of a Public Offering and continuing until the earlier of (x) the date on which the Initial Follow-On Public Offering is consummated pursuant to the Certificate of Designations and the Registration Rights Agreement or (y) if then converted, the date which is 120 days (or if a registration is suspended, postponed or otherwise not available pursuant to the terms of the Registration Rights Agreement, then an additional number of days equal to the length of such suspension, postponement or lack of availability) after the date on which an amount of Conversion Stock equal to or more than the Priority Amount has been registered pursuant to an effective registration statement under the Securities Act and has been registered under all applicable state securities or "blue sky" laws or (ii) such Securityholder shall have furnished the Company with a written opinion of counsel in accordance with form and substance reasonably satisfactory to the terms Company to the effect that no such registration is required because of the Registration Rights Agreement, availability of an exemption from registration under the Securities Act and all applicable state securities or if earlier, "blue sky" laws.
(b) During the date on which at least Restricted Period,
(i) each of the Priority Amount under such registration statement has been sold, neither Wengen nor ▇▇▇▇Non-BLUM Parties may not Transfer any Restric▇▇▇ ▇. ▇▇▇▇▇▇ shall offer, sell or otherwise Transfer, or agree to offer, sell or otherwise Transfer, either directly or indirectly, any of such Person’s Equity Securities in the Company, including other than (x) pursuant to a Registration Statement Sections 2.3, 2.4 or in a Public Offering; provided2.5, however, the foregoing restriction shall not apply (y) with respect to ▇▇▇▇▇▇ Excluded Securitiesthe FS Parties and the Other Non-Management Parties only, Transfers after the applicable Permitted Third Party Transfer Date to Persons other than a Permitted Transferee of the Securityholder making the Transfer (subject to prior compliance in full with Section 2.2 and such Persons executing and delivering Assumption Agreements to the Company), and (z) with respect to the DLJ Parties only, Transfers of Restricted Securities in connection with Transfers of Notes to the same transferee (subject to such Persons executing and delivering Assumption Agreements to the Company); and
(ii) BLUM and its Affiliates will not Transfer any Restricted Securities in a transaction subject to Section 2.4 unless Section 2.4 is complied with in full prior to such Transfer.
(c) In the event of any purported Transfer by any of the Securityholders of any Restricted Securities in violation of the provisions of this Agreement, such purported Transfer will be void and of no effect and the Company will not give effect to such Transfer.
(d) Each certificate representing Restricted Securities issued to the Securityholders will bear a legend on the face thereof substantially to the following effect (with such additions thereto or changes therein as the Company may be advised by counsel are required by law or necessary to give full effect to this Agreement, the "Legend"):
Appears in 3 contracts
Sources: Securityholders' Agreement (Wirta Raymond E), Securityholders' Agreement (Koll Donald M), Securityholders' Agreement (White W Brett)
Limitations on Transfer. Subject to and except as provided in this Agreement and applicable Law, an Investor shall be permitted to Transfer from time to time any or all of the Series A Preferred Stock and Conversion Stock beneficially owned by it without the consent or approval of any Person. Each Stockholder hereby agrees that:
(a) no Transfer of Capital Stock shall occur in any manner Each Securityholder hereby agrees that violates the provisions of the Certificate of Incorporation it will not, directly or Bylaws of the Companyindirectly, this Agreement, or any applicable Law, including federal or state securities Laws;
(b) no Stockholder may Transfer any shares of Series A Preferred Common Stock starting at or FS Warrants (collectively, the close of business on a date not more than fifteen (15"Restricted Securities") days before unless such Transfer complies with the date of the anticipated commencement of a bona fide roadshow for QPO (which date is notified by the Company in writing to the Stockholders before such date) provisions --------------------- hereof and ending on the earlier of (i) the initial settlement date of the QPO, (ii) twenty-one (21) days (or, if such roadshow includes in-person meetings in any jurisdiction outside the United States, thirty (30) days) after the first day of such roadshow and (iii) fifteen (15) days after such notification by the Company if the roadshow has not commenced by such date; provided, however, that, for so long as this Agreement remains in effect, the Company agrees not to terminate, amend or supplement (or agree to terminate, amend or terminate) any equivalent or substantially similar transfer restrictions in that certain Note Exchange Agreement dated April 15, 2016 among the Company and the other parties there in any way that Transfer is substantially more favorable to the Person(s) subject thereto than as set forth herein unless and until the Company terminates, amends or supplements the restrictions set forth in this Section 2.1(b).
(c) during the period commencing on the effective time of a Public Offering and continuing until the earlier of (i) three hundred sixty-six (366) days from the effective time of such Public Offering and (ii) the date on which the shares of Series A Preferred Stock are converted into shares of Common Stock, each Stockholder agrees that it shall not enter into a transaction which would have the same effect, or enter into any swap, hedge or other similar arrangement that transfers, in whole or in part, any of the economic consequences of ownership of the Securities (but, for the avoidance of doubt, not the direct ownership of the shares of Series A Preferred Stock), whether any such aforementioned transaction or arrangement is to be settled by delivery of the Securities or such other securities, in cash or otherwise, or publicly disclose the intention to make any such offer, sale, pledge or disposition, or to enter into any such swap, hedge or other similar arrangement;
(d) no Stockholder may Transfer any shares of Series A Preferred Stock to any Person (any such Person, a “Restricted Transferee”) that is (A) a Competitor of the Company as determined by the Board in its good faith reasonable discretion, (B) listed on Schedule 2.1(d), (C) that is a target of any economic sanctions administered by the Office of Foreign Assets Control of the United States Treasury Department (“Sanctions Target”), or (D) named on (x) a list promulgated by the United Nations Security Council or its committees pursuant to resolutions issued under Chapter VII of the United Nations Charter or (y) the World Bank Listing of Ineligible Firms; provided, however, that notwithstanding the foregoing, a Stockholder may at any time deliver to the Company’s General Counsel (with copies to the Company’s Chief Financial Officer, Treasurer and Corporate Secretary) a written list of potential transferees (including, for the avoidance of doubt, any potential Transferee the name of which is on any of the foregoing lists), and, if the Company does not indicate in writing within ten (10) Business Days after the submission of such list whether it considers, in the good faith reasonable judgment of the Board, all or any of such potential Transferees to be Restricted Transferee(s), then any such potential Transferee that has not been timely indicated by the Company to be a Restricted Transferee shall not be considered a Restricted Transferee and the Stockholder shall be permitted to Transfer to such Person pursuant to the terms of this Article II after the expiration of such ten (10) day period; and
(e) no Stockholder may Transfer any shares of Series A Preferred Stock to any:
(i) Person or member of such Person’s family (as the term “family” is defined in 34 C.F.R. Section 668.174(c)(4)), that alone or together, (i) exercises or exercised Substantial Control (as the term “substantial control” is defined in 34 C.F.R. § 668.174(c)(3)) over another educational institution or third-party servicer (as that term is defined in 34 C.F.R. Section 668.2) that owes a liability for a violation of a Title IV Program requirement or (ii) owes a liability for a Title IV Program violation;
(ii) Person that has pled guilty to, pled nolo contendere, or been found guilty of, a crime involving the acquisition, use or expenditure of funds under the Title IV Programs or been judicially determined to have committed fraud involving funds under the Title IV Programs or has been administratively or judicially determined to have committed fraud or any other material violation of Law involving funds of any Governmental Authority or Educational Agency; or
(iii) Person that has filed for relief in bankruptcy or had entered against it an order for relief in bankruptcy, or to the knowledge of such Person, has a Subsidiary that has filed for relief in bankruptcy or had entered against it an order for relief in bankruptcy.
(f) Notwithstanding anything in this Agreement or any other Transaction Documents to the contrary, starting immediately after the pricing of a Public Offering and continuing until the earlier of (x) the date on which the Initial Follow-On Public Offering is consummated pursuant to the Certificate of Designations and the Registration Rights Agreement or (y) if then converted, the date which is 120 days (or if a registration is suspended, postponed or otherwise not available pursuant to the terms of the Registration Rights Agreement, then an additional number of days equal to the length of such suspension, postponement or lack of availability) after the date on which an amount of Conversion Stock equal to or more than the Priority Amount has been registered pursuant to an effective registration statement under the Securities Act and has been registered under all applicable state securities or "blue sky" laws or (ii) (A) such Securityholder shall have furnished the Company with a written opinion of counsel in accordance with form and substance reasonably satisfactory to the terms Company to the effect that no such registration is required because of the Registration Rights availability of an exemption from registration under the Securities Act and (B) the Company shall be reasonably satisfied that no such registration is required because of the availability of exemptions from registration under all applicable state securities or "blue sky" laws.
(b) During the Restricted Period,
(i) each of the Non-▇▇▇▇ Parties may not Transfer any Restricted Securities other than (x) pursuant to Sections 2.3, 2.4 or 2.5, and (y) with respect to the FS Parties, the DLJ Parties and the Other Non- Management Parties only, Transfers after the Permitted Third Party Transfer Date to Persons other than a Permitted Transferee of the Securityholder making the Transfer (subject to prior compliance in full with Section 2.2 and such Persons executing and delivering Assumption Agreements to the Company); and
(ii) ▇▇▇▇ and its Affiliates will not Transfer any Restricted Securities in a transaction subject to Section 2.4 unless Section 2.4 is complied with in full prior to such Transfer.
(c) In the event of any purported Transfer by any of the Securityholders of any Restricted Securities in violation of the provisions of this Agreement, such purported Transfer will be void and of no effect and the Company will not give effect to such Transfer.
(d) Each certificate representing Restricted Securities issued to the Securityholders will bear a legend on the face thereof substantially to the following effect (with such additions thereto or if earlierchanges therein as the Company may be advised by counsel are required by law or necessary to give full effect to this Agreement, the date on which at least the Priority Amount under such registration statement has been sold"Legend"): ------ "THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A SECURITYHOLDERS' AGREEMENT AMONG CBRE HOLDING, neither Wengen nor INC., RCBA STRATEGIC PARTNERS, L.P., FS EQUITY PARTNERS III, L.P., FS EQUITY PARTNERS INTERNATIONAL, L.P., THE ▇▇▇▇ HOLDING COMPANY, ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ shall offer, sell or otherwise TransferDLJ INVESTMENT FUNDING, or agree to offerINC., sell or otherwise Transfer, either directly or indirectly, any of such Person’s Equity Securities in the Company, including pursuant to a Registration Statement or in a Public Offering; provided, however, the foregoing restriction shall not apply with respect to CERTAIN MANAGEMENT INVESTORS AND CB ▇▇▇▇▇▇▇ Excluded Securities▇▇▇▇▇ SERVICES, INC., A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE COMPANY. NO TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY BE MADE EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SUCH STOCKHOLDERS' AGREEMENT. THE HOLDER OF THIS CERTIFICATE, BY ACCEPTANCE OF THIS CERTIFICATE, AGREES TO BE BOUND BY ALL OF THE PROVISIONS OF SUCH SECURITYHOLDERS' AGREEMENT." "THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND MAY NOT BE TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS THEY HAVE BEEN REGISTERED UNDER THAT ACT OR AN EXEMPTION FROM REGISTRATION IS AVAILABLE." The Legend will be removed by the Company by the delivery of substitute certificates without such Legend in the event of (i) a Transfer permitted by this Agreement in which the Permitted Transferee is not required to enter into an Assumption Agreement or (ii) the termination of Article II pursuant to the terms hereof; provided, however, that -------- ------- the second paragraph of the Legend will only be removed if at such time it is no longer required for purposes of applicable securities laws and, if requested by the Company, the Company receives an opinion to such effect of counsel to the applicable Securityholder in form and substance reasonably satisfactory to the Company.
Appears in 3 contracts
Sources: Securityholders' Agreement (Fs Equity Partners Iii Lp), Securityholders' Agreement (Blum Capital Partners Lp), Securityholders' Agreement (Cbre Holding Inc)
Limitations on Transfer. Subject to and except as provided in this Agreement and applicable Law, an Investor shall be permitted to Transfer from time to time any or all of the Series A Preferred Stock and Conversion Stock beneficially owned by it without the consent or approval of any Person. Each Stockholder hereby agrees that:
(a) no Transfer of Capital Stock shall occur in any manner that violates During the provisions six (6) month period following the date of the Certificate of Incorporation or Bylaws Closing (the “Initial Holding Period”), none of the Company, this Agreement, members of the Sponsor Shareholder Group shall Transfer any of its Company Shares unless such Transfer is (i) pursuant to or any applicable Law, including federal in connection with a Recommended Transaction or state securities Laws;(ii) approved by the Board.
(b) no Stockholder may Transfer any shares of Series A Preferred Stock starting at After the close of business on a date not more than fifteen (15) days before the date of the anticipated commencement of a bona fide roadshow for QPO (which date is notified by the Company in writing to the Stockholders before such date) and ending on the earlier of (i) the initial settlement date of the QPO, (ii) twenty-one (21) days (or, if such roadshow includes in-person meetings in any jurisdiction outside the United States, thirty (30) days) after the first day of such roadshow and (iii) fifteen (15) days after such notification by the Company if the roadshow has not commenced by such date; provided, however, thatInitial Holding Period, for so long as this Agreement remains the members of the Sponsor Shareholder Group beneficially own more than five percent (5%) of the Company Shares then issued and outstanding, no Sponsor Shareholder shall Transfer any of its Company Shares unless:
(i) such Transfer is in effectcompliance with the Securities Act and any other applicable securities or “blue sky” Laws; and
(ii) any of the following conditions is satisfied in connection with such Transfer:
(A) to the knowledge of such Sponsor Shareholder, the Transferee of such Company agrees not to terminateShares (whether a Person or a “group”, amend or supplement as defined under the Exchange Act) would not, after completion of such Transfer, beneficially own more than ten percent (or agree to terminate, amend or terminate10%) any equivalent or substantially similar transfer restrictions in that certain Note Exchange Agreement dated April 15, 2016 among of the Company Shares then issued and the other parties there in any way that is substantially more favorable outstanding or, if such Transferee is, to the Person(sknowledge of such Sponsor Shareholder, a Passive Institutional Investor, fifteen percent (15%) subject thereto than as set forth herein unless and until of the Company terminatesShares then issued and outstanding;
(B) such Transfer is pursuant to, amends or supplements in connection with, a Recommended Transaction;
(C) such Transfer is pursuant to an Underwritten Offering; or
(D) such Transfer is approved by the restrictions set forth in this Section 2.1(b)Board.
(c) during the period commencing on the effective time of a Public Offering and continuing until the earlier of (i) three hundred sixty-six (366) days from the effective time of such Public Offering and (ii) the date on which the shares of Series A Preferred Stock are converted into shares of Common Stock, each Stockholder agrees that it shall not enter into a transaction which would have the same effect, or enter into any swap, hedge or other similar arrangement that transfers, in whole or in part, any of the economic consequences of ownership of the Securities (but, for the avoidance of doubt, not the direct ownership of the shares of Series A Preferred Stock), whether any such aforementioned transaction or arrangement is to be settled by delivery of the Securities or such other securities, in cash or otherwise, or publicly disclose the intention to make any such offer, sale, pledge or disposition, or to enter into any such swap, hedge or other similar arrangement;
(d) no Stockholder may Transfer any shares of Series A Preferred Stock to any Person (any such Person, a “Restricted Transferee”) that is (A) a Competitor of the Company as determined by the Board in its good faith reasonable discretion, (B) listed on Schedule 2.1(d), (C) that is a target of any economic sanctions administered by the Office of Foreign Assets Control of the United States Treasury Department (“Sanctions Target”), or (D) named on (x) a list promulgated by the United Nations Security Council or its committees pursuant to resolutions issued under Chapter VII of the United Nations Charter or (y) the World Bank Listing of Ineligible Firms; provided, however, that notwithstanding the foregoing, a Stockholder may at any time deliver to the Company’s General Counsel (with copies to the Company’s Chief Financial Officer, Treasurer and Corporate Secretary) a written list of potential transferees (including, for the avoidance of doubt, any potential Transferee the name of which is on any of the foregoing lists), and, if the Company does not indicate in writing within ten (10) Business Days after the submission of such list whether it considers, in the good faith reasonable judgment of the Board, all or any of such potential Transferees to be Restricted Transferee(s), then any such potential Transferee that has not been timely indicated by the Company to be a Restricted Transferee shall not be considered a Restricted Transferee and the Stockholder shall be permitted to Transfer to such Person pursuant to the terms of this Article II after the expiration of such ten (10) day period; and
(e) no Stockholder may Transfer any shares of Series A Preferred Stock to anyFor purposes of:
(i) Person or member of such Person’s family the foregoing clauses (as the term “family” is defined in 34 C.F.R. Section 668.174(c)(4)a)(ii) and (b)(ii)(D), that alone or togetherthe Board shall act by a majority of the members of the Board other than the Designated Sponsor Directors; and
(ii) the foregoing clause (b)(ii)(A), “knowledge” means the actual knowledge of the relevant Sponsor Shareholder, after review of the SEC’s ▇▇▇▇▇ system with respect to the Transferee if the identity of the Transferee is known and (i) exercises in no event shall (A) the knowledge of such Sponsor Shareholder’s broker be imputed to such Sponsor Shareholder and (B) such Sponsor Shareholder have any obligation to make inquiry or exercised Substantial Control investigation as to the identity of the Transferee and (ii) if such Sponsor Shareholder has actual knowledge of the identity of the Transferee, such Sponsor Shareholder shall be entitled to rely on information available on the SEC’s ▇▇▇▇▇ system as to such Transferee’s beneficial ownership of Company Shares.
(d) Notwithstanding anything to the term “substantial control” is defined contrary in 34 C.F.R. § 668.174(c)(3)this Section 3.01, from and after the expiration of the Initial Holding Period, the first Transfer of Company Shares made by any Sponsor Shareholder shall be pursuant to a Qualified Public Offering unless (i) over another educational institution or third-party servicer (as that term is defined in 34 C.F.R. Section 668.2) that owes a liability for a violation Qualified Public Offering of a Title IV Program requirement Company Shares has been completed prior thereto or (ii) owes the definitions of “Change of Control”, “Change of Control Event” and “TCIL Change of Control” under each of the debt agreements of Triton or any of its subsidiaries existing on the date hereof have been amended such that a liability for Transfer by any of the Permitted Holders (as defined in such agreements), in and of itself, would not trigger a Title IV Program violation;“Change of Control”, “Change of Control Event” or “TCIL Change of Control” (as defined in such agreements), or all such debt agreements have been terminated and have not been replaced with new debt agreements that contain similar change of control provisions that would be triggered by a transfer by any of the Permitted Holders.
(iie) Person Notwithstanding anything to the contrary in this Section 3.01, the Company shall use its reasonable best efforts to effect a Qualified Public Offering on or prior to the expiration of the Initial Holding Period (it being understood that has pled guilty tothe size and manner of distribution of such Qualified Public Offering shall be at the Company’s discretion) unless the definitions of “Change of Control”, pled nolo contendere“Change of Control Event” and “TCIL Change of Control” under each of the debt agreements of Triton or any of its subsidiaries existing on the date hereof have been amended such that any Transfer of Company Shares by ICIL Triton Holdings, L.P. or any of its Affiliates, in and of itself, to Tulip Growth PCC Limited or any of its Affiliates would not trigger a “Change of Control”, “Change of Control Event” or “TCIL Change of Control” (as defined in such agreements), or all such debt agreements have been found guilty of, a crime involving the acquisition, use or expenditure terminated and have not been replaced with new debt agreements that contain similar change of funds under the Title IV Programs or been judicially determined to have committed fraud involving funds under the Title IV Programs or has been administratively or judicially determined to have committed fraud or control provisions that would be triggered by any other material violation of Law involving funds of any Governmental Authority or Educational Agency; or
(iii) Person that has filed for relief in bankruptcy or had entered against it an order for relief in bankruptcy, or to the knowledge of such Person, has a Subsidiary that has filed for relief in bankruptcy or had entered against it an order for relief in bankruptcytransfer.
(f) Notwithstanding anything in this Agreement or any Any purported Transfer of Company Shares by a Sponsor Shareholder other Transaction Documents to the contrary, starting immediately after the pricing of a Public Offering and continuing until the earlier of (x) the date on which the Initial Follow-On Public Offering is consummated pursuant to the Certificate of Designations and the Registration Rights Agreement or (y) if then converted, the date which is 120 days (or if a registration is suspended, postponed or otherwise not available pursuant to the terms of the Registration Rights Agreement, then an additional number of days equal to the length of such suspension, postponement or lack of availability) after the date on which an amount of Conversion Stock equal to or more than the Priority Amount has been registered pursuant to an effective registration statement in accordance with this Section 3.01 shall be null and void, and the terms of the Registration Rights AgreementCompany shall refuse to recognize any such Transfer for any purpose and shall not, or if earlier, the date on which at least the Priority Amount under such registration statement has been sold, neither Wengen nor ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and shall offer, sell or otherwise Transfer, or agree to offer, sell or otherwise Transfer, either directly or indirectly, any of such Person’s Equity Securities in cause the Company’s transfer agent not to, including reflect in its records any change in record ownership of Company Shares pursuant to a Registration Statement or in a Public Offering; provided, however, the foregoing restriction shall not apply with respect to ▇▇▇▇▇▇ Excluded Securitiesany such Transfer.
Appears in 3 contracts
Sources: Shareholder Agreement (Triton International LTD), Shareholder Agreement (Triton International LTD), Transaction Agreement (TAL International Group, Inc.)
Limitations on Transfer. Subject (a) Neither any WP Stockholder, any GS Stockholder nor the Co-Investor (nor, in the event that the Co-Investor shall have Transferred any Company Shares to a Co-Invest Limited Partner, such Co-Invest Limited Partner) may Transfer any of its Company Shares prior to December 22, 2016 (the “Initial Holding Period”) without the prior written consent of each Sponsor whose Designated Sponsor Fund has, at the time of the proposed Transfer, the right to designate at least one (1) director pursuant to Section 2.01; provided, that such prohibition shall not apply to Transfers to Permitted Transferees in accordance with Section 4.02. After the Initial Holding Period, any such Stockholder may Transfer its Company Shares only in accordance with, and except as provided subject to the applicable provisions of, this Article IV. The limitations on Transfers of Company Shares set forth in this Agreement Article IV are in addition to any restrictions set forth in the Registration Rights Agreement, any “lock up” restrictions imposed by the underwriters in connection with any Public Offering, any other plan, program, contract, agreement or policy pursuant to which the Company Shares may be subject, and any restrictions imposed by applicable Lawlaw.
(b) Notwithstanding anything herein to the contrary, an with respect to any Transfer of Company Shares effected by any WP Stockholder during the Initial Holding Period, the Co-Investor (and, in the event that the Co-Investor shall have Transferred any Company Shares to a Co-Invest Limited Partner, such Co-Invest Limited Partner) shall be permitted to Transfer from time transfer up to time any its Pro Rata Portion (or all of such greater amount as the Series A Preferred Stock and Conversion Stock beneficially owned by it without the consent or approval of any Person. Each Stockholder hereby agrees that:
(a) no Transfer of Capital Stock Sponsors shall occur in any manner that violates the provisions of the Certificate of Incorporation or Bylaws of the Company, this Agreement, or any applicable Law, including federal or state securities Laws;
(b) no Stockholder may Transfer any shares of Series A Preferred Stock starting at the close of business on a date not more than fifteen (15) days before the date of the anticipated commencement of a bona fide roadshow for QPO (which date is notified by the Company in writing to the Stockholders before such date) and ending on the earlier of (i) the initial settlement date of the QPO, (ii) twenty-one (21) days (jointly determine or, if either Sponsor’s Designated Sponsor Fund shall have ceased to have the right to designate any directors pursuant to Section 2.01, such roadshow includes in-person meetings in any jurisdiction outside greater amount as the United States, thirty Sponsor whose Designated Sponsor Fund continues to have the right to designate at least one (301) daysdirector pursuant to Section 2.01 shall determine) after of the first day of such roadshow and (iii) fifteen (15) days after such notification Company Shares then held by the Company if the roadshow has not commenced by such date; provided, however, that, for so long as this Agreement remains in effect, the Company agrees not to terminate, amend or supplement (or agree to terminate, amend or terminate) any equivalent or substantially similar transfer restrictions in that certain Note Exchange Agreement dated April 15, 2016 among the Company and the other parties there in any way that is substantially more favorable to the Person(s) subject thereto than as set forth herein unless and until the Company terminates, amends or supplements the restrictions set forth in this Section 2.1(b)Co-Investor.
(c) during Any purported Transfer of Company Shares other than in accordance with this Agreement shall be null and void, and the period commencing on the effective time of a Public Offering Company shall refuse to recognize any such Transfer for any purpose and continuing until the earlier of (i) three hundred sixty-six (366) days from the effective time of such Public Offering shall not, and (ii) the date on which the shares of Series A Preferred Stock are converted into shares of Common Stockshall cause any transfer agent not to, each Stockholder agrees that it shall not enter into a transaction which would have the same effect, or enter into reflect in its records any swap, hedge or other similar arrangement that transfers, change in whole or in part, any of the economic consequences of record ownership of the Securities (but, for the avoidance of doubt, not the direct ownership of the shares of Series A Preferred Stock), whether Company Shares pursuant to any such aforementioned transaction or arrangement is to be settled by delivery of the Securities or such other securities, in cash or otherwise, or publicly disclose the intention to make any such offer, sale, pledge or disposition, or to enter into any such swap, hedge or other similar arrangement;Transfer.
(d) no Stockholder may Transfer any shares of Series A Preferred Stock to any Person (any such Person, a “Restricted Transferee”) that is (A) a Competitor of the Company Except as determined by the Board provided in its good faith reasonable discretion, (B) listed on Schedule 2.1(d), (C) that is a target of any economic sanctions administered by the Office of Foreign Assets Control of the United States Treasury Department (“Sanctions Target”), or (D) named on (x) a list promulgated by the United Nations Security Council or its committees pursuant to resolutions issued under Chapter VII of the United Nations Charter or (y) the World Bank Listing of Ineligible Firms; provided, however, that notwithstanding the foregoing, a Stockholder may at any time deliver to the Company’s General Counsel (with copies to the Company’s Chief Financial Officer, Treasurer and Corporate Secretary) a written list of potential transferees (including, for the avoidance of doubt, any potential Transferee the name of which is on any of the foregoing lists), and, if the Company does not indicate in writing within ten (10) Business Days after the submission of such list whether it considers, in the good faith reasonable judgment of the Board, all or any of such potential Transferees to be Restricted Transferee(s), then any such potential Transferee that has not been timely indicated by the Company to be a Restricted Transferee shall not be considered a Restricted Transferee and the Stockholder shall be permitted to Transfer to such Person pursuant to the terms of this Article II after the expiration of such ten (10) day period; and
(e) no Stockholder may Transfer any shares of Series A Preferred Stock to any:
(i) Person or member of such Person’s family (as the term “family” is defined in 34 C.F.R. Section 668.174(c)(4)), that alone or together, (i) exercises or exercised Substantial Control (as the term “substantial control” is defined in 34 C.F.R. § 668.174(c)(3)) over another educational institution or third-party servicer (as that term is defined in 34 C.F.R. Section 668.2) that owes a liability for a violation of a Title IV Program requirement or (ii) owes a liability for a Title IV Program violation;
(ii) Person that has pled guilty to, pled nolo contendere, or been found guilty of, a crime involving the acquisition, use or expenditure of funds under the Title IV Programs or been judicially determined to have committed fraud involving funds under the Title IV Programs or has been administratively or judicially determined to have committed fraud or any other material violation of Law involving funds of any Governmental Authority or Educational Agency; or
(iii) Person that has filed for relief in bankruptcy or had entered against it an order for relief in bankruptcy, or to the knowledge of such Person, has a Subsidiary that has filed for relief in bankruptcy or had entered against it an order for relief in bankruptcy.
(f) Notwithstanding anything in this Agreement or any other Transaction Documents to the contrary, starting immediately after the pricing of a Public Offering and continuing until the earlier of (x) the date on which the Initial Follow-On Public Offering is consummated pursuant to the Certificate of Designations and the Registration Rights Agreement or (y) if then converted, the date which is 120 days (or if a registration is suspended, postponed or otherwise not available pursuant to the terms of the Registration Rights Agreement, then an additional number of days equal any Stockholder that proposes to the length of such suspension, postponement or lack of availability) after the date on which an amount of Conversion Stock equal to or more than the Priority Amount has been registered pursuant to an effective registration statement Transfer Company Shares in accordance with the terms of and conditions hereof shall be responsible for any expenses incurred by the Registration Rights Agreement, or if earlier, the date on which at least the Priority Amount under Company in connection with such registration statement has been sold, neither Wengen nor ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ shall offer, sell or otherwise Transfer, or agree to offer, sell or otherwise Transfer, either directly or indirectly, any of such Person’s Equity Securities in the Company, including pursuant to a Registration Statement or in a Public Offering; provided, however, the foregoing restriction shall not apply with respect to ▇▇▇▇▇▇ Excluded Securities.
Appears in 2 contracts
Sources: Shareholder Agreement (Endurance International Group Holdings, Inc.), Stockholders Agreement (Endurance International Group Holdings, Inc.)
Limitations on Transfer. Subject to and except as provided in this Agreement and applicable Law, an Investor shall be permitted to Transfer from time to time any or all of the Series A Preferred Stock and Conversion Stock beneficially owned by it without the consent or approval of any Person. Each Stockholder hereby agrees that:
(a) no Transfer of Capital Stock shall occur in any manner that violates Until the provisions sixth (6th) anniversary of the Certificate of Incorporation or Bylaws of the Companydate hereof, this Agreement, or any applicable Law, including federal or state securities Laws;
(b) no Management Stockholder may Transfer any shares of Series A Preferred Stock starting at the close of business its Company Shares held on a date not more than fifteen (15) days before the date of the anticipated commencement of a bona fide roadshow for QPO hereof (which date is notified by the Company in writing to the Stockholders before such date) and ending on the earlier of (i) the initial settlement date of the QPO, (ii) twenty-one (21) days (or, if such roadshow includes in-person meetings in any jurisdiction outside the United States, thirty (30) days) after the first day of such roadshow and (iii) fifteen (15) days after such notification by the Company if the roadshow has not commenced by such date; provided, however, that, for so long as this Agreement remains in effect, the Company agrees not to terminate, amend or supplement (or agree to terminate, amend or terminate) any equivalent or substantially similar transfer restrictions in that certain Note Exchange Agreement dated April 15, 2016 among the Company and the other parties there in any way that is substantially more favorable to the Person(s) subject thereto than as set forth herein unless and until the Company terminates, amends or supplements the restrictions set forth in this Section 2.1(b).
(c) during the period commencing on the effective time of a Public Offering and continuing until the earlier of (i) three hundred sixty-six (366) days from the effective time of such Public Offering and (ii) the date on which the shares of Series A Preferred Stock are converted into shares of Common Stock, each Stockholder agrees that it shall not enter into a transaction which would have the same effect, or enter into any swap, hedge or other similar arrangement that transfers, in whole or in part, any of the economic consequences of ownership of the Securities (but, for the avoidance of doubt, not the direct ownership of the shares of Series A Preferred Stock), whether any such aforementioned transaction or arrangement is to be settled by delivery of the Securities or such other securities, in cash or otherwise, or publicly disclose the intention to make any such offer, sale, pledge or disposition, or to enter into any such swap, hedge or other similar arrangement;
(d) no Stockholder may Transfer any shares of Series A Preferred Stock to any Person (any such Person, a “Restricted Transferee”) that is (A) a Competitor of the Company as determined by the Board in its good faith reasonable discretion, (B) listed on Schedule 2.1(d), (C) that is a target of any economic sanctions administered by the Office of Foreign Assets Control of the United States Treasury Department (“Sanctions Target”), or (D) named on (x) a list promulgated by the United Nations Security Council or its committees pursuant to resolutions issued under Chapter VII of the United Nations Charter or (y) the World Bank Listing of Ineligible Firms; provided, however, that notwithstanding the foregoing, a Stockholder may at any time deliver to the Company’s General Counsel (with copies to the Company’s Chief Financial Officer, Treasurer and Corporate Secretary) a written list of potential transferees (includingexcluding, for the avoidance of doubt, any potential Transferee Company Shares acquired pursuant to equity awards issued under the name of which is on any Company’s 2020 Omnibus Incentive Plan) (“Existing Shares”) or securities of the foregoing lists), and, if the Company does not indicate or its Subsidiaries issued in writing within ten (10) Business Days after the submission respect of such list whether it considersExisting Shares, or in substitution for Existing Shares, in connection with any stock split, stock dividend or combination, or any reclassification, recapitalization, merger, consolidation, share exchange or other similar reorganization; provided, that such prohibition shall not apply to Transfers (i) to a Permitted Transferee that is being effected for bona fide estate planning or similar purposes, (ii) made pursuant to applicable laws of descent or distribution or to such Management Stockholder’s legal guardian in the good faith reasonable judgment case of mental incapacity, (iii) with the prior written consent of a majority of the members of the Compensation Committee of the Board, all (iv) in connection with a merger of the Company or any of such potential Transferees solely to be Restricted Transferee(s), then any such potential Transferee that has not been timely indicated tender into a tender or exchange offer commenced by a third party or by the Company Company; provided, that with respect to be an unsolicited tender or exchange offer commenced by a Restricted Transferee shall not be considered a Restricted Transferee and the Stockholder third party, such Transfer shall be permitted only if the Board is affirmatively publicly recommending to the Company’s shareholders that such shareholders tender into such offer, (v) of vested Company Shares in a Public Sale (A) at such time as the Sponsors sell Company Shares in a Public Sale; provided however, that the Management Stockholder may only Transfer a number of vested Company Shares up to such Person the number of Public Sale Eligible Shares, or (B) pursuant to the terms penultimate sentence of this Article II after Section 4.01(a), (vi) of vested Company Shares in a Public Sale or Private Sale following a Private Sale by the expiration Sponsors up to the number of Private Sale Eligible Shares and (vii) to a bona fide charity or donor-advised fund organized under Section 501(c)(3) of the Internal Revenue Code of 1986, as amended; provided that no Management Stockholder may make Transfers pursuant to this clause (vii) in a single calendar year in excess of the lesser of (A) $3,000,000 worth of Company Shares determined based on the VWAP at the time of such Transfer and (B) ten percent (10%) day period; and
(e) no Stockholder may Transfer any shares of Series A Preferred Stock to any:
(i) Person or member of such Person’s family (as the term “family” is defined in 34 C.F.R. Section 668.174(c)(4)), that alone or together, (i) exercises or exercised Substantial Control (as the term “substantial control” is defined in 34 C.F.R. § 668.174(c)(3)) over another educational institution or third-party servicer (as that term is defined in 34 C.F.R. Section 668.2) that owes a liability for a violation of a Title IV Program requirement or (ii) owes a liability for a Title IV Program violation;
(ii) Person that has pled guilty to, pled nolo contendere, or been found guilty of, a crime involving the acquisition, use or expenditure of funds under the Title IV Programs or been judicially determined to have committed fraud involving funds under the Title IV Programs or has been administratively or judicially determined to have committed fraud or any other material violation of Law involving funds of any Governmental Authority or Educational Agency; or
(iii) Person that has filed for relief in bankruptcy or had entered against it an order for relief in bankruptcy, or Company Shares subject to the knowledge of such Person, has a Subsidiary that has filed for relief in bankruptcy or had entered against it an order for relief in bankruptcy.
(f) Notwithstanding anything restrictions on Transfer set forth in this Agreement or any other Transaction Documents to Section 3.01 held by such Management Stockholder at the contrary, starting immediately after beginning of the pricing calendar year in which such Transfer takes place. If at the time of a Public Offering Sale by the Sponsors, the Management Stockholder is not permitted to, or chooses not to Transfer all such Public Sale Eligible Shares and continuing until Private Sale Eligible Shares, the earlier Management Stockholder shall retain the right to Transfer at a future date in a Public Sale, a number of vested Company Shares equal to the lesser of (x) the number of vested Company Shares then owned by the Management Stockholder as of such future date on which the Initial Follow-On Public Offering is consummated pursuant to the Certificate of Designations and the Registration Rights Agreement or (y) if then convertedthat portion of such Public Sale Eligible Shares and Private Sale Eligible Shares which the Management Stockholder was not permitted to Transfer, or chose not to Transfer in a prior Public Sale. For the avoidance of doubt, the date which is 120 days (number of Public Sale Eligible Shares and Private Sale Eligible Shares shall be cumulative and increase with each Public Sale or if Private Sale by the Sponsors, but be reduced for the number of vested Company Shares Transferred by a registration is suspended, postponed or otherwise not available Management Stockholder pursuant to the terms Section 4.01(a)(iv) or Section 4.01(a)(v).
(b) The limitations on Transfers of Company Shares set forth in this Article IV are in addition to any restrictions set forth in the Registration Rights Agreement, then an additional number of days equal to any “lock up” restrictions imposed by the length of such suspensionunderwriters in connection with any Public Offering, postponement any other plan, program, contract, agreement or lack of availability) after the date on which an amount of Conversion Stock equal to or more than the Priority Amount has been registered policy pursuant to an effective registration statement which the Company Shares may be subject, and any restrictions imposed by applicable law.
(c) Any purported Transfer of Company Shares other than in accordance with this Agreement shall be null and void, and the Company shall refuse to recognize any such Transfer for any purpose and shall not, and shall cause any transfer agent not to, reflect in its records any change in record ownership of Company Shares pursuant to any such Transfer.
(d) Except as provided in the Registration Rights Agreement, any Stockholder that proposes to Transfer Company Shares in accordance with the terms of and conditions hereof shall be responsible for any expenses incurred by the Registration Rights Agreement, or if earlier, the date on which at least the Priority Amount under Company in connection with such registration statement has been sold, neither Wengen nor ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ shall offer, sell or otherwise Transfer, or agree to offer, sell or otherwise Transfer, either directly or indirectly, any of such Person’s Equity Securities in the Company, including pursuant to a Registration Statement or in a Public Offering; provided, however, the foregoing restriction shall not apply with respect to ▇▇▇▇▇▇ Excluded Securities.
Appears in 2 contracts
Sources: Stockholders Agreement (Sotera Health Co), Stockholder Agreement (Sotera Health Co)
Limitations on Transfer. Subject to and except as provided in this Agreement and applicable Law, an Investor shall be permitted to Transfer from time to time any or all of the Series A Preferred Stock and Conversion Stock beneficially owned by it without the consent or approval of any Person. Each Stockholder hereby agrees that:
(a) no Transfer of Capital Stock shall occur in any manner that violates During the provisions six (6) month period following the date of the Certificate of Incorporation or Bylaws Closing (the “Initial Holding Period”), none of the Company, this Agreement, members of the Sponsor Shareholder Group shall Transfer any of its Company Shares unless such Transfer is (i) pursuant to or any applicable Law, including federal in connection with a Recommended Transaction or state securities Laws;(ii) approved by the Board.
(b) no Stockholder may Transfer any shares of Series A Preferred Stock starting at After the close of business on a date not more than fifteen (15) days before the date of the anticipated commencement of a bona fide roadshow for QPO (which date is notified by the Company in writing to the Stockholders before such date) and ending on the earlier of (i) the initial settlement date of the QPO, (ii) twenty-one (21) days (or, if such roadshow includes in-person meetings in any jurisdiction outside the United States, thirty (30) days) after the first day of such roadshow and (iii) fifteen (15) days after such notification by the Company if the roadshow has not commenced by such date; provided, however, thatInitial Holding Period, for so long as this Agreement remains the members of the Sponsor Shareholder Group beneficially own more than five percent (5%) of the Company Shares then issued and outstanding, no Sponsor Shareholder shall Transfer any of its Company Shares unless:
(i) such Transfer is in effectcompliance with the Securities Act and any other applicable securities or “blue sky” Laws; and
(ii) any of the following conditions is satisfied in connection with such Transfer:
(A) to the knowledge of such Sponsor Shareholder, the Transferee of such Company agrees not to terminateShares (whether a Person or a “group”, amend or supplement as defined under the Exchange Act) would not, after completion of such Transfer, beneficially own more than ten percent (or agree to terminate, amend or terminate10%) any equivalent or substantially similar transfer restrictions in that certain Note Exchange Agreement dated April 15, 2016 among of the Company Shares then issued and the other parties there in any way that is substantially more favorable outstanding or, if such Transferee is, to the Person(sknowledge of such Sponsor Shareholder, a Passive Institutional Investor, fifteen percent (15%) subject thereto than as set forth herein unless and until of the Company terminatesShares then issued and outstanding;
(B) such Transfer is pursuant to, amends or supplements in connection with, a Recommended Transaction;
(C) such Transfer is pursuant to an Underwritten Offering; or
(D) such Transfer is approved by the restrictions set forth in this Section 2.1(b)Board.
(c) during the period commencing on the effective time of a Public Offering and continuing until the earlier of (i) three hundred sixty-six (366) days from the effective time of such Public Offering and (ii) the date on which the shares of Series A Preferred Stock are converted into shares of Common Stock, each Stockholder agrees that it shall not enter into a transaction which would have the same effect, or enter into any swap, hedge or other similar arrangement that transfers, in whole or in part, any of the economic consequences of ownership of the Securities (but, for the avoidance of doubt, not the direct ownership of the shares of Series A Preferred Stock), whether any such aforementioned transaction or arrangement is to be settled by delivery of the Securities or such other securities, in cash or otherwise, or publicly disclose the intention to make any such offer, sale, pledge or disposition, or to enter into any such swap, hedge or other similar arrangement;
(d) no Stockholder may Transfer any shares of Series A Preferred Stock to any Person (any such Person, a “Restricted Transferee”) that is (A) a Competitor of the Company as determined by the Board in its good faith reasonable discretion, (B) listed on Schedule 2.1(d), (C) that is a target of any economic sanctions administered by the Office of Foreign Assets Control of the United States Treasury Department (“Sanctions Target”), or (D) named on (x) a list promulgated by the United Nations Security Council or its committees pursuant to resolutions issued under Chapter VII of the United Nations Charter or (y) the World Bank Listing of Ineligible Firms; provided, however, that notwithstanding the foregoing, a Stockholder may at any time deliver to the Company’s General Counsel (with copies to the Company’s Chief Financial Officer, Treasurer and Corporate Secretary) a written list of potential transferees (including, for the avoidance of doubt, any potential Transferee the name of which is on any of the foregoing lists), and, if the Company does not indicate in writing within ten (10) Business Days after the submission of such list whether it considers, in the good faith reasonable judgment of the Board, all or any of such potential Transferees to be Restricted Transferee(s), then any such potential Transferee that has not been timely indicated by the Company to be a Restricted Transferee shall not be considered a Restricted Transferee and the Stockholder shall be permitted to Transfer to such Person pursuant to the terms of this Article II after the expiration of such ten (10) day period; and
(e) no Stockholder may Transfer any shares of Series A Preferred Stock to anyFor purposes of:
(i) Person or member of such Person’s family (as the term “family” is defined in 34 C.F.R. Section 668.174(c)(4)foregoing clauses (a)(ii) and (b)(ii)(D), that alone or togetherthe Board shall act by a majority of the members of the Board other than the Designated Sponsor Directors; and
(ii) the foregoing clause (b)(ii)(A), “knowledge” means the actual knowledge of the relevant Sponsor Shareholder, after review of the SEC’s E▇▇▇▇ system with respect to the Transferee if the identity of the Transferee is known and (i) exercises in no event shall (A) the knowledge of such Sponsor Shareholder’s broker be imputed to such Sponsor Shareholder and (B) such Sponsor Shareholder have any obligation to make inquiry or exercised Substantial Control investigation as to the identity of the Transferee and (ii) if such Sponsor Shareholder has actual knowledge of the identity of the Transferee, such Sponsor Shareholder shall be entitled to rely on information available on the SEC’s E▇▇▇▇ system as to such Transferee’s beneficial ownership of Company Shares.
(d) Notwithstanding anything to the term “substantial control” is defined contrary in 34 C.F.R. § 668.174(c)(3)this Section 3.01, from and after the expiration of the Initial Holding Period, the first Transfer of Company Shares made by any Sponsor Shareholder shall be pursuant to a Qualified Public Offering unless (i) over another educational institution or third-party servicer (as that term is defined in 34 C.F.R. Section 668.2) that owes a liability for a violation Qualified Public Offering of a Title IV Program requirement Company Shares has been completed prior thereto or (ii) owes the definitions of “Change of Control”, “Change of Control Event” and “TCIL Change of Control” under each of the debt agreements of Triton or any of its subsidiaries existing on the date hereof have been amended such that a liability for Transfer by any of the Permitted Holders (as defined in such agreements), in and of itself, would not trigger a Title IV Program violation;“Change of Control”, “Change of Control Event” or “TCIL Change of Control” (as defined in such agreements), or all such debt agreements have been terminated and have not been replaced with new debt agreements that contain similar change of control provisions that would be triggered by a transfer by any of the Permitted Holders.
(iie) Person Notwithstanding anything to the contrary in this Section 3.01, the Company shall use its reasonable best efforts to effect a Qualified Public Offering on or prior to the expiration of the Initial Holding Period (it being understood that has pled guilty tothe size and manner of distribution of such Qualified Public Offering shall be at the Company’s discretion) unless the definitions of “Change of Control”, pled nolo contendere“Change of Control Event” and “TCIL Change of Control” under each of the debt agreements of Triton or any of its subsidiaries existing on the date hereof have been amended such that any Transfer of Company Shares by ICIL Triton Holdings, L.P. or any of its Affiliates, in and of itself, to Tulip Growth PCC Limited or any of its Affiliates would not trigger a “Change of Control”, “Change of Control Event” or “TCIL Change of Control” (as defined in such agreements), or all such debt agreements have been found guilty of, a crime involving the acquisition, use or expenditure terminated and have not been replaced with new debt agreements that contain similar change of funds under the Title IV Programs or been judicially determined to have committed fraud involving funds under the Title IV Programs or has been administratively or judicially determined to have committed fraud or control provisions that would be triggered by any other material violation of Law involving funds of any Governmental Authority or Educational Agency; or
(iii) Person that has filed for relief in bankruptcy or had entered against it an order for relief in bankruptcy, or to the knowledge of such Person, has a Subsidiary that has filed for relief in bankruptcy or had entered against it an order for relief in bankruptcytransfer.
(f) Notwithstanding anything in this Agreement or any Any purported Transfer of Company Shares by a Sponsor Shareholder other Transaction Documents to the contrary, starting immediately after the pricing of a Public Offering and continuing until the earlier of (x) the date on which the Initial Follow-On Public Offering is consummated pursuant to the Certificate of Designations and the Registration Rights Agreement or (y) if then converted, the date which is 120 days (or if a registration is suspended, postponed or otherwise not available pursuant to the terms of the Registration Rights Agreement, then an additional number of days equal to the length of such suspension, postponement or lack of availability) after the date on which an amount of Conversion Stock equal to or more than the Priority Amount has been registered pursuant to an effective registration statement in accordance with this Section 3.01 shall be null and void, and the terms of the Registration Rights AgreementCompany shall refuse to recognize any such Transfer for any purpose and shall not, or if earlier, the date on which at least the Priority Amount under such registration statement has been sold, neither Wengen nor ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and shall offer, sell or otherwise Transfer, or agree to offer, sell or otherwise Transfer, either directly or indirectly, any of such Person’s Equity Securities in cause the Company’s transfer agent not to, including reflect in its records any change in record ownership of Company Shares pursuant to a Registration Statement or in a Public Offering; provided, however, the foregoing restriction shall not apply with respect to ▇▇▇▇▇▇ Excluded Securitiesany such Transfer.
Appears in 2 contracts
Sources: Shareholder Agreements (Bharti Global LTD), Shareholder Agreement (Vestar/Triton Investments III, L.P.)
Limitations on Transfer. Subject to and (i) Until the Lapse Date (the "LOCK-UP PERIOD"), except as provided required by law, no Employee Stockholder shall sell, contract to sell, give, assign, hypothecate, pledge (other than a pledge made in this Agreement and applicable Lawconnection with a commercial loan), an Investor shall be permitted encumber, grant a security interest in, offer, sell any option or contract to Transfer from time purchase, purchase any option or contract to time sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of (whether by operation of law or otherwise but not including a transaction (x) pursuant to Section 2(b) or (y) involving the sale (including a sale by merger, consolidation or similar transaction) of all the then-outstanding shares of Common Stock or all or substantially all of the Series A Preferred Stock and Conversion Stock beneficially owned by it without assets of the consent or approval of any Person. Each Stockholder hereby agrees that:
(a) no Transfer of Capital Stock shall occur in any manner that violates Company if such transaction is effected pursuant to the provisions of Section 5 or approved by the Certificate of Incorporation affirmative vote or Bylaws written consent of the Company, this Agreement, or any applicable Law, including federal or state securities Laws;
(b) no Stockholder may Transfer any shares of Series A Preferred Stock starting at the close of business on Stockholders owning a date not more than fifteen (15) days before the date majority of the anticipated commencement then-outstanding Shares of a bona fide roadshow for QPO all Stockholders) any Shares (which date is notified by the Company in writing to the Stockholders before such date) and ending on the earlier of (i) the initial settlement date of the QPOincluding, (ii) twenty-one (21) days (or, if such roadshow includes in-person meetings in any jurisdiction outside the United States, thirty (30) days) after the first day of such roadshow and (iii) fifteen (15) days after such notification by the Company if the roadshow has not commenced by such date; provided, however, that, for so long as this Agreement remains in effectwithout limitation, the Company agrees not to terminate, amend or supplement (or agree to terminate, amend or terminate) entering into of any equivalent or substantially similar transfer restrictions in that certain Note Exchange Agreement dated April 15, 2016 among the Company and the other parties there in any way that is substantially more favorable to the Person(s) subject thereto than as set forth herein unless and until the Company terminates, amends or supplements the restrictions set forth in this Section 2.1(b).
(c) during the period commencing on the effective time of a Public Offering and continuing until the earlier of (i) three hundred sixty-six (366) days from the effective time of such Public Offering and (ii) the date on which the shares of Series A Preferred Stock are converted into shares of Common Stock, each Stockholder agrees that it shall not enter into a transaction which would have the same effect, or enter into any swap, hedge swap or other similar arrangement derivatives transaction that transferstransfers to another, in whole or in part, any of the economic consequences benefits or risks of ownership of such Shares) (each a "TRANSFER") or any direct right, title or interest therein or thereto without the Securities (but, for the avoidance of doubt, not the direct ownership prior written consent of the shares of Series A Preferred Stock), whether any such aforementioned transaction or arrangement is to be settled by delivery Stockholders owning at least a majority of the Securities or such other securities, in cash or otherwise, or publicly disclose then-outstanding Shares. A transfer effected with the intention to make any such offer, sale, pledge or disposition, or to enter into any such swap, hedge or other similar arrangement;
(d) no Stockholder may Transfer any shares of Series A Preferred Stock to any Person (any such Person, a “Restricted Transferee”) that is (A) a Competitor prior written consent of the Company as determined by the Board in its good faith reasonable discretion, (B) listed on Schedule 2.1(d), (C) that is Stockholders owning at least a target of any economic sanctions administered by the Office of Foreign Assets Control majority of the United States Treasury Department (“Sanctions Target”), or (D) named on (x) then-outstanding Shares of all Stockholders is hereafter referred to as a list promulgated by the United Nations Security Council or its committees pursuant to resolutions issued under Chapter VII of the United Nations Charter or (y) the World Bank Listing of Ineligible Firms; provided, however, that notwithstanding the foregoing, a Stockholder may at any time deliver to the Company’s General Counsel (with copies to the Company’s Chief Financial Officer, Treasurer and Corporate Secretary) a written list of potential transferees (including, for the avoidance of doubt, any potential Transferee the name of which is on any of the foregoing lists), and, if the Company does not indicate in writing within ten (10) Business Days after the submission of such list whether it considers, in the good faith reasonable judgment of the Board, all or any of such potential Transferees to be Restricted Transferee(s), then any such potential Transferee that has not been timely indicated by the Company to be a Restricted Transferee shall not be considered a Restricted Transferee and the Stockholder shall be permitted to Transfer to such Person pursuant to the terms of this Article II after the expiration of such ten (10) day period; and
(e) no Stockholder may Transfer any shares of Series A Preferred Stock to any:
(i) Person or member of such Person’s family (as the term “family” is defined in 34 C.F.R. Section 668.174(c)(4)), that alone or together, (i) exercises or exercised Substantial Control (as the term “substantial control” is defined in 34 C.F.R. § 668.174(c)(3)) over another educational institution or third-party servicer (as that term is defined in 34 C.F.R. Section 668.2) that owes a liability for a violation of a Title IV Program requirement or (ii) owes a liability for a Title IV Program violation;"MAJORITY TRANSFER."
(ii) Person that has pled guilty toAfter the Lock-Up Period, pled nolo contendereany Employee Stockholder may transfer all or a portion of its Shares in accordance with and subject to the provisions of this Agreement, or been found guilty ofincluding, a crime involving the acquisitionwithout limitation, use or expenditure of funds under the Title IV Programs or been judicially determined to have committed fraud involving funds under the Title IV Programs or has been administratively or judicially determined to have committed fraud or any other material violation of Law involving funds of any Governmental Authority or Educational Agency; orSections 2(c), 3, 4 and 5.
(iii) Person that has filed for relief in bankruptcy or had entered against it an order for relief in bankruptcy, or Any attempt to the knowledge of such Person, has a Subsidiary that has filed for relief in bankruptcy or had entered against it an order for relief in bankruptcy.
(f) Notwithstanding anything in this Agreement transfer any Shares or any other Transaction Documents to the contrary, starting immediately after the pricing rights thereunder in violation of a Public Offering this Section 2 shall be null and continuing until the earlier of (x) the date void ab initio. The Company shall not record on which the Initial Follow-On Public Offering is consummated pursuant to the Certificate of Designations and the Registration Rights Agreement or (y) if then converted, the date which is 120 days (or if a registration is suspended, postponed its stock transfer books or otherwise not available pursuant to any transfer of Shares in violation of the terms of the Registration Rights Agreementand conditions set forth herein, then an additional number of days equal to the length of such suspensionincluding, postponement or lack of availability) after the date on which an amount of Conversion Stock equal to or more than the Priority Amount has been registered pursuant to an effective registration statement in accordance with the terms of the Registration Rights Agreementbut not limited to, or if earlierSections 2(c), the date on which at least the Priority Amount under such registration statement has been sold3, neither Wengen nor ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ shall offer, sell or otherwise Transfer, or agree to offer, sell or otherwise Transfer, either directly or indirectly, any of such Person’s Equity Securities in the Company, including pursuant to a Registration Statement or in a Public Offering; provided, however, the foregoing restriction shall not apply with respect to ▇▇▇▇▇▇ Excluded Securities4 and 5.
Appears in 2 contracts
Sources: Employee Stockholders Agreement (TRW Automotive Inc), Employee Stockholders Agreement (TRW Automotive Inc)
Limitations on Transfer. Subject to and except as provided in this Agreement and applicable Law, an Investor shall be permitted to Transfer from time to time any or all of the Series A Preferred Stock and Conversion Stock beneficially owned by it without the consent or approval of any Person. Each Stockholder Supporting Third Party hereby agrees that:
not to (a) no Transfer of Capital Stock shall occur sell, transfer, assign, pledge, or otherwise dispose, directly or indirectly their right, title or interest in any manner that violates the provisions respect of the Certificate of Incorporation or Bylaws of the Company, this Agreement, or any applicable Law, including federal or state securities Laws;
(b) no Stockholder may Transfer any shares of Series A Preferred Stock starting at the close of business on a date not more than fifteen (15) days before the date of the anticipated commencement of a bona fide roadshow for QPO (which date is notified by the Company in writing to the Stockholders before such date) and ending on the earlier of (i) the initial settlement date of the QPO, (ii) twenty-one (21) days (or, if such roadshow includes in-person meetings in any jurisdiction outside the United States, thirty (30) days) after the first day of such roadshow and (iii) fifteen (15) days after such notification by the Company if the roadshow has not commenced by such date; provided, however, that, for so long as this Agreement remains in effect, the Company agrees not to terminate, amend or supplement (or agree to terminate, amend or terminate) any equivalent or substantially similar transfer restrictions in that certain Note Exchange Agreement dated April 15, 2016 among the Company and the other parties there in any way that is substantially more favorable to the Person(s) subject thereto than as set forth herein unless and until the Company terminates, amends or supplements the restrictions set forth in this Section 2.1(b).
(c) during the period commencing on the effective time of a Public Offering and continuing until the earlier of (i) three hundred sixty-six (366) days from the effective time of such Public Offering and (ii) the date on which the shares of Series A Preferred Stock are converted into shares of Common Stock, each Stockholder agrees that it shall not enter into a transaction which would have the same effect, or enter into any swap, hedge or other similar arrangement that transfersRelevant Interests, in whole or in part, or any of interest therein (collectively, the economic consequences of ownership of the Securities (but, for the avoidance of doubt, not the direct ownership of the shares of Series A Preferred Stock), whether any such aforementioned transaction or arrangement is to be settled by delivery of the Securities or such other securities, in cash or otherwise, or publicly disclose the intention to make any such offer, sale, pledge or disposition, or to enter into any such swap, hedge or other similar arrangement;
(d) no Stockholder may Transfer any shares of Series A Preferred Stock to any Person (any such Person, a “Restricted Transferee”) that is (A) a Competitor of the Company as determined by the Board in its good faith reasonable discretion, (B) listed on Schedule 2.1(d), (C) that is a target of any economic sanctions administered by the Office of Foreign Assets Control of the United States Treasury Department (“Sanctions Target”"Relevant Claims"), or (Db) named on (x) a list promulgated by the United Nations Security Council or its committees pursuant to resolutions issued under Chapter VII of the United Nations Charter or (y) the World Bank Listing of Ineligible Firms; providedgrant any proxies, however, that notwithstanding the foregoing, a Stockholder may at any time deliver to the Company’s General Counsel (with copies to the Company’s Chief Financial Officer, Treasurer and Corporate Secretary) a written list of potential transferees (including, for the avoidance of doubt, any potential Transferee the name of which is on deposit any of the foregoing lists), and, if the Company does not indicate in writing within ten (10) Business Days after the submission of such list whether it considers, in the good faith reasonable judgment of the Board, all or any of such potential Transferees to be Restricted Transferee(s), then any such potential Transferee that has not been timely indicated by the Company to be its claims into a Restricted Transferee shall not be considered a Restricted Transferee and the Stockholder shall be permitted to Transfer to such Person pursuant to the terms of this Article II after the expiration of such ten (10) day period; and
(e) no Stockholder may Transfer any shares of Series A Preferred Stock to any:
(i) Person or member of such Person’s family (as the term “family” is defined in 34 C.F.R. Section 668.174(c)(4)), that alone or together, (i) exercises or exercised Substantial Control (as the term “substantial control” is defined in 34 C.F.R. § 668.174(c)(3)) over another educational institution or third-party servicer (as that term is defined in 34 C.F.R. Section 668.2) that owes a liability for a violation of a Title IV Program requirement or (ii) owes a liability for a Title IV Program violation;
(ii) Person that has pled guilty to, pled nolo contenderevoting trust, or been found guilty of, enter into a crime involving the acquisition, use or expenditure of funds under the Title IV Programs or been judicially determined to have committed fraud involving funds under the Title IV Programs or has been administratively or judicially determined to have committed fraud or any other material violation of Law involving funds of any Governmental Authority or Educational Agency; or
(iii) Person that has filed for relief in bankruptcy or had entered against it an order for relief in bankruptcy, or to the knowledge of such Person, has a Subsidiary that has filed for relief in bankruptcy or had entered against it an order for relief in bankruptcy.
(f) Notwithstanding anything in this Agreement or any other Transaction Documents to the contrary, starting immediately after the pricing of a Public Offering and continuing until the earlier of (x) the date on which the Initial Follow-On Public Offering is consummated pursuant to the Certificate of Designations and the Registration Rights Agreement or (y) if then converted, the date which is 120 days (or if a registration is suspended, postponed or otherwise not available pursuant to the terms of the Registration Rights Agreement, then an additional number of days equal to the length of such suspension, postponement or lack of availability) after the date on which an amount of Conversion Stock equal to or more than the Priority Amount has been registered pursuant to an effective registration statement in accordance with the terms of the Registration Rights Agreement, or if earlier, the date on which at least the Priority Amount under such registration statement has been sold, neither Wengen nor ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ shall offer, sell or otherwise Transfer, or agree to offer, sell or otherwise Transfer, either directly or indirectly, any of such Person’s Equity Securities in the Company, including pursuant to a Registration Statement or in a Public Offering; provided, however, the foregoing restriction shall not apply voting agreement with respect to ▇▇▇▇▇▇ Excluded any such Relevant Claim (clauses (a) and (b), collectively, a "Transfer") unless the recipient of such Relevant Claim (a "Transferee") agrees in writing (such writing, a "Transferee Acknowledgment"), prior to such Transfer, to be bound by this Agreement in its entirety without revisions (including with respect to any and all claims or interests it already may hold against or in PGS prior to such Transfer) and to be bound by that certain side letter dated the date hereof among the parties hereto. Upon the execution of the Transferee Acknowledgment, the Transferee shall be deemed to constitute a Supporting Noteholder, a Supporting TPrS, a Supporting Bank, or a Supporting Shareholder, as the case may be. Any Transfer that does not comply with this paragraph shall be void ab initio. In the event of a Transfer, the transferor shall, within three business days, provide written notice of such transfer to PGS, together with a copy of the Transferee Acknowledgment. No Supporting Bank, Supporting TPrS, Supporting Noteholder or Supporting Shareholder may create any subsidiary or affiliate for the sole purpose of acquiring any Bank Facilities, Trust Preferred Securities, Notes, or Shares without first causing such subsidiary or affiliate to become a party hereto, and a party to that certain side letter referred to in the first sentence of this paragraph 6, as a Supporting Bank, Supporting TPrS, Supporting Noteholder or a Supporting Shareholder, as the case may be.
Appears in 2 contracts
Sources: Plan Support Agreement (Petroleum Geo Services Asa), Plan Support Agreement (Petroleum Geo Services Asa)
Limitations on Transfer. Subject to and except as provided in this Agreement and applicable Law, an Investor shall be permitted to Transfer from time to time any or all of the Series A Preferred Stock and Conversion Stock beneficially owned by it without the consent or approval of any Person. Each Stockholder hereby agrees that:
(a) no Transfer of Capital Stock shall occur in any manner that violates Prior to the provisions second anniversary of the Certificate First Closing, Purchaser will not, directly or indirectly, sell, transfer, or otherwise dispose of Incorporation or Bylaws any Shares (except to any Affiliate of Purchaser). It is the intent of the Companyparties that this prohibition be construed broadly to limit all forms of disposition of Shares including, this Agreementwithout limitation, the pledge or other encumbrance of the Shares and the issuance by the Purchaser (or any applicable LawAffiliate of the Purchaser) or any securities, including federal options, warrants or state securities Laws;debt instruments convertible or exchangeable for Shares.
(b) no Stockholder may Transfer After the second anniversary of the First Closing and prior to the expiration of the Research Program Term, Purchaser will not, directly or indirectly, sell, transfer or otherwise dispose of, in any shares of Series A Preferred Stock starting at the close of business on a date not one week, more than fifteen (15) days before the date of the anticipated commencement of a bona fide roadshow for QPO (which date is notified by the Company in writing to the Stockholders before such date) 250,000 Shares and ending on the earlier of (i) the initial settlement date of the QPO, (ii) twenty-one (21) days (or, if such roadshow includes in-person meetings in any jurisdiction outside one calendar quarter, more than 1,000,000 Shares (both limits as adjusted to reflect any stock splits, stock dividends and similar recapitalizations) (except to an Affiliate of Purchaser), PROVIDED, HOWEVER, that the United States, thirty (30) days) after the first day of such roadshow and (iii) fifteen (15) days after such notification by the Company if the roadshow has not commenced by such date; provided, however, that, for so long as this Agreement remains in effect, the Company agrees not to terminate, amend or supplement (or agree to terminate, amend or terminate) any equivalent or substantially similar limitations on share transfer restrictions in that certain Note Exchange Agreement dated April 15, 2016 among the Company and the other parties there in any way that is substantially more favorable to the Person(s) subject thereto than as set forth herein unless and until the Company terminates, amends or supplements the restrictions set forth in this Section 2.1(b)5.1(b) shall not apply to sales made pursuant to a firm commitment underwritten public offering pursuant to a registration statement (other than the so-called "shelf" registration statement) under the Securities Act, such underwriter to be subject to the Company's approval, such approval not to be unreasonably withheld.
(c) during The limitation on share transfer set forth in this Section 5.1 shall terminate and Purchaser and its Affiliates shall have the period commencing right, directly or indirectly, to sell, transfer or otherwise dispose of any Shares without regard to any limitation on share transfer set forth in Section 5.1 in the effective time of a Public Offering and continuing until the earlier of event that:
(i) three hundred sixty-six (366) days from the effective time of such Public Offering and (ii) the date on which the shares of Series A Preferred Stock are converted Company has entered into shares of Common Stock, each Stockholder agrees that it shall not enter into a transaction which would have the same effect, or enter into any swap, hedge or other similar arrangement that transfers, in whole or in part, any of the economic consequences of ownership of the Securities (but, for the avoidance of doubt, not the direct ownership of the shares of Series A Preferred Stock), whether any such aforementioned transaction or arrangement is to be settled by delivery of the Securities or such other securities, in cash or otherwise, or publicly disclose the intention to make any such offer, sale, pledge or disposition, or to enter into any such swap, hedge or other similar arrangement;
(d) no Stockholder may Transfer any shares of Series A Preferred Stock to any Person (any such Person, a “Restricted Transferee”) that is (A) a Competitor merger agreement in which the holders of the Company as determined by Voting Securities would cease to hold a majority of the Board in its good faith reasonable discretionvoting securities of the surviving corporation, (B) listed on Schedule 2.1(d)an agreement to sell all or substantially all its assets, or (C) that is an agreement to be acquired, business combination, consolidation or any such similar transaction, in each case with any Person other than a target of any economic sanctions administered by the Office of Foreign Assets Control wholly-owned subsidiary of the United States Treasury Department Company; PROVIDED, HOWEVER, the limitation shall (“Sanctions Target”), or (D1) named on continue if (x) the merger agreement is with a list promulgated by the United Nations Security Council or its committees pursuant to resolutions issued under Chapter VII majority-owned subsidiary of the United Nations Charter Company and the Company is to be the surviving corporation in the merger or (y) the World Bank Listing majority of Ineligible Firms; providedthe directors of the Company, however, who have held that notwithstanding the foregoing, a Stockholder may position for at any time deliver least nine (9) months prior to the Company’s General Counsel (with copies to the Company’s Chief Financial Officer, Treasurer and Corporate Secretary) a written list of potential transferees (including, for the avoidance of doubt, any potential Transferee the name of which is on any entering into of the foregoing listsmerger agreement continue as the directors of the surviving company after the merger or (2) be reinstated if such merger agreement or other agreements referred to in sections (A), and, if the Company does not indicate in writing within ten (10B) Business Days after the submission of such list whether it considers, in the good faith reasonable judgment of the Board, all or any of such potential Transferees to be Restricted Transferee(s), then any such potential Transferee that has not been timely indicated by the Company to be a Restricted Transferee shall not be considered a Restricted Transferee and the Stockholder shall be permitted to Transfer to such Person pursuant to the terms of this Article II after the expiration of such ten (10) day period; and
(e) no Stockholder may Transfer any shares of Series A Preferred Stock to any:
(i) Person or member of such Person’s family (as the term “family” is defined in 34 C.F.R. Section 668.174(c)(4)), that alone or together, (i) exercises or exercised Substantial Control (as the term “substantial control” is defined in 34 C.F.R. § 668.174(c)(3)) over another educational institution or third-party servicer (as that term is defined in 34 C.F.R. Section 668.2) that owes a liability for a violation of a Title IV Program requirement or (iiC) owes a liability for a Title IV Program violationis subsequently terminated or the transactions contemplated thereunder are not consummated;
(ii) a tender or exchange offer (other than a tender or exchange offer that the Company's Board of Directors has recommended be rejected) is made by any Person that has pled guilty to, pled nolo contendereor 13D Group (other than an Affiliate of, or been found guilty ofany Person acting in concert with, a crime involving Purchaser) to acquire Voting Securities which, if added to the acquisitionVoting Securities (if any) already owned by such Person or 13D Group, use would result, if consummated in accordance with its terms, in the Beneficial Ownership by such Person or expenditure 13D Group of funds under more than 50% of the Title IV Programs Total Voting Power of all Voting Securities of the Company then outstanding, PROVIDED THAT the limitation shall be reinstated if such tender or been judicially determined to have committed fraud involving funds under the Title IV Programs exchange offer is withdrawn or has been administratively terminated without such Person or judicially determined to have committed fraud or any other material violation of Law involving funds of any Governmental Authority or Educational Agency13D Group acquiring such 50% ownership level; or
(iii) a tender or exchange offer, which the Company's Board of Directors has not approved or recommended, is made by any Person that has filed for relief in bankruptcy or had entered against it 13D Group (other than an order for relief in bankruptcyAffiliate of, or any Person acting in concert with, Purchaser) to acquire Voting Securities which, if added to the knowledge of Voting Securities (if any) already owned by such PersonPerson or 13D Group, has a Subsidiary that has filed for relief in bankruptcy or had entered against it an order for relief in bankruptcy.
(f) Notwithstanding anything in this Agreement or any other Transaction Documents to the contrarywould result, starting immediately after the pricing of a Public Offering and continuing until the earlier of (x) the date on which the Initial Follow-On Public Offering is if consummated pursuant to the Certificate of Designations and the Registration Rights Agreement or (y) if then converted, the date which is 120 days (or if a registration is suspended, postponed or otherwise not available pursuant to the terms of the Registration Rights Agreement, then an additional number of days equal to the length of such suspension, postponement or lack of availability) after the date on which an amount of Conversion Stock equal to or more than the Priority Amount has been registered pursuant to an effective registration statement in accordance with its terms, in the terms Beneficial Ownership by such Person or 13D Group of more than 50% of the Registration Rights AgreementTotal Voting Power of all Voting Securities of the Company then outstanding and the Purchaser, or if earlierupon the advice of legal counsel and financial advisors, reasonably believes in good faith, taking into account the date on which at least conditions of the Priority Amount under such registration statement has been sold, neither Wengen nor ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ shall offer, sell that such tender or otherwise Transferexchange offer will result in Voting Securities being purchased, PROVIDED THAT the limitation shall be reinstated if such tender or agree to offer, sell exchange offer is withdrawn or otherwise Transfer, either directly terminated without such Person or indirectly, any of 13D Group acquiring such Person’s Equity Securities in the Company, including pursuant to a Registration Statement or in a Public Offering; provided, however, the foregoing restriction shall not apply with respect to ▇▇▇▇▇▇ Excluded Securities50% ownership level.
Appears in 1 contract
Sources: Investment Agreement (Millennium Pharmaceuticals Inc)
Limitations on Transfer. Subject to and except as provided in this Agreement and applicable Law, an Investor shall be permitted to Transfer from time to time any or all of the Series A Preferred Stock and Conversion Stock beneficially owned by it without the consent or approval of any Person. Each Stockholder hereby agrees that:
(a) no Transfer Certificates and any beneficial interests therein may only be issued and sold or transferred to (i) Qualified Institutional Buyers purchasing the Certificates for their own account that are also (ii) Qualified Purchasers, in each case meeting the additional requirements of Capital Stock shall occur in Section 3.14(b). Neither the Certificates nor any manner that violates interest therein may be transferred or resold except pursuant to an exemption from the provisions registration requirements of the Certificate of Incorporation or Bylaws of Investment Company Act and the Company, this Agreement, or any applicable Law, including federal or state securities Laws;Securities Act.
(b) no Stockholder may Transfer any shares of Series A Preferred Stock starting at the close of business on a date not more than fifteen (15) days before the date of the anticipated commencement Each transferee of a bona fide roadshow for QPO (which date is notified by the Company in writing Certificate or any beneficial interest therein will be deemed to the Stockholders before such date) and ending on the earlier represent at time of transfer that (i) the initial settlement date of the QPOit is a Qualified Institutional Buyer, (ii) twenty-one (21) days (orit is a Qualified Purchaser, if such roadshow includes in-person meetings in any jurisdiction outside the United States, thirty (30) days) after the first day of such roadshow and (iii) fifteen it is not formed for the purpose of investing in the Certificates, unless each of its beneficial owners is a Qualified Purchaser, (15iv) days after it is not a dealer described in paragraph (a)(l)(ii) of Rule 144A promulgated under the Securities Act (“Rule 144A”), unless such notification transferee owns and invests on a discretionary basis at least U.S. $25 million in securities of issuers that are not affiliated persons of such dealer, (v) it is not a plan referred to in paragraph (a)(1)(i)(D) or (E) of Rule l44A or a trust fund referred to in paragraph (a)(I)(i)(F) of Rule l44A that holds the assets of such plan, unless investment decisions are made solely by the Company if fiduciary, trustee or sponsor of such plan, and (vi) it, and each account for which it is purchasing, is purchasing Certificates in at least the roadshow has not commenced by such date; provided, however, that, for so long as this Agreement remains in effect, the Company agrees not to terminate, amend or supplement (or agree to terminate, amend or terminate) any equivalent or substantially similar transfer restrictions in that certain Note Exchange Agreement dated April 15, 2016 among the Company and the other parties there in any way that is substantially more favorable to the Person(s) subject thereto than as set forth herein unless and until the Company terminates, amends or supplements the restrictions set forth in this Section 2.1(b)minimum denomination.
(c) during The Certificates shall bear legends stating that they have not been registered under the period commencing on Securities Act and are subject to the effective time of a Public Offering and continuing until the earlier of transfer requirements described in subsections (ia) three hundred sixty-six (366) days from the effective time of such Public Offering and (iib) the date on which the shares of Series A Preferred Stock are converted into shares of Common Stockthis Section 3.14. By purchasing a Certificate or any interest therein, each Stockholder agrees that it purchaser shall not enter into a transaction which would be deemed to have the same effect, or enter into any swap, hedge or other similar arrangement that transfers, in whole or in part, any of the economic consequences of ownership of the Securities (but, for the avoidance of doubt, not the direct ownership of the shares of Series A Preferred Stock), whether any such aforementioned transaction or arrangement is agreed to be settled by delivery of the Securities or such other securities, in cash or otherwise, or publicly disclose the intention to make any such offer, sale, pledge or disposition, or to enter into any such swap, hedge or other similar arrangement;these transfer requirements.
(d) no Stockholder The Certificates and related documentation, including this Agreement, may Transfer any shares of Series A Preferred Stock be amended or supplemented from time to any Person (any such Person, a “Restricted Transferee”) that is (A) a Competitor time by the Trustor and the Trustee to modify the restrictions on and procedures for resale and other transfers of the Company as determined by Certificates and interests therein to reflect any change in applicable law or regulation (or the Board interpretation thereof) or in its good faith reasonable discretion, (B) listed on Schedule 2.1(d), (C) that is a target of any economic sanctions administered by the Office of Foreign Assets Control of the United States Treasury Department (“Sanctions Target”), or (D) named on (x) a list promulgated by the United Nations Security Council or its committees pursuant to resolutions issued under Chapter VII of the United Nations Charter or (y) the World Bank Listing of Ineligible Firms; provided, however, that notwithstanding the foregoing, a Stockholder may at any time deliver practices relating to the Company’s General resale or other transfer of restricted securities generally if the Trustor and the Trustee shall have received an Opinion of Counsel (with copies to the Company’s Chief Financial Officer, Treasurer and Corporate Secretary) a written list of potential transferees (including, for the avoidance of doubt, any potential Transferee the name of which effect that such amendment or supplement is on any of the foregoing lists), and, if the Company does not indicate in writing within ten (10) Business Days after the submission of such list whether it considers, in the good faith reasonable judgment of the Board, all necessary or any of such potential Transferees to be Restricted Transferee(s), then any such potential Transferee that has not been timely indicated by the Company to be a Restricted Transferee shall not be considered a Restricted Transferee and the Stockholder shall be permitted to Transfer to such Person pursuant to the terms of this Article II after the expiration of such ten (10) day period; andappropriate.
(e) no Stockholder In order to preserve the exemption for resales and transfers provided by Rule 144A under the Securities Act, the Trustor shall provide to any Holder of a Certificate and any prospective purchaser designated by such Holder, upon request of such Holder or such prospective purchaser, such information required by Rule 144A as will enable the resale of such Certificate to be made pursuant to Rule 144A. However, the Trustor shall not be required to provide with respect to a Certificate more information than is required by Rule 144A as of the date such Certificate is issued but may Transfer elect to do so if necessary under subsequent revisions of Rule 144A. In connection with the same, the Trustor shall comply with Rule 144A(d)(4) of the Securities Act. In addition, the Trustor may from time to time modify the foregoing restrictions on resale and other transfers, without the consent but upon notice to the Holders of the Certificates, in order to reflect any shares amendment to Rule 144A or change in the interpretation thereof or practices thereunder if the Trustor and the Trustee shall have received an Opinion of Series Counsel to the effect that such amendment or supplement is necessary or appropriate.
(f) The Certificates shall not be listed on any “established securities market.” For this purpose, an “established securities market” includes any national securities exchange registered under the Securities Exchange Act or exempted from registration because of the limited volume of transactions, any local exchange and any over the counter market characterized by an interdealer quotation system which regularly disseminates quotations of obligations by identified brokers or dealers, by electronic means or otherwise.
(g) With respect to certain DTC-related actions, the Trustor on behalf of the Trust shall ensure that the CUSIP numbers assigned to the Class A Preferred Stock Certificates have a “fixed field” attachment that contains indicators for Rule 144A and the Investment Company Act exemption. If at any time Class A Certificates that are registered with DTC or any other securities depository are issued or transferred to anyan entity unrelated to the Trustor, the Trustor on behalf of the Trust shall cause (or shall require the Remarketing Agent to cause) the relevant Bloomberg Financial Markets screen to contain customary indicators for Rule 144A and the Investment Company Act exemption. These indicators shall state clearly that sales of the Class A Certificates are restricted to Qualified Institutional Buyers that are also Qualified Purchasers, and should include the following disclosures:
(i) Person or member The “Note Box” on the bottom of such Person’s family (as the term “familySecurity Display” is defined in 34 C.F.R. Section 668.174(c)(4)), that alone or together, (ipage describing the Class A Certificates should state “Issued Under 144A/3(c)(7) exercises or exercised Substantial Control (as the term “substantial control” is defined in 34 C.F.R. § 668.174(c)(3)) over another educational institution or third-party servicer (as that term is defined in 34 C.F.R. Section 668.2) that owes a liability for a violation of a Title IV Program requirement or (ii) owes a liability for a Title IV Program violationInvestment Company Act exemption”;
(ii) Person that has pled guilty to, pled nolo contendere, or been found guilty of, The “Security Display” page should have a crime involving the acquisition, use or expenditure of funds under the Title IV Programs or been judicially determined to have committed fraud involving funds under the Title IV Programs or has been administratively or judicially determined to have committed fraud or any other material violation of Law involving funds of any Governmental Authority or Educational Agencyflashing red indicator stating “See Other Available Information”; orand
(iii) Person that has filed for relief in bankruptcy or had entered against it an order for relief in bankruptcy, or Such indicator should link to the knowledge of such Person“Additional Security Information” page, has a Subsidiary which should state that has filed for relief the Class A Certificates are being offered in bankruptcy or had entered against it an order for relief in bankruptcyreliance on the exemption from registration under Rule 144A to Persons who are Qualified Institutional Buyers and Qualified Purchasers.
(fh) Notwithstanding anything in this Agreement or any other Transaction Documents express or implied agreement to the contrary, starting the Trust, the Trustor, the Servicer and each Holder of Class A Certificates agree that each of them and each of their employees, representatives, and other agents may disclose, immediately after upon commencement of discussions, to any and all persons, without limitation of any kind, the pricing tax treatment and tax structure of the transaction and all materials of any kind (including opinions or other tax analyses) that are provided to any of them relating to such tax treatment and tax structure, except where confidentiality is reasonably necessary to comply with U.S. federal or state securities laws. For purposes of this paragraph, the terms “tax,” “tax treatment,” “tax structure,” and “tax benefit” are defined under Treasury Regulation §1.6011-4(c).
(i) Each Holder of the Certificates acknowledges that it has been afforded an opportunity to request and to review and it has received, all information considered by it to be necessary to make an investment decision in purchasing the Certificates.
(j) Notwithstanding anything herein to the contrary, the Trustor shall not transfer the Class B Certificate to any other entity without the consent of Class A Certificateholders constituting a Public Offering and continuing until majority of the earlier Outstanding Certificate Balance of the Class A Certificates unless it has provided documentation, to the reasonable satisfaction of the Initial Purchaser, that either (xi) the date Trustor, (ii) an affiliate of the Trustor or (iii) a non-affiliated entity has guaranteed all the obligations related to additional capital contributions of the Holder of the Class B Certificate pursuant to Section 5.04, provided that (a) with respect to an affiliate of the Trustor, such affiliate either (1) maintains a rating of at least “Aa3,” “AA-” or its equivalent from a nationally recognized rating agency or (2) secures such guaranty with a letter of credit or similar credit facility from a financial institution that maintains a rating of at least “Aa3,” “AA-” or its equivalent from a nationally recognized rating agency and (b) with respect to an entity that is not an affiliate of the Trustor, such entity secures such guaranty with a letter of credit or similar credit facility from a financial institution that maintains a rating of at least “Aa3,” “AA-” or its equivalent from a nationally recognized rating agency; and, in each case, the transfer of the Class B Certificate shall be accompanied by an opinion of the guarantor’s counsel to the effect that such guaranty is valid, binding and enforceable and an opinion of nationally recognized bond counsel to the effect that such transfer and guaranty will not adversely affect the tax treatment of any payments required to be made by the Holder of the Class B Certificate pursuant to Section 5.04 as a result of such guaranty structure.
(k) Each transferee or purchaser of Class A Certificates or any beneficial interest therein will be deemed to acknowledge by its purchase or transfer of Class A Certificates that (i) it has been afforded an opportunity to request from the Trustor and the Trust and to review, and it has received, all additional information considered by it to be necessary to verify the accuracy of the information in the Private Placement Memorandum and to make an investment decision, (ii) it has not relied on which the Initial Follow-On Public Offering is consummated Purchaser or any person affiliated with the Initial Purchaser in connection with its investigation of the accuracy of the information contained in the Private Placement Memorandum or its investment decision and (iii) except for information provided directly by the Trustor or the Trust pursuant to (i) above, no person has been authorized to give any information or to make any representation concerning the Certificate Class A Certificates other than those contained in the Private Placement Memorandum and, if given or made, such other information or representation should not be relied upon as having been authorized by any of Designations and the Registration Rights Agreement or (y) if then convertedTrustor, the date which is 120 days Trust or the Initial Purchaser.
(or if a registration is suspended, postponed or otherwise l) The Class A Certificates may not available pursuant be purchased by any employee benefit plan subject to the terms Employee Retirement Income Security Act of the Registration Rights Agreement1974, then as amended (“ERISA”), any plan, including an additional number of days equal to the length of such suspension, postponement individual retirement account or lack of availability) after the date on which an amount of Conversion Stock equal to or more than the Priority Amount has been registered pursuant to an effective registration statement in accordance with the terms of the Registration Rights Agreement, or if earlier, the date on which at least the Priority Amount under such registration statement has been sold, neither Wengen nor ▇▇▇▇▇▇▇ ▇plan, subject to Section 4975 of the Code or any entity who assets include “plan assets” of any such plan. ▇▇▇▇▇▇ shall offerEach transferee or purchaser of Class A Certificates or any beneficial interest therein will be deemed to have represented and warranted at the time of transfer or purchase to the Trust, sell the Trustor and the Initial Purchaser by its purchase or otherwise Transfer, transfer of Class A Certificates that its purchase or agree to offer, sell or otherwise Transfer, either directly or indirectly, any acquisition of such Person’s Equity Securities Class A Certificates will not violate the restriction in the Companyimmediately preceding sentence.
(m) No Certificates may be transferred in violation of this Section 3.14 or, including pursuant to if as a Registration Statement or in result of a Public Offeringproposed transfer the Trust would be treated as a publicly traded partnership taxable as a corporation for federal income tax purposes; provided, however, the foregoing restriction and any such transfer shall not apply with respect to ▇▇▇▇▇▇ Excluded Securitiesbe void ab initio and shall have no effect.
Appears in 1 contract
Limitations on Transfer. Subject to and except as provided in this Agreement and applicable Law, an Investor shall be permitted to Transfer from time to time any or all of the Series A Preferred Stock and Conversion Stock beneficially owned by it without the consent or approval of any Person. Each Stockholder hereby agrees that:
(a) Following a Qualified IPO and the expiration of any related underwriter or Company “lock-up” period (as provided for in Section 3(a) of the Registration Rights Agreement or otherwise) which is applicable to such Management Stockholder, no Management Stockholder shall directly or indirectly, sell, transfer, pledge or otherwise dispose of any economic, voting or other rights in or to (each, a “Transfer”) its Securities except pursuant to (i) (x) Section 2.4, (y) a Transfer of Capital Stock shall occur in any manner that violates to a Manager Permitted Transferee (subject to the extent applicable, to the provisions of the Certificate of Incorporation Section 2.1(b), (c) and (d) or Bylaws of the Company, this Agreement, or any applicable Law, including federal or state securities Laws;
(bz) no Stockholder may a Transfer any shares of Series A Preferred Stock starting at the close of business on a date not more than fifteen (15) days before the date of the anticipated commencement of a bona fide roadshow for QPO (which date is notified by to the Company in writing to the Stockholders before such date) and ending on the earlier of or a Sponsor Stockholder or its Affiliates (i) the initial settlement date of the QPOeach a “Manager Permitted Transfer”), (ii) twenty-one (21) days (or, if such roadshow includes in-person meetings a Transfer in any jurisdiction outside the United States, thirty (30) days) after the first day of such roadshow and (iii) fifteen (15) days after such notification by the Company if the roadshow has not commenced by such date; provided, however, that, for so long as this Agreement remains in effect, the Company agrees not to terminate, amend or supplement (or agree to terminate, amend or terminate) any equivalent or substantially similar transfer restrictions in that certain Note Exchange Agreement dated April 15, 2016 among the Company and the other parties there in any way that is substantially more favorable to the Person(s) subject thereto than as set forth herein unless and until the Company terminates, amends or supplements the restrictions set forth in this Section 2.1(b).
(c) during the period commencing on the effective time of a Public Offering and continuing until the earlier of (i) three hundred sixty-six (366) days from the effective time of such Public Offering and (ii) the date on which the shares of Series A Preferred Stock are converted into shares of Common Stock, each Stockholder agrees that it shall not enter into a transaction which would have the same effect, or enter into any swap, hedge or other similar arrangement that transfers, in whole or in part, any of the economic consequences of ownership of the Securities (but, for the avoidance of doubt, not the direct ownership of the shares of Series A Preferred Stock), whether any such aforementioned transaction or arrangement is to be settled by delivery of the Securities or such other securities, in cash or otherwise, or publicly disclose the intention to make any such offer, sale, pledge or disposition, or to enter into any such swap, hedge or other similar arrangement;
(d) no Stockholder may Transfer any shares of Series A Preferred Stock to any Person (any such Person, a “Restricted Transferee”) that is (A) a Competitor of the Company as determined by the Board in its good faith reasonable discretion, (B) listed on Schedule 2.1(d), (C) that is a target of any economic sanctions administered by the Office of Foreign Assets Control of the United States Treasury Department (“Sanctions Target”), or (D) named on (x) a list promulgated by the United Nations Security Council or its committees pursuant to resolutions issued under Chapter VII of the United Nations Charter or (y) the World Bank Listing of Ineligible Firms; provided, however, that notwithstanding the foregoing, a Stockholder may at any time deliver to the Company’s General Counsel (accordance with copies to the Company’s Chief Financial Officer, Treasurer and Corporate Secretary) a written list of potential transferees (including, for the avoidance of doubt, any potential Transferee the name of which is on any of the foregoing lists), and, if the Company does not indicate in writing within ten (10) Business Days after the submission of such list whether it considers, in the good faith reasonable judgment of the Board, all or any of such potential Transferees to be Restricted Transferee(s), then any such potential Transferee that has not been timely indicated by the Company to be a Restricted Transferee shall not be considered a Restricted Transferee and the Stockholder shall be permitted to Transfer to such Person pursuant to the terms of this Article II after the expiration of such ten (10) day period; and
(e) no Stockholder may Transfer any shares of Series A Preferred Stock to any:
(i) Person or member of such Person’s family (as the term “family” is defined in 34 C.F.R. Section 668.174(c)(4)), that alone or together, (i) exercises or exercised Substantial Control (as the term “substantial control” is defined in 34 C.F.R. § 668.174(c)(3)) over another educational institution or third-party servicer (as that term is defined in 34 C.F.R. Section 668.2) that owes a liability for a violation of a Title IV Program requirement or (ii) owes a liability for a Title IV Program violation;
(ii) Person that has pled guilty to, pled nolo contendere, or been found guilty of, a crime involving the acquisition, use or expenditure of funds under the Title IV Programs or been judicially determined to have committed fraud involving funds under the Title IV Programs or has been administratively or judicially determined to have committed fraud or any other material violation of Law involving funds of any Governmental Authority or Educational Agency; or
(iii) Person that has filed for relief in bankruptcy or had entered against it an order for relief in bankruptcy, or to the knowledge of such Person, has a Subsidiary that has filed for relief in bankruptcy or had entered against it an order for relief in bankruptcy.
(f) Notwithstanding anything in this Agreement or any other Transaction Documents to the contrary, starting immediately after the pricing of a Public Offering and continuing until the earlier of (x) the date on which the Initial Follow-On Public Offering is consummated pursuant to the Certificate of Designations and the Registration Rights Agreement or (yiii) if then converted, a Transfer conducted in accordance with the date which is 120 days (requirements of Rule 144 or if a registration is suspended, postponed its successor promulgated under the Securities Act or otherwise not available pursuant to the terms of the Registration Rights Agreement, then an additional number of days equal to the length of such suspension, postponement or lack of availability) after the date on which an amount of Conversion Stock equal to or more than the Priority Amount has been registered pursuant to an effective registration statement statement.
(b) Except for Transfers in connection with a Public Offering (or any effective registration statement) and Transfers in accordance with the requirements of Rule 144 or its successor under the Securities Act or Transfers by Management Stockholders to the Company in accordance with any written agreement with the Company, no Transfer shall be effective unless (i) the Transferee agrees to be bound by the terms and conditions of the Registration Rights this Agreement, and any related agreements previously approved by the Board or if earlierthe Stockholders in accordance with this Agreement, (ii) it complies in all respects with the date on which at least applicable provisions of this Agreement, (iii) it complies in all respects with applicable federal and state securities laws, including the Priority Amount under such registration statement has been sold, neither Wengen nor Securities Act and (iv) it is made in compliance with all applicable Company policies and restrictions (including any trading “window periods” or other policies regulating ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ shall offer, sell or otherwise Transfer, or agree to offer, sell or otherwise Transfer, either directly or indirectly, ▇). A Sponsor Stockholder may deem any Transferee of any of its Securities to be a member of its Sponsor Group at the time of the related Transfer so long as such Person’s Equity transferring Sponsor Stockholder receives the written consent of the Sponsor Stockholders that are not Affiliates of the transferring Sponsor Stockholder. In such event, the Transferee shall have all rights under this Agreement and the Registration Rights Agreement which would have otherwise inured to the benefit of the transferring Sponsor Stockholder in respect of the transferred Securities.
(c) No Transfer by any Management Stockholder may be made pursuant to this Article II (except under Section 2.4 or pursuant to an effective registration statement under the Securities Act or in accordance with the requirements of Rule 144 promulgated under the Securities Act so long as such Management Stockholder provides such documentation and certifications as the Company may reasonably require in connection with such Transfer) unless and until such Management Stockholder has first delivered to the Company an opinion of counsel (reasonably acceptable in form and substance to the Company) that neither registration nor qualification under the Securities Act and applicable state securities laws is required in connection with such Transfer.
(d) No holder of Securities shall grant any proxy or become party to any voting trust or other agreement that is inconsistent with, including pursuant to a Registration Statement conflicts with or in a Public Offering; provided, however, the foregoing restriction shall not apply with respect to ▇▇▇▇▇▇ Excluded Securitiesviolates any provision of this Agreement.
Appears in 1 contract
Sources: Stockholders Agreement (Foundation Coal Holdings, Inc.)
Limitations on Transfer. Subject to and except as provided in this Agreement and applicable Law, an Investor shall be permitted to Transfer from time to time any or all of the Series A Preferred Stock and Conversion Stock beneficially owned by it without the consent or approval of any Person. Each Stockholder hereby agrees that:
(a) no Transfer Notwithstanding any other provision of Capital Stock shall occur in any manner that violates the provisions of the Certificate of Incorporation or Bylaws of the Company, this Agreement, or any applicable Law, including federal or state securities Laws;
(b) no Stockholder may Transfer any shares of Series A Preferred Stock starting at the close of business on a date not more than fifteen (15) days before the date of the anticipated commencement of a bona fide roadshow for QPO (which date is notified by the Company in writing prior to the Stockholders before such date) and ending on the earlier to occur of (i) the initial settlement date of which is one year following the QPO, Effective Time and (ii) twenty-one the date on which Nicoll is terminated by Instinet, other than in the case of a termin▇▇▇▇▇ by Instinet for Cause or a termination with the consent of at least two Island Stockholders then entitled to designate directors under Section 2.2(a)(i) (21the period from the Effective Time to the earlier to occur of (i) days (or, if such roadshow includes in-person meetings in any jurisdiction outside the United States, thirty (30) days) after the first day of such roadshow and (iiiii), the "Initial Share Holding Period"), none of any Holder or Nicoll shall Transfer any Subject Shares or Datek Shares, and no Reu▇▇▇▇ ▇arty shall Transfer any shares of Common Stock, other than (v) fifteen (15) days after such notification by in the Company if the roadshow has not commenced by such date; providedcase of Nicoll, however, that, for in connection with estate and family planning so long as this the ▇▇▇▇▇feree has executed a Joinder Agreement remains in effectwhich it agrees to be treated as Nicoll hereunder or by will or other instrument taking effect at dea▇▇ ▇▇ by applicable laws of descent and distribution, (w) to any Reuters Party, any other Reuters Entity that has executed a Joinder Agreement in which it agrees to be treated as a Reuters Party hereunder, or Instinet, (x) in the Company agrees not case of a transfer by a Holder or any Reuters Party, to terminateany Island Stockholder or (y) in the case of a Transfer by a Holder, amend to a Permitted Transferee of such Holder or supplement (z) in the case of a Reuters Party, any pledge of any such securities or agree to terminaterights in connection with bona fide debt financings (other than Derivative Transactions) with a financial institution, amend or terminate) any equivalent or substantially similar transfer restrictions provided that, in that certain Note Exchange Agreement dated April 15, 2016 among the Company and the other parties there in any way that is substantially more favorable to the Person(s) subject thereto than as each case set forth herein in clauses (w), (x) or (y), no such Transfer shall be effected unless and until (I) in the Company terminatescase of a Transfer by a Island Stockholder, amends such Island Stockholder has complied with Section 2.2(h) to the extent such Transfer would affect such Island Stockholder's rights pursuant to Section 2.2 and (II) Instinet shall have been furnished with information reasonably satisfactory to it demonstrating that such Transfer is in compliance with the provisions hereof and any applicable securities laws and shall have acknowledged such compliance and, in each case set forth in clause (z), the interest of any such financial institution in such shares shall be subject to all of the restrictions set forth in this Agreement.
(b) Following the expiration of the Initial Share Holding Period and until the date which is three years following the Effective Time, the Holders shall not Transfer any Subject Shares in a Market Transaction except in accordance with and subject to the volume limitations specified in Rule 144(e) promulgated under the Securities Act (or supplements any successor paragraph or rule of similar effect), without regard to any time limitations contained in Rule 144(k) (or any successor paragraph or rule of similar effect), provided that for purposes of determining compliance with paragraph (e) of Rule 144, all Holders of Subject Shares shall be deemed to be acting in concert, for the purpose of selling shares of Common Stock, with all other Holders of Subject Shares. Notwithstanding the foregoing, the restrictions set forth in this Section 2.1(b)) shall not apply to Transfers by Holders pursuant to an underwritten offering conducted in accordance with the Registration Rights Agreement.
(c) during the period commencing on the effective time of a Public Offering and continuing until the earlier of (i) three hundred sixty-six (366) days from the effective time No Holder may Transfer Subject Shares to a Permitted Transferee of such Public Offering Holder unless such Permitted Transferee has duly executed a Joinder Agreement in which it agrees to be treated as a Holder (if not already a Holder party to this Agreement) and such transferring Holder has complied with Section 4.10. No Reuters Party may Transfer shares of Common Stock to another Reuters Entity unless such Reuters Entity has duly executed a Joinder Agreement in which it agrees to be treated as a Reuters Party (if not already a Reuters Party party to this Agreement) and such transferring Reuters Party has complied with Section 4.10.
(ii) No Reuters Entity (in the date on case of Reuters Entities not wholly owned, directly or indirectly, by Reuters Parent, to the extent that Reuters Limited or Reuters Parent has the power to direct such Reuters Entity and such direction is consistent with any fiduciary obligations such Reuters Entity might have to third parties, it being understood that no Reuters Party shall act through or in concert with any such non-wholly owned Reuters Entity in any manner inconsistent with such Reuters Party's obligations hereunder) may acquire shares of Common Stock from any Person unless such Reuters Entity has duly executed a Joinder Agreement in which it agrees to be treated as a Reuters Party.
(iii) No Reuters Party may Transfer shares of Common Stock to a transferee that, alone or together with its Affiliates and any "group" (as defined in the Exchange Act) of which such transferee or Affiliates is or are a member, acquires from Reuters Parties, in a transaction or a series of related transactions, a number of shares of Common Stock representing at least 10% of the aggregate number of shares of Common Stock then outstanding, other than in a Market Transaction or pursuant to the exercise by such Party of its registration rights under the Corporate Agreement or the Registration Rights Agreement, as applicable (excluding pre-arranged transactions in which the shares are "crossed", "directed" or otherwise caused to be sold to the particular transferee), unless in each case such transferee and any such Affiliates and members of Series A Preferred Stock are converted into such "group" agree in writing to be bound by such Reuters Party's obligations under Section 2.3(a) with respect to such transferred shares, to the same extent applicable to such Reuters Party.
(iv) At any time when Reuters Entities own shares of Instinet's stock representing 20% or more of the Total Voting Power of Instinet, no Reuters Party may Transfer shares of Common Stock, in a transaction or a series of related transactions, to a transferee that, immediately after giving effect to such Transfer would, together with such transferees' Affiliates and any "group" (as defined in the Exchange Act) of which such transferee or Affiliates is or are a member, have beneficial ownership of Instinet's stock representing 35% or more of the Total Voting Power of Instinet, other than in a Market Transaction or pursuant to the exercise by such Party of its registration rights under the Corporate Agreement or the Registration Rights Agreement, as applicable (excluding pre-arranged transactions in which the shares are "crossed", "directed" or otherwise caused to be sold to the particular transferee), unless in each Stockholder agrees case such transferee and any such Affiliates and members of such "group" agree in writing to be bound by Section 2.4 to the same extent applicable to Reuters Limited (except that it (A) the percentage of additional shares of Common Stock that may be acquired in reliance on clause (w) of Section 2.4(a) following the Transfer from such Reuters Party shall be equal to the greater of (i) 40% and (ii) that percentage of the Total Voting Power of Instinet beneficially owned by such transferee, its Affiliates and any such "group" immediately after giving effect to the Transfer from such Reuters Party and (B) references in Section 2.4 to Reuters Entities and Reuters Parent shall be deemed to refer to Persons having an analogous relationship with such transferee and members of any such group). Any such agreement by a transferee to be bound by Section 2.4 shall not enter into a transaction which would have affect the same effect, or enter into obligations of any swap, hedge or other similar arrangement Person that transfers, otherwise remains subject to Section 2.4 in whole or in part, any of the economic consequences of ownership of the Securities (but, for the avoidance of doubt, not the direct ownership of the shares of Series A Preferred Stock), whether any such aforementioned transaction or arrangement is to be settled by delivery of the Securities or such other securities, in cash or otherwise, or publicly disclose the intention to make any such offer, sale, pledge or disposition, or to enter into any such swap, hedge or other similar arrangement;accordance with its terms.
(d) no Stockholder The parties hereto hereby acknowledge and agree that Instinet may Transfer impose stop transfer instructions with respect to the shares of Common Stock subject to the restrictions contained in this Article II in order to implement the restrictions on Transfers contained herein.
(i) Each certificate representing Subject Shares, Datek Shares and any shares of Series A Preferred Common Stock held by any Reuters Party or by a Person who is required, pursuant to Section 2.1(c)(iii) or Section 2.1(c)(iv), to agree to be bound by the portions of this Agreement specified in such Sections, will bear a legend on the face thereof substantially to the following effect (with such additions thereto or changes therein as Instinet may be advised by counsel are required by law or necessary to give full effect to this Agreement, the "Legend"): "THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE STOCKHOLDERS AGREEMENT, DATED AS OF JUNE 9, 2002, AMONG INSTINET GROUP INCORPORATED, REUTERS LIMITED, REUTERS C CORP., REUTERS HOLDINGS SWITZERLAND SA AND THE OTHER STOCKHOLDERS PARTY THERETO, AS AMENDED AND SUPPLEMENTED FROM TIME TO TIME IN ACCORDANCE WITH THE TERMS THEREOF. THE STOCKHOLDERS AGREEMENT CONTAINS, AMONG OTHER THINGS, CERTAIN PROVISIONS RELATING TO THE VOTING AND TRANSFER OF THE SHARES SUBJECT TO THE AGREEMENT. NO TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE, DIRECTLY OR INDIRECTLY, MAY BE MADE EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SUCH STOCKHOLDERS AGREEMENT. THE HOLDER OF THIS CERTIFICATE, BY ACCEPTANCE OF THIS CERTIFICATE, AGREES TO BE BOUND BY ALL OF THE PROVISIONS OF SUCH STOCKHOLDERS AGREEMENT APPLICABLE TO THE SHARES REPRESENTED BY THIS CERTIFICATE."
(ii) Each Reuters Party and any Person (any such Personwho is required, a “Restricted Transferee”pursuant to Section 2.1(c)(iii) that is (A) a Competitor of the Company as determined or Section 2.1(c)(iv), to agree to be bound by the Board portions of this Agreement specified in its good faith reasonable discretionsuch Sections will cause any applicable shares of Common Stock, (B) listed on Schedule 2.1(d)and each Holder and Nicoll will cause any Datek Shares or shares of Common ▇▇▇▇▇ received by such Holder or Nicoll in respect of such Holder's or Nicoll's interest ▇▇ ▇▇tek, (C) that is a target of any economic sanctions administered in each case held by such p▇▇▇▇ ▇▇ the Office of Foreign Assets Control of the United States Treasury Department (“Sanctions Target”), Effective Time or (D) named on (x) a list promulgated acquired by the United Nations Security Council or its committees pursuant to resolutions issued under Chapter VII of the United Nations Charter or (y) the World Bank Listing of Ineligible Firms; provided, however, that notwithstanding the foregoing, a Stockholder may such party at any time deliver thereafter to be delivered to Instinet for the purpose of applying the Legend. Instinet shall return to the Company’s General Counsel (with copies to the Company’s Chief Financial Officerdelivering party, Treasurer and Corporate Secretary) a written list of potential transferees (including, for the avoidance of doubtas promptly as possible, any potential Transferee shares so delivered. The delivery of such shares by the name delivering party shall not in any way affect such party's rights with respect to such shares.
(iii) The Legend will be promptly removed by (or at the direction of) Instinet, with respect to any certificate representing shares of which Common Stock or Datek Shares, by the delivery of substitute certificates without such Legend (w) with respect to Subject Shares or any shares of Common Stock held by a Reuters Party or by a Person who is on any of the foregoing listsrequired, pursuant to Section 2.1(c)(iii) or Section 2.1(c)(iv), and, if to agree to be bound by the Company does not indicate portions of this Agreement specified in writing within ten (10) Business Days after the submission of such list whether it considersSections, in the good faith reasonable judgment event of a Transfer permitted by this Agreement and in which the Board, all or any of such potential Transferees transferee is not required to be Restricted Transferee(s), then any such potential Transferee that has not been timely indicated by the Company to be enter into a Restricted Transferee shall not be considered a Restricted Transferee and the Stockholder shall be permitted to Transfer to such Person Joinder Agreement pursuant to the terms of this Article II after Agreement or otherwise agree in writing to be bound by certain provisions of this Agreement, (x) with respect to Subject Shares held by any Holder, following termination of this Agreement with respect to such Holder, (y) with respect to any Datek Shares, following termination of this Agreement with respect to all Subject Shares to which such Datek Shares relate or (z) with respect to Subject Shares held by Nicoll, following the expiration of such ten (10) day period; and
(e) no Stockholder may Transfer any shares of Series A Preferred Stock to any:
(i) Person or member of such Person’s family (as the term “family” is defined in 34 C.F.R. Section 668.174(c)(4)), that alone or together, (i) exercises or exercised Substantial Control (as the term “substantial control” is defined in 34 C.F.R. § 668.174(c)(3)) over another educational institution or third-party servicer (as that term is defined in 34 C.F.R. Section 668.2) that owes a liability for a violation of a Title IV Program requirement or (ii) owes a liability for a Title IV Program violation;
(ii) Person that has pled guilty to, pled nolo contendere, or been found guilty of, a crime involving the acquisition, use or expenditure of funds under the Title IV Programs or been judicially determined to have committed fraud involving funds under the Title IV Programs or has been administratively or judicially determined to have committed fraud or any other material violation of Law involving funds of any Governmental Authority or Educational Agency; or
(iii) Person that has filed for relief in bankruptcy or had entered against it an order for relief in bankruptcy, or to the knowledge of such Person, has a Subsidiary that has filed for relief in bankruptcy or had entered against it an order for relief in bankruptcyInitial Share Holding Period.
(f) Notwithstanding anything in At least five days prior to any Transfer of shares of Common Stock during the Initial Share Holding Period, the transferring party shall give written notice of such Transfer to Instinet, the Holders and the Reuters Parties. Each such notice required by this Agreement paragraph shall describe the manner of the proposed Transfer and the number and nature of the securities involved.
(g) Any Transfer or any successive Transfer of capital stock of Datek (other Transaction Documents than Datek Stock) by an Island Stockholder shall be subject to the contraryprovisions of Section 4(l) of the Company Voting Agreement, starting immediately after the pricing of a Public Offering and continuing until the earlier of (x) the date on which the Initial Follow-On Public Offering is consummated pursuant to the Certificate of Designations and the Registration Rights Agreement or (y) if then converted, the date which is 120 days (or if a registration is suspended, postponed or otherwise not available pursuant to the terms of the Registration Rights Agreement, then an additional number of days equal to the length of such suspension, postponement or lack of availability) after the date on which an amount of Conversion Stock equal to or more than the Priority Amount has been registered pursuant to an effective registration statement in accordance with the terms of the Registration Rights Agreement, or if earlier, the date on which at least the Priority Amount under such registration statement has been sold, neither Wengen nor ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ shall offer, sell or otherwise Transfer, or agree to offer, sell or otherwise Transfer, either directly or indirectly, any of such Person’s Equity Securities in the Company, including pursuant to a Registration Statement or in a Public Offering; provided, however, the foregoing restriction shall not apply with respect to ▇▇▇▇▇▇ Excluded Securitiesextent provided therein.
Appears in 1 contract
Limitations on Transfer. Subject to and except as provided in this Agreement and applicable Law, an Investor shall be permitted to Transfer from time to time any or all of the Series A Preferred Stock and Conversion Stock beneficially owned by it without the consent or approval of any Person. Each Stockholder hereby agrees that:
(a) no Transfer Notwithstanding any other provision of Capital Stock shall occur in any manner that violates the provisions of the Certificate of Incorporation or Bylaws of the Company, this Agreement, or any applicable Law, including federal or state securities Laws;
(b) no Stockholder may Transfer any shares of Series A Preferred Stock starting at the close of business on a date not more than fifteen (15) days before the date of the anticipated commencement of a bona fide roadshow for QPO (which date is notified by the Company in writing prior to the Stockholders before such date) and ending on the earlier to occur of (i) the initial settlement date of which is one year following the QPO, Effective Time and (ii) twenty-one the date on which ▇▇▇▇▇▇ is terminated by Instinet, other than in the case of a termination by Instinet for Cause or a termination with the consent of at least two Island Stockholders then entitled to designate directors under Section 2.2(a)(i) (21the period from the Effective Time to the earlier to occur of (i) days (or, if such roadshow includes in-person meetings in any jurisdiction outside the United States, thirty (30) days) after the first day of such roadshow and (iiiii), the "Initial Share Holding Period"), none of any Holder or ▇▇▇▇▇▇ shall Transfer any Subject Shares or Datek Shares, and no Reuters Party shall Transfer any shares of Common Stock, other than (v) fifteen (15) days after such notification by in the Company if the roadshow has not commenced by such date; providedcase of ▇▇▇▇▇▇, however, that, for in connection with estate and family planning so long as this the transferee has executed a Joinder Agreement remains in effectwhich it agrees to be treated as ▇▇▇▇▇▇ hereunder or by will or other instrument taking effect at death or by applicable laws of descent and distribution, (w) to any Reuters Party, any other Reuters Entity that has executed a Joinder Agreement in which it agrees to be treated as a Reuters Party hereunder, or Instinet, (x) in the Company agrees not case of a transfer by a Holder or any Reuters Party, to terminateany Island Stockholder or (y) in the case of a Transfer by a Holder, amend to a Permitted Transferee of such Holder or supplement (z) in the case of a Reuters Party, any pledge of any such securities or agree to terminaterights in connection with bona fide debt financings (other than Derivative Transactions) with a financial institution, amend or terminate) any equivalent or substantially similar transfer restrictions provided that, in that certain Note Exchange Agreement dated April 15, 2016 among the Company and the other parties there in any way that is substantially more favorable to the Person(s) subject thereto than as each case set forth herein in clauses (w), (x) or (y), no such Transfer shall be effected unless and until (I) in the Company terminatescase of a Transfer by a Island Stockholder, amends such Island Stockholder has complied with Section 2.2(h) to the extent such Transfer would affect such Island Stockholder's rights pursuant to Section 2.2 and (II) Instinet shall have been furnished with information reasonably satisfactory to it demonstrating that such Transfer is in compliance with the provisions hereof and any applicable securities laws and shall have acknowledged such compliance and, in each case set forth in clause (z), the interest of any such financial institution in such shares shall be subject to all of the restrictions set forth in this Agreement.
(b) Following the expiration of the Initial Share Holding Period and until the date which is three years following the Effective Time, the Holders shall not Transfer any Subject Shares in a Market Transaction except in accordance with and subject to the volume limitations specified in Rule 144(e) promulgated under the Securities Act (or supplements any successor paragraph or rule of similar effect), without regard to any time limitations contained in Rule 144(k) (or any successor paragraph or rule of similar effect), provided that for purposes of determining compliance with paragraph (e) of Rule 144, all Holders of Subject Shares shall be deemed to be acting in concert, for the purpose of selling shares of Common Stock, with all other Holders of Subject Shares. Notwithstanding the foregoing, the restrictions set forth in this Section 2.1(b)) shall not apply to Transfers by Holders pursuant to an underwritten offering conducted in accordance with the Registration Rights Agreement.
(c) during the period commencing on the effective time of a Public Offering and continuing until the earlier of (i) three hundred sixty-six (366) days from the effective time No Holder may Transfer Subject Shares to a Permitted Transferee of such Public Offering Holder unless such Permitted Transferee has duly executed a Joinder Agreement in which it agrees to be treated as a Holder (if not already a Holder party to this Agreement) and such transferring Holder has complied with Section 4.10. No Reuters Party may Transfer shares of Common Stock to another Reuters Entity unless such Reuters Entity has duly executed a Joinder Agreement in which it agrees to be treated as a Reuters Party (if not already a Reuters Party party to this Agreement) and such transferring Reuters Party has complied with Section 4.10.
(ii) No Reuters Entity (in the date on case of Reuters Entities not wholly owned, directly or indirectly, by Reuters Parent, to the extent that Reuters Limited or Reuters Parent has the power to direct such Reuters Entity and such direction is consistent with any fiduciary obligations such Reuters Entity might have to third parties, it being understood that no Reuters Party shall act through or in concert with any such non-wholly owned Reuters Entity in any manner inconsistent with such Reuters Party's obligations hereunder) may acquire shares of Common Stock from any Person unless such Reuters Entity has duly executed a Joinder Agreement in which it agrees to be treated as a Reuters Party.
(iii) No Reuters Party may Transfer shares of Common Stock to a transferee that, alone or together with its Affiliates and any "group" (as defined in the Exchange Act) of which such transferee or Affiliates is or are a member, acquires from Reuters Parties, in a transaction or a series of related transactions, a number of shares of Common Stock representing at least 10% of the aggregate number of shares of Common Stock then outstanding, other than in a Market Transaction or pursuant to the exercise by such Party of its registration rights under the Corporate Agreement or the Registration Rights Agreement, as applicable (excluding pre-arranged transactions in which the shares are "crossed", "directed" or otherwise caused to be sold to the particular transferee), unless in each case such transferee and any such Affiliates and members of Series A Preferred Stock are converted into such "group" agree in writing to be bound by such Reuters Party's obligations under Section 2.3(a) with respect to such transferred shares, to the same extent applicable to such Reuters Party.
(iv) At any time when Reuters Entities own shares of Instinet's stock representing 20% or more of the Total Voting Power of Instinet, no Reuters Party may Transfer shares of Common Stock, in a transaction or a series of related transactions, to a transferee that, immediately after giving effect to such Transfer would, together with such transferees' Affiliates and any "group" (as defined in the Exchange Act) of which such transferee or Affiliates is or are a member, have beneficial ownership of Instinet's stock representing 35% or more of the Total Voting Power of Instinet, other than in a Market Transaction or pursuant to the exercise by such Party of its registration rights under the Corporate Agreement or the Registration Rights Agreement, as applicable (excluding pre-arranged transactions in which the shares are "crossed", "directed" or otherwise caused to be sold to the particular transferee), unless in each Stockholder agrees case such transferee and any such Affiliates and members of such "group" agree in writing to be bound by Section 2.4 to the same extent applicable to Reuters Limited (except that it (A) the percentage of additional shares of Common Stock that may be acquired in reliance on clause (w) of Section 2.4(a) following the Transfer from such Reuters Party shall be equal to the greater of (i) 40% and (ii) that percentage of the Total Voting Power of Instinet beneficially owned by such transferee, its Affiliates and any such "group" immediately after giving effect to the Transfer from such Reuters Party and (B) references in Section 2.4 to Reuters Entities and Reuters Parent shall be deemed to refer to Persons having an analogous relationship with such transferee and members of any such group). Any such agreement by a transferee to be bound by Section 2.4 shall not enter into a transaction which would have affect the same effect, or enter into obligations of any swap, hedge or other similar arrangement Person that transfers, otherwise remains subject to Section 2.4 in whole or in part, any of the economic consequences of ownership of the Securities (but, for the avoidance of doubt, not the direct ownership of the shares of Series A Preferred Stock), whether any such aforementioned transaction or arrangement is to be settled by delivery of the Securities or such other securities, in cash or otherwise, or publicly disclose the intention to make any such offer, sale, pledge or disposition, or to enter into any such swap, hedge or other similar arrangement;accordance with its terms.
(d) no Stockholder The parties hereto hereby acknowledge and agree that Instinet may Transfer impose stop transfer instructions with respect to the shares of Common Stock subject to the restrictions contained in this Article II in order to implement the restrictions on Transfers contained herein.
(i) Each certificate representing Subject Shares, Datek Shares and any shares of Series A Preferred Common Stock held by any Reuters Party or by a Person who is required, pursuant to Section 2.1(c)(iii) or Section 2.1(c)(iv), to agree to be bound by the portions of this Agreement specified in such Sections, will bear a legend on the face thereof substantially to the following effect (with such additions thereto or changes therein as Instinet may be advised by counsel are required by law or necessary to give full effect to this Agreement, the "Legend"): "THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE STOCKHOLDERS AGREEMENT, DATED AS OF JUNE 9, 2002, AMONG INSTINET GROUP INCORPORATED, REUTERS LIMITED, REUTERS C CORP., REUTERS HOLDINGS SWITZERLAND SA AND THE OTHER STOCKHOLDERS PARTY THERETO, AS AMENDED AND SUPPLEMENTED FROM TIME TO TIME IN ACCORDANCE WITH THE TERMS THEREOF. THE STOCKHOLDERS AGREEMENT CONTAINS, AMONG OTHER THINGS, CERTAIN PROVISIONS RELATING TO THE VOTING AND TRANSFER OF THE SHARES SUBJECT TO THE AGREEMENT. NO TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE, DIRECTLY OR INDIRECTLY, MAY BE MADE EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SUCH STOCKHOLDERS AGREEMENT. THE HOLDER OF THIS CERTIFICATE, BY ACCEPTANCE OF THIS CERTIFICATE, AGREES TO BE BOUND BY ALL OF THE PROVISIONS OF SUCH STOCKHOLDERS AGREEMENT APPLICABLE TO THE SHARES REPRESENTED BY THIS CERTIFICATE."
(ii) Each Reuters Party and any Person (any such Personwho is required, a “Restricted Transferee”pursuant to Section 2.1(c)(iii) that is (A) a Competitor of the Company as determined or Section 2.1(c)(iv), to agree to be bound by the Board portions of this Agreement specified in its good faith reasonable discretionsuch Sections will cause any applicable shares of Common Stock, (B) listed on Schedule 2.1(d)and each Holder and ▇▇▇▇▇▇ will cause any Datek Shares or shares of Common Stock received by such Holder or ▇▇▇▇▇▇ in respect of such Holder's or ▇▇▇▇▇▇'▇ interest in Datek, (C) that is a target of any economic sanctions administered in each case held by such party at the Office of Foreign Assets Control of the United States Treasury Department (“Sanctions Target”), Effective Time or (D) named on (x) a list promulgated acquired by the United Nations Security Council or its committees pursuant to resolutions issued under Chapter VII of the United Nations Charter or (y) the World Bank Listing of Ineligible Firms; provided, however, that notwithstanding the foregoing, a Stockholder may such party at any time deliver thereafter to be delivered to Instinet for the purpose of applying the Legend. Instinet shall return to the Company’s General Counsel (with copies to the Company’s Chief Financial Officerdelivering party, Treasurer and Corporate Secretary) a written list of potential transferees (including, for the avoidance of doubtas promptly as possible, any potential Transferee shares so delivered. The delivery of such shares by the name delivering party shall not in any way affect such party's rights with respect to such shares.
(iii) The Legend will be promptly removed by (or at the direction of) Instinet, with respect to any certificate representing shares of which Common Stock or Datek Shares, by the delivery of substitute certificates without such Legend (w) with respect to Subject Shares or any shares of Common Stock held by a Reuters Party or by a Person who is on any of the foregoing listsrequired, pursuant to Section 2.1(c)(iii) or Section 2.1(c)(iv), and, if to agree to be bound by the Company does not indicate portions of this Agreement specified in writing within ten (10) Business Days after the submission of such list whether it considersSections, in the good faith reasonable judgment event of a Transfer permitted by this Agreement and in which the Board, all or any of such potential Transferees transferee is not required to be Restricted Transferee(s), then any such potential Transferee that has not been timely indicated by the Company to be enter into a Restricted Transferee shall not be considered a Restricted Transferee and the Stockholder shall be permitted to Transfer to such Person Joinder Agreement pursuant to the terms of this Article II after the expiration of such ten (10) day period; and
(e) no Stockholder may Transfer any shares of Series A Preferred Stock to any:
(i) Person or member of such Person’s family (as the term “family” is defined in 34 C.F.R. Section 668.174(c)(4)), that alone or together, (i) exercises or exercised Substantial Control (as the term “substantial control” is defined in 34 C.F.R. § 668.174(c)(3)) over another educational institution or third-party servicer (as that term is defined in 34 C.F.R. Section 668.2) that owes a liability for a violation of a Title IV Program requirement or (ii) owes a liability for a Title IV Program violation;
(ii) Person that has pled guilty to, pled nolo contendere, or been found guilty of, a crime involving the acquisition, use or expenditure of funds under the Title IV Programs or been judicially determined to have committed fraud involving funds under the Title IV Programs or has been administratively or judicially determined to have committed fraud or any other material violation of Law involving funds of any Governmental Authority or Educational Agency; or
(iii) Person that has filed for relief in bankruptcy or had entered against it an order for relief in bankruptcy, or to the knowledge of such Person, has a Subsidiary that has filed for relief in bankruptcy or had entered against it an order for relief in bankruptcy.
(f) Notwithstanding anything in this Agreement or any other Transaction Documents otherwise agree in writing to the contrarybe bound by certain provisions of this Agreement, starting immediately after the pricing of a Public Offering and continuing until the earlier of (x) the date on which the Initial Follow-On Public Offering is consummated pursuant with respect to the Certificate Subject Shares held by any Holder, following termination of Designations and the Registration Rights this Agreement or with respect to such Holder, (y) if then convertedwith respect to any Datek Shares, the date following termination of this Agreement with respect to all Subject Shares to which is 120 days such Datek Shares relate or (or if a registration is suspended, postponed or otherwise not available pursuant z) with respect to the terms of the Registration Rights Agreement, then an additional number of days equal to the length of such suspension, postponement or lack of availability) after the date on which an amount of Conversion Stock equal to or more than the Priority Amount has been registered pursuant to an effective registration statement in accordance with the terms of the Registration Rights Agreement, or if earlier, the date on which at least the Priority Amount under such registration statement has been sold, neither Wengen nor Subject Shares held by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ , following the expiration of the Initial Share Holding Period.
(f) At least five days prior to any Transfer of shares of Common Stock during the Initial Share Holding Period, the transferring party shall offer, sell or otherwise Transfer, or agree to offer, sell or otherwise Transfer, either directly or indirectly, any give written notice of such Person’s Equity Securities in the Company, including pursuant Transfer to a Registration Statement or in a Public Offering; provided, howeverInstinet, the foregoing restriction Holders and the Reuters Parties. Each such notice required by this paragraph shall not apply with respect describe the manner of the proposed Transfer and the number and nature of the securities involved.
(g) Any Transfer or successive Transfer of capital stock of Datek (other than Datek Shares) by an Island Stockholder shall be subject to ▇▇▇▇▇▇ Excluded Securitiesthe provisions of Section 4(l) of the Company Voting Agreement, to the extent provided therein.
Appears in 1 contract
Limitations on Transfer. Subject to and except as provided in this Agreement and applicable Law, an Investor shall be permitted to Transfer from time to time any or all of the Series A Preferred Stock and Conversion Stock beneficially owned by it without the consent or approval of any Person. Each Stockholder hereby agrees that:
(a) no Transfer of Capital Stock shall occur in any manner that violates Until the provisions sixth (6th) anniversary of the Certificate of Incorporation or Bylaws of the Companydate hereof, this Agreement, or any applicable Law, including federal or state securities Laws;
(b) no Management Stockholder may Transfer any shares of Series A Preferred Stock starting at the close of business its Company Shares held on a date not more than fifteen (15) days before the date of the anticipated commencement of a bona fide roadshow for QPO hereof (which date is notified by the Company in writing to the Stockholders before such date) and ending on the earlier of (i) the initial settlement date of the QPO, (ii) twenty-one (21) days (or, if such roadshow includes in-person meetings in any jurisdiction outside the United States, thirty (30) days) after the first day of such roadshow and (iii) fifteen (15) days after such notification by the Company if the roadshow has not commenced by such date; provided, however, that, for so long as this Agreement remains in effect, the Company agrees not to terminate, amend or supplement (or agree to terminate, amend or terminate) any equivalent or substantially similar transfer restrictions in that certain Note Exchange Agreement dated April 15, 2016 among the Company and the other parties there in any way that is substantially more favorable to the Person(s) subject thereto than as set forth herein unless and until the Company terminates, amends or supplements the restrictions set forth in this Section 2.1(b).
(c) during the period commencing on the effective time of a Public Offering and continuing until the earlier of (i) three hundred sixty-six (366) days from the effective time of such Public Offering and (ii) the date on which the shares of Series A Preferred Stock are converted into shares of Common Stock, each Stockholder agrees that it shall not enter into a transaction which would have the same effect, or enter into any swap, hedge or other similar arrangement that transfers, in whole or in part, any of the economic consequences of ownership of the Securities (but, for the avoidance of doubt, not the direct ownership of the shares of Series A Preferred Stock), whether any such aforementioned transaction or arrangement is to be settled by delivery of the Securities or such other securities, in cash or otherwise, or publicly disclose the intention to make any such offer, sale, pledge or disposition, or to enter into any such swap, hedge or other similar arrangement;
(d) no Stockholder may Transfer any shares of Series A Preferred Stock to any Person (any such Person, a “Restricted Transferee”) that is (A) a Competitor of the Company as determined by the Board in its good faith reasonable discretion, (B) listed on Schedule 2.1(d), (C) that is a target of any economic sanctions administered by the Office of Foreign Assets Control of the United States Treasury Department (“Sanctions Target”), or (D) named on (x) a list promulgated by the United Nations Security Council or its committees pursuant to resolutions issued under Chapter VII of the United Nations Charter or (y) the World Bank Listing of Ineligible Firms; provided, however, that notwithstanding the foregoing, a Stockholder may at any time deliver to the Company’s General Counsel (with copies to the Company’s Chief Financial Officer, Treasurer and Corporate Secretary) a written list of potential transferees (includingexcluding, for the avoidance of doubt, any potential Transferee Company Shares acquired pursuant to equity awards issued under the name of which is on any Company’s 2020 Omnibus Incentive Plan) (“Existing Shares”) or securities of the foregoing lists), and, if the Company does not indicate or its Subsidiaries issued in writing within ten (10) Business Days after the submission respect of such list whether it considersExisting Shares, or in substitution for Existing Shares, in connection with any stock split, stock dividend or combination, or any reclassification, recapitalization, merger, consolidation, share exchange or other similar reorganization; provided, that such prohibition shall not apply to Transfers (i) to a Permitted Transferee that is being effected for bona fide estate planning or similar purposes, (ii) made pursuant to applicable laws of descent or distribution or to such Management Stockholder’s legal guardian in the good faith reasonable judgment case of mental incapacity, (iii) with the prior written consent of a majority of the members of the Compensation Committee of the Board, all (iv) in connection with a merger of the Company or any of such potential Transferees solely to be Restricted Transferee(s), then any such potential Transferee that has not been timely indicated tender into a tender or exchange offer commenced by a third party or by the Company Company; provided, that with respect to be an unsolicited tender or exchange offer commenced by a Restricted Transferee shall not be considered a Restricted Transferee and the Stockholder third party, such Transfer shall be permitted only if the Board is affirmatively publicly recommending to the Company’s shareholders that such shareholders tender into such offer, (v) of vested Company Shares in a Public Sale (A) at such time as the Sponsors sell Company Shares in a Public Sale; provided however, that the Management Stockholder may only Transfer a number of vested Company Shares up to such Person the number of Public Sale Eligible Shares, or (B) pursuant to the terms penultimate sentence of this Article II after Section 4.01(a), (vi) of vested Company Shares in a Public Sale or Private Sale following a Private Sale by the expiration Sponsors up to the number of Private Sale Eligible Shares and (vii) to a bona fide charity or donor-advised fund organized under Section 501(c)(3) of the Internal Revenue Code of 1986, as amended; provided that no Management Stockholder may make Transfers pursuant to this clause (vii) in a single calendar year in excess of the lesser of (A) $3,000,000 worth of Company Shares determined based on the VWAP at the time of such Transfer and (B) ten percent (10%) day period; and
(e) no Stockholder may Transfer any shares of Series A Preferred Stock to any:
(i) Person or member of such Person’s family (as the term “family” is defined in 34 C.F.R. Section 668.174(c)(4)), that alone or together, (i) exercises or exercised Substantial Control (as the term “substantial control” is defined in 34 C.F.R. § 668.174(c)(3)) over another educational institution or third-party servicer (as that term is defined in 34 C.F.R. Section 668.2) that owes a liability for a violation of a Title IV Program requirement or (ii) owes a liability for a Title IV Program violation;
(ii) Person that has pled guilty to, pled nolo contendere, or been found guilty of, a crime involving the acquisition, use or expenditure of funds under the Title IV Programs or been judicially determined to have committed fraud involving funds under the Title IV Programs or has been administratively or judicially determined to have committed fraud or any other material violation of Law involving funds of any Governmental Authority or Educational Agency; or
(iii) Person that has filed for relief in bankruptcy or had entered against it an order for relief in bankruptcy, or Company Shares subject to the knowledge of such Person, has a Subsidiary that has filed for relief in bankruptcy or had entered against it an order for relief in bankruptcy.
(f) Notwithstanding anything restrictions on Transfer set forth in this Agreement or any other Transaction Documents to Section 4.01 held by such Management Stockholder at the contrary, starting immediately after beginning of the pricing calendar year in which such Transfer takes place. If at the time of a Public Offering Sale by the Sponsors, the Management Stockholder is not permitted to, or chooses not to Transfer all such Public Sale Eligible Shares and continuing until Private Sale Eligible Shares, the earlier Management Stockholder shall retain the right to Transfer at a future date in a Public Sale, a number of vested Company Shares equal to the lesser of (x) the number of vested Company Shares then owned by the Management Stockholder as of such future date on which the Initial Follow-On Public Offering is consummated pursuant to the Certificate of Designations and the Registration Rights Agreement or (y) if then convertedthat portion of such Public Sale Eligible Shares and Private Sale Eligible Shares which the Management Stockholder was not permitted to Transfer, or chose not to Transfer in a prior Public Sale. For the avoidance of doubt, the date which is 120 days (number of Public Sale Eligible Shares and Private Sale Eligible Shares shall be cumulative and increase with each Public Sale or if Private Sale by the Sponsors, but be reduced for the number of vested Company Shares Transferred by a registration is suspended, postponed or otherwise not available Management Stockholder pursuant to the terms Section 4.01(a)(iv) or Section 4.01(a)(v).
(b) The limitations on Transfers of Company Shares set forth in this Article IV are in addition to any restrictions set forth in the Registration Rights Agreement, then an additional number of days equal to any “lock up” restrictions imposed by the length of such suspensionunderwriters in connection with any Public Offering, postponement any other plan, program, contract, agreement or lack of availability) after the date on which an amount of Conversion Stock equal to or more than the Priority Amount has been registered policy pursuant to an effective registration statement which the Company Shares may be subject, and any restrictions imposed by applicable law.
(c) Any purported Transfer of Company Shares other than in accordance with this Agreement shall be null and void, and the Company shall refuse to recognize any such Transfer for any purpose and shall not, and shall cause any transfer agent not to, reflect in its records any change in record ownership of Company Shares pursuant to any such Transfer.
(d) Except as provided in the Registration Rights Agreement, any Stockholder that proposes to Transfer Company Shares in accordance with the terms of and conditions hereof shall be responsible for any expenses incurred by the Registration Rights Agreement, or if earlier, the date on which at least the Priority Amount under Company in connection with such registration statement has been sold, neither Wengen nor ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ shall offer, sell or otherwise Transfer, or agree to offer, sell or otherwise Transfer, either directly or indirectly, any of such Person’s Equity Securities in the Company, including pursuant to a Registration Statement or in a Public Offering; provided, however, the foregoing restriction shall not apply with respect to ▇▇▇▇▇▇ Excluded Securities.
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Limitations on Transfer. Subject to (a) The Stockholders other than Silver Lake and except as provided in this Agreement and applicable Lawany Silver Lake Affiliated Person (collectively, an Investor the “Restricted Stockholders”) shall not be permitted to Transfer from time to time all or any or all portion of the Series A Preferred Stock and Conversion Stock beneficially owned by it without the consent or approval of any Person. Each Stockholder hereby agrees thattheir Restricted Shares other than:
(ai) no Transfer to any Permitted Transferee in accordance with the terms of Capital Stock shall occur Section 4.02, provided, that, in the case of any manner Restricted Stockholder that violates the provisions of the Certificate of Incorporation or Bylaws of the Companyis a partnership, this Agreementlimited liability company, or any applicable Lawforeign equivalent thereof, including federal any Transfer to a partner, member or state securities Lawsforeign equivalent thereof of such Restricted Stockholder, may only be made as a pro rata distribution in accordance with such Restricted Stockholder’s governing documents;
(bii) no Stockholder may Transfer any shares of Series A Preferred Stock starting at the close of business on a date not more than fifteen (15) days before the date of the anticipated commencement of a bona fide roadshow for QPO (which date is notified by the Company in writing prior to the Stockholders before such date) and ending on the earlier of (iA) the initial settlement date second (2nd) anniversary of the QPO, (ii) twenty-one (21) days (or, if such roadshow includes in-person meetings in any jurisdiction outside the United States, thirty (30) days) after the first day of such roadshow IPO Closing and (iii) fifteen (15) days after such notification by the Company if the roadshow has not commenced by such date; provided, however, that, for so long as this Agreement remains in effect, the Company agrees not to terminate, amend or supplement (or agree to terminate, amend or terminate) any equivalent or substantially similar transfer restrictions in that certain Note Exchange Agreement dated April 15, 2016 among the Company and the other parties there in any way that is substantially more favorable to the Person(s) subject thereto than as set forth herein unless and until the Company terminates, amends or supplements the restrictions set forth in this Section 2.1(b).
(c) during the period commencing on the effective time of a Public Offering and continuing until the earlier of (i) three hundred sixty-six (366) days from the effective time of such Public Offering and (iiB) the date on which the shares of Series A Preferred Stock are converted into shares number of Common StockShares beneficially owned, each Stockholder agrees that it shall not enter into a transaction which would have the same effectdirectly or indirectly, or enter into any swap, hedge or other similar arrangement that transfers, in whole or in part, any by Silver Lake has decreased to 50% of the economic consequences of ownership of Post-IPO Shares held by Silver Lake (the Securities (but, for the avoidance of doubt, not the direct ownership of the shares of Series A Preferred Stock“Initial Holding Period”), whether any such aforementioned transaction or arrangement is with the consent of Silver Lake and subject to be settled by delivery the tag-along rights and drag-along rights provisions of the Securities or such other securities, in cash or otherwise, or publicly disclose the intention to make any such offer, sale, pledge or disposition, or to enter into any such swap, hedge or other similar arrangementthis Article IV;
(diii) no Stockholder may Transfer any shares of Series A Preferred Stock after the Initial Holding Period, to any Person (any such PersonTransferee, a “Restricted Transferee”) that is (A) a Competitor of the Company as determined by the Board in its good faith reasonable discretionwithout consent, (B) listed on Schedule 2.1(d), (C) that is a target of any economic sanctions administered by the Office of Foreign Assets Control of the United States Treasury Department (“Sanctions Target”), or (D) named on (x) a list promulgated by the United Nations Security Council or its committees pursuant to resolutions issued under Chapter VII of the United Nations Charter or (y) the World Bank Listing of Ineligible Firms; provided, however, that notwithstanding the foregoing, a Stockholder may at any time deliver subject only to the Company’s General Counsel tag-along rights and drag-along rights provisions of this Article IV;
(with copies to the Company’s Chief Financial Officer, Treasurer and Corporate Secretaryiv) in a written list of potential transferees (including, for the avoidance of doubt, any potential Transferee the name of which is on any of the foregoing lists), and, if the Company does not indicate in writing within ten (10) Business Days after the submission of such list whether it considers, in the good faith reasonable judgment of the Board, all or any of such potential Transferees to be Restricted Transferee(s), then any such potential Transferee that has not been timely indicated by the Company to be a Restricted Transferee shall not be considered a Restricted Transferee and the Stockholder shall be permitted to Transfer to such Person registered public offering pursuant to the terms of this Article II after the expiration of such ten Registration Rights Agreement;
(10v) day periodas a Tagging Stockholder in accordance with Section 4.04;
(vi) as a Restricted Stockholder in accordance with Section 4.05; and
(evii) in the case of each of ▇▇▇▇▇▇ and Spanicciati, up to a number of shares equal to one percent (1%) of the issued and outstanding Common Shares in any twelve month period pursuant to Rule 144.
(b) Notwithstanding the foregoing, in no event shall any Restricted Stockholder be entitled to Transfer its Restricted Shares to any Person considered by the Board of Directors or Silver Lake to be (i) an actual or potential competitor of, or (ii) otherwise adverse to, the Company (a “Adverse Party”) or any other Person who (directly or indirectly) (A) holds an ownership interest in such Adverse Party equal to three percent (3%) or more of the outstanding voting securities of such Adverse Party or (B) has designated, or has the right to designate, a member of the board of directors of such Adverse Party, in each case without the approval of the Silver Lake, such approval being required only for so long as Silver Lake holds greater than 5% of the issued and outstanding Common Shares, except for Transfers in any bona fide underwritten public offering or sales pursuant to Rule 144 permitted by Section 4.01(a)(vii). In addition, no Stockholder may shall be entitled to Transfer its Common Shares at any shares of Series A Preferred Stock to anytime if such Transfer would:
(i) Person violate the Securities Act, or member of such Person’s family any state (as or other jurisdiction) securities or “Blue Sky” laws applicable to the term “family” is defined in 34 C.F.R. Section 668.174(c)(4)), that alone Company or together, (i) exercises or exercised Substantial Control (as the term “substantial control” is defined in 34 C.F.R. § 668.174(c)(3)) over another educational institution or third-party servicer (as that term is defined in 34 C.F.R. Section 668.2) that owes a liability for a violation of a Title IV Program requirement or (ii) owes a liability for a Title IV Program violationCommon Shares;
(ii) Person that has pled guilty tocause the Company to become subject to the registration requirements of the U.S. Investment Company Act of 1940, pled nolo contendere, or been found guilty of, a crime involving the acquisition, use or expenditure of funds under the Title IV Programs or been judicially determined as amended from time to have committed fraud involving funds under the Title IV Programs or has been administratively or judicially determined to have committed fraud or any other material violation of Law involving funds of any Governmental Authority or Educational Agencytime; or
(iii) Person that has filed for relief be a non-exempt “prohibited transaction” under ERISA or the Code or cause all or any portion of the assets of the Company to constitute “plan assets” under ERISA or Section 4975 of the Code. In the event of a purported Transfer by a Stockholder of any Common Shares in bankruptcy or had entered against it an order for relief in bankruptcyviolation of the provisions of this Agreement, or such purported Transfer will be void and of no effect, and the Company will not give effect to the knowledge of such Person, has a Subsidiary that has filed for relief in bankruptcy or had entered against it an order for relief in bankruptcyTransfer.
(fc) Notwithstanding anything Each certificate or securities evidenced on the books and records of the transfer agent, as applicable, evidencing the Restricted Shares shall bear the following restrictive legend, either as an endorsement or on the face thereof: THE SALE, ASSIGNMENT, TRANSFER OR OTHER DISPOSITION OF THE SECURITIES EVIDENCED HEREBY IS RESTRICTED BY THE TERMS OF A STOCKHOLDERS AGREEMENT, DATED AS OF [•], 2016, COPIES OF WHICH ARE ON FILE WITH THE ISSUER OF THIS CERTIFICATE. NO SALE, ASSIGNMENT, TRANSFER OR OTHER DISPOSITION SHALL BE EFFECTIVE UNLESS AND UNTIL THE TERMS AND CONDITIONS OF SUCH STOCKHOLDERS’ AGREEMENT HAVE BEEN COMPLIED WITH IN FULL. THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE SECURITIES LAWS OF ANY OTHER JURISDICTION AND MAY NOT BE SOLD OR TRANSFERRED OTHER THAN IN ACCORDANCE WITH THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED (OR OTHER APPLICABLE LAW), OR AN EXEMPTION THEREFROM.
(d) In the event that one or more of the restrictive legend set forth in this Agreement or any other Transaction Documents Section 4.01(c) has ceased to the contrary, starting immediately after the pricing of a Public Offering and continuing until the earlier of (x) the date on which the Initial Follow-On Public Offering is consummated pursuant to the Certificate of Designations and the Registration Rights Agreement or (y) if then convertedbe applicable, the date which is 120 days (Company shall provide or if a registration is suspended, postponed or otherwise not available pursuant shall cause its transfer agent to the terms of the Registration Rights Agreement, then an additional number of days equal to the length of such suspension, postponement or lack of availability) after the date on which an amount of Conversion Stock equal to or more than the Priority Amount has been registered pursuant to an effective registration statement in accordance with the terms of the Registration Rights Agreementprovide any Stockholder, or its respective transferees, at their request, without any expense to such Persons (other than applicable transfer taxes and similar governmental charges, if earlierany), the date on which at least the Priority Amount under such registration statement has been soldwith, neither Wengen nor ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ shall offer, sell or otherwise Transfer, or agree to offer, sell or otherwise Transfer, either directly or indirectly, any of such Person’s Equity Securities in the Companycase of securities evidenced by certificates, including pursuant to a Registration Statement or in a Public Offering; provided, however, new certificates for such securities of like tenor not bearing the foregoing restriction shall not apply legend with respect to ▇▇▇▇▇▇ Excluded Securitieswhich the restriction has ceased and terminated or, in the case of securities evidenced on the books and records of the transfer agent, with a securities entry that is free of any restrictive notations corresponding to such legend.
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