Rights of First Refusal. If at any time while any of the Arena Notes and/or the Walleye Notes is outstanding, the Company has a bona fide offer of capital or financing from any third party that the Company intends to act upon, then the Company must offer such opportunity on the same terms as such third party’s terms by providing written notice of the offer (an “Offer Notice”) concurrently to the Arena Purchasers, Walleye, Mast Hill Fund, L.P., a Delaware limited partnership (“Mast Hill”), Blue Lake Partners, LLC, a Delaware limited liability company (“Blue Lake”), and Fourth Man, LLC, a Nevada limited liability company (“Fourth Man”), subject to the terms of this Section 9. As used in this Section 9, the term “Offerees” shall mean, collectively, (i) the Arena Purchasers (jointly), (ii) Walleye, (iii) Mast Hill, (iv) Blue Lake and (v) Fourth Man, and, each individually an “Offeree”; provided for the avoidance of doubt that for purposes of this Section 9, the Arena Purchasers shall be considered to be a single Offeree. Within five (5) Business Days after receipt of an Offer Notice by any Offeree (the “Offer Response Period”), such Offeree shall notify the Company in writing (an “Offer Response Notice”) of such Offeree’s election to either (A) provide such capital or financing to the Company on the same terms as such third party’s terms (including without limitation matching the aggregate principal amount of such capital or financing proposed to be provided to the Company by such third party) or (B) waive such Offeree’s right to provide such capital or financing to the Company on the same terms as such third party’s terms. If any Offeree fails to deliver an Offer Response Notice to the Borrower prior to the end of the Offer Response Period, time being of the essence, then such Offeree shall be deemed to have elected option (B) above. In the event (x) more than one Offeree elects to provide such capital or financing to the Company on the same terms as such third party’s terms pursuant to Offer Response Notices sent by each such Offeree to the Company within the Offer Response Period, then each such Offeree shall provide a portion of such capital or financing to the Company pro rata in proportion to the respective ROFR Units (as defined below) of such Offerees, and in all other respects on the same terms as such third party’s terms, (y) only one Offeree elects to provide such capital or financing to the Company on the same terms as such third party’s terms pursuant to an Offer Response Notice sent by such Offeree to the Company within the Offer Response Period, then such Offeree shall provide (and none of the other Offerees shall have the right to provide) such capital or financing to the Company on the same terms as such third party’s terms (including without limitation matching the aggregate principal amount of such capital or financing proposed to be provided to the Company by such third party), or (z) none of the Offerees elects to provide such capital or financing to the Company on the same terms as such third party’s terms pursuant to an Offer Response Notice sent to the Company within the Offer Response Period, then the Company may obtain such capital or financing from such third party, provided the Company obtains such capital or financing from such third party upon the exact same terms and conditions set forth in the Offer Notice. If none of the Offerees elects to provide such capital or financing to the Company on the same terms as such third party’s terms pursuant to an Offer Response Notice sent to the Company within the Offer Response Period, and the Company does not receive the capital or financing from such third party in accordance with the foregoing clause (z) within thirty (30) days after the date of the last Offer Notice, so long as any of the Arena Notes and/or the Walleye Notes remains outstanding at such time, the Company must again offer the capital or financing opportunity on the same terms as such third party’s terms by providing written notice of the offer concurrently to each of the Offerees pursuant to a further Offer Notice as described above, and the process detailed above shall be repeated. All Offer Notices required to be sent to the Arena Purchasers and Walleye under this Section 9 must be sent via electronic mail in accordance with Section 8 hereof. For purposes of allocating the opportunity to provide the capital or financing to the Borrower on the same terms as the applicable third party’s terms to the applicable Offerees under clause (x) of the fourth sentence of this Section 9, the Offerees shall be and hereby are allocated units (with respect to each Offeree, such Offeree’s “ROFR Units”) representing the Offerees’ respective rights in connection with any such allocation of the opportunity, with such ROFR Units being allocated to the Offerees in the following amounts: (i) to the Arena Purchasers (as a single Offeree), 3,900,000 ROFR Units, (ii) to Walleye, 2,149,706 ROFR Units, (iii) to Mast Hill, 367,500 ROFR Units, (iv) to Blue Lake, 262,500 ROFR Units, and (v) to Fourth Man, 156,525 ROFR Units.
Appears in 1 contract
Rights of First Refusal. If at any time while any of the Arena Notes and/or the Walleye Notes is outstanding(a) Except with respect to Transfers permitted pursuant to Section 5.2, the Company has if a bona fide offer of capital or financing from any third party that the Company intends to act upon, then the Company must offer such opportunity on the same terms Stockholder (with Aspen and Atlantis constituting as such third party’s terms by providing written notice of the offer (an “Offer Notice”) concurrently to the Arena Purchasers, Walleye, Mast Hill Fund, L.P., a Delaware limited partnership (“Mast Hill”), Blue Lake Partners, LLC, a Delaware limited liability company (“Blue Lake”), and Fourth Man, LLC, a Nevada limited liability company (“Fourth Man”), subject to the terms of this Section 9. As used in this Section 9, the term “Offerees” shall mean, collectively, (i) the Arena Purchasers (jointly), (ii) Walleye, (iii) Mast Hill, (iv) Blue Lake and (v) Fourth Man, and, each individually an “Offeree”; provided for the avoidance of doubt that single Stockholder for purposes of this Section 95.3) wants to Transfer any shares of Voting Stock to any other Person (other than to a Restricted Transferee or pursuant to a pledge, hypothecation or other similar financing transaction in which the Arena Purchasers transferring Stockholder continues to have the sole and exclusive authority and right to vote the shares subject to such pledge, hypothecation or other financing transaction) in a bona fide transaction, such Stockholder (the "OFFEROR") shall be considered entitled to be a single Offeree. Within five (5) Business Days after receipt do so provided that such Offeror first offers to sell such shares of an Offer Notice by any Offeree Voting Stock to the other Stockholder (the “Offer Response Period”), such Offeree shall notify the Company in writing (an “Offer Response Notice”"OFFEREE") of such Offeree’s election to either (A) provide such capital or financing to the Company on at the same terms as such third party’s terms (including without limitation matching price and the aggregate principal amount of such capital or financing proposed to be provided to the Company by such third party) or (B) waive such Offeree’s right to provide such capital or financing to the Company on the same terms as such third party’s terms. If any Offeree fails to deliver an Offer Response Notice to the Borrower prior to the end of the Offer Response Period, time being of the essence, then such Offeree shall be deemed to have elected option (B) above. In the event (x) more than one Offeree elects to provide such capital or financing to the Company on the same terms as such third party’s terms pursuant to Offer Response Notices sent by each such Offeree to the Company within the Offer Response Period, then each such Offeree shall provide a portion of such capital or financing to the Company pro rata in proportion to the respective ROFR Units (as defined below) of such Offerees, and in all other respects on the same terms as such third party’s terms, (y) only one Offeree elects to provide such capital or financing to the Company on the same terms as such third party’s terms pursuant to an Offer Response Notice sent by such Offeree to the Company within the Offer Response Period, then such Offeree shall provide (and none of the other Offerees shall have the right to provide) such capital or financing to the Company on the same terms as such third party’s terms (including without limitation matching the aggregate principal amount of such capital or financing proposed to be provided to the Company by such third party), or (z) none of the Offerees elects to provide such capital or financing to the Company on the same terms as such third party’s terms pursuant to an Offer Response Notice sent to the Company within the Offer Response Period, then the Company may obtain such capital or financing from such third party, provided the Company obtains such capital or financing from such third party upon the exact same terms and conditions set forth in as the Offer NoticeOfferor would receive from such other Person. If none of the Offerees elects to provide such capital or financing The Offeror shall submit to the Company on and the same Offeree a written notice (the "OFFER NOTICE") stating in reasonable detail such price or other consideration and such terms as and conditions and identifying the Person and all Persons who beneficially own more than five percent (5%) of such third party’s terms pursuant Person, proposing to an purchase the shares of Voting Stock. The Offeree shall have a period of thirty (30) days after the receipt of the Offer Response Notice sent in which to accept or reject such offer. If the Offeree elects to accept such offer, which acceptance must be for all and not part of the Voting Stock offered for sale, it shall so indicate within such thirty (30) day period by notice to the Company within Offeror. The notice required to be given by the Offer Response PeriodOfferee shall specify a date for the closing of the purchase which, subject to the expiration or early termination of any waiting period required by any Governmental Authority and the Company does receipt of any required approvals of any Governmental Authority, shall not receive the capital or financing from such third party in accordance with the foregoing clause (z) within be more than thirty (30) days after the date of the last giving of such notice.
(b) If the Offeree does not exercise its right to purchase all of the shares of Voting Stock offered for sale pursuant to the provisions of this Section 5.3, the Offeror of such shares of Voting Stock shall have the right to sell to the Person identified in the Offer Notice, so long as any subject to the provisions of the Arena Notes and/or the Walleye Notes remains outstanding at this Agreement, all (but not less than all) of such time, the Company must again offer the capital or financing opportunity shares of Voting Stock on the same terms as and conditions including the price or other consideration specified in the Offer Notice, free from the restrictions of Section 5.1 of this Agreement (for purposes of such third party’s terms by providing written notice specific transaction, but not for purposes of any subsequent transaction) in a bona fide transaction, for a period of ninety (90) days from the offer concurrently date that the Offer expires hereunder, provided that any such purchaser shall prior to each of the Offerees pursuant to a further Offer Notice as described abovesuch transfer, and the process detailed above if such purchaser shall be repeated. All Offer Notices required receiving shares of Voting Stock, other than shares of Class A Common Stock, agree in writing to be sent to the Arena Purchasers and Walleye under this Section 9 must be sent via electronic mail in accordance with Section 8 hereof. For purposes of allocating the opportunity to provide the capital or financing to the Borrower on the same terms as the applicable third party’s terms to the applicable Offerees under clause (x) of the fourth sentence of this Section 9, the Offerees shall be and hereby are allocated units (with respect to each Offeree, such Offeree’s “ROFR Units”) representing the Offerees’ respective rights in connection with any such allocation of the opportunity, with such ROFR Units being allocated to the Offerees in the following amounts: (i) to the Arena Purchasers (as a single Offeree), 3,900,000 ROFR Units, (ii) to Walleye, 2,149,706 ROFR Units, (iii) to Mast Hill, 367,500 ROFR Units, (iv) to Blue Lake, 262,500 ROFR Units, and (v) to Fourth Man, 156,525 ROFR Units.bound
Appears in 1 contract
Sources: Stockholders' Agreement (America Online Latin America Inc)
Rights of First Refusal. If at any time while any 12.1 The Issuer will notify the Agent of the Arena Notes and/or terms of any further equity financing, corporate finance, or investment banking services that it requires or proposes to obtain during the Walleye Notes is outstanding12 months following the Closing Date of the Qualifying Transaction and the Agent will have the right of first refusal to act as lead selling agent in connection with any such financing. In addition, the Company has a bona fide offer Agent will have the right of capital or financing from any third party that the Company intends first refusal to act upon, then as the Company must offer such opportunity Issuer's sponsor in connection with the Qualifying Transaction on the same terms as such third party’s terms that for an equity financing by providing written notice the Issuer within 12 months following the Listing Date.
12.2 The rights of first refusal described above in subsection 12.1 must be exercised by the Agent within 15 days following the receipt of the offer notice referred to in subsection 12.1 by notifying the Issuer that it: (an “Offer Notice”i) concurrently will act as lead selling agent on the terms set out in the notice or subject to the Arena Purchasers, Walleye, Mast Hill Fund, L.P., a Delaware limited partnership (“Mast Hill”), Blue Lake Partners, LLC, a Delaware limited liability company (“Blue Lake”), and Fourth Man, LLC, a Nevada limited liability company (“Fourth Man”), subject agreeing to the terms of this Section 9. As used in this Section 9and conditions, as the term “Offerees” shall mean, collectively, (i) the Arena Purchasers (jointly), case may be; and/or (ii) Walleyewill act as the Issuer's sponsor in connection with the Issuer's Qualifying Transaction, (iii) Mast Hill, (iv) Blue Lake and (v) Fourth Man, and, each individually an “Offeree”; provided as applicable.
12.3 If the Agent fails to give notice within the 15 days that it will act as lead selling agent for such financing upon the terms set out in the notice and/or sponsor for the avoidance of doubt that for purposes of this Section 9Issuer's Qualifying Transaction, the Arena Purchasers shall Issuer will then be considered free to be a single Offeree. Within five (5) Business Days after receipt of an Offer Notice by any Offeree (the “Offer Response Period”), such Offeree shall notify the Company in writing (an “Offer Response Notice”) of such Offeree’s election make other arrangements to either (A) provide such capital or obtain financing to the Company from another source on the same terms as such third party’s or on terms (including without limitation matching the aggregate principal amount of such capital or financing proposed to be provided no less favourable to the Company by such third party) or (B) waive such Offeree’s right Issuer, and/or engage another sponsor for its Qualifying Transaction.
12.4 The rights of first refusal will not terminate with respect to provide such capital or financing to any future offerings and/or sponsorship of the Company Qualifying Transaction if, on receipt of any notice from the same terms as such third party’s terms. If any Offeree Issuer under this Section, the Agent fails to deliver an Offer Response Notice to the Borrower prior to the end of the Offer Response Period, time being of the essence, then such Offeree shall be deemed to have elected option (B) above. In the event (x) more than one Offeree elects to provide such capital or financing to the Company on the same terms as such third party’s terms pursuant to Offer Response Notices sent by each such Offeree to the Company within the Offer Response Period, then each such Offeree shall provide a portion of such capital or financing to the Company pro rata in proportion to the respective ROFR Units (as defined below) of such Offerees, and in all other respects on the same terms as such third party’s terms, (y) only one Offeree elects to provide such capital or financing to the Company on the same terms as such third party’s terms pursuant to an Offer Response Notice sent by such Offeree to the Company within the Offer Response Period, then such Offeree shall provide (and none of the other Offerees shall have the right to provide) such capital or financing to the Company on the same terms as such third party’s terms (including without limitation matching the aggregate principal amount of such capital or financing proposed to be provided to the Company by such third party), or (z) none of the Offerees elects to provide such capital or financing to the Company on the same terms as such third party’s terms pursuant to an Offer Response Notice sent to the Company within the Offer Response Period, then the Company may obtain such capital or financing from such third party, provided the Company obtains such capital or financing from such third party upon the exact same terms and conditions set forth in the Offer Notice. If none of the Offerees elects to provide such capital or financing to the Company on the same terms as such third party’s terms pursuant to an Offer Response Notice sent to the Company within the Offer Response Period, and the Company does not receive the capital or financing from such third party in accordance with the foregoing clause (z) within thirty (30) days after the date of the last Offer Notice, so long as exercise any of the Arena Notes and/or the Walleye Notes remains outstanding at such time, the Company must again offer the capital or financing opportunity on the same terms as such third party’s terms by providing written notice rights.
12.5 The rights of the offer concurrently to each of the Offerees pursuant to a further Offer Notice as described above, and the process detailed above shall be repeated. All Offer Notices required to be sent to the Arena Purchasers and Walleye first refusal granted under this Section 9 must be sent via electronic mail will terminate if the Offering is not completed within the period provided in accordance with Section 8 hereof. For purposes of allocating the opportunity to provide the capital or financing to the Borrower on the same terms as the applicable third party’s terms to the applicable Offerees under clause (x) of the fourth sentence of this Section 9, the Offerees shall be and hereby are allocated units (with respect to each Offeree, such Offeree’s “ROFR Units”) representing the Offerees’ respective rights in connection with any such allocation of the opportunity, with such ROFR Units being allocated to the Offerees in the following amounts: (i) to the Arena Purchasers (as a single Offeree), 3,900,000 ROFR Units, (ii) to Walleye, 2,149,706 ROFR Units, (iii) to Mast Hill, 367,500 ROFR Units, (iv) to Blue Lake, 262,500 ROFR Units, and (v) to Fourth Man, 156,525 ROFR UnitsAgreement.
Appears in 1 contract
Sources: Agency Offering Agreement
Rights of First Refusal. If at any time while any
15.1 The Issuer will notify the Agent (the “Financing Notice”) of the Arena Notes and/or terms of any further financing (private or public) that it requires or proposes to obtain during the Walleye Notes term of this Agreement and until that day which is outstanding24 months from the Closing Date and the Agent will have the right of first refusal to provide such financing. For greater certainty, the Company has a bona fide offer right of capital or financing from any third party that first refusal set out in this section includes, but is not limited to, the Company intends right of the Agent to act uponas the sole bookrunner, lead manager and exclusive placement agent for such financing.
15.2 The Issuer will also notify the Agent (the “Financial Advice Notice”) if and when the Issuer requires or proposes to obtain financial advisory services of the type performed or normally performed by a broker or investment dealer, with respect to general corporate advisory matters or for any material corporate transaction such as an amalgamation, merger, takeover bid, joint venture, plan of arrangement or reorganization, or any other such transaction, during the term of this Agreement and until that day which is 24 months after the Closing Date, and the Agent will have the right of first refusal to exclusively provide such financial advisory services.
15.3 The rights of first refusal must be exercised by the Agent:
(a) within five business days following the receipt of the Financing Notice by notifying the Issuer that it will provide such financing on the terms set out in the Financing Notice; or
(b) within five business days following the receipt of the Financial Advice Notice by notifying the Issuer that it will provide financial advice on terms to be mutually agreed upon by the parties.
15.4 If the Agent fails to give the applicable notice with the time specified, the Issuer will then the Company must offer such opportunity be free to make other arrangements to obtain financing or financial advisory services from another source on the same terms as such third party’s or on terms by providing written notice of the offer (an “Offer Notice”) concurrently no less favourable to the Arena PurchasersIssuer than that specified in the Financing Notice or the Financial Advice Notice, Walleye, Mast Hill Fund, L.P., a Delaware limited partnership (“Mast Hill”), Blue Lake Partners, LLC, a Delaware limited liability company (“Blue Lake”), and Fourth Man, LLC, a Nevada limited liability company (“Fourth Man”)as the case may be, subject to obtaining the terms of this Section 9. As used in this Section 9, the term “Offerees” shall mean, collectively, (i) the Arena Purchasers (jointly), (ii) Walleye, (iii) Mast Hill, (iv) Blue Lake and (v) Fourth Man, and, each individually an “Offeree”; provided for the avoidance of doubt that for purposes of this Section 9, the Arena Purchasers shall be considered to be a single Offeree. Within five (5) Business Days after receipt of an Offer Notice by any Offeree (the “Offer Response Period”), such Offeree shall notify the Company in writing (an “Offer Response Notice”) of such Offeree’s election to either (A) provide such capital or financing to the Company on the same terms as such third party’s terms (including without limitation matching the aggregate principal amount of such capital or financing proposed to be provided to the Company by such third party) or (B) waive such Offeree’s right to provide such capital or financing to the Company on the same terms as such third party’s terms. If any Offeree fails to deliver an Offer Response Notice to the Borrower prior to the end acceptance of the Offer Response Period, time being of the essence, then such Offeree shall be deemed to have elected option (B) above. In the event (x) more than one Offeree elects to provide such capital or financing to the Company on the same terms as such third party’s terms pursuant to Offer Response Notices sent by each such Offeree to the Company within the Offer Response Period, then each such Offeree shall provide a portion of such capital or financing to the Company pro rata in proportion to the respective ROFR Units (as defined below) of such Offerees, and in all other respects on the same terms as such third party’s terms, (y) only one Offeree elects to provide such capital or financing to the Company on the same terms as such third party’s terms pursuant to an Offer Response Notice sent by such Offeree to the Company within the Offer Response Period, then such Offeree shall provide (and none of the other Offerees shall have the right to provide) such capital or financing to the Company on the same terms as such third party’s terms (including without limitation matching the aggregate principal amount of such capital or financing proposed to be provided to the Company by such third party), or (z) none of the Offerees elects to provide such capital or financing to the Company on the same terms as such third party’s terms pursuant to an Offer Response Notice sent to the Company within the Offer Response Period, then the Company may obtain such capital or financing from such third party, provided the Company obtains such capital or financing from such third party upon the exact same terms and conditions set forth in the Offer Notice. If none of the Offerees elects to provide such capital or financing to the Company on the same terms as such third party’s terms pursuant to an Offer Response Notice sent to the Company within the Offer Response Period, and the Company does not receive the capital or financing from such third party in accordance with the foregoing clause (z) within thirty (30) days after the date of the last Offer NoticeRegulatory Authorities, so long as any the arrangements with such other source are entered into and documented in writing within 30 days of the Arena Notes and/or Agent’s failure to exercise its right of first refusal.
15.5 The rights of first refusal will not terminate if, on receipt of any Financing Notice or Financial Advice Notice from the Walleye Notes remains outstanding at such timeIssuer, the Company must again offer Agent fails to exercise the capital or financing opportunity on the same terms as such third party’s terms by providing written notice of the offer concurrently to each of the Offerees pursuant to a further Offer Notice as described above, rights.
15.6 The Issuer represents and the process detailed above shall be repeated. All Offer Notices required to be sent warrants to the Arena Purchasers and Walleye under Agent that it is not bound by, or otherwise subject to, any other right of first refusal, right of first offer or other agreement or document which would conflict with this Section 9 must be sent via electronic mail in accordance with Section 8 hereof. For purposes of allocating Agreement or would otherwise impair or prevent the opportunity to provide the capital or financing to the Borrower on the same terms as the applicable third party’s terms to the applicable Offerees under clause (x) of the fourth sentence of this Section 9, the Offerees shall be and hereby are allocated units (with respect to each Offeree, such Offeree’s “ROFR Units”) representing the Offerees’ respective rights in connection with any such allocation of the opportunity, with such ROFR Units being allocated to the Offerees in the following amounts: (i) to the Arena Purchasers (as a single Offeree), 3,900,000 ROFR Units, (ii) to Walleye, 2,149,706 ROFR Units, (iii) to Mast Hill, 367,500 ROFR Units, (iv) to Blue Lake, 262,500 ROFR Units, and (v) to Fourth Man, 156,525 ROFR UnitsIssuer from performing its obligations hereunder.
Appears in 1 contract
Sources: Agency Agreement
Rights of First Refusal. If (a) Subject to Section 4.1(c), for so long as a TMG Entity controls the General Partner, the Partnership hereby grants to TMG, on behalf of itself and the other TMG Entities, a right of first refusal on any proposed Transfer (other than a grant of a security interest to a bona fide third party lender or a Transfer to another Partnership Group Member) of assets held by a Partnership Group Member; provided, that TMG agrees to pay or to cause such other TMG Entity to pay no less than 105% of the purchase price offered by a bona fide third party prospective acquiror (a “Proposed Transferee”). In addition, subject to Section 4.1(c), for so long as a TMG Entity controls the General Partner, the Partnership hereby grants to the TMG Entities a right of first refusal with respect to having the exclusive use of any petroleum product tankage capacity that (i) is put into commercial service (including any previously out of service tanks, refurbished tanks or newly constructed tanks that are put into service) at any time while and from time to time on and after the Effective Date, or (ii) was subject to a terminaling services agreement as of the Effective Date that expires or is terminated subsequent to the Effective Date (excluding any contract which is renewable solely at the option of the customer); provided, that TMG agrees to pay or to cause another TMG Entity to pay no less than 105% of the fees for terminaling services offered by a proposed terminal customer (a “Proposed Customer”).
(b) Subject to Section 4.1(c), for so long as a TMG Entity controls the General Partner, TMG, on behalf of itself and the other TMG Entities, hereby grants to the Partnership a right of first refusal on any proposed Transfer (other than a grant of a security interest to a bona fide third party lender, a Transfer to another TMG Entity or a Transfer consummated pursuant to an Asset Exchange Transaction) of any Option Asset prior to the exercise period of the applicable Option with respect thereto; provided, in each case, that the Partnership agrees to pay, or to cause another Partnership Group Member to pay, no less than 105% of the purchase price offered by a Proposed Transferee.
(c) The Parties acknowledge that any potential Transfer of assets pursuant to this Article IV (such assets, the “ROFR Assets”) or any potential agreement for the use of any of the Arena Notes and/or petroleum product tankage capacity described in Section 4.1(a) by a Proposed Customer (the Walleye Notes is outstanding“ROFR Services”) shall be subject to, the Company has conditioned on obtaining any and all necessary consents of equityholders, noteholders or other securityholders, governmental authorities, lenders or other third parties. Any tangible assets received by a bona fide offer of capital or financing from TMG Entity in an Asset Exchange Transaction in exchange for any third party that the Company intends to act upon, then the Company must offer such opportunity on the same terms as such third party’s terms by providing written notice of the offer ROFR Assets described in paragraph (an “Offer Notice”b) concurrently to the Arena Purchasers, Walleye, Mast Hill Fund, L.P., a Delaware limited partnership (“Mast Hill”), Blue Lake Partners, LLC, a Delaware limited liability company (“Blue Lake”), and Fourth Man, LLC, a Nevada limited liability company (“Fourth Man”), above will be subject to the terms provisions of this Section 9. As used in this Section 9, the term “Offerees” shall mean, collectively, (i) the Arena Purchasers (jointly), (ii) Walleye, (iii) Mast Hill, (iv) Blue Lake and (v) Fourth Man, and, each individually an “Offeree”; provided for the avoidance of doubt that for purposes of this Section 9, the Arena Purchasers shall be considered to be a single Offeree. Within five (5) Business Days after receipt of an Offer Notice by any Offeree (the “Offer Response Period”), such Offeree shall notify the Company in writing (an “Offer Response Notice”) of such Offeree’s election to either (A) provide such capital or financing to the Company on the same terms as such third party’s terms (including without limitation matching the aggregate principal amount of such capital or financing proposed to be provided to the Company by such third party) or (B) waive such Offeree’s right to provide such capital or financing to the Company on the same terms as such third party’s terms. If any Offeree fails to deliver an Offer Response Notice to the Borrower prior to the end of the Offer Response Period, time being of the essence, then such Offeree shall be deemed to have elected option (B) above. In the event (x) more than one Offeree elects to provide such capital or financing to the Company on the same terms as such third party’s terms pursuant to Offer Response Notices sent by each such Offeree to the Company within the Offer Response Period, then each such Offeree shall provide a portion of such capital or financing to the Company pro rata in proportion to the respective ROFR Units (as defined below) of such Offerees, and in all other respects on the same terms as such third party’s terms, (y) only one Offeree elects to provide such capital or financing to the Company on the same terms as such third party’s terms pursuant to an Offer Response Notice sent by such Offeree to the Company within the Offer Response Period, then such Offeree shall provide (and none of the other Offerees shall have the right to provide) such capital or financing to the Company on the same terms as such third party’s terms (including without limitation matching the aggregate principal amount of such capital or financing proposed to be provided to the Company by such third party), or (z) none of the Offerees elects to provide such capital or financing to the Company on the same terms as such third party’s terms pursuant to an Offer Response Notice sent to the Company within the Offer Response Period, then the Company may obtain such capital or financing from such third party, provided the Company obtains such capital or financing from such third party upon the exact same terms and conditions set forth in the Offer Notice. If none of the Offerees elects to provide such capital or financing to the Company on the same terms as such third party’s terms pursuant to an Offer Response Notice sent to the Company within the Offer Response Period, and the Company does not receive the capital or financing from such third party in accordance with the foregoing clause (z) within thirty (30) days after the date of the last Offer Notice, so long as any of the Arena Notes and/or the Walleye Notes remains outstanding at such time, the Company must again offer the capital or financing opportunity on the same terms as such third party’s terms by providing written notice of the offer concurrently to each of the Offerees pursuant to a further Offer Notice as described above, and the process detailed above shall be repeated. All Offer Notices required to be sent to the Arena Purchasers and Walleye under this Section 9 must be sent via electronic mail in accordance with Section 8 hereof. For purposes of allocating the opportunity to provide the capital or financing to the Borrower on the same terms as the applicable third party’s terms to the applicable Offerees under clause (x) of the fourth sentence of this Section 9, the Offerees shall be and hereby are allocated units (with respect to each Offeree, such Offeree’s “ROFR Units”) representing the Offerees’ respective rights in connection with any such allocation of the opportunity, with such ROFR Units being allocated to the Offerees in the following amounts: (i) to the Arena Purchasers (as a single Offeree), 3,900,000 ROFR Units, (ii) to Walleye, 2,149,706 ROFR Units, (iii) to Mast Hill, 367,500 ROFR Units, (iv) to Blue Lake, 262,500 ROFR Units, and (v) to Fourth Man, 156,525 ROFR Units4.1.
Appears in 1 contract
Rights of First Refusal. If at any time while any 14.1 The Issuer will notify the Agent in writing (the “Financing Notice”) of the Arena Notes and/or terms of any future brokered financings (public or private) that it requires or proposes to obtain on or before the Walleye Notes is outstandingsecond anniversary of the Closing Date, and the Agent will have the right of first refusal to provide any such financing notwithstanding such financing may complete after the second anniversary of the Closing Date.
14.2 For greater certainty, the Company has a bona fide offer right of capital or financing from any third party that first refusal set out in section 14.1 includes, but is not limited to:
(a) the Company intends right of the Agent to act uponas the lead agent for such financing;
(b) the right of the Agent to be part of a syndicate group with respect to such financing; and
(c) the right of the Agent to participate in a portion of such financing to be mutually agreed upon by the Agent and the Issuer.
14.3 The Issuer will also notify the Agent in writing (the “Financial Advice Notice”) if and when the Issuer requires or proposes to obtain financial advisory or sponsorship services of the type performed or normally performed by a broker or investment dealer, with respect to general corporate advisory matters or for any material corporate transaction such as an amalgamation, merger, takeover bid, joint venture, plan of arrangement or reorganization, or any other such transaction, during the term of this Agreement and until that day which is 24 months after the Closing Date, and the Agent will have the right of first refusal to exclusively provide such financial advisory services.
14.4 The rights of first refusal must be exercised by the Agent:
(a) within seven business days (Saturdays, Sundays and statutory holidays excluded) following the receipt of the Financing Notice by notifying the Issuer that it will provide such financing on the terms set out in the Financing Notice; or
(b) within seven business days (Saturdays, Sundays and statutory holidays excluded) following the receipt of the Financial Advice Notice by notifying the Issuer that it will provide financial advice on terms to be mutually agreed upon by the parties.
14.5 If the Agent fails to give the applicable notice with the time specified, the Issuer will then the Company must offer such opportunity be free to make other arrangements to obtain financing or financial advisory services from another source on the same terms as such third party’s or on terms by providing written notice of the offer (an “Offer Notice”) concurrently no less favourable to the Arena PurchasersIssuer than that specified in the Financing Notice or the Financial Advice Notice, Walleye, Mast Hill Fund, L.P., a Delaware limited partnership (“Mast Hill”), Blue Lake Partners, LLC, a Delaware limited liability company (“Blue Lake”), and Fourth Man, LLC, a Nevada limited liability company (“Fourth Man”)as the case may be, subject to obtaining the terms of this Section 9. As used in this Section 9, the term “Offerees” shall mean, collectively, (i) the Arena Purchasers (jointly), (ii) Walleye, (iii) Mast Hill, (iv) Blue Lake and (v) Fourth Man, and, each individually an “Offeree”; provided for the avoidance of doubt that for purposes of this Section 9, the Arena Purchasers shall be considered to be a single Offeree. Within five (5) Business Days after receipt of an Offer Notice by any Offeree (the “Offer Response Period”), such Offeree shall notify the Company in writing (an “Offer Response Notice”) of such Offeree’s election to either (A) provide such capital or financing to the Company on the same terms as such third party’s terms (including without limitation matching the aggregate principal amount of such capital or financing proposed to be provided to the Company by such third party) or (B) waive such Offeree’s right to provide such capital or financing to the Company on the same terms as such third party’s terms. If any Offeree fails to deliver an Offer Response Notice to the Borrower prior to the end acceptance of the Offer Response Period, time being of the essence, then such Offeree shall be deemed to have elected option (B) above. In the event (x) more than one Offeree elects to provide such capital or financing to the Company on the same terms as such third party’s terms pursuant to Offer Response Notices sent by each such Offeree to the Company within the Offer Response Period, then each such Offeree shall provide a portion of such capital or financing to the Company pro rata in proportion to the respective ROFR Units (as defined below) of such Offerees, and in all other respects on the same terms as such third party’s terms, (y) only one Offeree elects to provide such capital or financing to the Company on the same terms as such third party’s terms pursuant to an Offer Response Notice sent by such Offeree to the Company within the Offer Response Period, then such Offeree shall provide (and none of the other Offerees shall have the right to provide) such capital or financing to the Company on the same terms as such third party’s terms (including without limitation matching the aggregate principal amount of such capital or financing proposed to be provided to the Company by such third party), or (z) none of the Offerees elects to provide such capital or financing to the Company on the same terms as such third party’s terms pursuant to an Offer Response Notice sent to the Company within the Offer Response Period, then the Company may obtain such capital or financing from such third party, provided the Company obtains such capital or financing from such third party upon the exact same terms and conditions set forth in the Offer Notice. If none of the Offerees elects to provide such capital or financing to the Company on the same terms as such third party’s terms pursuant to an Offer Response Notice sent to the Company within the Offer Response Period, and the Company does not receive the capital or financing from such third party in accordance with the foregoing clause (z) within thirty (30) days after the date of the last Offer NoticeRegulatory Authorities, so long as any the arrangements with such other source are entered into and documented in writing within 30 days of the Arena Notes and/or Agent’s failure to exercise its right of first refusal.
14.6 The rights of first refusal will not terminate if, on receipt of any Financing Notice or Financial Advice Notice from the Walleye Notes remains outstanding at such timeIssuer, the Company must again offer Agent fails to exercise the capital or financing opportunity on rights however if the same terms as such third party’s terms by providing written notice of the offer concurrently Agent fails to each of the Offerees pursuant to a further Offer Notice as described above, and the process detailed above shall be repeated. All Offer Notices required to be sent to the Arena Purchasers and Walleye under this Section 9 must be sent via electronic mail in accordance with Section 8 hereof. For purposes of allocating the opportunity to provide the capital or financing to the Borrower on the same terms as the applicable third party’s terms to the applicable Offerees under clause (x) of the fourth sentence of this Section 9, the Offerees shall be and hereby are allocated units (exercise its rights with respect to each Offeree, a particular Financing Notice or Financial Advice Notice the Agent will have no further such Offeree’s “ROFR Units”) representing the Offerees’ respective rights in connection with any such allocation of the opportunity, with such ROFR Units being allocated respect to the Offerees in the following amounts: (i) to the Arena Purchasers (as a single Offeree), 3,900,000 ROFR Units, (ii) to Walleye, 2,149,706 ROFR Units, (iii) to Mast Hill, 367,500 ROFR Units, (iv) to Blue Lake, 262,500 ROFR Units, and (v) to Fourth Man, 156,525 ROFR Unitsfinancial or financial advisory services for which such Financing Notice or Financial Advice Notice was given.
Appears in 1 contract
Sources: Agency Agreement
Rights of First Refusal. If The Company hereby grants to NBF the right of first refusal to be appointed and to act as lead agent with respect to any and all financings undertaken by the Company within the 12 month period beginning on the date hereof and ending at 5:00 p.m. (Vancouver time) on June 2, 2003 effected by way of the issuance of equity securities or public debt (a "Financing") publicly announced or otherwise determined by the Company to be proceeded with, which right shall be on the following terms and conditions:
(i) if at any time while any of the Arena Notes and/or the Walleye Notes is outstanding, the Company has a bona fide offer of capital or financing from any third party that the Company intends to act upon, then publicly announce or otherwise determines to proceed with a Financing (or enter into a transaction as a result of which the Company must offer anticipates that it will publicly announce or otherwise determine to proceed with a Financing), it shall prior to such opportunity on the same terms as such third party’s terms by providing announcement or determination to proceed, give written notice to NBF (the "Notice") of such intention, which Notice shall contain the material terms of such Financing, including:
(A) the size (or range) of such proposed Financing:
(B) the price (or range) at which the Company proposes that such Financing be conducted (or the basis upon which the Financing will be priced, if the price or range of such Financing is not then known);
(C) the commission or other consideration (or range thereof) to be paid in connection with such Financing;
(D) whether the Financing is to be best efforts, underwritten or on a "bought deal" basis; and
(E) the terms and conditions of the offer (an “Offer Notice”) concurrently securities proposed to be offered pursuant to the Arena Purchasers, Walleye, Mast Hill Fund, L.P., a Delaware limited partnership (“Mast Hill”), Blue Lake Partners, LLC, a Delaware limited liability company (“Blue Lake”), and Fourth Man, LLC, a Nevada limited liability company (“Fourth Man”), subject to the terms of this Section 9. As used in this Section 9, the term “Offerees” shall mean, collectively, (i) the Arena Purchasers (jointly), Financing;
(ii) Walleye, (iii) Mast Hill, (iv) Blue Lake and (v) Fourth Man, and, each individually an “Offeree”; provided for the avoidance of doubt that for purposes of this Section 9, the Arena Purchasers shall be considered to be a single Offeree. Within within five (5) Business Days after of receipt of an Offer Notice by any Offeree (the “Offer Response Period”)Notice, such Offeree NBF shall notify the Company elect in writing (an “Offer Response Notice”) of such Offeree’s election to either to:
(A) provide such capital or financing commit to undertake the Company Financing on the same terms as such third party’s terms (including without limitation matching and conditions set out in the aggregate principal amount Notice, provided that any one or more of such capital terms or financing proposed to conditions may be provided to amended by mutual agreement between NBF and the Company by such third party) or (B) waive such Offeree’s right to provide such capital or financing to the Company on the same terms as such third party’s terms. If any Offeree fails to deliver an Offer Response Notice to the Borrower prior to the end of the Offer Response PeriodCompany, time being of the essence, then such Offeree failing which NBF shall be deemed to have elected option to waive its rights, as contemplated in the following paragraph; or
(B) above. In waive any rights which NBF has hereunder in respect of the event (x) more than one Offeree elects to provide such capital or financing to Financing only, whereupon the Company on shall be relieved of all of its obligations hereunder in respect of such Financing only, provided that the same terms as Financing is publicly announced or an engagement letter with respect to such third party’s terms pursuant to Offer Response Notices sent Financing is executed by each such Offeree to the Company within the Offer Response Period, then each such Offeree shall provide a portion of such capital or financing to the Company pro rata in proportion to the respective ROFR Units (as defined below) of such Offerees, and in all other respects on the same terms as such third party’s terms, (y) only one Offeree elects to provide such capital or financing to the Company on the same terms as such third party’s terms pursuant to an Offer Response Notice sent by such Offeree to the Company within the Offer Response Period, then such Offeree shall provide (and none of the other Offerees shall have the right to provide) such capital or financing to the Company on the same terms as such third party’s terms (including without limitation matching the aggregate principal amount of such capital or financing proposed to be provided to the Company by such third party), or (z) none of the Offerees elects to provide such capital or financing to the Company on the same terms as such third party’s terms pursuant to an Offer Response Notice sent to the Company within the Offer Response Period, then the Company may obtain such capital or financing from such third party, provided the Company obtains such capital or financing from such third party upon the exact same terms and conditions set forth in the Offer Notice. If none of the Offerees elects to provide such capital or financing to the Company on the same terms as such third party’s terms pursuant to an Offer Response Notice sent to the Company within the Offer Response Period, and the Company does not receive the capital or financing from such third party in accordance with the foregoing clause (z) within thirty (30) 20 days after the date of the last Offer Notice, so long as any of the Arena Notes and/or the Walleye Notes remains outstanding at such time, the Company must again offer the capital or financing opportunity on the same terms as such third party’s terms by providing written notice of the offer concurrently to each of the Offerees pursuant to a further Offer Notice as described above, and the process detailed above shall be repeated. All Offer Notices required to be sent to the Arena Purchasers and Walleye under this Section 9 must be sent via electronic mail in accordance with Section 8 hereof. For purposes of allocating the opportunity to provide the capital or financing to the Borrower on the same terms as the applicable third party’s terms to the applicable Offerees under clause (x) of the fourth sentence of this Section 9, the Offerees shall be and hereby are allocated units (with respect to each Offeree, such Offeree’s “ROFR Units”) representing the Offerees’ respective rights in connection with any such allocation of the opportunity, with such ROFR Units being allocated to the Offerees in the following amounts: (i) to the Arena Purchasers (as a single Offeree), 3,900,000 ROFR Units, (ii) to Walleye, 2,149,706 ROFR Units, ; and
(iii) for greater certainty, the obligations of the Company to Mast HillNBF in respect of the Financing shall be revived, 367,500 ROFR Unitsnotwithstanding a waiver or deemed waiver by NBF, (ivin the event that the Company proposes to amend the terms of the Financing or the terms of compensation to the agent(s) or underwriter(s) for the Financing, in either case in a manner which could reasonably be expected to Blue Lake, 262,500 ROFR Units, and (v) cause NBF to Fourth Man, 156,525 ROFR Unitsreconsider its waiver or deemed waiver.
Appears in 1 contract
Rights of First Refusal. If at any time while any (a) Subject to subsection (g), for so long as a Purchaser is a holder of the Arena Notes and/or the Walleye Notes is outstandinga Unit (an "Eligible Purchaser"), the Company has a bona fide offer agrees not to issue any of capital its Capital Securities or financing from to permit the Bank to issue any third party that of its Capital Securities (such Capital Securities of the Company intends and the Bank hereinafter deemed to act uponbe jointly covered by the term "Capital Securities") to any Person or Persons, then other than in the case of Capital Securities of the Bank to the Company must offer (a "Third Party Purchaser"), without first offering or causing the Bank to offer, as applicable, to such Eligible Purchaser the opportunity to purchase all or part of such Capital Securities being issued at the same purchase price and on the same terms as such third party’s terms by providing are proposed to be offered to a Third Party Purchaser. For this purpose, the Company shall deliver a written notice notice, or cause the Bank to deliver a written notice, as applicable (in each case a "Notice"), to each Eligible Purchaser of any proposed issuance of Capital Securities which shall contain all of the offer (an “Offer Notice”) concurrently material terms of the proposed issuance, including, without limitation, the purchase price and total amount of Capital Securities proposed to be issued, which terms, including without limitation the purchase price and any conversion price or rate of such Capital Securities, may to the Arena Purchasers, Walleye, Mast Hill Fund, L.P., a Delaware limited partnership extent necessary be expressed in the form of good faith estimates by the Board of Directors of the Company.
(“Mast Hill”), Blue Lake Partners, LLC, a Delaware limited liability company (“Blue Lake”), and Fourth Man, LLC, a Nevada limited liability company (“Fourth Man”), subject to b) Upon receipt of the terms of this Section 9. As used in this Section 9, the term “Offerees” shall mean, collectively, (i) the Arena Purchasers (jointly), (ii) Walleye, (iii) Mast Hill, (iv) Blue Lake and (v) Fourth Man, andNotice, each individually an “Offeree”; provided Eligible Purchaser will have the right to subscribe for all or part of the avoidance of doubt that for purposes of this Section 9, the Arena Purchasers shall be considered to be a single Offeree. Within five (5) Business Days after receipt of an Offer Notice by any Offeree (the “Offer Response Period”), such Offeree shall notify the Company in writing (an “Offer Response Notice”) of such Offeree’s election to either (A) provide such capital or financing to the Company Capital Securities on the same terms as such third party’s terms (including without limitation matching set forth in the aggregate principal amount Notice, by delivery of such capital or financing proposed to be provided written notice to the Company or the Bank, as applicable ("Acceptance Notice"), in accordance with the instructions set forth in the Notice, within 20 days from the date of its receipt of the Notice (the "Offer Period"). The Acceptance Notice shall specify the amount (not exceeding all) of the Capital Securities being offered with respect to which the Eligible Purchaser wishes to exercise its subscription rights.
(c) An Acceptance Notice, once given by such third party) or an Eligible Purchaser in accordance with subsection (B) waive such Offeree’s right to provide such capital or financing to the Company on the same terms as such third party’s terms. If any Offeree fails to deliver an Offer Response Notice to the Borrower prior to b), shall become irrevocable at the end of the Offer Response Period, time being Period unless it is withdrawn prior to the expiration of the essence, then Offer Period (any such Offeree shall be deemed to have elected option Acceptance Notice which so becomes irrevocable being called an "Irrevocable Acceptance" and the Eligible Purchaser giving such notice being an "Accepting Eligible Purchaser").
(Bd) above. (i) In the event (x) more than one Offeree elects that any Eligible Purchaser fails to provide such capital have delivered an Irrevocable Acceptance with respect to any Notice on or financing prior to the Company on the same terms as such third party’s terms pursuant to Offer Response Notices sent by each such Offeree to the Company within last day of the Offer Response PeriodPeriod with respect to such Notice, then each such Offeree shall provide a portion of such capital or financing to the Company pro rata in proportion to the respective ROFR Units (as defined below) of such Offerees, and in all other respects on the same terms as such third party’s terms, (y) only one Offeree elects to provide such capital or financing to the Company on the same terms as such third party’s terms pursuant to an Offer Response Notice sent by such Offeree to the Company within the Offer Response Period, then such Offeree shall provide (and none of the other Offerees shall Eligible Purchaser will have the no further right to provide) such capital or financing to subscribe for the Company on the same terms as such third party’s terms (including without limitation matching the aggregate principal amount of such capital or financing Capital Securities proposed to be provided to issued in such Notice during a Free Sale Period commencing on the Company by such third party), or (z) none date immediately following the end of the Offerees elects to provide such capital or financing to the Company on the same terms as such third party’s terms pursuant to an Offer Response Notice sent to the Company within the Offer Response Period, then the Company may obtain such capital or financing from such third party, provided the Company obtains such capital or financing from such third party upon the exact same terms and conditions set forth in the Offer Notice. If none of the Offerees elects to provide such capital or financing to the Company on the same terms as such third party’s terms pursuant to an Offer Response Notice sent to the Company within the Offer Response Period, and the Company does not receive the capital or financing from such third party in accordance with the foregoing clause (z) within thirty (30) days after the date of the last Offer Notice, so long as any of the Arena Notes and/or the Walleye Notes remains outstanding at such time, the Company must again offer the capital or financing opportunity on the same terms as such third party’s terms by providing written notice of the offer concurrently to each of the Offerees pursuant to a further Offer Notice as described above, and the process detailed above shall be repeated. All Offer Notices required to be sent to the Arena Purchasers and Walleye under this Section 9 must be sent via electronic mail in accordance with Section 8 hereof. For purposes of allocating the opportunity to provide the capital or financing to the Borrower on the same terms as the applicable third party’s terms to the applicable Offerees under clause (x) of the fourth sentence of this Section 9, the Offerees shall be and hereby are allocated units (Period with respect to each Offeree, such Offeree’s “ROFR Units”) representing the Offerees’ respective rights in connection with any such allocation of the opportunity, with such ROFR Units being allocated to the Offerees in the following amounts: (i) to the Arena Purchasers (as a single Offeree), 3,900,000 ROFR Units, (ii) to Walleye, 2,149,706 ROFR Units, (iii) to Mast Hill, 367,500 ROFR Units, (iv) to Blue Lake, 262,500 ROFR Units, and (v) to Fourth Man, 156,525 ROFR UnitsNotice.
Appears in 1 contract
Rights of First Refusal. If at any time while any (a) Subject to subsection (g) hereof, for so long as a Purchaser is a holder of the Arena Notes and/or the Walleye Notes is outstandingCommon Stock (an "Eligible Purchaser"), the Company has a bona fide offer agrees not to issue any of capital its Capital Securities or financing from to permit the Banks to issue any third party that of their Capital Securities (such Capital Securities of the Company intends and the Banks hereinafter are deemed to act uponbe jointly covered by the term "Capital Securities") to any Person or Persons, then other than in the case of Capital Securities of the Banks to the Company must offer (a "Third Party Purchaser"), without first offering or causing the Banks to offer, as applicable, to such Eligible Purchasers the opportunity to purchase all or part of such Capital Securities being issued at the same purchase price and on the same terms as such third party’s terms by providing are proposed to be offered to a Third Party Purchaser. For this purpose, the Company shall deliver a written notice notice, or cause the Banks to deliver a written notice, as applicable (in each case a "Notice"), to each Eligible Purchaser of any proposed issuance of Capital Securities which shall contain all of the offer (an “Offer Notice”) concurrently material terms of the proposed issuance, including, without limitation, the purchase price and total amount of Capital Securities proposed to be issued, which terms, including, without limitation, the purchase price and any conversion price or rate of such Capital Securities, may to the Arena Purchasers, Walleye, Mast Hill Fund, L.P., a Delaware limited partnership extent necessary be expressed in the form of good faith estimates by the Board of Directors of the Company.
(“Mast Hill”), Blue Lake Partners, LLC, a Delaware limited liability company (“Blue Lake”), and Fourth Man, LLC, a Nevada limited liability company (“Fourth Man”), subject to b) Upon receipt of the terms of this Section 9. As used in this Section 9, the term “Offerees” shall mean, collectively, (i) the Arena Purchasers (jointly), (ii) Walleye, (iii) Mast Hill, (iv) Blue Lake and (v) Fourth Man, andNotice, each individually an “Offeree”; provided Eligible Purchaser will have the right to subscribe for all or part of the avoidance of doubt that for purposes of this Section 9, the Arena Purchasers shall be considered to be a single Offeree. Within five (5) Business Days after receipt of an Offer Notice by any Offeree (the “Offer Response Period”), such Offeree shall notify the Company in writing (an “Offer Response Notice”) of such Offeree’s election to either (A) provide such capital or financing to the Company Capital Securities on the same terms as such third party’s terms (including without limitation matching set forth in the aggregate principal amount Notice, by delivery of such capital or financing proposed to be provided written notice to the Company or the Banks, as applicable ("Acceptance Notice"), in accordance with the instructions set forth in the Notice, within 20 days from the date of its receipt of the Notice (the "Offer Period"). The Acceptance Notice shall specify the amount (not exceeding all) of the Capital Securities being offered with respect to which the Eligible Purchaser wishes to exercise its subscription rights.
(c) An Acceptance Notice, once given by such third party) or an Eligible Purchaser in accordance with subsection (B) waive such Offeree’s right to provide such capital or financing to the Company on the same terms as such third party’s terms. If any Offeree fails to deliver an Offer Response Notice to the Borrower prior to b), shall become irrevocable at the end of the Offer Response Period, time being Period unless it is withdrawn prior to the expiration of the essence, then Offer Period (any such Offeree shall be deemed to have elected option Acceptance Notice which so becomes irrevocable being called an "Irrevocable Acceptance" and the Eligible Purchaser giving such notice being an "Accepting Eligible Purchaser").
(Bd) above. (i) In the event (x) more than one Offeree elects that any Eligible Purchaser fails to provide such capital have delivered an Irrevocable Acceptance with respect to any Notice on or financing prior to the Company on the same terms as such third party’s terms pursuant to Offer Response Notices sent by each such Offeree to the Company within last day of the Offer Response PeriodPeriod with respect to such Notice, then each such Offeree shall provide a portion of such capital or financing to the Company pro rata in proportion to the respective ROFR Units (as defined below) of such Offerees, and in all other respects on the same terms as such third party’s terms, (y) only one Offeree elects to provide such capital or financing to the Company on the same terms as such third party’s terms pursuant to an Offer Response Notice sent by such Offeree to the Company within the Offer Response Period, then such Offeree shall provide (and none of the other Offerees shall Eligible Purchaser will have the no further right to provide) such capital or financing to subscribe for the Company on the same terms as such third party’s terms (including without limitation matching the aggregate principal amount of such capital or financing Capital Securities proposed to be provided to issued in such Notice during a Free Sale Period commencing on the Company by such third party), or (z) none date immediately following the end of the Offerees elects to provide such capital or financing to the Company on the same terms as such third party’s terms pursuant to an Offer Response Notice sent to the Company within the Offer Response Period, then the Company may obtain such capital or financing from such third party, provided the Company obtains such capital or financing from such third party upon the exact same terms and conditions set forth in the Offer Notice. If none of the Offerees elects to provide such capital or financing to the Company on the same terms as such third party’s terms pursuant to an Offer Response Notice sent to the Company within the Offer Response Period, and the Company does not receive the capital or financing from such third party in accordance with the foregoing clause (z) within thirty (30) days after the date of the last Offer Notice, so long as any of the Arena Notes and/or the Walleye Notes remains outstanding at such time, the Company must again offer the capital or financing opportunity on the same terms as such third party’s terms by providing written notice of the offer concurrently to each of the Offerees pursuant to a further Offer Notice as described above, and the process detailed above shall be repeated. All Offer Notices required to be sent to the Arena Purchasers and Walleye under this Section 9 must be sent via electronic mail in accordance with Section 8 hereof. For purposes of allocating the opportunity to provide the capital or financing to the Borrower on the same terms as the applicable third party’s terms to the applicable Offerees under clause (x) of the fourth sentence of this Section 9, the Offerees shall be and hereby are allocated units (Period with respect to each Offeree, such Offeree’s “ROFR Units”) representing the Offerees’ respective rights in connection with any such allocation of the opportunity, with such ROFR Units being allocated to the Offerees in the following amounts: (i) to the Arena Purchasers (as a single Offeree), 3,900,000 ROFR Units, (ii) to Walleye, 2,149,706 ROFR Units, (iii) to Mast Hill, 367,500 ROFR Units, (iv) to Blue Lake, 262,500 ROFR Units, and (v) to Fourth Man, 156,525 ROFR UnitsNotice.
Appears in 1 contract
Rights of First Refusal. If at any time while any of the Arena Notes and/or the Walleye Notes is outstanding(a) Except with respect to Transfers permitted pursuant to Section 5.2, the Company has if a bona fide offer of capital or financing from any third party that the Company intends to act upon, then the Company must offer such opportunity on the same terms Stockholder (with Aspen and Atlantis constituting as such third party’s terms by providing written notice of the offer (an “Offer Notice”) concurrently to the Arena Purchasers, Walleye, Mast Hill Fund, L.P., a Delaware limited partnership (“Mast Hill”), Blue Lake Partners, LLC, a Delaware limited liability company (“Blue Lake”), and Fourth Man, LLC, a Nevada limited liability company (“Fourth Man”), subject to the terms of this Section 9. As used in this Section 9, the term “Offerees” shall mean, collectively, (i) the Arena Purchasers (jointly), (ii) Walleye, (iii) Mast Hill, (iv) Blue Lake and (v) Fourth Man, and, each individually an “Offeree”; provided for the avoidance of doubt that single Stockholder for purposes of this Section 95.3) wants to Transfer any shares of Voting Stock to any other Person (other than to a Restricted Transferee or pursuant to a pledge, hypothecation or other similar financing transaction in which the Arena Purchasers transferring Stockholder continues to have the sole and exclusive authority and right to vote the shares subject to such pledge, hypothecation or other financing transaction) in a bona fide transaction, such Stockholder (the "Offeror") shall be considered entitled to be a single Offeree. Within five (5) Business Days after receipt do so provided that such Offeror first offers to sell such shares of an Offer Notice by any Offeree Voting Stock to the other Stockholder (the “Offer Response Period”), such Offeree shall notify the Company in writing (an “Offer Response Notice”"Offeree") of such Offeree’s election to either (A) provide such capital or financing to the Company on at the same terms as such third party’s terms (including without limitation matching price and the aggregate principal amount of such capital or financing proposed to be provided to the Company by such third party) or (B) waive such Offeree’s right to provide such capital or financing to the Company on the same terms as such third party’s terms. If any Offeree fails to deliver an Offer Response Notice to the Borrower prior to the end of the Offer Response Period, time being of the essence, then such Offeree shall be deemed to have elected option (B) above. In the event (x) more than one Offeree elects to provide such capital or financing to the Company on the same terms as such third party’s terms pursuant to Offer Response Notices sent by each such Offeree to the Company within the Offer Response Period, then each such Offeree shall provide a portion of such capital or financing to the Company pro rata in proportion to the respective ROFR Units (as defined below) of such Offerees, and in all other respects on the same terms as such third party’s terms, (y) only one Offeree elects to provide such capital or financing to the Company on the same terms as such third party’s terms pursuant to an Offer Response Notice sent by such Offeree to the Company within the Offer Response Period, then such Offeree shall provide (and none of the other Offerees shall have the right to provide) such capital or financing to the Company on the same terms as such third party’s terms (including without limitation matching the aggregate principal amount of such capital or financing proposed to be provided to the Company by such third party), or (z) none of the Offerees elects to provide such capital or financing to the Company on the same terms as such third party’s terms pursuant to an Offer Response Notice sent to the Company within the Offer Response Period, then the Company may obtain such capital or financing from such third party, provided the Company obtains such capital or financing from such third party upon the exact same terms and conditions set forth in as the Offer NoticeOfferor would receive from such other Person. If none of the Offerees elects to provide such capital or financing The Offeror shall submit to the Company on and the same Offeree a written notice (the "Offer Notice") stating in reasonable detail such price or other consideration and such terms as and conditions and identifying the Person and all Persons who beneficially own more than five percent (5%) of such third party’s terms pursuant Person, proposing to an purchase the shares of Voting Stock. The Offeree shall have a period of thirty (30) days after the receipt of the Offer Response Notice sent in which to accept or reject such offer. If the Offeree elects to accept such offer, which acceptance must be for all and not part of the Voting Stock offered for sale, it shall so indicate within such thirty (30) day period by notice to the Company within Offeror. The notice required to be given by the Offer Response PeriodOfferee shall specify a date for the closing of the purchase which, subject to the expiration or early termination of any waiting period required by any Governmental Authority and the Company does receipt of any required approvals of any Governmental Authority, shall not receive the capital or financing from such third party in accordance with the foregoing clause (z) within be more than thirty (30) days after the date of the last giving of such notice.
(b) If the Offeree does not exercise its right to purchase all of the shares of Voting Stock offered for sale pursuant to the provisions of this Section 5.3, the Offeror of such shares of Voting Stock shall have the right to sell to the Person identified in the Offer Notice, so long as any subject to the provisions of the Arena Notes and/or the Walleye Notes remains outstanding at this Agreement, all (but not less than all) of such time, the Company must again offer the capital or financing opportunity shares of Voting Stock on the same terms as and conditions including the price or other consideration specified in the Offer Notice, free from the restrictions of Section 5.1 of this Agreement (for purposes of such third party’s terms specific transaction, but not for purposes of any subsequent transaction) in a bona fide transaction, for a period of ninety (90) days from the date that the Offer expires hereunder, provided that any such purchaser shall prior to such transfer, if such purchaser shall be receiving shares of Voting Stock, other than shares of Class A Common Stock, agree in writing to be bound by providing written notice all of the offer concurrently provisions of this Agreement. At the end of such ninety (90) day period, the Offeror shall notify the Company and the Offeree in writing whether its shares of Voting Stock have been sold in a bona fide transaction during such period. To the extent not sold during such ninety (90) day period, all of such shares of Voting Stock shall again become subject to each all of the Offerees pursuant restrictions and provisions of this Section 5.3.
(c) If the Offeree accepts the offer set forth in the Offer Notice, the purchase price or other consideration per share of the shares of Voting Stock purchased by the Offeree shall be the price or other consideration per share offered to a further be paid by the prospective transferee described in the Offer Notice Notice, which price shall be paid in cash and/or such other consideration, at the election of the Offeree.
(d) If the Offeree accepts the offer set forth in the Offer Notice, the closing of the purchase shall take place at the principal office of the Company or such other location as described aboveshall be mutually agreeable to the Offeror and Offeree, and the process detailed above purchase price shall be repeatedpaid at the closing by wire transfer of immediately available funds or in such other appropriate form if for consideration other than cash. All Offer Notices required At the closing, the Offeror shall deliver to the Offeree the certificates evidencing the shares of Voting Stock to be sent to the Arena Purchasers transferred, duly endorsed and Walleye under this Section 9 must be sent via electronic mail in accordance with Section 8 hereof. For purposes of allocating the opportunity to provide the capital or financing to the Borrower on the same terms negotiable form as well as the applicable third party’s terms to the applicable Offerees under clause (x) of the fourth sentence of this items listed in Section 9, the Offerees shall be and hereby are allocated units (with respect to each Offeree, such Offeree’s “ROFR Units”) representing the Offerees’ respective rights in connection with any such allocation of the opportunity, with such ROFR Units being allocated to the Offerees in the following amounts: (i) to the Arena Purchasers (as a single Offeree), 3,900,000 ROFR Units, (ii) to Walleye, 2,149,706 ROFR Units, (iii) to Mast Hill, 367,500 ROFR Units, (iv) to Blue Lake, 262,500 ROFR Units, and (v) to Fourth Man, 156,525 ROFR Units5.4.
Appears in 1 contract
Rights of First Refusal. If at 15.1 The Issuer will notify the Agent (the “Financing Notice”) of the terms of any time while further financing (private or public) that it requires or proposes to obtain during the term of this Agreement and until that day which is one year from the Closing Date and the Agent will have the right of first refusal to provide such financing. For greater certainty, the right of first refusal set out in this section includes, but is not limited to:
(a) the right of the Agent to co-lead such financing;
(b) the right of the Agent to be part of a syndicate group with respect to such financing; and
(c) the right of the Agent to participate in a portion of such financing to be mutually agreed upon by the Agent and the Issuer. This right of first refusal does not apply if the Issuer does not retain or utilize a registered dealer as agent for the financing unless any of the Arena Notes and/or subscribers to the Walleye Notes issuance of such securities (each, a “Subscriber”) is outstandinga subscriber or beneficial purchaser of Offered Securities under the Offering.
15.2 The Issuer will also notify the Agent (the “Professional, Sponsorship or Advisory Notice”) if and when the Issuer requires or proposes to obtain professional, sponsorship or advisory services of the type performed or normally performed by a broker or investment dealer during the term of this Agreement and until that day which is one year after the Closing Date, and the Agent will have the right of first refusal to exclusively provide such professional, sponsorship or advisory services.
15.3 The rights of first refusal must be exercised by the Agent:
(a) within ten business days following the receipt of the Financing Notice by notifying the Issuer that it will provide such financing on the terms set out in the Financing Notice; or
(b) within ten business days following the receipt of the Professional, Sponsorship or Advisory Notice by notifying the Issuer that it will provide professional, sponsorship or advisory services on terms to be mutually agreed upon by the parties.
15.4 If the Agent fails to give the applicable notice with the time specified, the Company has a bona fide offer of capital Issuer will then be free to make other arrangements to obtain financing or financing professional, sponsorship or advisory services from any third party that the Company intends to act upon, then the Company must offer such opportunity another source on the same terms as such third party’s or on terms by providing written notice of the offer (an “Offer Notice”) concurrently no less favourable to the Arena PurchasersIssuer than that specified in the Financing Notice or the Professional, WalleyeSponsorship or Advisory Notice, Mast Hill Fund, L.P., a Delaware limited partnership (“Mast Hill”), Blue Lake Partners, LLC, a Delaware limited liability company (“Blue Lake”), and Fourth Man, LLC, a Nevada limited liability company (“Fourth Man”)as the case may be, subject to obtaining the terms of this Section 9. As used in this Section 9, the term “Offerees” shall mean, collectively, (i) the Arena Purchasers (jointly), (ii) Walleye, (iii) Mast Hill, (iv) Blue Lake and (v) Fourth Man, and, each individually an “Offeree”; provided for the avoidance of doubt that for purposes of this Section 9, the Arena Purchasers shall be considered to be a single Offeree. Within five (5) Business Days after receipt of an Offer Notice by any Offeree (the “Offer Response Period”), such Offeree shall notify the Company in writing (an “Offer Response Notice”) of such Offeree’s election to either (A) provide such capital or financing to the Company on the same terms as such third party’s terms (including without limitation matching the aggregate principal amount of such capital or financing proposed to be provided to the Company by such third party) or (B) waive such Offeree’s right to provide such capital or financing to the Company on the same terms as such third party’s terms. If any Offeree fails to deliver an Offer Response Notice to the Borrower prior to the end acceptance of the Offer Response Period, time being of the essence, then such Offeree shall be deemed to have elected option (B) above. In the event (x) more than one Offeree elects to provide such capital or financing to the Company on the same terms as such third party’s terms pursuant to Offer Response Notices sent by each such Offeree to the Company within the Offer Response Period, then each such Offeree shall provide a portion of such capital or financing to the Company pro rata in proportion to the respective ROFR Units (as defined below) of such Offerees, and in all other respects on the same terms as such third party’s terms, (y) only one Offeree elects to provide such capital or financing to the Company on the same terms as such third party’s terms pursuant to an Offer Response Notice sent by such Offeree to the Company within the Offer Response Period, then such Offeree shall provide (and none of the other Offerees shall have the right to provide) such capital or financing to the Company on the same terms as such third party’s terms (including without limitation matching the aggregate principal amount of such capital or financing proposed to be provided to the Company by such third party), or (z) none of the Offerees elects to provide such capital or financing to the Company on the same terms as such third party’s terms pursuant to an Offer Response Notice sent to the Company within the Offer Response Period, then the Company may obtain such capital or financing from such third party, provided the Company obtains such capital or financing from such third party upon the exact same terms and conditions set forth in the Offer Notice. If none of the Offerees elects to provide such capital or financing to the Company on the same terms as such third party’s terms pursuant to an Offer Response Notice sent to the Company within the Offer Response Period, and the Company does not receive the capital or financing from such third party in accordance with the foregoing clause (z) within thirty (30) days after the date of the last Offer NoticeRegulatory Authorities, so long as any the arrangements with such other source are entered into and documented in writing within 30 days of the Arena Notes and/or Agent’s failure to exercise its right of first refusal.
15.5 The rights of first refusal will not terminate if, on receipt of any Financing Notice or Professional, Sponsorship or Advisory Notice from the Walleye Notes remains outstanding at such timeIssuer, the Company must again offer Agent fails to exercise the capital or financing opportunity on rights however if the same terms as such third party’s terms by providing written notice of the offer concurrently Agent fails to each of the Offerees pursuant to a further Offer Notice as described above, and the process detailed above shall be repeated. All Offer Notices required to be sent to the Arena Purchasers and Walleye under this Section 9 must be sent via electronic mail in accordance with Section 8 hereof. For purposes of allocating the opportunity to provide the capital or financing to the Borrower on the same terms as the applicable third party’s terms to the applicable Offerees under clause (x) of the fourth sentence of this Section 9, the Offerees shall be and hereby are allocated units (exercise its rights with respect to each Offereea particular Financing Notice or Professional, Sponsorship or Advisory Notice the Agent will have no further such Offeree’s “ROFR Units”) representing the Offerees’ respective rights in connection with any such allocation of the opportunity, with such ROFR Units being allocated respect to the Offerees in the following amounts: (i) to the Arena Purchasers (as a single Offeree)financial or professional, 3,900,000 ROFR Unitssponsorship or advisory services for which such Financing Notice or Professional, (ii) to Walleye, 2,149,706 ROFR Units, (iii) to Mast Hill, 367,500 ROFR Units, (iv) to Blue Lake, 262,500 ROFR Units, and (v) to Fourth Man, 156,525 ROFR UnitsSponsorship or Advisory Notice was given.
Appears in 1 contract
Sources: Agency Agreement
Rights of First Refusal. If at 15.1 The Issuer will notify the Agent (the “Financing Notice”) of the terms of any time while further financing (private or public) that it requires or proposes to obtain during the term of this Agreement and until that day which is 12 months from the Closing Date and the Agent will have the right of first refusal to provide such financing. For greater certainty, the right of first refusal set out in this section includes, but is not limited to:
(a) the right of the Agent to act as the lead agent for such financing;
(b) the right of the Agent to be part of a syndicate group with respect to such financing; and
(c) the right of the Agent to participate in a portion of such financing to be mutually agreed upon by the Agent and the Issuer. This right of first refusal does not apply if the Issuer does not retain or utilize a registered dealer as agent for the financing unless any of the Arena Notes and/or subscribers to the Walleye Notes issuance of such securities (each, a “Subscriber”) is outstandinga subscriber or beneficial purchaser of Offered Securities under the Offering, in which case the Agent will be entitled to receive a finder’s fee equal to a percentage of the proceeds from the Subscribers to be determined by the Issuer and the Agent.
15.2 The Issuer will also notify the Agent (the “Financial Advice Notice”) if and when the Issuer requires or proposes to obtain financial advisory services of the type performed or normally performed by a broker or investment dealer, with respect to general corporate advisory matters or for any material corporate transaction such as an amalgamation, merger, takeover bid, joint venture, plan of arrangement or reorganization, or any other such transaction, during the term of this Agreement and until that day which is 12 months after the Closing Date, and the Agent will have the right of first refusal to exclusively provide such financial advisory services.
15.3 The rights of first refusal must be exercised by the Agent:
(a) within seven business days following the receipt of the Financing Notice by notifying the Issuer that it will provide such financing on the terms set out in the Financing Notice; or
(b) within seven business days following the receipt of the Financial Advice Notice by notifying the Issuer that it will provide financial advice on terms to be mutually agreed upon by the parties.
15.4 If the Agent fails to give the applicable notice with the time specified, the Company has a bona fide offer of capital Issuer will then be free to make other arrangements to obtain financing or financing financial advisory services from any third party that the Company intends to act upon, then the Company must offer such opportunity another source on the same terms as such third party’s or on terms by providing written notice of the offer (an “Offer Notice”) concurrently no less favourable to the Arena PurchasersIssuer than that specified in the Financing Notice or the Financial Advice Notice, Walleye, Mast Hill Fund, L.P., a Delaware limited partnership (“Mast Hill”), Blue Lake Partners, LLC, a Delaware limited liability company (“Blue Lake”), and Fourth Man, LLC, a Nevada limited liability company (“Fourth Man”)as the case may be, subject to obtaining the terms of this Section 9. As used in this Section 9, the term “Offerees” shall mean, collectively, (i) the Arena Purchasers (jointly), (ii) Walleye, (iii) Mast Hill, (iv) Blue Lake and (v) Fourth Man, and, each individually an “Offeree”; provided for the avoidance of doubt that for purposes of this Section 9, the Arena Purchasers shall be considered to be a single Offeree. Within five (5) Business Days after receipt of an Offer Notice by any Offeree (the “Offer Response Period”), such Offeree shall notify the Company in writing (an “Offer Response Notice”) of such Offeree’s election to either (A) provide such capital or financing to the Company on the same terms as such third party’s terms (including without limitation matching the aggregate principal amount of such capital or financing proposed to be provided to the Company by such third party) or (B) waive such Offeree’s right to provide such capital or financing to the Company on the same terms as such third party’s terms. If any Offeree fails to deliver an Offer Response Notice to the Borrower prior to the end acceptance of the Offer Response Period, time being of the essence, then such Offeree shall be deemed to have elected option (B) above. In the event (x) more than one Offeree elects to provide such capital or financing to the Company on the same terms as such third party’s terms pursuant to Offer Response Notices sent by each such Offeree to the Company within the Offer Response Period, then each such Offeree shall provide a portion of such capital or financing to the Company pro rata in proportion to the respective ROFR Units (as defined below) of such Offerees, and in all other respects on the same terms as such third party’s terms, (y) only one Offeree elects to provide such capital or financing to the Company on the same terms as such third party’s terms pursuant to an Offer Response Notice sent by such Offeree to the Company within the Offer Response Period, then such Offeree shall provide (and none of the other Offerees shall have the right to provide) such capital or financing to the Company on the same terms as such third party’s terms (including without limitation matching the aggregate principal amount of such capital or financing proposed to be provided to the Company by such third party), or (z) none of the Offerees elects to provide such capital or financing to the Company on the same terms as such third party’s terms pursuant to an Offer Response Notice sent to the Company within the Offer Response Period, then the Company may obtain such capital or financing from such third party, provided the Company obtains such capital or financing from such third party upon the exact same terms and conditions set forth in the Offer Notice. If none of the Offerees elects to provide such capital or financing to the Company on the same terms as such third party’s terms pursuant to an Offer Response Notice sent to the Company within the Offer Response Period, and the Company does not receive the capital or financing from such third party in accordance with the foregoing clause (z) within thirty (30) days after the date of the last Offer NoticeRegulatory Authorities, so long as any the arrangements with such other source are entered into and documented in writing within 30 days of the Arena Notes and/or Agent’s failure to exercise its right of first refusal.
15.5 The rights of first refusal will not terminate if, on receipt of any Financing Notice or Financial Advice Notice from the Walleye Notes remains outstanding at such timeIssuer, the Company must again offer Agent fails to exercise the capital or financing opportunity on the same terms as such third party’s terms by providing written notice of the offer concurrently to each of the Offerees pursuant to a further Offer Notice as described above, and the process detailed above shall be repeated. All Offer Notices required to be sent to the Arena Purchasers and Walleye under this Section 9 must be sent via electronic mail in accordance with Section 8 hereof. For purposes of allocating the opportunity to provide the capital or financing to the Borrower on the same terms as the applicable third party’s terms to the applicable Offerees under clause (x) of the fourth sentence of this Section 9, the Offerees shall be and hereby are allocated units (with respect to each Offeree, such Offeree’s “ROFR Units”) representing the Offerees’ respective rights in connection with any such allocation of the opportunity, with such ROFR Units being allocated to the Offerees in the following amounts: (i) to the Arena Purchasers (as a single Offeree), 3,900,000 ROFR Units, (ii) to Walleye, 2,149,706 ROFR Units, (iii) to Mast Hill, 367,500 ROFR Units, (iv) to Blue Lake, 262,500 ROFR Units, and (v) to Fourth Man, 156,525 ROFR Unitsrights.
Appears in 1 contract
Sources: Agency Agreement
Rights of First Refusal. If at any time while (a) For a period of three (3) years following the Effective Date, if an Investor (other than the Initial Investor) proposes to sell, transfer or otherwise convey any of the Arena Notes and/or Securities or the Walleye Notes is outstandingshares of Common Stock underlying the Warrants (the "Proposed Transfer"), such Investor (the "Transferring Investor") shall promptly deliver to the Initial Investor and the Company has a bona fide offer of capital or financing from any third party that the Company intends to act upon, then the Company must offer such opportunity on the same terms as such third party’s terms by providing written notice of the offer Proposed Transfer (an “Offer the "Transfer Notice”) concurrently to the Arena Purchasers, Walleye, Mast Hill Fund, L.P., a Delaware limited partnership (“Mast Hill”"), Blue Lake Partners, LLC, a Delaware limited liability company (“Blue Lake”), and Fourth Man, LLC, a Nevada limited liability company (“Fourth Man”), subject to the terms of this Section 9. As used setting forth in this Section 9, the term “Offerees” shall mean, collectively, reasonable detail: (i) the Arena Purchasers (jointly), price and material terms of the Proposed Transfer; (ii) Walleye, the amount of the Securities (or shares of Common Stock underlying the Warrants) proposed to be transferred; and (iii) Mast Hillsuch other information as the Initial Investor and the Company may reasonably request in order to evaluate the terms of the Proposed Transfer. The Initial Investor shall thereupon have the right, for a period of thirty (iv30) Blue Lake calendar days following delivery of the Transfer Notice (the "First Refusal Period"), to purchase all or any portion of the Securities (and the shares of Common Stock underlying the Warrants) designated in the Transfer Notice at the last transaction price per share of the Company's securities as quoted by the Nasdaq National Market System (vor such other exchange or quotation bureau on which the securities are then traded or quoted) Fourth Man, and, each individually on the last business day immediately preceding the date on which the Initial Investor notifies the Transfer Investor of its intention to purchase such Securities (the "Acceptance Notice"). The Initial Investor must deliver the Acceptance Notice to the Transferring Investor on or prior to expiration of the First Refusal Period. Failure by the Initial Investor to deliver the Acceptance Notice shall constitute an “Offeree”; provided for election by the avoidance Initial Investor not to purchase any of doubt the Securities (or the shares of Common Stock underlying the Warrants) designated in the Transfer Notice.
(b) In the event that for purposes the Initial Investor declines to purchase the Securities (or the shares of this Section 9Common Stock underlying the Warrants) designated in the Transfer Notice (or otherwise fails to deliver the Acceptance Notice prior to the expiration of the First Refusal Period), the Arena Purchasers Company shall be considered thereupon have the right, for a period of thirty (30) calendar days thereafter, to be a single Offeree. Within five (5) Business Days after receipt of an Offer Notice by purchase any Offeree (the “Offer Response Period”), such Offeree shall notify the Company in writing (an “Offer Response Notice”) or all of such Offeree’s election to either (A) provide such capital or financing to the Company on securities upon the same terms as such third party’s terms set forth in Subsection 4.1(a) above. If the Company declines to purchase the Securities (including without limitation matching or the aggregate principal amount shares of Common Stock underlying the Warrants) designated in the Transfer Notice, the Transferring Investor may then, for a period of ninety (90) calendar days thereafter, sell, transfer or otherwise convey any of such capital securities as set forth in the Transfer Notice, subject to applicable laws, rules and regulations. An election by the Initial Investor or financing proposed to be provided to the Company not to purchase the Securities (or the shares of Common Stock underlying the Warrants) as described herein shall not affect the rights of first refusal provided herein with respect to subsequent Proposed Transfers by such third party) or (B) waive such Offeree’s right to provide such capital or financing to a Transferring Investor. Any transfer of Securities by a Transferring Investor without first giving the Company on the same terms as such third party’s terms. If any Offeree fails to deliver an Offer Response Transfer Notice to the Borrower prior to the end of the Offer Response Period, time being of the essence, then such Offeree shall be deemed to have elected option (B) above. In the event (x) more than one Offeree elects to provide such capital be null and void and of no legal force or financing to the Company on the same terms as such third party’s terms pursuant to Offer Response Notices sent by each such Offeree to the Company within the Offer Response Period, then each such Offeree shall provide a portion of such capital or financing to the Company pro rata in proportion to the respective ROFR Units (as defined below) of such Offerees, and in all other respects on the same terms as such third party’s terms, (y) only one Offeree elects to provide such capital or financing to the Company on the same terms as such third party’s terms pursuant to an Offer Response Notice sent by such Offeree to the Company within the Offer Response Period, then such Offeree shall provide (and none of the other Offerees shall have the right to provide) such capital or financing to the Company on the same terms as such third party’s terms (including without limitation matching the aggregate principal amount of such capital or financing proposed to be provided to the Company by such third party), or (z) none of the Offerees elects to provide such capital or financing to the Company on the same terms as such third party’s terms pursuant to an Offer Response Notice sent to the Company within the Offer Response Period, then the Company may obtain such capital or financing from such third party, provided the Company obtains such capital or financing from such third party upon the exact same terms and conditions set forth in the Offer Notice. If none of the Offerees elects to provide such capital or financing to the Company on the same terms as such third party’s terms pursuant to an Offer Response Notice sent to the Company within the Offer Response Period, and the Company does not receive the capital or financing from such third party in accordance with the foregoing clause (z) within thirty (30) days after the date of the last Offer Notice, so long as any of the Arena Notes and/or the Walleye Notes remains outstanding at such time, the Company must again offer the capital or financing opportunity on the same terms as such third party’s terms by providing written notice of the offer concurrently to each of the Offerees pursuant to a further Offer Notice as described above, and the process detailed above shall be repeated. All Offer Notices required to be sent to the Arena Purchasers and Walleye under this Section 9 must be sent via electronic mail in accordance with Section 8 hereof. For purposes of allocating the opportunity to provide the capital or financing to the Borrower on the same terms as the applicable third party’s terms to the applicable Offerees under clause (x) of the fourth sentence of this Section 9, the Offerees shall be and hereby are allocated units (with respect to each Offeree, such Offeree’s “ROFR Units”) representing the Offerees’ respective rights in connection with any such allocation of the opportunity, with such ROFR Units being allocated to the Offerees in the following amounts: (i) to the Arena Purchasers (as a single Offeree), 3,900,000 ROFR Units, (ii) to Walleye, 2,149,706 ROFR Units, (iii) to Mast Hill, 367,500 ROFR Units, (iv) to Blue Lake, 262,500 ROFR Units, and (v) to Fourth Man, 156,525 ROFR Unitseffect whatsoever.
Appears in 1 contract