Initial Public Offering. (a) In the event that at any time after the date hereof, the Board of Directors determines that it shall facilitate an offering of Equity Securities in the Company or a successor through an Initial Public Offering, then the Board of Directors shall have the power to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution of the securities being offered in the Initial Public Offering. (b) If applicable, the Members holding Units shall receive, in exchange for their Units of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering. (c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation). (d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable. (e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act. (f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with the Initial Public Offering, as such managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements to the foregoing effect if so, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members shall be released from such restrictions pro-rata. (g) Notwithstanding anything to the contrary set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offering.
Appears in 4 contracts
Sources: Limited Liability Company Agreement (Jpmorgan Chase & Co), Limited Liability Company Agreement (HG Vora Capital Management, LLC), Limited Liability Company Agreement (Hudson Bay Capital Management LP)
Initial Public Offering. (a) In the event that at any time after the date hereof, the Board of Directors determines that it shall facilitate an offering of Equity Securities in the Company or a successor through an Initial Public Offering, then the Board of Directors shall have the power to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution of the securities being offered in the Initial Public Offering.
(b) If applicable, the Members holding Units shall receive, in exchange for their Units of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable Notwithstanding anything to the Units, contrary contained herein but subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation4.01(d).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory approved in accordance with this Agreement, the Members hereby agree to such Member that all officers and directors discuss in good faith whether any of the rights and obligations of the parties hereto and the Company and all holdersunder this Agreement should be amended, collectively with their Affiliates and Approved Fundsrestructured or terminated, including, without limitation, whether any of one percent (1%the rights set forth in Section 4.01(d) or greater of Equity Securities of the Company shall enter into similar agreements8.04 hereof should be terminated or made subject to any time limitations, thereby agreeing not in order to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with permit the Initial Public OfferingOffering to be effected in a manner consistent with applicable Law, market custom and the recommendations of the Global Coordinators in light of market conditions at such time and the listing requirements of the exchange or market on which the Initial Public Offering is to be effected, taking into account, among other things, the rights of the Preferred Members hereunder and their goal and expectation that the Senior Preferred Redemption and the Junior Preferred Payment be effected as such managing underwriter promptly as practicable after the date hereof; provided, however, that this sentence shall specify reasonably and not in good faith. Each Member shall enter into customary letter agreements to any way either (x) obligate any of the foregoing effect if so, requested by Members or the Company and to agree to any amendment, restructuring or termination of any such rights or (y) affect or nullify any rights or obligations of the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by Members or the Company and the managing underwriter, if any, from the restrictions contemplated by under this Section 3.8(f), all other Members shall be released from such restrictions pro-rataAgreement.
(gb) Notwithstanding anything to the contrary set forth contained herein but subject to Section 4.01(d), in connection with any Initial Public Offering of the Company (or its successor corporation) or any newly formed corporation as described below, approved in accordance with this Agreement, and upon the restrictions contained request of the Board of Managers, each of the Members hereby agrees that it will, at the expense of the Entity subject to such Public Offering, take such action and execute such documents as may reasonably be necessary to effect such Public Offering as expeditiously as possible, including, without limitation, taking all such actions and executing such documents as may reasonably be necessary to convert the Company into a corporation or to contribute its respective Securities to a newly formed corporation, in this Agreement each case substantially concurrently with the closing of such Public Offering; provided, however, that in connection with any such conversion or contribution (i) each Preferred Member shall not apply be entitled to Units, any other Equity Securities receive preferred stock of the corporation whose shares of common stock are being sold in connection with such Public Offering with the same economic rights as such Preferred Member was entitled to prior to such conversion or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Membercontribution, including acquired by any of their respective Affiliates or Approved Fundswith an aggregate liquidation preference equal to the amount such Preferred Member would be entitled to receive, following the effective date in respect of the first registration statement Preferred Units which such Preferred Member held in the Company immediately prior to such conversion or contribution, under Section 5.03 hereof if a liquidation of the Company covering common stock (or other securities) had occurred immediately prior to be sold on behalf the consummation of such Public Offering with the proceeds in such liquidation equal in amount to the implied aggregate equity valuation of the Company (as reasonably determined by the Board of Managers in good faith with the reasonable agreement of a Majority in Interest of the Preferred Members) immediately prior to the consummation of such Public Offering; (ii) the Common Members shall be entitled to receive that value of common stock of the corporation whose shares of common stock are being sold in connection with such Public Offering as equals the amount such Common Member would be entitled to receive, relative to the Common Units which such Member held in the Company immediately prior to such conversion or contribution, under Section 5.03 hereof if a liquidation of the Company had occurred immediately prior to the consummation of such Public Offering with the proceeds in such liquidation equal in amount to the implied aggregate equity valuation of the Company (as reasonably determined by the Board of Managers in good faith with the reasonable agreement of a Majority in Interest of the Preferred Members) immediately prior to the consummation of such Public Offering; and (iii) each of the parties hereto and the Entity whose Securities will be the subject of such Initial Public Offering shall enter into, as a condition thereto, a shareholders agreement on substantially the same terms and conditions, mutatis mutandis, as set forth herein; provided further that, in connection with any such conversion or contribution, at any time and from time to time following the expiration of any lock-up period for an underwritten public offering.Initial Public Offering agreed to between the Preferred Members and the underwriters of any Initial Public Offering (but
Appears in 4 contracts
Sources: Limited Liability Company Agreement, Limited Liability Company Agreement, Limited Liability Company Agreement
Initial Public Offering. (a) In the event that at any time after the date hereof, the Board of Directors determines that it shall facilitate an offering of Equity Securities in the Company or a successor through an Initial Public Offering, then the Board of Directors shall have the power to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution of the securities being offered in the Initial Public Offering.
(b) If applicable, the Members holding Units shall receive, in exchange for their Units of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable Notwithstanding anything to the Units, contrary contained herein but subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation4.01(d).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory approved in accordance with this Agreement, the Members hereby agree to such Member that all officers and directors discuss in good faith whether any of the rights and obligations of the parties hereto and the Company and all holdersunder this Agreement should be amended, collectively with their Affiliates and Approved Fundsrestructured or terminated, including, without limitation, whether any of one percent (1%the rights set forth in Section 4.01(d) or greater 8.04 hereof should be terminated or made subject to any time limitations (or time and volume limitations in the case of Equity Securities of the Company shall enter into similar agreementsSection 5.04 hereof), thereby agreeing not in order to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with permit the Initial Public OfferingOffering to be effected in a manner consistent with applicable Law, market custom and the recommendations of the Global Coordinators in light of market conditions at such time and the listing requirements of the exchange or market on which the Initial Public Offering is to be effected, taking into account, among other things, the rights of the Preferred Members hereunder and their goal and expectation that the Preferred Payment be effected as such managing underwriter promptly as practicable after the date hereof; provided, however, that this sentence shall specify reasonably and not in good faith. Each Member shall enter into customary letter agreements to any way either (x) obligate any of the foregoing effect if so, requested by Members or the Company and to agree to any amendment, restructuring or termination of any such rights or (y) affect or nullify any rights or obligations of the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by Members or the Company and the managing underwriter, if any, from the restrictions contemplated by under this Section 3.8(f), all other Members shall be released from such restrictions pro-rataAgreement.
(gb) Notwithstanding anything to the contrary set forth contained herein but subject to Section 4.01(d), in connection with any Initial Public Offering of the Company (or its successor corporation) or any newly formed corporation as described below, approved in accordance with this Agreement, and upon the restrictions contained request of the Board of Managers, each of the Members hereby agrees that it will, at the expense of the Entity subject to such Public Offering, take such action and execute such documents as may reasonably be necessary to effect such Public Offering as expeditiously as possible, including, without limitation, taking all such actions and executing such documents as may reasonably be necessary to convert the Company into a corporation or to contribute its respective Securities to a newly formed corporation, in this Agreement each case substantially concurrently with the closing of such Public Offering; provided, however, that in connection with any such conversion or contribution (i) each Preferred Member shall not apply be entitled to Units, any other Equity Securities receive preferred stock of the corporation whose shares of common stock are being sold in connection with such Public Offering with the same economic rights as such Preferred Member was entitled to prior to such conversion or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Membercontribution, including acquired by any of their respective Affiliates or Approved Fundswith an aggregate liquidation preference equal to the amount such Preferred Member would be entitled to receive, following the effective date in respect of the first registration statement Preferred Units which such Preferred Member held in the Company immediately prior to such conversion or contribution, under Section 5.02 hereof if a liquidation of the Company covering common stock (or other securities) had occurred immediately prior to be sold on behalf the consummation of such Public Offering with the proceeds in such liquidation equal in amount to the implied aggregate equity valuation of the Company (as reasonably determined by the Board of Managers in an underwritten public offering.good faith with the reasonable agreement of a Majority in Interest of the Preferred Members) immediately prior to the consummation of such
Appears in 4 contracts
Sources: Limited Liability Company Agreement, Limited Liability Company Agreement, Limited Liability Company Agreement
Initial Public Offering. Notwithstanding anything to the contrary contained herein, (ai) In the event that at any time after the date hereof, the Board of Directors determines that Managers deems it shall facilitate an offering of Equity Securities advisable and in the Company or a successor through an Initial Public Offering, then the Board best interests of Directors shall have the power to cause the Company to that the Company be reorganized as converted into a corporation pursuant to the Plan of Conversion in substantially the same form attached hereto as Exhibit B (such corporation or other issuer entity being hereinafter referred to as a the “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “ConversionPlan”), the Certificate of Incorporation attached as an exhibit to the Plan and the Members shall use their commercially reasonable efforts to effectuate such Certificate of Conversion and take such actions as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution of the securities being offered in the Initial Public Offering.
(b) If applicable, the Members holding Units shall receive, in exchange for their Units of a particular class, shares of stock in the Public Vehicle of the relevant class having substantially the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in form attached hereto as Exhibit C (the case “Certificate of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tackConversion”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and in accordance with the Act, and (ii) the Members hereby consent to such conversion of the Company into a corporation in connection with any Initial Public Offering and in accordance with the Act and the Plan and authorize, approve and adopt the Plan, the Certificate of Incorporation attached as an exhibit to the Plan and the Certificate of Conversion. Notwithstanding anything to the contrary contained herein, in connection with any Initial Public Offering, and upon confirmation the request of the Board of Managers, each of the Members hereby agrees that it will, at the expense of the Company, take such action and execute such documents as may reasonably satisfactory be necessary to effect such Initial Public Offering. Either in connection with an Initial Public Offering or prior to the expiration of the later of (i) 180 days following the consummation of the Initial Public Offering or (ii) the expiration of any underwriter lock-up period, the Board of Managers will liquidate the Company and distribute to the Members shares of common stock of the corporate successor of the Company which effects the Initial Public Offering; provided that (a) fifty percent (50%) of the shares of common stock held by each Member shall become eligible for sale by such Member on the date that is 180 days following the expiration of any underwriter lock-up period applicable to such Member and the remaining fifty percent (50%) of such Member’s shares shall become eligible for sale by such Member on the date that all officers is 271 days following the expiration of such underwriter lock-up period and directors (b) the Members have entered into an agreement acceptable to the Company not to sell such shares of common stock except as set forth in clause (a) above or pursuant to the exercise of registration rights (as set forth in Annex A). The number of shares of common stock of the corporate successor of the Company and all holders, collectively to be received by each Member shall be determined in accordance with their Affiliates and Approved Funds, of one percent (1%) Section 8.03 hereof. In connection with any such distribution or greater of Equity Securities of in the event that the Company shall enter is converted into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with a corporation that effects the Initial Public Offering, as such managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements to the foregoing effect if so, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members shall be released from such restrictions pro-rata.
(g) Notwithstanding anything entitled to the contrary registration rights set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offeringAnnex A hereto.
Appears in 4 contracts
Sources: Merger Agreement (STR Holdings (New) LLC), Merger Agreement (STR Holdings, Inc.), Limited Liability Company Agreement (STR Holdings (New) LLC)
Initial Public Offering. (a) In the event that at any time after (i) the date hereofCompany files a registration statement under the Act prior to October 15, the Board of Directors determines that it shall facilitate an 2014 in connection with its initial underwritten public offering of Equity Securities in shares of Common Stock (the Company or a successor through an Initial Public Offering, then the Board of Directors shall have the power to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “ConversionIPO”), and such registration statement has an estimated price range and (ii) Investors holding at least a majority of the Members then outstanding Shares (which majority shall include WCAS) notify the Company in writing of such Investors’ election to abandon the consummation of the sale and purchase of the Additional Shares at the Second Closing, each Investor, or its designee, shall purchase such number of registered public shares of Common Stock in the IPO equal to such Investor’s Second Closing Commitment divided by the price per share of Common Stock offered to the public (the “IPO Shares”). The Company shall use their its commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete cause the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution managing underwriter(s) of the securities being offered IPO to direct to the Investors a number of registered public shares of Common Stock in the Initial Public Offering.
(b) If applicableIPO equal the total IPO Shares. The Investors acknowledge that, despite the Company’s use of its commercially reasonable efforts, the Members holding Units shall receivemanaging underwriter(s) may determine in their sole discretion that it is not advisable to designate all such IPO Shares as directed shares in the IPO, in exchange for their Units which case the number of a particular classIPO Shares may be reduced or no directed shares may be designated, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event as applicable. Any such reduction shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth pro rata among all participating Investors. Nothing in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public VehicleSection 1.2(c) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree Investors to use their commercially reasonable efforts to structure consummate the Conversion to maximize the ability sale and purchase of the Members to aggregate (or “tack”Additional Shares in accordance with Section 1.2(b) if the period during which they hold their Units together with the period during which they hold shares of capital stock Investors holding at least a majority of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
then outstanding Shares (fwhich majority must include WCAS) Each Member (including any Transferee thereof) agrees, if requested by have not notified the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory writing to such Member that all officers and directors consummate the purchase of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with the Initial Public Offering, IPO Shares as such managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements to the foregoing effect if so, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f)1.2(c) in lieu of the Second Closing. For clarity, all other Members shall in no event will any Investor be released from such restrictions pro-rata.
(g) Notwithstanding anything obligated to purchase Additional Shares or IPO Shares, as the contrary set forth case may be, in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any excess of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offeringSecond Closing Commitment.
Appears in 3 contracts
Sources: Consent, Waiver and Amendment Agreement (Valeritas Inc), Stock Purchase Agreement (Valeritas Inc), Stock Purchase Agreement (Valeritas Inc)
Initial Public Offering. (a) In the event that If at any time after the date hereof, the Board of Directors determines that it shall facilitate an offering of Equity Securities in the Company or Members representing a successor through an Initial Public Offering, then the Board of Directors shall have the power to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution of the securities being offered in the Initial Public Offering.
(b) If applicable, the Members holding Units shall receiveMajority Interest approve, in exchange for their Units anticipation of a particular class, shares of stock or otherwise in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive connection with an Initial Public Offering by the Company, a Successor Entity (and do not otherwise adversely affect defined below) or any Affiliate (the ability to effectuate the Initial Public Offering“IPO Entity”), (a) to continue to apply to the Public Vehicle, the stockholders a Transfer of all or substantially all of the Public Vehicle and the capital stock assets or outstanding Membership Interests of the Public VehicleCompany, including directly or indirectly, to a newly organized or other corporation or other business entity (ia “Successor Entity”), (b) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations a merger or consolidation of the Members contained herein Company into or with a Successor Entity, (which mayc) any other business combination, at the election conversion, continuance, joint venture, restructuring of all or substantially all of the holders assets or outstanding Membership Interests of the Company with or into a Majority Class A InterestSuccessor Entity, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right a Successor Entity or power to veto, vote for or against, amend, modify or delay a Conversion or the its Affiliate effecting an Initial Public Offering. In furtherance Offering through the use of an UPREIT structure or similar structure or approach to allow for the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect deferral of any vote or approval recognition of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested tax by the Company and a managing underwriteror the Members, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory including through the Transfer of Membership Interests or other securities to such Member that all officers Successor Entity or its Affiliate, which may include terms and directors conditions whereby the Membership Interests or other securities are convertible into or exchangeable for securities of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with entity that effects the Initial Public Offering, or (e) any combination of the foregoing (such transactions described in clauses (a) through (e) of this Section 14.4 collectively, the “IPO Restructuring Transactions”), each Member and Permitted Transferee will consent to, vote for, and raise no objections against, and waive dissenters and appraisal rights (if any) with respect to, the IPO Restructuring Transactions, and if the IPO Restructuring Transactions are structured as a sale of Membership Interests, each Member and Permitted Transferee will agree to sell and will be permitted to sell all of such managing underwriter shall specify reasonably Member’s and in good faithPermitted Transferee’s Membership Interest on the terms and conditions approved by the Members representing a Majority Interest. Each Member and Permitted Transferee will take all necessary or desirable actions permissible under applicable law in connection with the consummation of the IPO Restructuring Transactions. In connection with any such Initial Public Offering, the IPO Entity and the Members shall enter into or adopt a customary letter agreements registration rights agreement granting to the foregoing effect if so, requested by the Company each holder of Membership Interests specified demand registration rights and the managing underwriter, if anypiggyback registration rights. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members shall be released from such restrictions pro-rata.
(g) Notwithstanding anything to the contrary set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offering.Active 14598351.7 43
Appears in 2 contracts
Sources: Limited Liability Company Agreement, Limited Liability Company Agreement (Delek Logistics Partners, LP)
Initial Public Offering. (a) In the event that at any time after the date hereof, the Board and the holders of Directors determines that it shall facilitate an offering of Equity Securities in the Company or a successor through an Initial Public Offering, then the Board of Directors shall have the power to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law majority of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution of the securities being offered in the Initial Public Offering.
(b) If applicable, the Members holding Common Units shall receive, in exchange for their Units of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive then outstanding approve an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders as contemplated by Section 15.7 of the Public Vehicle and the capital stock of the Public VehicleLLC Agreement, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained Securityholder Units shall take all necessary or desirable actions in connection with the Public Vehicle’s certificate consummation of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any event that such Initial Public Offering is an underwritten offering and upon confirmation reasonably satisfactory to such Member the managing underwriters advise the Company in writing that all officers and directors in their opinion the Company's capital structure would adversely affect the marketability of the Company and all holders, collectively with their Affiliates and Approved Funds, offering:
(i) each Securityholder who is a holder of one percent (1%) or greater of Equity Securities units of the Company Company's Class A Preferred Units shall enter into similar agreementsconsent to and vote for a recapitalization, thereby agreeing not to Transfer any Equity Securities reorganization and/or exchange of the Company held by it for one hundred eighty (180) days following Company's Class A Preferred Units into securities or other consideration that the effective date managing underwriters, the Board and the holders of at least a majority of the relevant registration statement filed under the Securities Act units of Class A Preferred Units then outstanding find acceptable and shall take all necessary or desirable actions in connection with the Initial Public Offeringconsummation of the recapitalization, as such reorganization and/or exchange;
(ii) each Securityholder who is a holder of units of the Company's Class B Preferred Units shall consent to and vote for a recapitalization, reorganization and/or exchange of the Company's Class B Preferred Units into securities that the managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements to underwriters, the foregoing effect if so, requested by the Company Board and the holders of at least 70% of the units of Class B Preferred Units then outstanding find acceptable and shall take all necessary or desirable actions in connection with the consummation of the recapitalization, reorganization and/or exchange; provided that each holder of Class B Preferred Units shall receive the same type of security with the same value per unit;
(iii) each Securityholder who is a holder of units of the Company's Class C Preferred Units shall consent to and vote for a recapitalization, reorganization and/or exchange of the Company's Class C Preferred Units into securities that the managing underwriterunderwriters, if any. Notwithstanding the foregoing, in the event any Member is released by the Company Board and the managing underwriterholders of a majority of the units of Class C Preferred Units then outstanding find acceptable and shall take all necessary or desirable actions in connection with the consummation of the recapitalization, if any, from reorganization and/or exchange; provided that each holder of Class C Preferred Units shall receive the restrictions contemplated by this Section 3.8(f), all other Members shall be released from such restrictions pro-rata.same type of security with the same value per unit; and
(giv) Notwithstanding anything each Securityholder who is a holder of units of the Company's Common Units shall consent to and vote for a recapitalization, reorganization and/or exchange of the contrary set forth in this AgreementCompany's Common Units into securities that the managing underwriters, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any Board and the holders of their respective Affiliates or Approved Funds, following the effective date a majority of the first registration statement units of Common Units then outstanding find acceptable and shall take all necessary or desirable actions in connection with the consummation of the Company covering common stock (or other securities) to be sold on behalf recapitalization, reorganization and/or exchange; provided that each holder of Common Units shall receive the Company in an underwritten public offeringsame type of security with the same value per unit.
Appears in 2 contracts
Sources: Securityholders Agreement (Coinmach Laundry Corp), Securityholders Agreement (Coinmach Corp)
Initial Public Offering. (a) In the event that at any time after the date hereof, the Board of Directors determines that it shall facilitate an offering of Equity Securities in the Company or a successor through an Initial Public Offering, then the Board of Directors shall have the power to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution of the securities being offered in the Initial Public Offering.
(b) If applicable, the Members holding Units shall receive, in exchange for their Units of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable Notwithstanding anything to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contrary contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if anyherein, in connection with any Initial Public Offering Offering, and upon confirmation the request of the Board of Managers, each of the Members hereby agrees that it will, at the expense of the Company, take such action and execute such documents as may reasonably satisfactory be necessary to effect such Initial Public Offering. Either in connection with an Initial Public Offering or prior to the expiration of the later of (i) 180 days following the consummation of the Initial Public Offering or (ii) the expiration of any underwriter lock-up period, the Board of Managers will liquidate the Company and distribute to the Members shares of common stock of STR or such other corporation owned by the Company which effects the Initial Public Offering; provided that (a) fifty percent (50%) of the shares of common stock held by each Member shall become eligible for sale by such Member on the date that is 180 days following the expiration of any underwriter lock-up period applicable to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one remaining fifty percent (150%) or greater of Equity Securities of such Member’s shares shall become eligible for sale by such Member on the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) date that is 271 days following the effective date expiration of such underwriter lock-up period and (b) the relevant Members have entered into an agreement acceptable to the Company not to sell such shares of common stock except as set forth in clause (a) above or pursuant to the exercise of registration statement filed under the Securities Act rights (as set forth in Annex A). The number of shares of common stock of STR or such other corporation to be received by each Member shall be determined in accordance with Section 9.03 hereof. In connection with any such distribution or in the event that the Company is converted into a corporation that effects the Initial Public Offering, as such managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements to the foregoing effect if so, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members shall be released from such restrictions pro-rata.
(g) Notwithstanding anything entitled to the contrary registration rights set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offeringAnnex A hereto. [THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
Appears in 2 contracts
Sources: Limited Liability Company Agreement (STR Holdings (New) LLC), Limited Liability Company Agreement (STR Holdings LLC)
Initial Public Offering. The Members agree that upon the vote of ----------------------- at least seventy-five percent (75%) of the Members and, subject to compliance with applicable laws, the Company shall roll up to a "C" corporation (the "C" Corporation) in connection with an initial public offering of such "C" Corporation, which is (a) In pursuant to a firm underwriting commitment by a reputable investment banker, (b) has a pre-offering valuation of at least $150 million, and (c) results in the event that at any time after "C" Corporation's securities being listed on the date hereofAmerican Stock Exchange, the Board New York Stock Exchange or NASDAQ National Market System (herein an "Initial Public Offering"). Each of Directors determines that it shall facilitate an offering the Members hereby agrees to cooperate in connection with the contribution of Equity Securities their membership interests in the Company or to a successor through an such newly formed C-Corporation, with each existing Member to receive the common stock of the "C" Corporation in proportion to its capital account balance in the Company as of the date of the incorporation after revaluing such Member's capital account in accordance with Treasury Regulations and Section 11(b) to reflect the fair market value of the Company's assets as of the date of incorporation. As of the date of incorporation, the common stock held by all Members shall be granted standard piggyback registration rights entitling the Members to participate on a pari passu basis in registrations of the "C" Corporation's common stock under the Securities Act of 1933, as amended, other than the Initial Public Offering and subject to pro rata cut-backs at the underwriter's discretion. If Univision is a Class A Member and the Managing Members both consent to a proposed Initial Public Offering, then the Board of Directors shall have the power Univision agrees to cause the Company consent to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution if (i) three (3) years from the execution of this Agreement shall have expired; (ii) no more than five percent (5%) of the securities being offered shares to be sold in such offering may be purchased by a single Person, and (iii) no more than thirty percent (30%) of the Company will be sold in the Initial Public Offering.
(b) If applicable, the Members holding Units shall receive, in exchange for their Units of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with the Initial Public Offering, as such managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements to the foregoing effect if so, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members shall be released from such restrictions pro-rata.
(g) Notwithstanding anything to the contrary set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offering.
Appears in 2 contracts
Sources: Subordinated Note Purchase and Option Agreement (Entravision Communications Corp), Roll Up Agreement (Entravision Communications Corp)
Initial Public Offering. (a) In the event that at any time after the date hereofUpon a determination to effect an Initial Public Offering pursuant to Section 5.1(a)(iii), the Board of Directors determines that it shall facilitate an offering of Equity Securities in the Company or a successor through an Initial Public Offering, then the Board of Directors shall have the power to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete structure the Initial Public Offering IPO in a manner designed reasonably acceptable to achieve a fair price and broad the Members, including, without limitation, causing the public distribution offering of the securities being offered stock of an existing or newly formed Subsidiary of the Company or any of the Transfers, mergers, consolidations or restructurings pursuant to Section 12.9(b) and making any such amendments to this Agreement (subject to Section 14.12) as may be deemed by the Board in the Initial Public Offeringgood faith solely as necessary to facilitate such IPO.
(b) If applicable, In the Members holding Units shall receive, in exchange for their Units event of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate determination by the Board (after compliance with Section 5.1(a)(iii)) to cause (i) a Transfer of Directors as a result all or substantially all of (x) the assets of the Conversion Company or if advisable in order (y) the Interests to effectuate a newly organized stock corporation or other business entity with the Initial Public Offering.
ownership interests therein allocated as specified herein (c“Newco”), (ii) In such event, the Public Vehicle and the Members (in their capacities as stockholders a merger of the Public VehicleCompany into Newco by merger or consolidation or (iii) shall enter into a stockholders’ agreement providing for any other restructuring of the Interests, in any such terms and conditions as are necessary for the rights and obligations and provisions case, whether in anticipation of this Agreement that survive an Initial Public Offering or otherwise, each Member shall take such reasonable steps to effect such Transfer, merger, consolidation or other restructuring as may reasonably be requested by the Company on terms that are substantially the same (and do not otherwise adversely affect the ability no less favorable) in respect of such Member’s Interests as other holders of corresponding Interests in respect of such corresponding Interests, including, without limitation, if requested, transferring such Member’s Interests to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the Newco in exchange for capital stock of Newco; provided, that in the Public Vehicleevent of such an exchange, including (i) an agreement to vote all each Interest would be exchanged for a number of shares of capital Newco stock held by determined in a manner such stockholders to elect that each Member is treated no less favorably than such Member would have been treated upon an Exit Event (assuming the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations value of the consideration to be received by the Members contained herein (which may, at in the election Exit Event is the midpoint of the holders of a Majority Class A Interest, be contained filing range in the Public Vehicle’s certificate IPO, to the extent such exchange is in anticipation of incorporationan IPO).
(d) Except as otherwise provided in this Section 3.8. Notwithstanding the preceding sentence, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members shall be required to give take any action or omit to take any action to the extent such action or omission violates applicable law. If the Board determines to effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted an IPO pursuant to this Section 3.8(d12.9(b) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold receive shares of capital stock of the Public Vehicle for purposes of the United States securities lawsNewco pursuant to any such Transfer, including Rule 144 under the Securities Act.
(f) Each merger, consolidation or restructuring, each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory agrees to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar (A) a Registration Rights Agreement and (B) any other customary agreements, thereby agreeing including, without limitation, an underwriters’ lock-up agreement for a period not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) exceed 360 days following the effective date consummation of the relevant registration statement filed under the Securities Act in connection with the Initial Public Offeringsuch IPO, as such managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements to any event provides for the foregoing effect if so, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), same lock-up period for all other Members shall be released from such restrictions pro-rataMembers.
(g) Notwithstanding anything to the contrary set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offering.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (DMC Global Inc.), Limited Liability Company Agreement (DMC Global Inc.)
Initial Public Offering. (a) In the event that at any time after the date hereof, the Board of Directors determines that it shall facilitate an offering of Equity Securities in the Company or a successor through an Initial Public Offering, then the Board of Directors Investors shall have the power to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete participate in the Initial Public Offering pro rata in a manner designed to achieve a fair price and broad public distribution of the securities being offered in the Initial Public Offering.
(b) If applicable, the Members holding Units shall receive, in exchange for their Units of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable proportion to the Units, subject to any modifications deemed appropriate number of Registrable Securities requested by the Board of Directors as a result of the Conversion or if advisable Investors to be included in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoingconnection with a planned Initial Public Offering, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and shall deliver prompt written notice (which notice shall be given (i) in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by event that the Company and a managing underwriterhas publicly disclosed such proposed Initial Public Offering, if any, in connection with any at least thirty (30) calendar days prior to such proposed Initial Public Offering and upon confirmation reasonably satisfactory to such Member (ii) in the event that all officers and directors of the Company and all holdershas not publicly disclosed such proposed Initial Public Offering (a “Non-Public IPO Registration Notice”), collectively with their Affiliates and Approved Funds, no more than ten (10) Business Days prior to the filing of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant such proposed Initial Public Offering registration statement filed under the Securities Act in connection with the SEC (such period not in excess of ten (10) Business Days, the “Non-Public IPO Registration Notice Period”)) to all Investors of its intention to undertake such Initial Public Offering, describing in reasonable detail the proposed offering and distribution (including the anticipated range of the proposed offering price, the class and number of securities proposed to be registered and the distribution arrangements) and of such Investor’s right to participate in such registration under this Section 2(b) as herein provided. If the Investor elects to participate in such managing underwriter proposed Initial Public Offering, the Investor shall keep the contents of any Non-Public IPO Registration Notice confidential prior to the filing of such proposed Initial Public Offering with the SEC and if the Investor has elected not to participate in such proposed Initial Public Offering, the Investor shall keep the contents of any Non-Public IPO Registration Notice confidential during the Non-Public IPO Registration Notice Period. Subject to the other provisions of this paragraph, upon the written request of any Investor made within twenty (20) calendar days, or in the case of a Non-Public IPO Registration Notice, within five (5) Business Days, after the receipt of such written notice (which request shall specify reasonably and the amount of Registrable Securities to be sold), the Company shall allow the Investors to participate in good faithsuch offering. Each Member shall enter into customary letter agreements Immediately upon notification to the foregoing effect if soCompany from the underwriter of the price at which such securities are to be sold, requested by the Company shall so advise each participating Investor. The Investors requesting to participate may, at any time prior to the effectiveness of the registration statement for the Initial Public Offering (and the managing underwriterfor any reason), if any. Notwithstanding the foregoing, in the event any Member is released revoke such request by delivering written notice to the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members shall be released from revoking such restrictions pro-ratarequested inclusion.
(g) Notwithstanding anything to the contrary set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offering.
Appears in 1 contract
Sources: Registration Rights Agreement (Qiao Xing Universal Telephone Inc)
Initial Public Offering. (a) In the event that The Company shall give each holder of Series D Shares prompt written notice at any time after the date hereof, the Board of Directors determines that it shall facilitate an offering of Equity Securities in the Company or a successor through an Initial Public Offering, then the Board of Directors shall have the power to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution of the securities being offered in the Initial Public Offering.
(b) If applicable, the Members holding Units shall receive, in exchange for their Units of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable least 15 days prior to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect filing of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act Registration Statement in connection with the Initial Public Offering, . Such notice shall offer each holder of Series D Shares the opportunity to include in such Registration Statement such number of Registrable Securities as such managing underwriter each holder of Series D Shares may request. Upon the written request of each holder of Series D Shares made within 15 days after the receipt of the Company’s notice (which request shall specify reasonably the number of Registrable Securities intended to be disposed of by each holder of Series D Shares and in good faith. Each Member shall enter into customary letter agreements the intended method of disposition thereof), the Company will use its reasonable best efforts to effect the Registration under the Securities Act of all Registrable Securities which the Company has been so requested to register by each holder of Series D Shares; provided, however, that (x) if such Registration involves an underwritten offering, each holder of Series D Shares must sell its Registrable Securities to the foregoing effect if so, requested underwriters selected by the Company on the same terms and conditions as apply to the managing underwriterCompany; and (y) if, if any. Notwithstanding at any time after giving written notice of its intention to register any securities pursuant to this Section 2.2(a) and prior to the foregoingEffective Date of the Registration Statement filed in connection with such Registration, in the event any Member is released by the Company shall determine for any reason not to register such securities, the Company shall give written notice to each holder of Series D Shares and shall thereupon be relieved of its obligation to register any Registrable Securities in connection with such Registration (without prejudice, however, to rights of the managing underwriter, if any, from the restrictions contemplated by holders of Series D Shares under Section 2.1). If a Registration pursuant to this Section 3.8(f), all other Members shall be released from such restrictions pro-rata.
(g2.2(a) Notwithstanding anything to the contrary set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in involves an underwritten public offering, any holder of Series D Shares may elect, in writing prior to the Effective Date of the Registration Statement filed in connection with such Registration, not to register such Registrable Securities in connection with such Registration. No Registration effected under this Section 2.2(a) shall relieve the Company of its obligations to effect Registrations upon request under Section 2.1 or Section 2.3. The Company shall pay all Registration Expenses in connection with each Registration of Registrable Securities requested pursuant to this Section 2.2(a).
Appears in 1 contract
Initial Public Offering. Notwithstanding any provision of this subparagraph (aC) In to the event that at any time after contrary, following the date hereof, earlier to occur of (1) the Board first closing of Directors determines that it shall facilitate an offering offer and sale of Equity Securities in the Company or a successor through an Initial Public Offering, then the Board of Directors shall have the power to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law shares of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution of the securities being offered in the Initial Public Offering.
(b) If applicable, the Members holding Units shall receive, in exchange for their Units of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital common stock of the Public VehicleFox Family Worldwide (whether such shares are sold by Fox Family Worldwide, including (iexisting stockholders or both) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted cash pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree firmly underwritten public offering effected pursuant to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested a registration statement filed by the Company with the Securities and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed Exchange Commission under the Securities Act of 1933, as amended, (or such successor legislation as shall then be in connection effect), or (2) the date upon which the shares of common stock of Fox Family Worldwide are first authorized for quotation on the Nasdaq National Market, or listed on the New York Stock Exchange (either event, an "initial public offering"):
(A) the provisions of subparagraphs (viii) and (ix) shall terminate and be of no further force or effect;
(B) the provisions of any voting trust agreement entered into pursuant to subparagraph (iv) shall not prevent or restrict Employee's right to sell and transfer any of the Option Shares free and clear of the obligations therein set forth;
(C) the Option shall terminate and expire, to the extent not theretofore exercised, (x) if Employee's employment with the Initial Public OfferingCompany is terminated for any reason other than for "cause" pursuant to Paragraphs 8(a), as (b) or (d) hereof, on the first anniversary of the date of such managing underwriter termination, and (y) if Employee's employment with the Company is terminated for "cause" pursuant to Paragraph 8(c) hereof, on the thirtieth (30th) day following the date of such termination; and
(D) after Employee's employment with the Company is terminated for any reason, Fox Family Worldwide shall specify reasonably have the right and in good faith. Each Member shall enter into customary letter agreements option, exercisable at any time prior to the foregoing effect date of expiration of the Option by delivery of written notice of such exercise to Employee, to purchase from Employee, and if sosuch option is exercised, requested Employee shall sell to Fox Family Worldwide, any and all Option Shares owned by Employee on the date of receipt of the notice of exercise (or acquired thereafter upon exercise of the Option and prior to the closing of such purchase) and the Option granted to Employee hereunder for an amount (the "IPO Termination Purchase Price") equal to (a) the fair market value per share of the Class B Common Stock of Fox Family Worldwide, multiplied by the Company number of Option Shares owned by Employee plus the fair market value per share of the Class B Common Stock of Fox Family Worldwide, multiplied by the number of Option Shares with respect to which Employee's Option has not been exercised, less (B) Employee's purchase price, determined under subparagraph (i) above, for the Option Shares with respect to which Employee's Option has not been exercised; for purposes of this subparagraph, IPO Termination Purchase Price shall equal the greater of (x) the average of the closing sale prices of Fox Family Worldwide's common stock over the 180 trading days preceding the date of giving of written notice and (y) the managing underwriteraverage of the closing sale prices of Fox Family Worldwide's common stock over the five trading days preceding the date of giving of written notice; and within ten (10) days after the determination of the fair market value of the Option Shares, if any. Notwithstanding Fox Family Worldwide shall pay the foregoingIPO Termination Purchase Price to Employee, against delivery by Employee to Fox Family Worldwide of an assignment separate from certificate for the Option Shares, in the event each case free and clear of any Member is released by the Company and the managing underwriterall liens, if anyclaims, from the encumbrances and restrictions contemplated by this Section 3.8(f)of any type, all other Members shall be released from such restrictions pro-ratakind or nature.
(g) Notwithstanding anything to the contrary set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offering.
Appears in 1 contract
Initial Public Offering. (a) In the event that at any time after the date hereof, the Board of Directors determines that it shall facilitate an offering of Equity Securities in the Company or a successor through an Initial Public Offering, then the Board of Directors shall have the power to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution of the securities being offered in the Initial Public Offering.
(b) If applicable, the Members holding Units shall receive, in exchange for their Units of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable Notwithstanding anything to the Units, contrary contained herein but subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation4.01(d).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory approved in accordance with this Agreement, the Members hereby agree to such Member that all officers and directors discuss in good faith whether any of the rights and obligations of the parties hereto and the Company and all holdersunder this Agreement should be amended, collectively with their Affiliates and Approved Fundsrestructured or terminated, including, without limitation, whether any of one percent (1%the rights set forth in Sections 4.01(d) or greater 8.04 hereof should be terminated or made subject to any time limitations (or time and volume limitations in the case of Equity Securities of the Company shall enter into similar agreementsSection 5.04 hereof), thereby agreeing not in order to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with permit the Initial Public OfferingOffering to be effected in a manner consistent with applicable Law, market custom and the recommendations of the Global Coordinators in light of market conditions at such time and the listing requirements of the exchange or market on which the Initial Public Offering is to be effected, taking into account, among other things, the rights of the Preferred Members hereunder and their goal and expectation that the Preferred Payment be effected as such managing underwriter promptly as practicable after the date hereof; provided, however, that this sentence shall specify reasonably and not in good faith. Each Member shall enter into customary letter agreements to any way either (x) obligate any of the foregoing effect if so, requested by Members or the Company and to agree to any amendment, restructuring or termination of any such rights or (y) affect or nullify any rights or obligations of the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by Members or the Company and the managing underwriter, if any, from the restrictions contemplated by under this Section 3.8(f), all other Members shall be released from such restrictions pro-rataAgreement.
(gb) Notwithstanding anything to the contrary set forth contained herein but subject to Section 4.01(d), in connection with any Initial Public Offering of the Company (or its successor corporation) or any newly formed corporation as described below, approved in accordance with this Agreement, and upon the restrictions contained request of the Board of Managers, each of the Members hereby agrees that it will, at the expense of the Entity subject to such Public Offering, take such action and execute such documents as may reasonably be necessary to effect such Public Offering as expeditiously as possible, including, without limitation, taking all such actions and executing such documents as may reasonably be necessary to convert the Company into a corporation or to contribute its respective Securities to a newly formed corporation, in this Agreement each case substantially concurrently with the closing of such Public Offering; provided, however, that in connection with any such conversion or contribution, (i) each Preferred Member shall not apply be entitled to Units, any other Equity Securities receive preferred stock of the corporation whose shares of common stock are being sold in connection with such Public Offering with the same economic rights as such Preferred Member was entitled to prior to such conversion or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Membercontribution, including acquired by any of their respective Affiliates or Approved Fundswith an aggregate liquidation preference equal to the amount such Preferred Member would be entitled to receive, following the effective date in respect of the first registration statement Preferred Units which such Preferred Member held in the Company immediately prior to such conversion or contribution, under Section 5.02 hereof if a liquidation of the Company covering common stock (or other securities) had occurred immediately prior to be sold on behalf the consummation of such Public Offering with the proceeds in such liquidation equal in amount to the implied aggregate equity valuation of the Company (as reasonably determined by the Board of Managers in good faith with the reasonable agreement of a Majority in Interest of the Preferred Members) immediately prior to the consummation of such Public Offering; (ii) the Common Members shall be entitled to receive that value of common stock of the corporation whose shares of common stock are being sold in connection with such Public Offering as equals the amount such Common Member would be entitled to receive, relative to the Common Units which such Member held in the Company immediately prior to such conversion or contribution, under Section 5.02 hereof if a liquidation of the Company had occurred immediately prior to the consummation of such Public Offering with the proceeds in such liquidation equal in amount to the implied aggregate equity valuation of the Company (as reasonably determined by the Board of Managers in good faith with the reasonable agreement of a Majority in Interest of the Preferred Members) immediately prior to the consummation of such Public Offering; and (iii) each of the parties hereto and the Entity whose Securities will be the subject of such Initial Public Offering shall enter into, as a condition thereto, a shareholders agreement on substantially the same terms and conditions, mutatis mutandis, as set forth herein; provided further, that in connection with any such conversion or contribution, at any time and from time to time following the expiration of any lock-up period for an underwritten public offering.Initial Public Offering agreed between the Preferred Members and the underwriters of any Initial Public Offering (but in no event more than 180 days after the consummation thereof), (A) with respect to the FRBNY Member, for as long as the FRBNY Member owns any Preferred Units, the FRBNY Member shall, at any time (i) during the Initial Period, upon prior consultation with, and during the 12-
Appears in 1 contract
Sources: Purchase Agreement (American International Group Inc)
Initial Public Offering. (a) In the event that at any time after the date hereof, the Board of Directors determines that it shall facilitate an offering of Equity Securities in the Company On or a successor through an Initial Public Offering, then the Board of Directors shall have the power to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution of the securities being offered in the Initial Public Offering.
(b) If applicable, the Members holding Units shall receive, in exchange for their Units of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable prior to the UnitsClosing Date, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement Holdings shall have issued and sold Holdings Common Stock pursuant to vote all shares the IPO, the aggregate gross cash proceeds of capital stock held Holdings Common Stock issued on the Closing Date received by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1Holdings or its underwriters shall be not less than $100,000,000, and (ii) Holdings shall have used such proceeds to (x) deposit approximately $50,780,149 into the rights Redemption Account so that the Holdings Preferred Stock can be redeemed and obligations all accrued and unpaid dividends with respect thereto through and including November 2, 1996 and all accrued and unpaid interest with respect thereto through and including the Redemption Date can be paid pursuant to the Preferred Stock Redemption Agreement, (y) pay Transaction Costs, and (z) to contribute the remaining proceeds to Company (the "CONTRIBUTION AMOUNT"), and the IPO shall have been consummated pursuant to terms and conditions satisfactory to Arrangers. Holdings shall have issued and sold not more than 30% (on a fully diluted basis) of Holdings Common Stock in the IPO and upon consummation of the Members contained herein IPO, no person or group (which mayother than Permitted Holders) shall own or control, at the election directly or indirectly, more than 10% of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes issued and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Actoutstanding Holdings Voting Stock. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company Registration Statement shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the have been declared effective date of the relevant registration statement filed under the Securities Act in connection with the Initial Public Offeringof 1933, as such managing underwriter amended, and no stop order suspending the effectiveness of the Registration Statement shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements to the foregoing effect if so, requested have been issued or threatened by the Company Securities and the managing underwriter, if anyExchange Commission. Notwithstanding the foregoing, Holdings shall have delivered to Agent an Officers' Certificate in the event any Member is released by the Company form and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members shall be released from such restrictions pro-rata.
(g) Notwithstanding anything substance reasonably satisfactory to the contrary set Agent setting forth in this Agreement, reasonable detail the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date percentage of the first registration statement of issued and outstanding Holdings Common Stock (on a fully diluted basis) issued and sold by Holdings on the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offeringClosing Date.
Appears in 1 contract
Initial Public Offering. (a) 16.1 If so requested by a by a Qualified A Majority and a Qualified B majority, the Company and the Shareholders shall attempt to have all or part of the Shares offered to the public by way of an Initial Public Offering.
16.2 In the event that at any time after the date hereof, the Board of Directors determines that it shall facilitate an offering of Equity Securities in the Company or a successor through an Initial Public Offering, then the Board all Shareholders shall be treated equally, subject to applicable law and any regulatory requirements.
16.3 In view of Directors shall have the power to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), an ordinary exit and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution of the securities being offered in the upon an Initial Public Offering.
(b) If applicable, the Members holding Units shall receive, in exchange for their Units of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby Shareholders agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (be bound by regulatory stock exchange lock-up restrictions applicable or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act standard in connection with the Initial Public Offering, as such managing underwriter Offering and shall specify reasonably execute standard agreements and undertakings in good faiththis respect. Each Member shall enter into customary letter agreements to the foregoing effect if so, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members Shareholder shall be released pro rata from any such restrictions prolock-rataup if any other Shareholder is released from his lock-up.
16.4 In the event that an Initial Public Offering requires the restructuring of the Company (g) Notwithstanding anything e.g. a transfer of the Shares to a foreign holding company), the Shareholders shall, and shall procure that the Directors shall, exercise all voting power and other power of control available to them directly or indirectly in relation to the contrary set forth Company to do such acts and actions and to make such declarations as required to effect such restructuring to the extent that such acts, actions and declarations shall not result in this Agreementunreasonable tax burden for the Company and/or any of the Shareholders.
16.5 Upon the occurrence of an Initial Public Offering, the restrictions on Transfer of Shares contained in this Agreement Article 6, the right of first refusal contained in Article 8, the drag-along and tag-along rights contained in Articles 9 and 10 shall not apply apply. In addition, as provided for in Article 7.1, all Shareholders waive and agree to Units, waive all pre-emptive rights (droit de souscription préférentiel) with respect to any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any issuance of their respective Affiliates or Approved Funds, following the effective date Shares in connection with an Initial Public Offering.
16.6 The Common Shares and shares issuable on conversion of the first Preferred Shares will be entitled, if applicable, to standard demand registration statement of the rights, Form S-3 registration rights and piggyback rights. The Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offeringshall pay all registration expenses for demand, piggyback and S-3 registrations, as applicable.
Appears in 1 contract
Sources: Shareholder Agreement (ObsEva SA)
Initial Public Offering. (a) In Notwithstanding anything to the event that contrary in this Agreement (including Sections 7.2 and 12.5) and subject solely to the satisfaction of the IPO Conditions (unless waived in whole or in part in writing by, with respect to the Class A IPO Condition, any member of the Class A Group holding Limited Partner Interests or by, with respect to the Class AQ IPO Condition, the Class AQ Group or by, with respect to the Class X IPO Condition, the Class X Group), the Initial Public Offering may be initiated and approved at any time after by the date hereof, General Partner without the Board consent of Directors determines that it shall facilitate an offering of Equity Securities in any other Partner. In connection with the Company or a successor through an Initial Public Offering, then (i) the Board of Directors Partners shall have amend and restate this Agreement in the power to cause form attached hereto as Exhibit B (the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “ConversionFourth A&R LPA”), and with such changes thereto as the Members General Partner shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably deem necessary or desirable appropriate in its sole discretion; (ii) the Units outstanding immediately prior to complete the Initial Public Offering shall be converted into an aggregate number of Common Units and Subordinated Units as the General Partner shall determine is appropriate (such aggregate number of Common Units and Subordinated Units, the “Total IPO Units”) with each Class A Preferred Unit, Class AQ Unit, Class X Unit and Class B Preferred Unit converting into such number of Common Units and/or Subordinated Units as is provided in a manner designed Sections 6.6(b), Section 6.6(c), Section 6.6(d) and Section 6.6(e), respectively, and (iii) the General Partner shall be authorized to achieve a fair price cause the Partnership to negotiate, prepare, execute and broad public distribution deliver such other agreements, documents and other instruments (including with any Affiliates of the securities being offered Partnership or any Partner), and take such other actions (including the issuance of any securities), as the General Partner shall deem necessary or appropriate in its sole discretion to effect the Initial Public Offering. GPM PETROLEUM LP THIRD AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP
(b) In connection with the Initial Public Offering, each Class A Preferred Unit shall convert into a number of Common Units equal to “X” multiplied by “Y,” where “X” equals a fraction, the numerator of which is the total number of Class A Preferred Units outstanding immediately prior to such conversion and the denominator of which is the total number of Units outstanding at such time, and “Y” equals a fraction, the numerator of which is the number of Total IPO Units and the denominator of which is the total number of Class A Preferred Units outstanding immediately prior to such conversion; provided, however, that if the value of the Common Unit(s) into which each outstanding Class A Preferred Unit would convert in accordance with the foregoing formula (based on the Initial Unit Price) is less than (the amount of such shortfall, the “IPO Shortfall”) the sum of (i) the Preferred Return of such Class A Preferred Unit as of the date of conversion plus (ii) the Cumulative Class A Preferred Unit Arrearage, if any, with respect to such Class A Preferred Unit as of the date of conversion plus (iii) the Current Distributions on such Class A Preferred Unit as of the date of conversion (collectively, the “Class A IPO Condition”), then the Class A Preferred Units shall convert (subject to the proviso below) into such number of Common Units as is required to cause the Class A IPO Condition to be satisfied (such Common Units into which the Class A Preferred Units convert in accordance with the foregoing, as adjusted, if applicable, pursuant to the proviso below, the “Class A IPO Common Units”); provided, further, the General Partner shall be entitled, in its sole discretion, to cause all or a portion of the IPO Shortfall to be satisfied by the payment of cash to the holders of Class A Preferred Units.
(c) In connection with the Initial Public Offering, each Class AQ Unit shall convert into a number of Common Units equal to “X” multiplied by “Y,” where “X” equals a fraction, the numerator of which is the total number of Class AQ Units outstanding immediately prior to such conversion and the denominator of which is the total number of Units outstanding at such time, and “Y” equals a fraction, the numerator of which is the number of Total IPO Units and the denominator of which is the total number of Class AQ Units outstanding immediately prior to such conversion; provided, however, that if the value of the Common Unit(s) into which each outstanding Class AQ Unit would convert in accordance with the foregoing formula (based on the Initial Unit Price) is less than (the amount of such shortfall, the “Class AQ IPO Shortfall”) the Class AQ Unit Purchase Price (the “Class AQ IPO Condition”), then the Class AQ Units shall convert (subject to the proviso below) into such number of Common Units as is required to cause the Class AQ IPO Condition to be satisfied (such Common Units into which the Class AQ Units convert in accordance with the foregoing, as adjusted, if applicable, pursuant to the proviso below, the “Class AQ IPO Common Units”); provided, further, the General Partner shall be entitled, in its sole discretion, to cause all or a portion of the Class AQ IPO Shortfall to be satisfied by the payment of cash to the holders of Class AQ Units.
(d) In connection with the Initial Public Offering, each Class X Unit shall convert into a number of Common Units equal to “X” multiplied by “Y,” where “X” equals a fraction, the numerator of which is the total number of Class X Units outstanding immediately prior to such conversion and the denominator of which is the total number of Units outstanding at such time, and “Y” equals a fraction, the numerator of which is the number of Total IPO Units and the denominator of which is the total number of Class X Units outstanding immediately prior to such conversion; provided, however, that if the GPM PETROLEUM LP THIRD AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP value of the Common Unit(s) into which each outstanding Class X Unit would convert in accordance with the foregoing formula (based on the Initial Unit Price) is less than (the amount of such shortfall, the “Class X IPO Shortfall”) the Class X Unit Purchase Price (the “Class X IPO Condition”), then the Class X Units shall convert (subject to the proviso below) into such number of Common Units as is required to cause the Class X IPO Condition to be satisfied (such Common Units into which the Class X Units convert in accordance with the foregoing, as adjusted, if applicable, pursuant to the proviso below, the “Class X IPO Common Units”); provided, further, the General Partner shall be entitled, in its sole discretion, to cause all or a portion of the Class X IPO Shortfall to be satisfied by the payment of cash to the holders of Class X Units.
(e) In connection with the Initial Public Offering, each Class B Preferred Unit shall convert into a number of Units (as defined in the Fourth A&R LPA) equal to “X” divided by “Y,” where “X” equals the number of Total IPO Units less the number of Class A IPO Common Units less the number of Class AQ IPO Common Units less the number of Class X IPO Common Units and “Y” equals the total number of Class B Preferred Units outstanding immediately prior to such conversion (the “Class B IPO Units”). The General Partner shall be entitled, in its sole discretion, to determine the number of Class B IPO Units that shall be Common Units and the number of Class B IPO Units that shall be Subordinated Units.
(f) In connection with the Initial Public Offering, all of the Incentive Distribution Rights shall be issued to the General Partner as set forth in the Fourth A&R LPA.
(g) In connection with the Initial Public Offering approved in accordance with this Agreement, each Partner, upon the request of the lead underwriter(s), shall enter into a customary lock-up agreement at the time of the Initial Public Offering covering the Common Units, if any, to be received by such Partner pursuant to Section 6.6(a) for a lock-up period of no longer than 180 days.
(h) Each member of the Class A Group shall be required to sell up to 50% of its Common Units in the Initial Public Offering, as determined by the General Partner in its sole discretion; provided, that the Partnership will (a) pay all fees and expenses incurred by the Partnership in connection with the Initial Public Offering and (b) reimburse the members of the Class A Group for (i) the reasonable, documented out-of-pocket expenses incurred by members of the Class A Group in connection with the Initial Public Offering, including fees and expenses of attorneys, accountants and advisors retained by the Class A Group, up to a maximum, with respect to such expenses incurred by members of the Class A Group, of $50,000 and (ii) the Class A Group’s pro rata portion of all underwriting discounts and commissions received by the underwriters in the Initial Public Offering.
(bi) If applicableNotwithstanding anything in Sections 6.6(b), the Members holding Units shall receive6.6(c), in exchange for their Units of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights 6.6(d) or obligations be less favorable to such Member than the terms of their respective Units6.6(e) in the Public Vehicle as are set forth in this Agreement applicable to the Unitscontrary, subject if prior to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering.
(cOffering the Partnership effects a Reclassification Event in a manner that is not applied consistently and on a pro rata basis to all classes of Partnership Interests outstanding at the time of such Reclassification Event, then the GPM PETROLEUM LP THIRD AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP formulas in Sections 6.6(b), 6.6(c), 6.6(d) In and 6.6(e) shall be adjusted to negate any dilutive effects of such event, Reclassification Event. Such an adjustment shall be made at the Public Vehicle and the Members (in their capacities as stockholders time of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to take into account all such Member Reclassification Events that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with the Initial Public Offering, as such managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements have occurred prior to the foregoing effect if so, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members shall be released from such restrictions pro-ratadate thereof.
(g) Notwithstanding anything to the contrary set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offering.
Appears in 1 contract
Initial Public Offering. (a) In the event that at the Board determines to consummate an IPO involving the Company (or the business conducted by the Company Entities), then notwithstanding anything to the contrary in this Agreement, (x) the SL Partners, the Indigo Partners and certain other parties designated by the SL Partners shall enter into the Registration Rights Agreement substantially in the form attached hereto as Exhibit D and (y) the Partners agree to cooperate to effect such reorganization or other transaction and to take or cause to be taken any time after and all actions as may be reasonably requested by the Board in connection with the consummation of those actions contemplated by this Section 7.1, including, but not limited to:
(a) entering into such agreements that the Board determines are necessary or appropriate to effect such IPO, including any agreements providing for (i) the exchange of Units as contemplated by Section 7.1(b) (and consents and waivers of claims in connection therewith), (ii) customary lock-up and resale restrictions requested by the managing underwriter of an IPO covering the period commencing on the date hereof, of the Board of Directors determines that it shall facilitate an offering of Equity Securities final prospectus relating to the registration statement on Form S-1 and ending on the date determined by the managing underwriter and specified in the Company or a successor through an Initial Public Offering, then the Board of Directors shall have the power to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner applicable lock-up agreement (a “ConversionLock-Up Agreement”); provided, that, the SL Partners, the Indigo Partners and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution all other holders of at least five percent (5%) of the securities being offered in the Initial Public Offering.
then-outstanding Units (b) If applicable, the Members holding Units shall receive, in exchange for their Units of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the excluding any such Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective B Units) in the Public Vehicle as are set forth in this Agreement applicable to the Units, bound by and have entered into similar agreements and subject to any modifications deemed appropriate by release from the Board lock-up period of Directors as a result Partner applying to other Partners pro rata based on ownership of the Conversion or if advisable in order to effectuate the Initial Public Offering.
Units (c) In such eventexcluding Class B Units), the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (iiii) an agreement to vote all Conversion Shares held by them to elect persons designated by the Board as the directors of the new entity and (iv) any other agreements as are appropriate and customary; and
(b) (i) effecting any reorganization of any Company Entity as the Board deems appropriate, reasonably necessary or advisable in preparation for the IPO, (ii) exchanging its Units for equity interests in a new holding company, or common shares of capital stock held a newly formed corporation or other public vehicle (the entity used to effectuate an IPO, as designated by such stockholders to elect the Board, the “IPO Entity”) with substantially the same value as determined by the Board of Directors in good faith (such shares, “Conversion Shares”), (iii) reasonably assisting in conducting road shows, (iv) entering into appropriate and necessary agreements as are customary, (v) providing all information and documents reasonably necessary to prepare the offer documents, (vi) making the relevant filings with appropriate Governmental Authorities, (vii) providing all such assistance in furtherance of such resulting corporation in accordance with IPO as reasonably requested by the substance of Section 6.1Board, and (iiviii) causing its designee on the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right Board to take or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of approve any vote or approval of Members other action required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocablesuch IPO.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with the Initial Public Offering, as such managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements to the foregoing effect if so, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members shall be released from such restrictions pro-rata.
(g) Notwithstanding anything to the contrary set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offering.
Appears in 1 contract
Initial Public Offering. (a) In The Company and the event Members acknowledge and agree that at any time after time, subject to the date hereofprovisions of Section 9.1.11, the Board may request (or any of Directors determines its Subsidiaries if approved by the Board), or the WP Member pursuant to Section 7.6 and 7.7 may require, that it shall facilitate an offering of Equity Securities in the Company or a successor through initiate an Initial Public Offering, then the Board of Directors shall have the power to cause the . The Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially be deemed to have approved any Initial Public Offering initiated in accordance with the prior sentence and the process related thereto, which Initial Public Offering shall be effected in accordance with this Section 10.6. Subject to Section 9.1.11, the Company and each of the Members shall take all reasonable efforts actions (i) to effectuate such Conversion cause the Issuer to file a registration statement on Form S-1 to effect an Initial Public Offering (or to consummate a similar initial public offering pursuant to a comparable process under applicable foreign securities laws) and take such actions as are reasonably necessary or desirable to complete (ii) in connection with the consummation of any Reorganization and the Initial Public Offering in as the Board so requests, including (x) the approval of a manner designed to achieve a fair price and broad public distribution merger or conversion of the securities being offered in Company or one or more of its Subsidiaries with and into a corporation or other entity, (y) the execution of applicable customary holdback and underwriting agreements, and (z) compliance with the requirements of all laws, exchanges and other regulatory and self-regulatory organizations that are applicable to, or have jurisdiction over, such Initial Public Offering.
(b) If applicableAny Initial Public Offering relating to the Company or its Subsidiaries may be effected at the Company level or at the level of a Subsidiary of the Company (the applicable entity, including any successor entity to the Company or any Subsidiary thereof, the “Issuer”). In connection with an Initial Public Offering approved in accordance with the terms of this Agreement, the Board may approve a reorganization of the Company or any of its Subsidiaries, whether involving a merger, contribution of equity securities, share exchange or otherwise (a “Reorganization”). Pursuant to such Reorganization, if so determined by the Board, the Members holding Units shall receive, receive common stock of the Issuer in exchange for their Units the Equity Securities of the Company then held by the Members. Notwithstanding anything to the contrary contained herein, in connection with an Initial Public Offering, the Board may cause the Company implement an “Up-C Structure” in which the business of the Company is continued to be conducted by the Company as a particular classlimited liability company with the Issuer being admitted as the manager or any similar structure, shares including by causing any direct or indirect holder of stock interests in the Public Vehicle Founder Member that is taxable as a corporation for U.S. federal income tax purposes to be the Issuer (the “Up-C Structure”). Any amount paid by the Issuer under a tax receivables or similar agreement in connection with the Up-C Structure shall be shared among the Members based on a pro rata utilization of the relevant class having tax benefits provided to the same relative Issuer by the Members. Notwithstanding the foregoing, at any time that the Board determines to effect a Reorganization or implement an Up-C Structure pursuant to this Section 10.6(b), each Member shall be entitled to exchange its Units for securities of the Issuer which reflect and are consistent with the terms of the Units as in effect immediately prior to such Reorganization or implementation of Up-C Structure with respect to seniority, preference, accumulated dividendseconomic interest, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent board rights, economic interest approval rights and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offeringobligations.
(c) In such event, Until immediately prior to the Public Vehicle and the Members (in their capacities as stockholders consummation of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders all of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein under this Agreement and in connection with any Reorganization shall be preserved (which mayeither by entering into a shareholders agreement with the Registered Entity, at the election of the holders of a Majority Class A Interestkeeping this Agreement in effect, be contained including corresponding provisions in the Public VehicleRegistered Entity’s certificate of incorporationincorporation or other organizational documents or otherwise). Following the Initial Public Offering, all of the rights of such Members under this Agreement and in connection with any Reorganization that do not terminate by their terms prior to or concurrent with consummation of the Initial Public Offering shall be preserved as nearly as practicable for a publicly traded company (by entering into a new shareholder agreement with the Registered Entity including corresponding provisions in the Registered Entity’s certificate of incorporation or other organizational documents or otherwise).
(d) Except as otherwise provided In connection with an Initial Public Offering, the Company or its successor entity (the “Registering Entity”) will enter into a registration rights agreement in this Section 3.8the form of Exhibit D attached hereto. The Members hereby agree that, during the period of duration (up to, but not exceeding, 180 days) specified by the Issuer and the underwriter of equity securities of the Issuer, following the date of the final prospectus (or comparable document under applicable foreign securities laws) distributed in connection with an Initial Public Offering, no Member will have shall, to the right extent requested by the Issuer and such underwriter, directly or power indirectly sell, offer to vetosell, vote contract to sell (including any short sale or other hedging transaction), pledge, grant any option to purchase or otherwise Transfer any equity securities held by such Member at any time during such period except for or against, amend, modify or delay a Conversion or such equity securities as shall be included in such registration. If requested by the Initial Public Offering. In furtherance of the foregoingunderwriter, each Member hereby makes, constitutes and appoints shall execute an agreement in the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect form provided by the underwriter containing terms which are essentially consistent with the provisions of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable10.6(d).
(e) The Company From and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for after one hundred eighty (180) days following such Initial Public Offering, WP Member shall be entitled to (i) make a demand registration at any time (but no more than twice in any calendar year) on Form S-1 (or a successor form) or other similar long-form registration statement, and (ii) customary piggyback registration rights on all demand registrations and the effective date of the relevant registration statement filed under the Securities Act in connection with Registering Entity registrations (including “shelf” registration, but excluding the Initial Public Offering), as such managing underwriter shall specify reasonably and in good faith. Each provided that, any block trade to be made by the WP Member shall enter into customary letter agreements not be subject to the foregoing effect if so, requested by the Company and the managing underwriter, if anyany piggyback registration rights of any other party. Notwithstanding the foregoing, in In the event any that the number of shares of securities requested to be included in a demand registration exceeds the number of shares of securities that can be sold in such offering, the WP Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members shall be released from entitled to participate first over any other equityholders of the Registering Entity to be included in such restrictions pro-rata.
(g) Notwithstanding anything to the contrary set forth in this Agreement, the restrictions contained in this Agreement registration and shall not apply be subject to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold pro rata cutbacks based on behalf of the Company in an underwritten public offeringownership percentage.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Calumet Specialty Products Partners, L.P.)
Initial Public Offering. (a) In the event that at any time after the date hereof, the Board of Directors determines that it shall facilitate an offering of Equity Securities in the Company or a successor through an Initial Public Offering, then the Board of Directors shall have the power to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members Buyer shall use their commercially reasonable efforts to effectuate such Conversion and take such actions file a registration statement on Form SB-2 under the Securities Act on substantially the same terms as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution of the securities being offered in the Initial Public OfferingLOI.
(b) If applicableEach of the Sellers and the Company shall use commercially reasonable efforts to cooperate in connection with Buyer's proposed initial public offering of shares of Class A Common Stock, including, without limitation, (i) assisting the Company and the Underwriter in preparing and filing a registration statement on Form SB-2 in respect of the proposed initial public offering of such shares and responding to comments by the Securities and Exchange Commission ("SEC") in respect of such registration statement; (ii) providing any documents or materials, including, without limitation, financial statements in respect of the Company and the Business, necessary to prepare and file such registration statement; (iii) causing the Company's independent accountants to be available to, and to cooperate with, Buyer, the Members holding Units shall receiveUnderwriter and the SEC in connection therewith and (iv) reaffirming to Buyer, in exchange for their Units of a particular classand not to any other person or entity, shares of stock in the Public Vehicle representations and warranties of the relevant class having Sellers and the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation Company in Section 2.1 hereof on and compounding and, in as of (A) the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations date ten (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units10) in the Public Vehicle as are set forth in this Agreement applicable days prior to the Unitseffective date of such registration statement, subject (B) the day prior to the effective date of such registration statement and (C) the Closing of such initial public offering; provided, however, that neither the Sellers nor the Company shall have any modifications deemed appropriate by liability with respect to the Board inaccuracy of Directors any such representations or warranties except as a result may be provided in Section 7 of the Conversion or if advisable in order to effectuate the Initial Public Offeringthis Agreement.
(c) In connection with such eventproposed initial public offering, the Public Vehicle and the Members (in their capacities as stockholders each of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public VehicleSellers agrees, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1LOI, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorneyrefrain, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(deighteen (18) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following months after the effective date of the relevant registration statement filed under the Securities Act in connection with therewith or such lesser period as the Initial Public OfferingUnderwriter may agree (the "Lock-Up Period"), from making any public sale or distribution of any of their shares of Buyer Common Stock or Additional Buyer Common Stock, as applicable, without the prior written consent of the Underwriter (the "Underwriter's Consent") and to execute and deliver any agreement to such managing underwriter shall specify effect reasonably and in good faith. Each Member shall enter into customary letter agreements to the foregoing effect if so, requested by the Company and the managing underwriterUnderwriter; provided, if any. Notwithstanding the foregoinghowever, that (i) in the event any Member shareholder of Buyer that is released by the Company and beneficial or record owner of less than 100,000 shares of Class A Common Stock (or securities convertible into such number of shares of Class A Common Stock) is permitted to sell shares of Class A Common Stock prior to the managing underwriterexpiration of Sellers' Lock-Up Period, if any, from the restrictions contemplated by this Section 3.8(f), all other Members each Seller shall be released from the lock-up with respect to a minimum of 50,000 shares per three month period commencing on the date such other shareholder is permitted to sell shares, (ii) no stockholder of Buyer holding 100,000 shares of Class A Common Stock (or securities convertible into such number of shares of Class A Common Stock) shall have lock-up restrictions prothat are more favorable (in terms of length, scope or otherwise) than those applicable to Sellers and (iii) the Lock-rata.
Up Period shall immediately terminate in the event that any holder of 100,000 shares or more of Class A Common Stock (gor securities convertible into such number of shares of Class A Common Stock) Notwithstanding anything to is released, in whole or in part, from the contrary applicable lock-up restrictions. The share numbers set forth in this AgreementSection 3.3(c) shall be subject to proportionate adjustment in the event of any stock splits, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units reclassifications or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offeringsuch similar events.
Appears in 1 contract
Sources: Stock Purchase Agreement (Access Integrated Technologies Inc)
Initial Public Offering. (ai) In During the event that at any time period beginning on the fourth (4th) anniversary of the date of this Agreement and ending on the seventh (7th) anniversary of the date of this Agreement, if the Named Executive Members and (ii) on and after the date hereofseventh (7th) anniversary of this Agreement, if the Board Sponsor Member provides Station with written notice of Directors determines that it shall facilitate an offering of Equity Securities in the Company or a successor through its desire to pursue an Initial Public Offering, then each Equityholder shall support and do all things within its power to approve, and to cause the Board of Directors to approve, the Initial Public Offering. The Board of Directors and the officers of Station shall be responsible for all aspects of the Initial Public Offering. Upon the consummation of an Initial Public Offering, Sections 2.1, 3.5.1, 3.5.2 and 3.5.3 hereof shall no longer be applicable; provided, that if such Initial Public Offering is consummated by a Subsidiary of Station or successor thereof (including Newco) in accordance with this Agreement, (i) the governance structure set forth in Article 2 hereof shall continue to be applicable to Station, (ii) a Class A Member shall have the power right, exercisable at any time and from time to cause time at such Member’s discretion, to exchange Class A Units of FCP or ▇▇▇▇▇▇▇▇ Partners for shares of common stock of such Subsidiary or successor, and (iii) the Company to be reorganized as Board of Directors, including a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law Supermajority of the State Board of Delaware by incorporationDirectors, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”)if required, and the Members shall use their commercially reasonable efforts Equityholders hereby agree to effectuate such Conversion and take such actions other actions, including amendments to this Agreement, as are may be reasonably necessary or desirable to complete the required in connection with such Initial Public Offering in a manner designed to achieve a fair price give effect to the relative rights and broad public distribution obligations of the securities being offered Equityholders contained herein, which remain in the effect following an Initial Public Offering.
(b) If applicable, the Members holding Units shall receive, in exchange for their Units of a particular class, shares of stock The Equityholders acknowledge and agree that in the Public Vehicle event of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle Units of FCP and the Members (in their capacities as stockholders of the Public Vehicle) ▇▇▇▇▇▇▇▇ Partners shall enter be converted into a stockholders’ agreement providing for such terms cash and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation Newco in accordance with the substance of Section 6.1, and (ii) the rights and obligations terms of the Members contained herein (which mayFCP Operating Agreement and the ▇▇▇▇▇▇▇▇ Partners Operating Agreement. Further, at the election Equityholders acknowledge and agree that no public offering of the holders Units of a Majority Class A InterestFCP, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right ▇▇▇▇▇▇▇▇ Partners or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with the Initial Public Offering, as such managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements to the foregoing effect if so, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members respective corporate successors shall be released from such restrictions pro-rataeffected.
(g) Notwithstanding anything to the contrary set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offering.
Appears in 1 contract
Initial Public Offering. Ladies and Gentlemen: This letter (athis “Letter Agreement”) In is being delivered to you in accordance with the event that at any time after Underwriting Agreement (the date hereof“Underwriting Agreement”) entered into by and among Minority Equality Opportunities Acquisition Inc., the Board of Directors determines that it shall facilitate an offering of Equity Securities in the Company or a successor through an Initial Public Offering, then the Board of Directors shall have the power to cause the Company to be reorganized as a Delaware corporation (such corporation or other issuer entity being hereinafter referred to as a the “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “ConversionCompany”), and Maxim Group LLC, as representative (the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution “Representative”) of the securities being offered in several underwriters (each, an “Underwriter” and collectively, the Initial “Underwriters”), relating to an underwritten initial public offering (the “Public Offering.
”), of 10,000,000 of the Company’s units (bincluding up to 1,500,000 units that may be purchased to cover over-allotments, if any) If applicable(the “Units”), each comprised of one share of the Members holding Company’s Class A common stock, par value $0.0001 per share (the “Common Stock”), and one redeemable warrant. Each warrant (a “Warrant”) entitles the holder thereof to purchase one share of Common Stock at a price of $11.50 per share, subject to adjustment. The Units shall receive, in exchange for their Units of a particular class, shares of stock will be sold in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(da registration statement on Form S-1 (File No. 333-258241) is a special proxy coupled with an interest and is irrevocable.
prospectus (e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tackProspectus”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested filed by the Company with the U.S. Securities and a managing underwriter, if any, in connection with any Initial Public Offering Exchange Commission (the “Commission”) and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of has applied to have the Company shall enter into similar agreements, thereby agreeing not Units listed on The Nasdaq Capital Market. Certain capitalized terms used herein are defined in paragraph 11 hereof. In order to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with the Initial Public Offering, as such managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements to the foregoing effect if so, requested by induce the Company and the managing underwriterUnderwriters to enter into the Underwriting Agreement and to proceed with the Public Offering and for other good and valuable consideration, if any. Notwithstanding the foregoingreceipt and sufficiency of which are hereby acknowledged, in each of Minority Equality Opportunities Acquisition Sponsor, LLC (the event any Member “Sponsor”) and the undersigned individuals, each of whom is released by a member of the Company’s board of directors and/or management team (each, an “Insider” and collectively, the “Insiders”), ▇▇▇▇▇▇ agrees with the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members shall be released from such restrictions pro-rata.
(g) Notwithstanding anything to the contrary set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offering.as follows:
Appears in 1 contract
Sources: Underwriting Agreement (Minority Equality Opportunities Acquisition Inc.)
Initial Public Offering. (a) In The Company, subject to market conditions, shall (i) cause the event that at IPO Registration Statement to be filed with the Commission substantially concurrently with the Exchange Offer Registration Statement (such date being the “IPO Filing Deadline”), (ii) make application to list the Class A Common Stock on the NASDAQ Global Market substantially concurrently with the filing of the IPO Registration Statement, (iii) use its commercially reasonable efforts to resolve any time after comments to the IPO Registration Statement from the Commission within 180 days of the date hereof, of the Board Consummation of Directors determines that it shall facilitate an offering of Equity Securities in the Company or a successor through an Initial Public Private Offering, then the Board of Directors shall have the power (iv) use its commercially reasonable efforts to cause the Company IPO to be reorganized as a corporation Consummated not later than the 12-month anniversary of the date of the consummation of the Private Offering (such corporation or other issuer entity date being hereinafter referred to as a the “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “ConversionIPO Consummation Deadline”), and (v) in connection with the Members shall foregoing, use their its commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution of the securities being offered in the Initial Public Offering.
(bA) If applicable, the Members holding Units shall receive, in exchange for their Units of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable file all pre-effective amendments to such Member than the terms of their respective Units) in the Public Vehicle IPO Registration Statement as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable may be necessary in order to effectuate cause it to become effective, (B) file, if applicable, a post-effective amendment to such IPO Registration Statement pursuant to Rule 430A under the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, Act and (iiC) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwritercause all necessary filings, if any, in connection with any Initial Public Offering the registration and upon confirmation reasonably satisfactory to such Member that all officers and directors qualification of the Company and all holdersClass A Common Stock to be made under the blue sky laws of such jurisdictions as are necessary to permit Consummation of the IPO; provided, collectively with their Affiliates and Approved Fundshowever, of one percent (1%) or greater of Equity Securities of that the Company shall enter into similar agreements, thereby agreeing not be required to Transfer take any Equity Securities action that would subject it to general service of the Company held by process or taxation in any jurisdiction where it for one hundred eighty is not already so subject.
(180i) days following the effective date of the relevant registration statement filed under the Securities Act in In connection with the Initial Public OfferingOffering described in the foregoing paragraph 5(a), the Company shall give written notice to each holder (a “Piggyback Holder”) of Transfer Restricted Securities (or Exchange Securities received in exchange for such Transfer Restricted Securities in the Exchange Offer) of its intention to publicly file the IPO Registration Statement within twenty (20) Business Days of such public filing date, and such notice shall offer each Piggyback Holder the opportunity to register (a “Piggyback Registration”) on the same terms and conditions such number of shares of Class A Common Stock held by the Piggyback Holder as the Piggyback Holder may request. The Company shall include in such managing underwriter registration all shares of Class A Common Stock with respect to which the Company has received a written request for inclusion therein from the Piggyback Holders within ten (10) Business Days after such Piggyback Holder’s receipt of the Company’s notice, provided, however, that the number of shares of Class A Common Stock to be sold by Piggyback Holders (excluding any Initial Purchaser that is a Piggyback Holder) shall be limited to 50% of the total number of shares proposed to be sold pursuant to the IPO Registration Statement and subject to the limitations described below in Section 5(b)(ii). Such requests for inclusion shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements the number of shares of Class A Common Stock intended to the foregoing effect if so, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members shall be released from such restrictions pro-ratadisposed of.
(gii) Notwithstanding anything to If the contrary set forth managing underwriter(s) of the Initial Public Offering advise the Company in this Agreementwriting that, in their judgment, the restrictions contained number of shares of Class A Common Stock requested by Piggyback Holders to be included in this Agreement the IPO Registration Statement are such that the success of the Initial Public Offering would be materially and adversely affected, the Company shall not apply include any securities the Company is so advised can be sold in such Piggyback Registration in the following order: (a) first, the shares of Class A Common Stock which the Company proposes to Unitssell; (b) second, on a pro rata basis the Class A Shares requested to be included in such registration by the Piggyback Holders (excluding any Initial Purchaser that is a Piggyback Holder), provided, that if the managing underwriters determine in good faith that a lower number of shares of Class A Common Stock should be included than those requested to be included by Piggyback Holders pursuant to paragraph (b)(i) above, then the Company shall be required to include in such registration only that lower number of shares of Class A Common Stock; and (c) third, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any shares of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) Class A Common Stock proposed to be sold on behalf of included in the Company in IPO Registration Statement (including any Class A Common Stock held by a Piggyback Holder that is an underwritten public offeringInitial Purchaser).
Appears in 1 contract
Sources: Registration Rights Agreement (Paragon Shipping Inc.)
Initial Public Offering. (a) In the event that at the Board determines to consummate an IPO involving the Company (or the business conducted by the Company Entities), then notwithstanding anything to the contrary in this Agreement, (x) the SL Partners, the Intel Partners and certain other parties designated by the SL Partners shall enter into the Registration Rights Agreement substantially in the form attached hereto as Exhibit D and (y) the Partners agree to cooperate to effect such reorganization or other transaction and to take or cause to be taken any time after and all actions as may be reasonably requested by the Board in connection with the consummation of those actions contemplated by this Section 7.1, including, but not limited to:
(a) entering into such agreements that the Board determines are necessary or appropriate to effect such IPO, including any agreements providing for (i) the exchange of Units as contemplated by Section 7.1(b) (and consents and waivers of claims in connection therewith), (ii) customary lock-up and resale restrictions requested by the managing underwriter of an IPO covering the period commencing on the date hereof, of the Board of Directors determines that it shall facilitate an offering of Equity Securities final prospectus relating to the registration statement on Form S-1 and ending on the date determined by the managing underwriter and specified in the Company or a successor through an Initial Public Offering, then the Board of Directors shall have the power to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner applicable lock-up agreement (a “ConversionLock-Up Agreement”); provided, that, the SL Partners, the Intel Partners and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution all other holders of at least five percent (5%) of the securities being offered in the Initial Public Offering.
then-outstanding Units (b) If applicable, the Members holding Units shall receive, in exchange for their Units of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the excluding any such Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective B Units) in the Public Vehicle as are set forth in this Agreement applicable to the Units, bound by and have entered into similar agreements and subject to any modifications deemed appropriate by release from the Board lock-up period of Directors as a result Partner applying to other Partners pro rata based on ownership of the Conversion or if advisable in order to effectuate the Initial Public Offering.
Units (c) In such eventexcluding Class B Units), the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (iiii) an agreement to vote all Conversion Shares held by them to elect persons designated by the Board as the directors of the new entity and (iv) any other agreements as are appropriate and customary; and
(b) (i) effecting any reorganization of any Company Entity as the Board deems appropriate, reasonably necessary or advisable in preparation for the IPO, (ii) exchanging its Units for equity interests in a new holding company, or common shares of capital stock held a newly formed corporation or other public vehicle (the entity used to effectuate an IPO, as designated by such stockholders to elect the Board, the “IPO Entity”) with substantially the same value as determined by the Board of Directors in good faith (such shares, “Conversion Shares”), (iii) reasonably assisting in conducting road shows, (iv) entering into appropriate and necessary agreements as are customary, (v) providing all information and documents reasonably necessary to prepare the offer documents, (vi) making the relevant filings with appropriate Governmental Authorities, (vii) providing all such assistance in furtherance of such resulting corporation in accordance with IPO as reasonably requested by the substance of Section 6.1Board, and (iiviii) causing its designee on the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right Board to take or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of approve any vote or approval of Members other action required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocablesuch IPO.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with the Initial Public Offering, as such managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements to the foregoing effect if so, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members shall be released from such restrictions pro-rata.
(g) Notwithstanding anything to the contrary set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offering.
Appears in 1 contract
Initial Public Offering. (a) In Upon an initial public offering of ----------------------- CCT, CCA, CCE or any successor in interest to CCT, CCA, or CCE, CCE's obligations to Cencom set forth in Sections 1-3 will terminate and CCT and CCE will be obligated to cause to be issued to Cencom equity securities of the event that at any time after entity which is making such initial public offering of the same type which are being offered to the public and having an aggregate fair market value equal to the amount which would be payable to Cencom pursuant to Section 1 if as of the date hereofof such initial public offering the Partnerships sold 100% of their assets for fair market value for cash and distributed the net proceeds to their partners. For purposes of this Section 4, "fair market value" will be determined with reference to the Board of Directors determines that it shall facilitate an initial public offering of Equity Securities in the Company or a successor through an Initial Public Offering, then the Board of Directors shall have the power to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law price of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution of the equity securities being offered in to the Initial Public Offeringpublic by such entity making an initial public offering.
(b) If applicable, Notwithstanding the Members holding Units shall receive, in exchange for their Units provisions of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding andSection 4(a), in the case event that an issuance of the Class A Units, the other characteristics equity securities to Cencom pursuant to Section 4(a) would cause Cencom or any of the Class A Units, voting, management its affiliates to have an attributable interest in a cable operator for purposes of 47 C.F.R. (section section)76.1000 - 76.1003 and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result any of Gaylord's Entertainment Company's cable networks would be prohibited from offering programming on an exclusive basis to cable delivery systems, then, at Cencom's option, CCT and CCE will cause such number of equity securities to be issued to Cencom as, in the Conversion opinion of Cencom's counsel, will not result in Cencom or if advisable in order to effectuate its affiliates having such an attributable interest and CCT and CCE will have the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including option either (i) an agreement to vote all shares pay or to cause to be paid to - Cencom in cash the fair market value of capital stock held by such stockholders to elect the Board of Directors balance of such resulting corporation in accordance equity securities otherwise issuable pursuant to Section 4(a) up to the amount of the net proceeds from the initial public offering received by the entity making such initial public offering, with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriterbalance, if any, payable in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to a subordinated note of such Member that all officers and directors of the Company and all holdersentity, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with the Initial Public Offering, as such managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements to the foregoing effect if so, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members shall be released from such restrictions pro-rata.
(g) Notwithstanding anything to the contrary set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into equity securities with appropriate registration rights, or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any (ii) to cause the balance of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securitiessuch equity securities otherwise -- issuable pursuant to Section 4(a) to be sold on behalf of Cencom in such initial public offering. In any event, Cencom will be entitled to have such number of its securities registered and sold in such initial public offering in the Company same proportion as the number of securities owned by ▇▇▇▇▇ and Charter bears to the number of securities to be registered and sold by ▇▇▇▇▇ and Charter in an underwritten such initial public offering.
Appears in 1 contract
Sources: Contingent Payment Agreement (Cencom Cable Entertainment Inc /New)
Initial Public Offering. (a) In the event that at any time after the date hereof, the Board of Directors determines that it shall facilitate an offering of Equity Securities in the Company or a successor through Upon an Initial Public Offering, then the Board Members, other than the Blocker Corporations, shall contribute their Interests to the successor corporation of Directors shall have the power to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a the “Public VehicleSuccessor Corporation”) under immediately prior to the General Corporation Law consummation of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution exchange for common stock of the securities being offered in the Initial Public OfferingSuccessor Corporation.
(b) If applicable, the Members holding Units shall receive, in exchange for their Units of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with the Initial Public Offering, the Members (or the owners of the Members) shall effect a restructuring with respect to the Blocker Corporations, after which the OHB Holders shall own Equity Securities in the Successor Corporation directly (and not through the Blocker Corporations). The Members (or the owners of the Members) shall effect such restructuring in a manner that is intended to avoid recognition of gain or loss for U.S. federal income tax purposes. Such restructuring may involve (i) a single tax-free transaction under Section 351 of the Code in which the OHB Holders contribute their interests in the Blocker Corporations and the Members (other than the Blocker Corporations) contribute their respective membership interests in the Company to the Successor Corporation or (ii) a tax-free reorganization under Section 368 of the Code of the Blocker Corporations into the Successor Corporation combined with a separate tax-free contribution under Section 351 of the Code by the other Members of their membership interests in the Company to the Successor Corporation. If Equity Securities of the Blocker Corporations are contributed in a transaction that is intended to qualify as a tax-free transaction under Section 351 of the Code, the Members and their Affiliates will not permit the Blocker Corporations to be liquidated or merged out of existence, nor will the Blocker Corporations be permitted to transfer their membership interests in the Company or the Successor Corporation or one of its Affiliates, in each case, during the two-year period following the Initial Public Offering without the consent of the OHB Holders.
(c) Each Member or OHB Holder shall receive Equity Securities of the Successor Corporation having a value equal to the total proceeds that such managing underwriter shall specify reasonably and Member would have received (or in the case of an OHB Holder, its pro rata share of the total proceeds that the Blocker Corporation in which such OHB Holder owns Equity Securities would have received, calculated by reference to such OHB Holder’s interest in such Blocker Corporation) pursuant to Section 11.3(c) of this Agreement if the Company were sold for its implied equity value as determined in good faith. Each Member shall enter into customary letter agreements to the foregoing effect if so, requested faith by the Company and the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members shall be released from such restrictions pro-rata.
(g) Notwithstanding anything Board immediately prior to the contrary set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement Initial Public Offering. The implied equity of the Company covering common stock (or other securities) shall be determined using the method of valuation used to be sold on behalf determine the equity value of the Successor Corporation immediately prior to the Initial Public Offering and the determination of the Company Board shall be final and binding on the parties. All Members shall take, or cause to be taken, all action, and do, or cause to be done, all things necessary in connection with the consummation of an underwritten public offeringInitial Public Offering as the Company Board may reasonably request.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Chicagoland Television News, LLC)
Initial Public Offering. (a) In (i) During the event that at any time period beginning on the fourth (4th) anniversary of the date of this Agreement and ending on the seventh (7th) anniversary of the date of this Agreement, if the Named Executive Members and (ii) on and after the date hereofseventh (7th) anniversary of this Agreement, if the Board Sponsor Member(s), provide Station with written notice of Directors determines that it shall facilitate an offering of Equity Securities in the Company or a successor through their desire to pursue an Initial Public Offering, then each Equityholder shall support and do all things within its power to approve, and to cause the Board of Directors to approve, the Initial Public Offering. The Board of Directors and the officers of Station shall be responsible for all aspects of the Initial Public Offering. Upon the consummation of an Initial Public Offering, Sections 2.1, 3.5.1, 3.5.2 and 3.5.3 hereof shall no longer be applicable; provided, that if such Initial Public Offering is consummated by a Subsidiary of Station or successor thereof (including Newco) in accordance with this Agreement, [(i) the governance structure set forth in Article 2 hereof shall be applied to such Subisidiary,] (ii) a Class A Member shall have the power right, exercisable at any time and from time to cause time at such Member’s discretion, to exchange Class A Units of FCP or ▇▇▇▇▇▇▇▇ Partners for shares of common stock of such Subsidiary or successor, and (iii) the Company to be reorganized as Board of Directors, including a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law Supermajority of the State Board of Delaware by incorporationDirectors, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”)if required, and the Members shall use their commercially reasonable efforts Equityholders hereby agree to effectuate such Conversion and take such actions other actions, including amendments to this Agreement, as are may be reasonably necessary or desirable to complete the required in connection with such Initial Public Offering in a manner designed to achieve a fair price give effect to the relative rights and broad public distribution obligations of the securities being offered Equityholders contained herein, which remain in the effect following an Initial Public Offering.
(b) If applicable, the Members holding Units shall receive, in exchange for their Units of a particular class, shares of stock The Equityholders acknowledge and agree that in the Public Vehicle event of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle Units of FCP and the Members (in their capacities as stockholders of the Public Vehicle) ▇▇▇▇▇▇▇▇ Partners shall enter be converted into a stockholders’ agreement providing for such terms cash and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation Newco in accordance with the substance of Section 6.1, and (ii) the rights and obligations terms of the Members contained herein (which mayFCP Operating Agreement and the ▇▇▇▇▇▇▇▇ Partners Operating Agreement. Further, at the election Equityholders acknowledge and agree that no public offering of the holders Units of a Majority Class A InterestFCP, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right ▇▇▇▇▇▇▇▇ Partners or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with the Initial Public Offering, as such managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements to the foregoing effect if so, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members respective corporate successors shall be released from such restrictions pro-rataeffected.
(g) Notwithstanding anything to the contrary set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offering.
Appears in 1 contract
Initial Public Offering. (a) In the event that at any time after the date hereof, the Board of Directors determines that it shall facilitate an offering of Equity Securities in the Company or a successor through an Initial Public Offering, then the Board of Directors shall have the power to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution of the securities being offered in the Initial Public Offering.
(b) If applicable, the Members holding Units shall receive, in exchange for their Units of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable Notwithstanding anything to the Units, contrary contained herein but subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation4.01(d).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory approved in accordance with this Agreement, the Members hereby agree to such Member that all officers and directors discuss in good faith whether any of the rights and obligations of the parties hereto and the Company and all holdersunder this Agreement should be amended, collectively with their Affiliates and Approved Fundsrestructured or terminated, including, without limitation, whether any of one percent (1%the rights set forth in Sections 4.01(d) or greater of Equity Securities of the Company shall enter into similar agreements8.04 hereof should be terminated or made subject to any time limitations, thereby agreeing not in order to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with permit the Initial Public OfferingOffering to be effected in a manner consistent with applicable Law, market custom and the recommendations of the Global Coordinators in light of market conditions at such time and the listing requirements of the exchange or market on which the Initial Public Offering is to be effected, taking into account, among other things, the rights of the Preferred Members hereunder and their goal and expectation that the Senior Preferred Redemption and the Junior Preferred Payment be effected as such managing underwriter promptly as practicable after the date hereof; provided, however, that this sentence shall specify reasonably and not in good faith. Each Member shall enter into customary letter agreements to any way either (x) obligate any of the foregoing effect if so, requested by Members or the Company and to agree to any amendment, restructuring or termination of any such rights or (y) affect or nullify any rights or obligations of the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by Members or the Company and the managing underwriter, if any, from the restrictions contemplated by under this Section 3.8(f), all other Members shall be released from such restrictions pro-rataAgreement.
(gb) Notwithstanding anything to the contrary set forth contained herein but subject to Section 4.01(d), in connection with any Initial Public Offering of the Company (or its successor corporation) or any newly formed corporation as described below, approved in accordance with this Agreement, and upon the restrictions contained request of the Board of Managers, each of the Members hereby agrees that it will, at the expense of the Entity subject to such Public Offering, take such action and execute such documents as may reasonably be necessary to effect such Public Offering, as expeditiously as possible, including, without limitation, taking all such actions and executing such documents as may reasonably be necessary to convert the Company into a corporation or to contribute its respective Securities to a newly formed corporation, in this Agreement each case substantially concurrently with the closing of such Public Offering; provided, however, that in connection with any such conversion or contribution, (i) each Preferred Member shall not apply be entitled to Units, any other Equity Securities receive preferred stock of the corporation whose shares of common stock are being sold in connection with such Public Offering with the same economic rights as such Preferred Member was entitled to prior to such conversion or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Membercontribution, including acquired by any of their respective Affiliates or Approved Fundswith an aggregate liquidation preference equal to the amount such Preferred Member would be entitled to receive, following the effective date in respect of the first registration statement Preferred Units which such Preferred Member held in the Company immediately prior to such conversion or contribution, under Section 5.03 hereof if a liquidation of the Company covering common stock (or other securities) had occurred immediately prior to be sold on behalf the consummation of such Public Offering with the proceeds in such liquidation equal in amount to the implied aggregate equity valuation of the Company (as reasonably determined by the Board of Managers in an underwritten public offering.good faith with the reasonable agreement of a Majority in Interest of the Preferred Members) immediately prior to the consummation of such Public Offering; (ii) the Common Members shall be entitled to receive that value of common stock of the corporation whose shares of common stock are being sold in connection with such Public Offering as equals the amount such Common Member would be entitled to receive, relative to the Common Units which such Member held in the Company immediately prior to such conversion or contribution, under Section 5.03 hereof if a liquidation of the Company had occurred immediately prior to the consummation of such Public Offering with the proceeds in such liquidation equal in amount to the implied aggregate equity valuation of the Company (as reasonably determined by the Board of Managers in good faith with the reasonable agreement of a Majority in Interest of the Preferred Members) immediately prior to the consummation of such
Appears in 1 contract
Sources: Purchase Agreement (American International Group Inc)
Initial Public Offering. (a) In At any time following the event that third anniversary of the date of this Agreement, if the Preferred Member is unable to sell its Membership Interest after a good faith effort to do so, or at any other time after upon the date hereofwritten agreement of the Preferred Member and CSSE, with such agreement not to be unreasonably withheld, then, if requested in writing by the Preferred Member, the Board of Directors determines that it shall facilitate an authorize a public offering of Equity Securities in equity securities of the Company by one or a successor through an more underwriters, including Ladenburg T▇▇▇▇▇▇▇ & Co., Inc., and on such other terms and conditions to be agreed between the Preferred Member and CSSE (the “Initial Public Offering, then the Board of Directors shall have the power to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution of the securities being offered in the Initial Public Offering.
(b) If applicable, The Initial Public Offering may include the Members holding Units shall receive, in exchange for their Units resale of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate equity interests held by the Board of Directors as a result of Members, provided that (i) such selling Members enter into an underwriting agreement in customary form with the Conversion underwriter or if advisable in order to effectuate underwriters selected for the Initial Public OfferingOffering and (ii) if the underwriters advise the Company and the selling Members in writing that the dollar amount or number of Units which the selling Members desire to sell, taken together with all of the Units or other equity interests proposed to be sold by the Company, exceeds the maximum dollar amount or maximum number of shares that can be sold in the Initial Public Offering without adversely affecting the proposed offering price, the timing, the distribution method, or the probability of success of such offering (the “Maximum Number of Shares”), then the Company shall reduce the number of Units proposed to be sold by selling Members in the Initial Public Offering to the Maximum Number of Shares; provided that the number of Units held by the Preferred Member to be included in the Initial Public Offering shall not be reduced unless all Units held by any other Member are first entirely excluded therefrom.
(c) In such eventThe Company shall use its commercially reasonable best efforts to list, or cause to be listed, the Public Vehicle and shares sold in the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of on a Majority Class A Interest, be contained national securities exchange in the Public Vehicle’s certificate of incorporation)United States.
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company will pay all expenses and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act fees in connection with the Initial Public Offering, as such managing underwriter shall specify reasonably other than underwriters’ fees and in good faith. Each Member shall enter into customary letter agreements to the foregoing effect if so, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members shall be released from such restrictions pro-ratacommissions.
(g) Notwithstanding anything to the contrary set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offering.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Chicken Soup for the Soul Entertainment, Inc.)
Initial Public Offering. (a) In the event that at any time after the date hereof, the Board of Directors determines that it shall facilitate an offering of Equity Securities in the Company or a successor through an Initial Public Offering, then the Board of Directors Investors shall have the power to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete participate in the Initial Public Offering pro rata in a manner designed to achieve a fair price and broad public distribution of the securities being offered in the Initial Public Offering.
(b) If applicable, the Members holding Units shall receive, in exchange for their Units of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable proportion to the Units, subject to any modifications deemed appropriate number of Registrable Securities requested by the Board of Directors as a result of the Conversion or if advisable Investors to be included in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoingconnection with a planned Initial Public Offering, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and shall deliver prompt written notice (which notice shall be given (i) in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by event that the Company and a managing underwriterhas publicly disclosed such proposed Initial Public Offering, if any, in connection with any at least thirty (30) calendar days prior to such proposed Initial Public Offering and upon confirmation reasonably satisfactory to such Member (ii) in the event that all officers and directors of the Company and all holdershas not publicly disclosed such proposed Initial Public Offering (a "NON-PUBLIC IPO REGISTRATION NOTICE"), collectively with their Affiliates and Approved Funds, no more than ten (10) Business Days prior to the filing of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant such proposed Initial Public Offering registration statement filed under the Securities Act in connection with the SEC (such period not in excess of ten (10) Business Days, the "NON-PUBLIC IPO REGISTRATION NOTICE PERIOD")) to all Investors of its intention to undertake such Initial Public Offering, describing in reasonable detail the proposed offering and distribution (including the anticipated range of the proposed offering price, the class and number of securities proposed to be registered and the distribution arrangements) and of such Investor's right to participate in such registration under this Section 2(b) as herein provided. If the Investor elects to participate in such managing underwriter proposed Initial Public Offering, the Investor shall keep the contents of any Non-Public IPO Registration Notice confidential prior to the filing of such proposed Initial Public Offering with the SEC and if the Investor has elected not to participate in such proposed Initial Public Offering, the Investor shall keep the contents of any Non-Public IPO Registration Notice confidential during the Non-Public IPO Registration Notice Period. Subject to the other provisions of this paragraph, upon the written request of any Investor made within twenty (20) calendar days, or in the case of a Non-Public IPO Registration Notice, within five (5) Business Days, after the receipt of such written notice (which request shall specify reasonably and the amount of Registrable Securities to be sold), the Company shall allow the Investors to participate in good faithsuch offering. Each Member shall enter into customary letter agreements Immediately upon notification to the foregoing effect if soCompany from the underwriter of the price at which such securities are to be sold, requested by the Company shall so advise each participating Investor. The Investors requesting to participate may, at any time prior to the effectiveness of the registration statement for the Initial Public Offering (and the managing underwriterfor any reason), if any. Notwithstanding the foregoing, in the event any Member is released revoke such request by delivering written notice to the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members shall be released from revoking such restrictions pro-ratarequested inclusion.
(g) Notwithstanding anything to the contrary set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offering.
Appears in 1 contract
Sources: Registration Rights Agreement (Qiao Xing Mobile Communication Co., Ltd.)
Initial Public Offering. (a) In the event that at any time after the date hereof, the Board of Directors determines that it shall facilitate an offering of Equity Securities in the Company On or a successor through an Initial Public Offering, then the Board of Directors shall have the power to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution of the securities being offered in the Initial Public Offering.
(b) If applicable, the Members holding Units shall receive, in exchange for their Units of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable prior to the UnitsClosing Date, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement Holdings shall have issued and sold Holdings Common Stock pursuant to vote all shares the IPO, the aggregate gross cash proceeds of capital stock held Holdings Common Stock issued on the Closing Date received by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1Holdings shall be not less than $100,000,000, and (ii) Holdings shall have used such proceeds to (x) irrevocably deposit approximately $____________ into the rights Escrow Account so that the Holdings Preferred Stock can be redeemed and obligations all accrued and unpaid dividends with respect thereto through and including __________, 1996 and all accrued and unpaid interest with respect thereto through and including the Redemption Date can be paid pursuant to the Preferred Stock Redemption Agreement, (y) pay Transaction Costs, and (z) to contribute the remaining proceeds to Company (the "CONTRIBUTION AMOUNT"), and the IPO shall have been consummated pursuant to terms and conditions satisfactory to Arrangers. Holdings shall have issued and sold not more than [30%] (on a fully diluted basis) of Holdings Common Stock in the IPO and upon consummation of the Members contained herein IPO, no person or group (which mayother than Yucaipa and Yucaipa Investors) shall own or control, at the election directly or indirectly, more than ___% of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes issued and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Actoutstanding Holdings Voting Stock. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company Registration Statement shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the have been declared effective date of the relevant registration statement filed under the Securities Act in connection with the Initial Public Offeringof 1933, as such managing underwriter amended, and no stop order suspending the effectiveness of the Registration Statement shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements to the foregoing effect if so, requested have been issued or threatened by the Company Securities and the managing underwriter, if anyExchange Commission. Notwithstanding the foregoing, [Holdings shall have delivered to Agent an Officers' Certificate in the event any Member is released by the Company form and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members shall be released from such restrictions pro-rata.
(g) Notwithstanding anything substance reasonably satisfactory to the contrary set Agent setting forth in this Agreement, reasonable detail the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date percentage of the first registration statement of the Company covering common stock issued and outstanding Holdings Common Stock (or other securitieson a fully diluted basis) to be issued and sold on behalf of the Company in an underwritten public offeringClosing Date.] [INFORMATION REGARDING OWNERSHIP OF HOLDING'S COMMON STOCK ON A PRO FORMA BASIS WILL ALSO BE REQUIRED TO THE EXTENT SUCH INFORMATION IS NOT DISCLOSED IN THE REGISTRATION STATEMENT.]
Appears in 1 contract
Initial Public Offering. (a) In the event that at any time after the date hereof, the Board of Directors determines that it shall facilitate an offering of Equity Securities in the Company or a successor through an Initial Public Offering, then the Board of Directors shall have the power to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution of the securities being offered in the Initial Public Offering.
(b) If applicable, the Members holding Units shall receive, in exchange for their Units of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle and the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation in accordance with the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocable.
(e) The Company and the Members hereby agree to use their commercially reasonable efforts to structure the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with the Initial Public Offering, as such managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements to the foregoing effect if so, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members shall be released from such restrictions pro-rata.
(g) Notwithstanding anything to the contrary set forth in this Agreement, in the restrictions contained in this Agreement shall not apply event that the Managing Member determines to Unitseffect a Qualified IPO, any the Members agree to cooperate to effect such reorganization or other Equity Securities transaction and enter into such other agreements that the Managing Member determines are necessary or appropriate to effect such Qualified IPO, including all actions that the Managing Member determines are necessary to (i) cause the conversion of all or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement portion of the Company covering common stock (or other securities) to be sold on behalf any Subsidiary of the Company into a corporation, by (A) the direct or indirect transfer of all of the assets of the Company, subject to the Company’s liabilities, or of any portion of such assets and liabilities, to one or more corporations in an underwritten exchange for shares of any such corporations, (B) the conversion of the Company or a Subsidiary of the Company into a corporation pursuant to Section 18-216 of the Act (or any successor section thereto) or (C) the transfer by each Member of Units held by such Member to one or more corporations in exchange for shares of any such corporation (including by merger of the Company into a corporation) or (ii) cause the Company to use any other structure or means by which to effect a Qualified IPO; provided, that, in each case the relative rights, preferences, privileges, and powers to which the Class B Members are entitled hereunder shall not be modified in a manner materially adverse to the holder thereof as compared to the rights, preferences, privileges, or powers to which such holder is entitled hereunder. In connection therewith, each Member agrees (if directed by the Managing Member) to exchange its Units for equity interests in a new holding company, or common shares of a corporation or other public offeringvehicle (the entity used to effectuate a Qualified IPO, as designated by the Managing Member, the “IPO Entity”), which equity interests or shares shall have the relative rights, preferences, privileges, and powers to which such holder is entitled hereunder, and shall be issued to the Members in a manner which maintains the relative Percentage Interest of each such Member (such exchanged shares, “Conversion Shares”).
(b) Promptly following the determination of the number of Conversion Shares to be received in respect of each Unit under Section 7.05(a) (if any), each Member shall deliver to the Company the certificates, if any, representing the Units to be converted into Conversion Shares, duly endorsed or assigned in blank or to the Company (if required by it) and stating the name or names (with address) in which certificates or certificates for the Conversion Shares, if any, are to be issued.
(c) The Members shall, and hereby agree to take any and all actions deemed necessary or appropriate by the Managing Member in connection with the consummation of those actions contemplated by this Section 7.05 (subject to the terms and conditions hereof), including entering into agreements (i) providing for the exchange of Units as contemplated by Section 7.05(a) (and consents and waivers of claims in connection therewith), (ii) containing customary lock-up and resale restrictions and (iii) to vote all Conversion Shares held by them to elect persons designated by the Managing Member as the directors of the IPO Entity. In connection with a Qualified IPO contemplated by this Section 7.05, the Company, the IPO Entity and the applicable Members shall enter into a customary registration rights agreement, which shall include customary piggyback registration rights; provided, however, that no such registration rights agreement shall be required to include demand registration rights for any holder of Class B Units or its Affiliates. The rights and restrictions set forth in Article 7 will expire immediately prior to the closing of such Qualified IPO, and the Conversion Shares issued to the Members shall be subject to (x) applicable restrictions under federal and state securities laws, and (y) any restrictions set forth in the agreements or other instruments relating to the Qualified IPO or any transfer, merger, consolidation or other restructuring or reorganization transaction entered into in anticipation or contemplation of such Qualified IPO. For the avoidance of doubt, no exchange or conversion of any Unit (or any portion thereof) contemplated by this Section 7.05 shall be deemed a “Disposition” for purposes of this Agreement.
(d) When determining what structure to implement for the Qualified IPO and what actions to be undertaken to facilitate the Qualified IPO, the Managing Member shall use commercially reasonable efforts to implement a structure that the Managing Member determines in good faith to be reasonably tax-efficient for the Members and their direct and indirect equityholders (taken as a whole); provided, that, for the avoidance of doubt, no Member shall be required to make any Capital Contribution or other investment in connection with any of the foregoing (other than to exchange its Units for Conversion Shares); provided, further, that, in connection with a Qualified IPO, (x) any amendment, modification or other changes to this Agreement or the Delaware Certificate and (y) any merger, recapitalization, share contributions or other restructurings or reorganizations shall all be contingent on the consummation of such Qualified IPO.
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Initial Public Offering. (a) In the event that at At any time after the date hereofexpiration of the Standstill Period, provided that no Auction Bid Process shall have been initiated in the last twelve (12) months, (i) the Financial Investors, the Board of Directors determines that it shall facilitate ▇▇▇▇▇▇ Parties, (iii) the ▇▇▇▇▇ Parties or (iv) the Gras Parties may propose to the other Shareholders to initiate an initial public offering of Equity Securities in the Company or a successor through on an Initial Public Offering, then the Board of Directors shall have the power to cause the Company to be reorganized as a corporation Eligible Stock Exchange (such corporation or other issuer entity being hereinafter referred to as a an “Public VehicleIPO”) under as soon as reasonably practicable, subject to the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution of the securities being offered in the Initial Public OfferingQualified Requisite Consent.
(b) If applicable, The Supervisory Board shall appoint a first ranked investment bank for the Members holding Units purpose of carrying out such IPO as sponsoring bank / lead manager and shall receive, in exchange for their Units promptly notify the Direct Parties of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations (and in no event shall such interest, rights or obligations be less favorable to such Member than the terms of their respective Units) in the Public Vehicle as are set forth in this Agreement applicable to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result of the Conversion or if advisable in order to effectuate the Initial Public Offeringits choice.
(c) In such eventThe Parties shall cooperate in good faith in order to complete the IPO as soon as reasonably practicable and shall procure that their nominees on the Supervisory Board approve any decisions as may be required by Law.
(d) The Supervisory Board shall, the Public Vehicle and the Members (in their capacities as stockholders after consultation of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for Executive Committee, determine with the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply to the Public Vehicle, the stockholders of the Public Vehicle and the capital stock of the Public Vehicle, including sponsoring bank (i) an agreement to vote all shares of capital stock held by such stockholders to elect the Board of Directors of such resulting corporation definitive offering price for the Shares in accordance with the substance of Section 6.1, IPO and (ii) the rights number of new Shares to be issued by the Company (the “New Offered Shares”), if any, and obligations the number of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, existing Shares proposed to be contained included in the Public Vehicle’s certificate of incorporationIPO (the “Existing Offered Shares”).
(d) Except as otherwise provided , in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes accordance with applicable Laws and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted pursuant to this Section 3.8(d) is a special proxy coupled with an interest and is irrevocableregulations.
(e) The Company Supervisory Board shall notify each Direct Party of the number of New Offered Shares and the Members hereby agree number of Existing Offered Shares that may be sold pursuant to use their commercially reasonable efforts the IPO and the proposed offering price and each Direct Party shall have the right to structure sell pursuant to such IPO a number of Shares equal to the Conversion to maximize product of (i) the ability number of the Members to aggregate Existing Offered Shares and (or “tack”ii) the period during which they hold their Units together with fraction having as its numerator (x) the period during which they hold shares number of capital stock Shares held by such Direct Party on a Fully Diluted Basis (prior to any conversion of the Public Vehicle for purposes Subordinated Convertible Bonds) and as its denominator (y) the total number of Shares on a Fully Diluted Basis (prior to any conversion of the United States securities lawsSubordinated Convertible Bonds) prior to the issue of any New Offered Shares, including Rule 144 under subject to the Securities Actcustomary lock-up agreements that may be required by the sponsoring bank(s) and/or the Governmental Authority monitoring the chosen Eligible Stock Exchange.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, The Parties shall cooperate in connection with any Initial Public Offering and upon confirmation reasonably satisfactory good faith in order to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company shall enter into similar agreementsany underwriting and offering agreements which are required or customary for an IPO, thereby agreeing and hereby acknowledge and agree that such agreements may include lock-up undertakings. It is specified that any undertakings under such agreements shall not to Transfer any Equity Securities of be more restrictive for the Company held by it ▇▇▇▇▇▇ Parties than for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with the Initial Public Offering, as such managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements to the foregoing effect if so, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members shall be released from such restrictions pro-rataFinancial Investors.
(g) Notwithstanding anything It is expressly agreed that it is the common intention of the Parties that the Company shall be the Group Company to be listed if the contrary set forth in this AgreementSupervisory Board decides to launch an IPO.
(h) To the extent possible pursuant to applicable Laws, the restrictions contained in this Agreement shall not apply Direct Parties undertake to Units, any other Equity Securities or any securities convertible take all Applicable Actions to merge the ▇▇▇▇▇ Parties into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offeringorder to allow the ▇▇▇▇▇ Shareholders to take part to the IPO as if they were the direct owners of Securities, provided that:
(i) none of the ▇▇▇▇▇ Parties is a Defaulting Party;
(ii) there are no significant liability on the balance sheet of any of the ▇▇▇▇▇ Parties;
(iii) the ▇▇▇▇▇ Shareholders make any reasonable representations and warranties as may be required by the Company with respect to the conduct of the business of the ▇▇▇▇▇ Parties (including the place of effective management of the ▇▇▇▇▇ Parties or the compliance by the ▇▇▇▇▇ Parties with their tax obligations);
(iv) the ▇▇▇▇▇ Parties undertake to indemnify the Company for any loss resulting from undisclosed liabilities of the ▇▇▇▇▇ Parties or from a breach or inaccuracy of the above mentioned representations and warranties and such obligation of indemnification shall be secured by cash collateral or a first demand guarantee issued by a first rank bank; and
(v) none of the ▇▇▇▇▇ Parties is involved in litigation proceedings with a Third Party or a ▇▇▇▇▇ Shareholders.
(i) All fees and expenses in relation to the IPO (whether achieved or not achieved) shall be borne by the Company to the fullest extent permitted by applicable Law.
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Initial Public Offering. (a) In the event that at any time after the date hereofCompany ----------------------- undertakes an initial public offering of its capital stock with aggregate gross proceeds to the Company of not less than five million dollars ($5,000,000) and with a price per share of not less than $5.00 (a "Qualified IPO"), the Board Company shall give notice of Directors determines that it shall facilitate an offering of Equity Securities in the Company or a successor through an Initial Public Offering, then the Board of Directors shall have the power to cause the Company to be reorganized as a corporation (such corporation or other issuer entity being hereinafter referred to as a “Public Vehicle”) under the General Corporation Law of the State of Delaware by incorporation, merger, conversion, contribution, formation of a corporate Subsidiary or other permissible manner (a “Conversion”), and the Members shall use their commercially reasonable efforts to effectuate such Conversion and take such actions as are reasonably necessary or desirable to complete the Initial Public Offering in a manner designed to achieve a fair price and broad public distribution of the securities being offered in the Initial Public Offering.
(b) If applicable, the Members holding Units shall receive, in exchange for their Units of a particular class, shares of stock in the Public Vehicle of the relevant class having the same relative seniority, preference, accumulated dividends, dividend rate, dividend accumulation and compounding and, in the case of the Class A Units, the other characteristics of the Class A Units, voting, management and consent rights, economic interest and other rights and obligations intention (and in no event shall otherwise communicate with the Holder during the pendency of such interest, rights or obligations be less favorable to such Member than the terms of their respective Unitstransaction) in the Public Vehicle same manner as are set forth in this Agreement applicable it communicates with the holders of a majority of the issued and outstanding shares of Series A Preferred Stock; if the Warrant is otherwise exercisable pursuant to the Units, subject to any modifications deemed appropriate by the Board of Directors as a result provisions of the Conversion Warrant, the Holder may, in its discretion, exercise same and request registration of the shares in the Qualified IPO pursuant to the registration rights granted to the Holder in Section 7 below; if the Warrant is not so exercised, then, in addition to such Company obligations under such registration rights the Company shall give the Holder not less than twenty (20) business days notice of the expected date of closing of the Qualified IPO (the "Closing"); the Holder shall, not less than three (3) business days prior to the Closing, deliver an irrevocable notice under Section 3 below or if advisable deposit an amount of money equal to the aggregate exercise price of this Warrant into the trust account of the Company's attorneys with irrevocable instructions to pay such amount to the Company immediately prior to the Closing of the Qualified IPO; in order to effectuate the Initial Public Offering.
(c) In such event, the Public Vehicle and Holder shall be deemed to have exercised the Members (in their capacities as stockholders of the Public Vehicle) shall enter into a stockholders’ agreement providing for such terms and conditions as are necessary for the rights and obligations and provisions of this Agreement that survive an Initial Public Offering (and do not otherwise adversely affect the ability to effectuate the Initial Public Offering) to continue to apply Warrant immediately prior to the Public VehicleClosing and simultaneously converted the shares of Series A Preferred Stock into shares of Common Stock; at or promptly following the Closing, the stockholders of Company shall cause its transfer agent to deliver to the Public Vehicle and Holder a certificate representing the capital stock of the Public Vehicle, including (i) an agreement to vote all shares of capital stock held by such stockholders to elect Common Stock so purchased; the Board of Directors of such resulting corporation in accordance with Warrant shall expire upon the substance of Section 6.1, and (ii) the rights and obligations of the Members contained herein (which may, at the election of the holders of a Majority Class A Interest, be contained in the Public Vehicle’s certificate of incorporation).
(d) Except as otherwise provided in this Section 3.8, no Member will have the right or power to veto, vote for or against, amend, modify or delay a Conversion or the Initial Public Offering. In furtherance of the foregoing, each Member hereby makes, constitutes and appoints the Company its true and lawful attorney, for it and in its name, place and stead and for its use and benefit, to act as its proxy in respect of any vote or approval of Members required to give effect to this Section 3.8, including any vote or approval required under the Act. The proxy granted Closing if not previously exercised pursuant to this Section 3.8(d1.3(a) is a special proxy coupled with an interest or otherwise pursuant to the terms of the Warrant; if the Closing does not occur, the Warrant shall be deemed to continue pursuant to the other terms and is irrevocable.
(e) The Company restrictions of the Warrant, and the Members hereby agree to use their commercially reasonable efforts to structure irrevocable notice given under Section 3 below or the Conversion to maximize the ability of the Members to aggregate (or “tack”) the period during which they hold their Units together funds deposited with the period during which they hold shares of capital stock of the Public Vehicle for purposes of the United States securities laws, including Rule 144 under the Securities Act.
(f) Each Member (including any Transferee thereof) agrees, if requested by the Company and a managing underwriter, if any, in connection with any Initial Public Offering and upon confirmation reasonably satisfactory to such Member that all officers and directors of the Company and all holders, collectively with their Affiliates and Approved Funds, of one percent (1%) or greater of Equity Securities of the Company Company's attorneys shall enter into similar agreements, thereby agreeing not to Transfer any Equity Securities of the Company held by it for one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with the Initial Public Offering, as such managing underwriter shall specify reasonably and in good faith. Each Member shall enter into customary letter agreements be promptly returned to the foregoing effect if so, requested by the Company and the managing underwriter, if any. Notwithstanding the foregoing, in the event any Member is released by the Company and the managing underwriter, if any, from the restrictions contemplated by this Section 3.8(f), all other Members shall be released from such restrictions pro-rataHolder.
(g) Notwithstanding anything to the contrary set forth in this Agreement, the restrictions contained in this Agreement shall not apply to Units, any other Equity Securities or any securities convertible into or exercisable or exchangeable for Units or other Equity Securities acquired by any Member, including acquired by any of their respective Affiliates or Approved Funds, following the effective date of the first registration statement of the Company covering common stock (or other securities) to be sold on behalf of the Company in an underwritten public offering.
Appears in 1 contract
Sources: Warrant Agreement (Usweb Corp)