Common use of New Issuance Clause in Contracts

New Issuance. Following the Closing, if the Company proposes to issue (a “New Issuance”) any equity (including shares of Common Stock, Non-Voting Common Stock or shares of preferred stock), or any securities, options or debt convertible or exchangeable into equity or that include an equity component (any such security, a “New Security”), the Company shall provide written notice of such proposed New Issuance to each Qualifying Purchaser no later than fifteen (15) Business Days prior to the anticipated issuance date (the “Preemptive Rights Notice”). Each Qualifying Purchaser shall have the right to purchase for cash, at the price and on the same terms and conditions and at the same time as the New Issuance, such number of New Securities as are required to enable it to maintain its proportionate Common Stock-equivalent interest in the Company immediately prior to any such issuance of New Securities. The Preemptive Rights Notice shall set forth all material terms and conditions of the New Issuance, including the number of New Securities proposed to be issued, the issue price and the maximum number of New Securities that the Qualifying Purchaser may purchase the New Issuance pursuant to the immediately preceding sentence. Notwithstanding anything to the contrary, herein, no Qualifying Purchaser shall have any Preemptive Rights in connection with (i) any Common Stock or other securities issuable upon the exercise or conversion of any securities of the Company outstanding as of the date hereof or issued or contemplated to be issued pursuant to this Agreement and the other Transaction Documents; (ii) pursuant to the granting or exercise of employee stock options, restricted stock or other stock incentives pursuant to the Company's stock incentive plans approved by the board of directors or the issuance of stock pursuant to the Company's employee stock purchase plan approved by the board of directors or similar plan where stock is being issued or offered to a trust, other entity or otherwise, for the benefit of any employees, officers or directors of the Company, in each case in the ordinary course of providing incentive compensation; or (iii) issuances of capital stock as full or partial consideration for a merger, acquisition, joint venture, strategic alliance, license agreement or other similar nonfinancing transaction.

New Issuance. Following Until the ClosingRoundball Maturity Date with respect to Roundball and the ▇▇▇▇▇ Maturity Date with respect to the ▇▇▇▇▇ Trust, if the Company Borrower proposes to issue any securities (a including any Equity Interests of Borrower and any debt securities) (“New Issuance”) any equity (including shares of Common Stock, Non-Voting Common Stock or shares of preferred stock), or any securities, options or debt convertible or exchangeable into equity or that include an equity component (any such security, a “New SecuritySecurities”), each Lender will have the Company option to purchase a portion of such New Securities equal to such Lender’s proportionate ownership interest in the Common Stock then issued and outstanding immediately prior to such issuance. For purposes of the preceding sentence, each Lender’s ownership interest in the Common Stock shall provide be determined by assuming such Lender has converted its Note, in whole, into the Conversion Shares. Borrower shall give Lenders at least twenty (20) days prior written notice of any such proposed issuance of New Issuance Securities, setting forth the number, terms and purchase consideration of the New Securities. Borrower shall offer to each Qualifying Purchaser no later than fifteen (15) Business Days prior to Lenders the anticipated issuance date (the “Preemptive Rights Notice”). Each Qualifying Purchaser shall have the right opportunity to purchase for cash, such New Securities at the price and same price, on the same terms and conditions and at the same time as the New Issuance, such number of New Securities as Shares are required to enable it to maintain its proportionate Common Stock-equivalent interest in the Company immediately prior to any such issuance of New Securities. The Preemptive Rights Notice shall set forth all material terms and conditions of the New Issuance, including the number of New Securities proposed to be issuedissued by Borrower. Each Lender may exercise its option under this Section 8.1 by delivering an irrevocable written notice to Borrower not more than fifteen (15) days after delivery of Borrower’s notice to Lenders of the proposed issuance. Borrower may, during the issue price and sixty (60) day period following the maximum number expiration of the period provided above, offer the unsubscribed portion of such New Securities that the Qualifying Purchaser may purchase the New Issuance pursuant are not purchased by Lenders to any Person or Persons upon terms no more favorable to the immediately preceding sentence. Notwithstanding anything offeree than those specified in the notice given by Borrower to the contrary, herein, no Qualifying Purchaser shall have any Preemptive Rights in connection with (i) any Common Stock or other securities issuable upon the exercise or conversion of any securities of the Company outstanding as of the date hereof or issued or contemplated to be issued Lenders pursuant to this Agreement Section 8. 1. If Borrower does not enter into an agreement for the sale of such New Securities within such period, or if such agreement is not consummated within sixty (60) days of the execution thereof, the right provided hereunder will be deemed to be revived and the other Transaction Documents; (ii) pursuant to the granting or exercise of employee stock options, restricted stock or other stock incentives pursuant to the Company's stock incentive plans approved by the board of directors or the issuance of stock pursuant to the Company's employee stock purchase plan approved by the board of directors or similar plan where stock is being issued or such New Securities shall not be offered unless first re-offered to a trust, other entity or otherwise, for the benefit of any employees, officers or directors of the Company, Lenders in each case in the ordinary course of providing incentive compensation; or (iii) issuances of capital stock as full or partial consideration for a merger, acquisition, joint venture, strategic alliance, license agreement or other similar nonfinancing transactionaccordance with this Section 8.1.

New Issuance. Following the Closing, if the Company (i) At any time that BOX Holdings proposes to issue additional Class A Units or Class B Units to a purchaser that is not then a Member (other than pursuant to Section 7.6(a) hereof) from and after the date of this Agreement, BOX Holdings shall notify IB in writing (for purposes of this Section 7.6(b), a “New Issuance Notice”) at least fifteen (15) days prior to any contemplated issuance by BOX Holdings of any additional Units (for purposes of this Section 7.6(b), a “New Issuance”) any equity (including shares of Common Stock, Non-Voting Common Stock or shares of preferred stock), or any securities, options or debt convertible or exchangeable into equity or that include an equity component setting forth the terms of the New Issuance and the name of the proposed purchaser (any such security, the “Proposed New Member”). (ii) If IB then delivers a written notice to BOX Holdings within ten (10) days after delivery of the New Issuance Notice (the “New SecurityIssuance Period”), expressing a desire to sell a portion of its Class A Units or Class B Units in the Company shall provide written notice of such proposed New Issuance to each Qualifying Purchaser no later than fifteen (15the Proposed New Member, IB shall be entitled to do so pursuant to this Section 7.6(b) Business Days prior up to an amount equal to one-half of the additional Units subject to the anticipated issuance date (the “Preemptive Rights Notice”). Each Qualifying Purchaser shall have the right to purchase for cash, at the price and New Issuance on the same terms. If IB does not elect to sell any of its Units pursuant to this Section 7.6(b), BOX Holdings shall be entitled to sell the offered Units to the Proposed New Member, according to the terms set forth in the New Issuance Notice. (iii) If BOX Holdings wishes to make any New Issuance on terms that differ from the terms in the New Issuance Notice, or more than sixty (60) days after the expiration of the New Issuance Period, the right provided in this Section 7.6(b) shall be deemed to be revived and conditions such New Issuance shall not be made unless first re-offered to IB in accordance with this Section 7.6(b). (iv) The proceeds of any sale made by BOX Holdings without material compliance with the provisions of this Section 7.6(b) shall be deemed to be held in constructive trust in such amount as would have been due to IB if BOX Holdings had complied with this Section 7.6(b) and at the same time as IB had elected to participate in the New Issuance, such number of New Securities as are required to enable it to maintain its proportionate Common Stock-equivalent interest in the Company immediately prior to any such issuance of New Securities. The Preemptive Rights Notice shall set forth all material terms and conditions of the New Issuance, including the number of New Securities proposed to be issued, the issue price and the maximum number of New Securities that the Qualifying Purchaser may purchase the New Issuance pursuant to the immediately preceding sentence. Notwithstanding anything to the contrary, herein, no Qualifying Purchaser shall have any Preemptive Rights in connection with (i) any Common Stock or other securities issuable upon the exercise or conversion of any securities of the Company outstanding as of the date hereof or issued or contemplated to be issued pursuant to this Agreement and the other Transaction Documents; (ii) pursuant to the granting or exercise of employee stock options, restricted stock or other stock incentives pursuant to the Company's stock incentive plans approved by the board of directors or the issuance of stock pursuant to the Company's employee stock purchase plan approved by the board of directors or similar plan where stock is being issued or offered to a trust, other entity or otherwise, for the benefit of any employees, officers or directors of the Company, in each case in the ordinary course of providing incentive compensation; or (iii) issuances of capital stock as full or partial consideration for a merger, acquisition, joint venture, strategic alliance, license agreement or other similar nonfinancing transaction.

New Issuance. Following the Closing, if the Company (i) At any time that BOX Holdings proposes to issue additional Class A Units or Class B Units to a purchaser that is not then a Member (other than pursuant to Section 7.6(a) hereof) from and after the date of this Agreement, BOX Holdings shall notify IB in writing (for purposes of this Section 7.6(b), a “New Issuance Notice”) at least fifteen (15) days prior to any contemplated issuance by BOX Holdings of any additional Units (for purposes of this Section 7.6(b), a “New Issuance”) any equity (including shares of Common Stock, Non-Voting Common Stock or shares of preferred stock), or any securities, options or debt convertible or exchangeable into equity or that include an equity component setting forth the terms of the New Issuance and the name of the proposed purchaser (any such security, the “Proposed New Member”). (ii) If IB then delivers a written notice to BOX Holdings within ten (10) days after delivery of the New Issuance Notice (the “New SecurityIssuance Period”), expressing a desire to sell a portion of its Class A Units or Class B Units in the Company shall provide written notice of such proposed New Issuance to each Qualifying Purchaser no later than fifteen (15the Proposed New Member, IB shall be entitled to do so pursuant to this Section 7.6(b) Business Days prior up to an amount equal to one-half of the additional Units subject to the anticipated issuance date (the “Preemptive Rights Notice”). Each Qualifying Purchaser shall have the right to purchase for cash, at the price and New Issuance on the same terms. If IB does not elect to sell any of its Units pursuant to this Section 7.6(b), BOX Holdings shall be entitled to sell the offered Units to the Proposed New Member, according to the terms set forth in the New Issuance Notice. (iii) If BOX Holdings wishes to make any New Issuance on terms that differ from the terms in the New Issuance Notice, or more than sixty (60) days after the expiration of the New Issuance Period, the right provided in this Section 7.6(b) shall be deemed to be revived and conditions such New Issuance shall not be made unless first re- offered to IB in accordance with this Section 7.6(b). (iv) The proceeds of any sale made by BOX Holdings without material compliance with the provisions of this Section 7.6(b) shall be deemed to be held in constructive trust in such amount as would have been due to IB if BOX Holdings had complied with this Section 7.6(b) and at the same time as IB had elected to participate in the New Issuance, such number of New Securities as are required to enable it to maintain its proportionate Common Stock-equivalent interest in the Company immediately prior to any such issuance of New Securities. The Preemptive Rights Notice shall set forth all material terms and conditions of the New Issuance, including the number of New Securities proposed to be issued, the issue price and the maximum number of New Securities that the Qualifying Purchaser may purchase the New Issuance pursuant to the immediately preceding sentence. Notwithstanding anything to the contrary, herein, no Qualifying Purchaser shall have any Preemptive Rights in connection with (i) any Common Stock or other securities issuable upon the exercise or conversion of any securities of the Company outstanding as of the date hereof or issued or contemplated to be issued pursuant to this Agreement and the other Transaction Documents; (ii) pursuant to the granting or exercise of employee stock options, restricted stock or other stock incentives pursuant to the Company's stock incentive plans approved by the board of directors or the issuance of stock pursuant to the Company's employee stock purchase plan approved by the board of directors or similar plan where stock is being issued or offered to a trust, other entity or otherwise, for the benefit of any employees, officers or directors of the Company, in each case in the ordinary course of providing incentive compensation; or (iii) issuances of capital stock as full or partial consideration for a merger, acquisition, joint venture, strategic alliance, license agreement or other similar nonfinancing transaction.

New Issuance. Following Until the ClosingRoundball Maturity Date with respect to Roundball and the ▇▇▇▇▇ Maturity Date with respect to the ▇▇▇▇▇ Trust, if the Company Borrower proposes to issue (a “New Issuance”) any equity securities (including shares any Equity Interests of Common StockBorrower and any debt securities) ("New Securities"), Non-Voting each Lender will have the option to purchase a portion of such New Securities equal to such Lender's proportionate ownership interest in the Common Stock or shares then issued and outstanding immediately prior to such issuance. For purposes of preferred stock)the preceding sentence, or any securitieseach Lender's ownership interest in the Common Stock shall be determined by assuming such Lender has converted its Note, options or debt convertible or exchangeable in whole, into equity or that include an equity component the Conversion Shares. Borrower shall give Lenders at least twenty (any such security, a “New Security”), the Company shall provide 20) days prior written notice of any such proposed issuance of New Issuance Securities, setting forth the number, terms and purchase consideration of the New Securities. Borrower shall offer to each Qualifying Purchaser no later than fifteen (15) Business Days prior to Lenders the anticipated issuance date (the “Preemptive Rights Notice”). Each Qualifying Purchaser shall have the right opportunity to purchase for cash, such New Securities at the price and same price, on the same terms and conditions and at the same time as the New Issuance, such number of New Securities as Shares are required to enable it to maintain its proportionate Common Stock-equivalent interest in the Company immediately prior to any such issuance of New Securities. The Preemptive Rights Notice shall set forth all material terms and conditions of the New Issuance, including the number of New Securities proposed to be issuedissued by Borrower. Each Lender may exercise its option under this Section 8.1 by delivering an irrevocable written notice to Borrower not more than fifteen (15) days after delivery of Borrower's notice to Lenders of the proposed issuance. Borrower may, during the issue price and sixty (60) day period following the maximum number expiration of the period provided above, offer the unsubscribed portion of such New Securities that the Qualifying Purchaser may purchase the New Issuance pursuant are not purchased by Lenders to any Person or Persons upon terms no more favorable to the immediately preceding sentence. Notwithstanding anything offeree than those specified in the notice given by Borrower to the contrary, herein, no Qualifying Purchaser shall have any Preemptive Rights in connection with (i) any Common Stock or other securities issuable upon the exercise or conversion of any securities of the Company outstanding as of the date hereof or issued or contemplated to be issued Lenders pursuant to this Agreement Section 8. 1. If Borrower does not enter into an agreement for the sale of such New Securities within such period, or if such agreement is not consummated within sixty (60) days of the execution thereof, the right provided hereunder will be deemed to be revived and the other Transaction Documents; (ii) pursuant to the granting or exercise of employee stock options, restricted stock or other stock incentives pursuant to the Company's stock incentive plans approved by the board of directors or the issuance of stock pursuant to the Company's employee stock purchase plan approved by the board of directors or similar plan where stock is being issued or such New Securities shall not be offered unless first re-offered to a trust, other entity or otherwise, for the benefit of any employees, officers or directors of the Company, Lenders in each case in the ordinary course of providing incentive compensation; or (iii) issuances of capital stock as full or partial consideration for a merger, acquisition, joint venture, strategic alliance, license agreement or other similar nonfinancing transactionaccordance with this Section 8.1.

New Issuance. Following the Closing, if the Company proposes to issue (a “New Issuance”a) Upon any equity (including shares of Common Stock, Non-Voting Common Stock or shares of preferred stock), or any securities, options or debt convertible or exchangeable into equity or that include an equity component (any such security, a “New Security”), the Company shall provide written notice of such proposed New Issuance to each Qualifying Purchaser no later than fifteen (15) Business Days prior to the anticipated issuance date (the “Preemptive Rights Notice”). Each Qualifying Purchaser shall have the right to purchase for cash, at the price and on the same terms and conditions and at the same time as the New Issuance, the Issuer shall execute and deliver to the Indenture Trustee for authentication one or more new Series of Notes. Any such number Series of New Securities as are required to enable it to maintain its proportionate Common Stock-equivalent interest Notes shall be substantially in the Company immediately prior form specified in the related Indenture Supplement and shall bear, upon its face, the designation for such Series selected by the Issuer. Except as specified in the Indenture Supplement for any Series as to differing treatment of the Notes within such Series, all Notes of any such issuance Series shall be equally and ratably entitled as provided herein to the benefits hereof without preference, priority or distinction on account of the actual time or times of authentication and delivery (except that any Enhancement provided for any Series shall not be available for any other Series), all in accordance with the terms and provisions of this Indenture and the applicable Indenture Supplement. (b) The Issuer may from time to time issue Series of Notes (each, a "New SecuritiesIssuance"). The Preemptive Rights Notice shall set forth all material terms and conditions of the Issuer may perform a New Issuance, including without the consent of any Noteholder, by notifying the Indenture Trustee, in writing at least three Business Days in advance (a "New Issuance Notice") of the date upon which the New Issuance is to occur (a "New Issuance Date"). Any New Issuance Notice shall state the designation of any Series to be issued on the New Issuance Date and, with respect to each such Series: (x) its Initial Invested Amount (or the method for calculating such Initial Invested Amount), if any, which amount may not be greater than the current principal amount of the Exchangeable Transferor Certificate minus the Minimum Transferor Amount at such time, and (y) its Note Interest Rate (or the method for allocating interest payments or other cash flow to such Series), if any. On the New Issuance Date, the Indenture Trustee shall authenticate and deliver any such Series only upon delivery to it of the following: (A) an Indenture Supplement in form satisfactory to the Indenture Trustee executed by the Issuer and specifying the Principal Terms of such Series, (B) an Opinion of Counsel to the effect that, unless otherwise specified in the related Indenture Supplement, the newly issued Series of Notes (other than any Class of Notes required to be retained by the Transferor) will be characterized as either indebtedness or an interest in a partnership (that is not taxable as a corporation) under existing law for Federal income tax purposes and that the issuance of the newly issued Series of Notes will not have any material adverse impact on the Federal income tax characterization of any outstanding Series of Notes that have been the subject of a previous opinion of tax counsel or result in the Issuer being taxable as an association or as a publicly traded partnership taxable as a corporation for Federal or applicable state tax purposes (such opinion, a "Tax Opinion"), (C) an agreement, if any, pursuant to which the Enhancement Provider agrees to provide Enhancement and (D) written confirmation from each Rating Agency that the New Issuance will not result in the Rating Agency's reducing or withdrawing its rating on any then outstanding Series of Notes rated by it. Upon satisfaction of such conditions, the Indenture Trustee shall issue, as provided above, such Series of Notes. There is no limit to the number of New Securities proposed Issuances that may be performed under this Indenture. (c) In conjunction with a New Issuance, the parties hereto shall execute an Indenture Supplement, which shall specify the relevant terms with respect to any Series of Notes, which may include, without limitation: (i) its name or designation, (ii) an Initial Invested Amount or the method of calculating the Initial Invested Amount, (iii) a Note Interest Rate (or formula for the determination thereof), (iv) the interest payment date or dates and the date or dates from which interest shall accrue, (v) the method of allocating Collections of Principal Receivables for such Series and, if applicable, with respect to other Series and the method by which the principal amount of Notes of such Series shall amortize or accrete and the method for allocating Collections of Finance Charge Receivables and Receivables in Defaulted Accounts, (vi) the names of any accounts to be issuedused by such Series and the terms governing the operation of any such account, (vii) the Servicing Fee Percentage, (viii) the Minimum Transferor Interest Percentage, (ix) the Minimum Aggregate Principal Receivables, (x) the Stated Series Termination Date, (xi) the terms of any Enhancement, (xii) the Enhancement Provider, if any, (xiii) the base rate, if any, (xiv) the Repurchase Terms or the terms on which the Notes of such Series may be remarketed to other investors, (xv) any deposit into any account provided for such Series, (xvi) the number of Classes within such Series, and if more than one Class, the issue price rights and priorities of each such Class, (xvii) the extent to which the Notes will be issuable in temporary or permanent global form and, in such case, the depository for such global certificate or certificates, the terms and conditions, if any, upon which such global certificate may be exchanged in whole or in part for Definitive Notes, and the maximum number manner in which any interest payable on a temporary or global certificate will be paid, (xviii) whether the Notes may be issued in bearer form and any limitations imposed thereon and provisions relating to compliance with applicable laws and rules for bearer instruments, (xix) the priority of such Series with respect to any other Series, (xx) whether Interchange or other fees will be included in the funds available to be paid with respect to such Series, (xxi) whether such Series will or may be paired with any other Series and the Series with which it will be paired, if applicable, (xxii) the Group, if any, to which such Series belongs, and (xxiii) any other relevant terms of such Series (all such terms, the "Principal Terms" of such Series). The terms of such Indenture Supplement may modify or amend the terms of this Indenture solely as applied to such new Series. If on the date of the issuance of such Series there is issued and outstanding no Series of Notes which is currently rated by a Rating Agency, then as a condition to such New Securities Issuance a nationally recognized investment banking firm or commercial bank shall also deliver to the Indenture Trustee an officer's certificate stating, in substance, that the Qualifying Purchaser may purchase the New Issuance pursuant will not have an adverse effect on the timing or distribution of payments to the immediately preceding sentence. Notwithstanding anything to the contrary, herein, no Qualifying Purchaser shall have any Preemptive Rights in connection with (i) any Common Stock or such other securities issuable upon the exercise or conversion Series of any securities of the Company outstanding as of the date hereof or Notes then issued or contemplated to be issued pursuant to this Agreement and the other Transaction Documents; (ii) pursuant to the granting or exercise of employee stock options, restricted stock or other stock incentives pursuant to the Company's stock incentive plans approved by the board of directors or the issuance of stock pursuant to the Company's employee stock purchase plan approved by the board of directors or similar plan where stock is being issued or offered to a trust, other entity or otherwise, for the benefit of any employees, officers or directors of the Company, in each case in the ordinary course of providing incentive compensation; or (iii) issuances of capital stock as full or partial consideration for a merger, acquisition, joint venture, strategic alliance, license agreement or other similar nonfinancing transactionoutstanding.