Common use of Third Tranche Clause in Contracts

Third Tranche. (i) Subject to the terms and conditions of this Agreement (including, without limitation, the terms and conditions set forth below in this Section 1.1(d)), at the Third Tranche Closing (as defined in section 1.2(c)(i)), the Company shall issue and sell to each Purchaser, and each Purchaser, acting severally and not jointly, shall purchase from the Company, that number of shares of Series D Preferred Stock set forth opposite each such Purchaser’s name under the heading “Third Tranche Shares” on Exhibit A, at a purchase price per share equal to the Series D Price. Subject to the provisions of this Section 1.1(d), the aggregate number of shares of Series D Preferred Stock issued to the Purchasers at the Third Tranche Closing shall be 25,481,775 (such aggregate number of shares, subject to proportionate and equitable adjustment upon any stock split, stock dividend, reverse stock split or other similar event that affects or involves the Series D Preferred Stock, being hereinafter referred to as the “Third Tranche Shares”) and the aggregate purchase price payable by the Purchasers at the Third Tranche Closing for all of the Third Tranche Shares shall be $14,999,999.85. (ii) The sale and purchase of the Third Tranche Shares pursuant to this Section 1.1(d) shall be consummated only if (1) either the Board of Directors of the Company determines that the Milestones (as defined in Section 1.4 below) have been achieved or those Purchasers that hold at least seventy-five percent (75%) of the Tranche Shares issued and outstanding agree in writing to waive the requirement that the Milestones be achieved as a condition precedent to such sale and purchase of the Third Tranche Shares pursuant to this Section 1.1(d), (2) the Company delivers a written notice to all of the Purchasers (the “Third Tranche Closing Notice”) stating that (A) the Board of Directors of the Company has determined that the Milestones have been achieved or that the requirement that the Milestones be achieved as a condition precedent to such sale and purchase of the Third Tranche Shares pursuant to this Section 1.1(d) has been waived in accordance with the provisions of the foregoing clause (1) of this Section 1.1(d)(ii) and (B) the Company desires to consummate such sale and purchase of the Third Tranche Shares pursuant to this Section 1.1(d), and setting forth a proposed date for the Third Tranche Closing that is consistent with the applicable requirements of Section 1.1(d)(iii) below, (3) those Purchasers that hold at least seventy-five percent (75%) of the Tranche Shares issued and outstanding do not elect in writing, within ten (10) business days after the date of the Third Tranche Closing Notice, to abandon the consummation of the sale and purchase of the Third Tranche Shares pursuant to this Section 1.1(d) and (4) all other applicable conditions precedent set forth in this Agreement to the consummation of the Third Tranche Closing shall have been satisfied or properly waived in accordance with the terms of this Agreement. Upon request by any Purchaser, the Company shall promptly provide such Purchaser with reasonable evidence supporting achievement of the Milestones, as applicable, which evidence shall be subject to the confidentiality provisions set forth in Section 3.5 of the Investors’ Rights Agreement. (iii) Notwithstanding anything express or implied in this Section 1.1(d) or elsewhere in this Agreement to the contrary: (A) the Company shall send the Third Tranche Closing Notice at least fifteen (15) business days before the Third Tranche Closing and the Company shall not send the Third Tranche Closing Notice at any time during the Restricted Period; (B) the sale and purchase of the Third Tranche Shares pursuant to this Section 1.1(d) shall not be consummated at any time during the Restricted Period and also shall not be consummated at any time prior to December 31, 2015 or after the fifteenth (15th) business day after September 30, 2017; (C) in the event that the sale and purchase of the Third Tranche Shares pursuant to this Section 1.1(d) is to be consummated at any time within thirty (30) days prior to the consummation of a Deemed Liquidation Event, each Purchaser shall have the right to make a Net Issue Election pursuant to which such Purchaser shall be issued pursuant to this Section 1.1(d), at the Third Tranche Closing, a smaller number of the Third Tranche Shares determined in accordance with such Net Issue Election and without having to make payment to the Company of any cash purchase price in connection with such smaller number of the Third Tranche Shares, in lieu of purchasing and paying the purchase price for the full number of the Third Tranche Shares that such Purchaser would otherwise have the right and obligation to purchase and pay for pursuant to this Section 1.1(d); and (D) the Company shall have no right or obligation to sell any shares of Series D Preferred Stock to a Purchaser pursuant to this Section 1.1(d), and such Purchaser shall have no right or obligation to purchase any shares of Series D Preferred Stock from the Company pursuant to this Section 1.1(d), if the Company has previously sold to such Purchaser, and such Purchaser has previously purchased from the Company, shares of Series D Preferred Stock pursuant to Section 2.1(b) hereof. In the event that the provisions of clause (D) of the immediately preceding sentence are applicable with respect to one or more Purchasers, then (1) the rights and obligations of the Purchasers to purchase Third Tranche Shares pursuant to this Section 1.1(d) shall continue to apply only with respect to those Purchasers that have not previously purchased shares of Series D Preferred Stock from the Company pursuant to Section 2.1(b) hereof, (2) the rights and obligations of the Company to sell Third Tranche Shares pursuant to this Section 1.1(d) shall continue to apply only with respect to those Purchasers that have not previously purchased shares of Series D Preferred Stock from the Company pursuant to Section 2.1(b) hereof and (3) the aggregate purchase price payable by the Purchasers at the Third Tranche Closing for all of the Third Tranche Shares shall be automatically reduced to reflect the reduction in the number of Third Tranche Shares. (iv) The rights and obligations of the Company and the Purchasers to consummate the sale and purchase of the Third Tranche Shares pursuant to this Section 1.1(d) shall automatically terminate on the earlier of (1) the sixteenth (16th) business day after September 30, 2017, (2) the consummation of a Deemed Liquidation Event, (3) the closing of the IPO and (4) the date on which all Purchasers have purchased shares of Series D Preferred Stock pursuant to, and in accordance with, Section 2.1(b) hereof. In addition, if one or more Purchasers is or are in material breach of any representation, warranty, covenant or provision under this Agreement that is applicable to such Purchaser or Purchasers (which material breach remains uncured for at least thirty (30) days after written notice thereof), then the obligation of the Company to consummate the sale of any number of the Third Tranche Shares to such Purchaser or Purchasers pursuant to this Section 1.1(d), and the right of such Purchaser or Purchasers to consummate the purchase of such number of the Third Tranche Shares from the Company pursuant to this Section 1.1(d), may be terminated by the Company by giving written notice of termination to the breaching Purchaser or Purchasers. Any termination pursuant to this Section 1.1(d)(iv) of the rights and/or obligations of the Company and/or the Purchasers to consummate the sale and purchase of the Third Tranche Shares pursuant to this Section 1.1(d) shall not relieve or release any party to this Agreement from any material breach by such party of any representation, warranty, covenant or provision under this Agreement that is applicable to such party if and to the extent that such material breach occurred prior to such termination.