Common use of Private Placements Clause in Contracts

Private Placements. Subject to the terms of this Agreement, the Voting Trust and Divestiture Agreement, the Certificate of Incorporation, the Bylaws and the right of first refusal in favor of the Company described below in this Section 11, the Foundation shall have the right at all times to sell shares of Registrable Securities in one or more private placements (the "Private Placement Securities") to qualified investors provided that the Foundation provides written notice to the Company at least forty-five (45) Business Days prior to making any such proposed private placement advising the Company of the terms and conditions of such proposed private placement (the "Private Placement Notice"), and provided further that the consummation of such proposed private placement would not cause any Person to Beneficially Own any shares of Common Stock in excess of the Ownership Limit applicable to such Person. The Private Placement Notice shall contain the identity of the proposed private placement purchaser, the price at which the Private Placement Securities shall be sold to the proposed private placement purchaser, the number of Private Placement Securities to be sold to the proposed private placement purchaser, and all other material terms and conditions of the proposed private placement. Following its receipt of the Private Placement Notice, the Company shall have the right, but not the obligation (the "Private Placement Option"), exercisable by providing written notice thereof (the "Private Placement Option Notice") to the Foundation within thirty (30) Business Days, to purchase all (but not less than all) of the Private Placement Securities on the same terms and conditions contained in the Private Placement Notice. The Private Placement Option Notice shall state the number of Private Placement Securities that the Company shall purchase pursuant to the Private Placement Option, the aggregate purchase price therefor, and the closing date of the Company's purchase of the Private Placement Securities, which shall take place no later than sixty (60) days after the date of the Private Placement Option Notice. The Company shall pay for the Private Placement Securities that it shall purchase pursuant to the Private Placement Option at the closing thereof by wire transfer of immediately available funds to a bank account designated by the Foundation. At such closing, the Foundation shall deliver to the Company a certificate or certificates representing the number of Private Placement Securities, free and clear of all liens, claims, security interests and other encumbrances. The Company shall be entitled to receive customary representations and warranties from the Foundation regarding such sale of Private Placement Securities (including representations regarding good title to such shares free and clear of all liens, claims, security interests and other encumbrances). If the Company shall elect not to exercise the Private Placement Option, the Foundation may sell the Private Placement Securities identified in the Private Placement Notice at the time and subject to all of the terms and the conditions contained in the Private Placement Notice.

Private Placements. Subject to the terms of this Agreement, the Voting Trust and Divestiture Agreement, the Certificate Articles of Incorporation, the Bylaws and the right of first refusal in favor of the Company described below in this Section 11, the Foundation Holders shall have the right at all times to sell shares of Registrable Securities in one or more private placements (the "Private Placement Securities") to qualified investors provided PROVIDED that the Foundation provides Holders provide written notice to the Company at least forty-five (45) Business Days prior to making any such proposed private placement advising the Company of the terms and conditions of such proposed private placement (the "Private Placement Notice"), and provided further PROVIDED FURTHER that the consummation of such proposed private placement would not cause any Person to Beneficially Own any shares of Common Stock in excess of the Ownership Limit applicable to such Person. The Private Placement Notice shall contain the identity of the proposed private placement purchaser, the price at which the Private Placement Securities shall be sold to the proposed private placement purchaser, the number of Private Placement Securities to be sold to the proposed private placement purchaser, and all other material terms and conditions of the proposed private placement. Following its receipt of the Private Placement Notice, the Company shall have the right, but not the obligation (the "Private Placement Option"), exercisable by providing written notice thereof (the "Private Placement Option Notice") to the Foundation Holders within thirty (30) Business Days, to purchase all (but not less than all) of the Private Placement Securities on the same terms and conditions contained in the Private Placement Notice. The Private Placement Option Notice shall state the number of Private Placement Securities that the Company shall purchase pursuant to the Private Placement Option, the aggregate purchase price therefor, and the closing date of the Company's purchase of the Private Placement Securities, which shall take place no later than sixty (60) days after the date of the Private Placement Option Notice. The Company shall pay for the Private Placement Securities that it shall purchase pursuant to the Private Placement Option at the closing thereof by wire transfer of immediately available funds to a bank account designated by the FoundationHolders. At such closing, the Foundation Holders shall deliver to the Company a certificate or certificates representing the number of Private Placement Securities, free and clear of all liens, claims, security interests and other encumbrances. The Company shall be entitled to receive customary representations and warranties from the Foundation Holders regarding such sale of Private Placement Securities (including representations regarding good title to such shares free and clear of all liens, claims, security interests and other encumbrances). If the Company shall elect not to exercise the Private Placement Option, the Foundation Holders may sell the Private Placement Securities identified in the Private Placement Notice at the time and subject to all of the terms and the conditions contained in the Private Placement Notice.

Private Placements. Subject Parent has made available to the terms Company true and correct copies of the fully executed Subscription Agreements. The Subscription Agreements (a) are in full force and effect without amendment or modification, (b) are the valid, binding and enforceable obligations of Parent (or its applicable Affiliate), subject to the Bankruptcy and Equity Exception, and to the Knowledge of Parent, each other party thereto (except, in any case, as may be limited by the Bankruptcy and Equity Exception) and (c) have not been withdrawn, terminated or rescinded in any respect. The Private Placements, together with the amount in the Parent Trust Account at the Closing, will be in the aggregate sufficient to enable Parent to pay all cash amounts required to be paid by Parent under or in connection with this Agreement, including the Outstanding Company Expenses and Outstanding Parent Expenses. There are no other Contracts between Parent and any Subscriber relating to any Subscription Agreement, that would reasonably be expected to affect the obligations of the Subscribers to contribute to Parent the applicable portion of the Private Placements set forth in the Subscription Agreements, and to the Knowledge of Parent, no facts or circumstances exist that may reasonably be expected to result in any of the conditions set forth in any Subscription Agreement not being satisfied, or the Private Placements not being available to Parent, on the Closing Date. As of the date hereof, there are no side letters or Contracts between any Subscriber, on the one hand, and Parent or Merger Sub, on the other hand, related to the provision or funding, as applicable, of the purchases contemplated by the Subscription Agreements or the Transactions other than as expressly set forth in this Agreement, the Voting Trust Subscription Agreements or any other Transaction Document and Divestiture except as set forth in the Parent Reports. No event has occurred that, with or without notice, lapse of time or both, would constitute a default or breach on the part of Parent under any material term or condition of any Subscription Agreement, the Certificate of Incorporation, the Bylaws and the right of first refusal in favor as of the Company described below date hereof, Parent has no reason to believe that it will be unable to satisfy in this Section 11, the Foundation shall have the right at all times material respects on a timely basis any term or condition of Closing to sell shares of Registrable Securities be satisfied by it contained in one or more private placements (the "Private Placement Securities") to qualified investors provided that the Foundation provides written notice to the Company at least forty-five (45) Business Days prior to making any such proposed private placement advising the Company of the terms and conditions of such proposed private placement (the "Private Placement Notice"), and provided further that the consummation of such proposed private placement would not cause any Person to Beneficially Own any shares of Common Stock in excess of the Ownership Limit applicable to such PersonSubscription Agreement. The Private Placement Notice shall Subscription Agreements contain the identity of the proposed private placement purchaser, the price at which the Private Placement Securities shall be sold to the proposed private placement purchaser, the number of Private Placement Securities to be sold to the proposed private placement purchaser, and all other material terms and conditions of the proposed private placement. Following its receipt of the Private Placement Notice, the Company shall have the right, but not the obligation (the "Private Placement Option"), exercisable by providing written notice thereof (the "Private Placement Option Notice") to the Foundation within thirty (30) Business Days, to purchase all (but not less than all) of the Private Placement Securities on the same terms and conditions contained in the Private Placement Notice. The Private Placement Option Notice shall state the number of Private Placement Securities that the Company shall purchase pursuant to the Private Placement Option, the aggregate purchase price therefor, and the closing date of the Company's purchase of the Private Placement Securities, which shall take place no later than sixty (60) days after the date of the Private Placement Option Notice. The Company shall pay for the Private Placement Securities that it shall purchase pursuant to the Private Placement Option at the closing thereof by wire transfer of immediately available funds to a bank account designated by the Foundation. At such closing, the Foundation shall deliver to the Company a certificate or certificates representing the number of Private Placement Securities, free and clear of all liens, claims, security interests and other encumbrances. The Company shall be entitled to receive customary representations and warranties from the Foundation regarding such sale of Private Placement Securities (including representations regarding good title to such shares free and clear of all liens, claims, security interests and other encumbrances). If the Company shall elect not to exercise the Private Placement Option, the Foundation may sell the Private Placement Securities identified in the Private Placement Notice at the time and subject to all of the terms and conditions precedent (other than the conditions contained in this Agreement or the Transaction Documents) to the obligations of the Subscribers to contribute to Parent the applicable portion of the Private Placement NoticePlacements set forth in the Subscription Agreements on the terms therein.

Private Placements. Subject to the terms of this Agreement, the Voting Trust and Divestiture Agreement, the Certificate Articles of Incorporation, the Bylaws and the right of first refusal in favor of the Company described below in this Section 11, the Foundation Holders shall have the right at all times to sell shares of Registrable Securities in one or more private placements (the "“Private Placement Securities"”) to qualified investors provided that the Foundation provides Holders provide written notice to the Company at least forty-five (45) Business Days prior to making any such proposed private placement advising the Company of the terms and conditions of such proposed private placement (the "“Private Placement Notice"”), and provided further that the consummation of such proposed private placement would not cause any Person to Beneficially Own any shares of Common Stock in excess of the Ownership Limit applicable to such Person. The Private Placement Notice shall contain the identity of the proposed private placement purchaser, the price at which the Private Placement Securities shall be sold to the proposed private placement purchaser, the number of Private Placement Securities to be sold to the proposed private placement purchaser, and all other material terms and conditions of the proposed private placement. Following its receipt of the Private Placement Notice, the Company shall have the right, but not the obligation (the "“Private Placement Option"”), exercisable by providing written notice thereof (the "“Private Placement Option Notice"”) to the Foundation Holders within thirty (30) Business Days, to purchase all (but not less than all) of the Private Placement Securities on the same terms and conditions contained in the Private Placement Notice. The Private Placement Option Notice shall state the number of Private Placement Securities that the Company shall purchase pursuant to the Private Placement Option, the aggregate purchase price therefor, and the closing date of the Company's ’s purchase of the Private Placement Securities, which shall take place no later than sixty (60) days after the date of the Private Placement Option Notice. The Company shall pay for the Private Placement Securities that it shall purchase pursuant to the Private Placement Option at the closing thereof by wire transfer of immediately available funds to a bank account designated by the FoundationHolders. At such closing, the Foundation Holders shall deliver to the Company a certificate or certificates representing the number of Private Placement Securities, free and clear of all liens, claims, security interests and other encumbrances. The Company shall be entitled to receive customary representations and warranties from the Foundation Holders regarding such sale of Private Placement Securities (including representations regarding good title to such shares free and clear of all liens, claims, security interests and other encumbrances). If the Company shall elect not to exercise the Private Placement Option, the Foundation Holders may sell the Private Placement Securities identified in the Private Placement Notice at the time and subject to all of the terms and the conditions contained in the Private Placement Notice.

Private Placements. Subject Parent has made available to the terms Company true and correct copies of the Subscription Agreements. As of the date of this Agreement, the Voting Trust Subscription Agreements (a) are in full force and Divestiture Agreementeffect without amendment or modification, (b) are the Certificate valid, binding and enforceable obligations of IncorporationParent (or its applicable Affiliate), the Bylaws and the right of first refusal in favor of the Company described below in this Section 11, the Foundation shall have the right at all times to sell shares of Registrable Securities in one or more private placements (the "Private Placement Securities") to qualified investors provided that the Foundation provides written notice subject to the Company at least forty-five (45) Business Days prior to making any such proposed private placement advising the Company of the terms Bankruptcy and conditions of such proposed private placement (the "Private Placement Notice")Equity Exception, and provided further that to the consummation Knowledge of such proposed private placement would Parent, each other party thereto (except, in any case, as may be limited by the Bankruptcy and Equity Exception) and (c) have not cause been withdrawn, terminated or rescinded in any Person to Beneficially Own any shares of Common Stock in excess of the Ownership Limit applicable to such Personrespect. The Private Placement Notice shall contain Placements, together with the identity amount in the Parent Trust Account at the Closing, will be in the aggregate sufficient to enable Parent to pay all cash amounts required to be paid by Parent under or in connection with this Agreement, including the Outstanding Company Expenses and Outstanding Parent Expenses. There are no other Contracts between Parent and any Subscriber relating to any Subscription Agreement, that would reasonably be expected to affect the obligations of the proposed private placement purchaser, Subscribers to contribute to Parent the price at which applicable portion of the Private Placement Securities shall be sold Placements set forth in the Subscription Agreements, and to the proposed private placement purchaserKnowledge of Parent, no facts or circumstances exist that may reasonably be expected to result in any of the number conditions set forth in any Subscription Agreement not being satisfied, or the Private Placements not being available to Parent, on the Closing Date. No event has occurred that, with or without notice, lapse of Private Placement Securities time or both, would constitute a default or breach on the part of Parent under any material term or condition of any Subscription Agreement, and as of the date hereof, Parent has no reason to believe that it will be unable to satisfy in all material respects on a timely basis any term or condition of Closing to be sold satisfied by it contained in any Subscription Agreement. The Subscription Agreements contain all of the conditions precedent (other than the conditions contained in this Agreement or the Transaction Documents) to the proposed private placement purchaser, and all other material terms and conditions obligations of the proposed private placementSubscribers to contribute to Parent the applicable portion of the Private Placements set forth in the Subscription Agreements on the terms therein. Following No fees, consideration or other discounts are payable or have been agreed by Parent or any of its receipt Affiliates to any Subscriber in respect of its portion of the Private Placement NoticeAmount, the Company shall have the right, but not the obligation (the "Private Placement Option"), exercisable by providing written notice thereof (the "Private Placement Option Notice") to the Foundation within thirty (30) Business Days, to purchase all (but not less than all) of the Private Placement Securities on the same terms and conditions contained except as set forth in the Private Placement NoticeSubscription Agreements. The Private Placement Option Notice shall state the number of Private Placement Securities Subscription Agreements provide that the Company shall purchase pursuant to the Private Placement Option, the aggregate purchase price therefor, and the closing date of the Company's purchase of the Private Placement Securities, which shall take place no later than sixty (60) days after the date of the Private Placement Option Notice. The Company shall pay for the Private Placement Securities that it shall purchase pursuant to the Private Placement Option at the closing thereof by wire transfer of immediately available funds to is a bank account designated by the Foundation. At such closing, the Foundation shall deliver to the Company a certificate or certificates representing the number of Private Placement Securities, free and clear of all liens, claims, security interests and other encumbrances. The Company shall be entitled to receive customary representations and warranties from the Foundation regarding such sale of Private Placement Securities (including representations regarding good title to such shares free and clear of all liens, claims, security interests and other encumbrances). If the Company shall elect not to exercise the Private Placement Option, the Foundation may sell the Private Placement Securities identified in the Private Placement Notice at the time and subject to all of the terms and the conditions contained in the Private Placement Noticethird party beneficiary thereof.

Private Placements. Subject (a) The Borrower recognizes that Xxxxx may be unable to the terms effect a public sale of this Agreement, the Voting Trust and Divestiture Agreement, the Certificate of Incorporation, the Bylaws and the right of first refusal in favor any or all of the Company described below Pledged Securities by reason of certain prohibitions contained in this Section 11the federal securities laws and applicable state or foreign securities law, the Foundation shall have the right at all times but may resort to sell shares of Registrable Securities in one or more private placements (the "Private Placement Securities") sales thereof to qualified investors provided that the Foundation provides written notice a restricted group of purchasers who will be obliged to agree, among other things, to acquire such securities for their own account for investment and not with a view to the Company at least forty-five (45) Business Days prior to making distribution or resale thereof. The Borrower acknowledges and agrees that any such proposed private placement advising sale may result in prices and other terms less favorable to the Company seller than if such sale were a public sale and, notwithstanding such circumstances, agrees that any such private sale shall be deemed to have been made in a commercially reasonable manner, provided, however, that if such disposition is at private sale, then the purchase price of the terms and conditions of such proposed private placement (the "Private Placement Notice"), and provided further that the consummation of such proposed private placement would not cause any Person to Beneficially Own any shares of Common Stock in excess of the Ownership Limit applicable to such Person. The Private Placement Notice shall contain the identity of the proposed private placement purchaser, the price at which the Private Placement Pledged Securities shall be sold equal to the proposed private placement purchaserpublic market price then in effect, or, if at the number time of Private Placement sale no public market for the Pledged Securities exists, then, in recognition of the fact that the sale of the Pledged Securities would have to be sold registered under the Securities Act of 1933 and that the expenses of such registration are commercially unreasonable for the type and amount of collateral pledged hereunder, Xxxxx and the Borrower hereby agree that such private sale shall be at a purchase price mutually agreed to by Xxxxx and the proposed private placement purchaserBorrower or, and all other material terms and conditions if the parties cannot agree upon a purchase price, then at a purchase price established by a majority of three independent appraisers knowledgeable of the proposed private placement. Following its receipt value of such collateral, one named by the Private Placement NoticeBorrower within 10 days after written request by Xxxxx to do so, the Company shall have the right, but not the obligation (the "Private Placement Option"), exercisable one named by providing written notice thereof (the "Private Placement Option Notice") to the Foundation Xxxxx within thirty (30) Business Days, to purchase all (but not less than all) of the Private Placement Securities on the same terms and conditions contained in the Private Placement Notice. The Private Placement Option Notice shall state the number of Private Placement Securities that the Company shall purchase pursuant to the Private Placement Option, the aggregate purchase price thereforsuch 10 day period, and the closing date of third named by the Company's purchase of two appraisers so selected, with the Private Placement Securities, which shall take place no later than sixty (60) appraisal to be rendered by such body within 30 days after the date appointment of the Private Placement Option Noticethird appraiser. The Company Xxxxx shall pay for one half of the Private Placement Securities that it shall purchase pursuant to cost of such appraisal, including all appraisers’ fees. No costs of the Private Placement Option at the closing thereof by wire transfer of immediately available funds to a bank account designated by the Foundation. At such closing, the Foundation shall deliver to the Company a certificate or certificates representing the number of Private Placement Securities, free and clear of all liens, claims, security interests and other encumbrances. The Company appraisal shall be entitled to receive customary representations and warranties from charged against the Foundation regarding such sale proceeds of Private Placement Securities (including representations regarding good title to such shares free and clear of all liens, claims, security interests and other encumbrances). If the Company shall elect not to exercise the Private Placement Option, the Foundation may sell the Private Placement Securities identified in the Private Placement Notice at the time and subject to all of the terms and the conditions contained in the Private Placement Noticesale.

Private Placements. Subject TSIA has made available to the terms Company true and correct copies of the Subscription Agreements. As of the date of this Agreement, the Voting Trust Subscription Agreements (a) are in full force and Divestiture Agreementeffect without amendment or modification, (b) are the Certificate valid, binding and enforceable obligations of IncorporationTSIA (or its applicable Affiliate) and, the Bylaws and the right of first refusal in favor of the Company described below in this Section 11, the Foundation shall have the right at all times to sell shares of Registrable Securities in one or more private placements (the "Private Placement Securities") to qualified investors provided that the Foundation provides written notice to the Company at least forty-five Knowledge of TSIA, each other party thereto (45except, in any case, as may be limited by the Bankruptcy and Equity Exception) Business Days prior to making and (c) have not been withdrawn, terminated or rescinded in any such proposed private placement advising the Company of the terms and conditions of such proposed private placement (the "Private Placement Notice"), and provided further that the consummation of such proposed private placement would not cause any Person to Beneficially Own any shares of Common Stock in excess of the Ownership Limit applicable to such Personrespect. The Private Placement Notice shall contain Placements, together with the identity amount in the TSIA Trust Account at the Closing, will be in the aggregate sufficient to enable TSIA to pay all cash amounts required to be paid by TSIA under or in connection with this Agreement, including the Outstanding Company Expenses and Outstanding TSIA Expenses. There are no other Contracts between TSIA and any Subscriber relating to any Subscription Agreement, that would reasonably be expected to affect the obligations of the proposed private placement purchaser, Subscribers to contribute to TSIA the price at which the Private Placement Securities shall be sold to the proposed private placement purchaser, the number of Private Placement Securities to be sold to the proposed private placement purchaser, and all other material terms and conditions of the proposed private placement. Following its receipt applicable portion of the Private Placement NoticePlacements set forth in the Subscription Agreements, the Company shall have the rightand, but not the obligation (the "Private Placement Option"), exercisable by providing written notice thereof (the "Private Placement Option Notice") to the Foundation within thirty (30) Business DaysKnowledge of TSIA, no facts or circumstances exist that may reasonably be expected to purchase all (but not less than all) result in any of the conditions set forth in any Subscription Agreement not being satisfied, or the Private Placement Securities Placements not being available to TSIA, on the same terms and conditions Closing Date. No event has occurred that, with or without notice, lapse of time or both, would constitute a default or breach on the part of TSIA under any material term or condition of any Subscription Agreement and, as of the date hereof, TSIA has no reason to believe that it will be unable to satisfy in all material respects on a timely basis any term or condition of Closing to be satisfied by it contained in the Private Placement Noticeany Subscription Agreement. The Private Placement Option Notice shall state the number of Private Placement Securities that the Company shall purchase pursuant to the Private Placement Option, the aggregate purchase price therefor, and the closing date of the Company's purchase of the Private Placement Securities, which shall take place no later than sixty (60) days after the date of the Private Placement Option Notice. The Company shall pay for the Private Placement Securities that it shall purchase pursuant to the Private Placement Option at the closing thereof by wire transfer of immediately available funds to a bank account designated by the Foundation. At such closing, the Foundation shall deliver to the Company a certificate or certificates representing the number of Private Placement Securities, free and clear of all liens, claims, security interests and other encumbrances. The Company shall be entitled to receive customary representations and warranties from the Foundation regarding such sale of Private Placement Securities (including representations regarding good title to such shares free and clear of all liens, claims, security interests and other encumbrances). If the Company shall elect not to exercise the Private Placement Option, the Foundation may sell the Private Placement Securities identified in the Private Placement Notice at the time and subject to Subscription Agreements contain all of the terms and conditions precedent (other than the conditions contained in this Agreement or the Transaction Documents) to the obligations of the Subscribers to contribute to TSIA the applicable portion of the Private Placement NoticePlacements set forth in the Subscription Agreements on the terms therein.