Acceleration of Call Right. (a) During the term of this Agreement, neither any Member nor any Permitted Transferee shall dispose of any Member Shares, except in an Exempt Transfer. If any Related Party of any Member to whom such Member transfers any Member Shares in an Exempt Transfer ceases to be a Related Party of its transferor and is not then a Related Party of any other Permitted Transferee, then unless such Person shall either transfer the Member Shares held by it to a Member, a Permitted Transferee or a Related Party of either or otherwise agrees to be bound by this Agreement with respect to such Member Shares such occurrence shall be deemed to be a Disposition of the Member Shares then held by such Person giving rise to the Company's purchase right unless the requirements of the proviso in the definition of "Related Party" in Section 1.1 hereof are satisfied. (i) If any Member or any Permitted Transferee (as applicable, the "Transferor") receives a bona fide written offer (a "Bona Fide Offer") from a Person who is not an Affiliate of any Member or any Permitted Transferor (a "Prospective Purchaser") to purchase all or any of the Member Shares beneficially owned by the Transferor and the Transferor desires to accept the Bona Fide Offer, then prior to the acceptance of the Bona Fide Offer by the Transferor, the Call Right shall accelerate as to the Member Shares that are the subject of the Bona Fide Offer (the "Offered Shares") and the Company may exercise the Call Right in the manner and to the extent set forth in this Section 2.3(b). (ii) The Transferor shall give written notice (the "Offer Notice") to the Company of its receipt of the Bona Fide Offer and desire to accept the same, which notice shall (A) state the identity of the Prospective Purchaser and, if the Prospective Purchaser is not its own ultimate parent within the meaning of the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, the identity of its ultimate parent(s) and (B) set forth all material terms of the Bona Fide Offer (including the purchase price and the method of payment thereof). If one or more members of the Xxxxxxx Group exercise their right pursuant to the Stockholders Agreement to tag-along on the Bona Fide Offer, the Transferor shall set forth in the Offer Notice or in a separate written notice given at any time prior to the Closing Date the names of such exercising member(s) and the number of shares of High Vote Stock beneficially owned by each such member that such member has elected to include in the sale to the Prospective Purchaser pursuant to the Stockholders Agreement (such member's "Tag-Along Shares"). The Company shall then have the option to exercise the Call Right as to all but not less than all of the Offered Shares and the Tag-Along Shares (collectively, the "Combined Offered Shares") at the applicable price determined in accordance with the following sentence and, subject to the remaining provisions of this Section 2.3, on the terms of the Bona Fide Offer (as disclosed in the Offer Notice). The price at which the Combined Offered Shares may be purchased by the Company shall be the lesser of (x) the price offered in the Bona Fide Offer and (y) an amount equal to the Gross Purchase Price, as determined in accordance with Section 2.2, that would be payable if the Combined Offered Shares were the Subject Shares (such lesser amount being, the "Company Price"). The Transferor shall enclose with the Offer Notice a true and complete copy of the Bona Fide Offer and all documents related thereto. In determining the Company Price, (i) if any portion of the price offered in the Bona Fide Offer consisted of consideration other than cash, the fair market value of such non-cash consideration shall be deemed to be equal to the amount determined by agreement of the Transferor and the Company or, failing such agreement, as determined in accordance with the procedures as set forth in Section 2.3(c); and the number of Subject Shares and the number of shares of any series included in the Subject Shares shall be calculated without duplication for any shares that may, by virtue of the definition of "beneficially owned," be deemed to be beneficially owned by more than one Member. (iii) The Company shall have the right, exercisable (if so determined by the Independent Committee) by the written notice (an "Election Notice") given to the Transferor on or before the Close of Business on the tenth (10th) Business Day after receipt of the Offer Notice, to exercise the Call Right as to the Combined Offered Shares and to purchase all but not less than all of the Combined Offered Shares. If the Company duly delivers an Election Notice for the Combined Offered Shares in accordance with the foregoing procedure, it shall (subject to the Company's right to elect to pay a portion of the Company Price in debt securities in accordance with Section 2.3(b)(iv) and subject to the Company's right to elect to require a public sale in accordance with Section 3.1), purchase the Combined Offered Shares for cash, paid by wire transfer of next day funds on or prior to the Closing Date to an account designated by the Transferor in writing at least two (2) Business Days before such date. Notwithstanding the date fixed as the Closing Date in Section 4.1, the Closing Date for the purchase and sale of the Combined Offered Shares pursuant to this Section 2.3 shall be subject to extension in accordance with Section 2.3(c). (iv) In the event that the Company Price is the price offered in the Bona Fide Offer and any part of the price specified in the Bona Fide Offer is proposed to be paid in debt securities, the Company may, in its discretion, elect to pay the equivalent portion of the Company Price through the issuance of debt securities with substantially similar terms in an amount the fair market value of which is equal to the fair market value of the equivalent portion of the debt securities specified in the Offer Notice, in each case as agreed by the Company and the Transferor or, failing such agreement, as determined in accordance with the procedures specified in Section 2.3(c), taking into consideration relevant credit factors relating to the Prospective Purchaser and the Company and the marketability and liquidity of such debt securities. (v) In the event that (A) no Election Notice has been given by the tenth (10th) Business Day after receipt of the Offer Notice, or (B) if an Election Notice is given, the Closing has not occurred by the 61st day after the Election Notice is given (or such later date as the parties may have scheduled for the Closing or to which the Closing may have been extended pursuant to Section 2.3(c), for any reason other than a breach by the Transferor or another Member or Permitted Transferee of its obligations hereunder (the first to occur of such events being the "Free to Sell Date"), then each Person included within the Transferor shall have the right to sell all but not less than all of the Combined Offered Shares of such Person to the Prospective Purchaser at the price (or a greater price) and upon the terms (or terms no more favorable to the Prospective Purchaser) specified in the Offer Notice and, in connection with any such sale such Person shall not be required to convert any of such Offered Shares into shares of Low Vote Stock prior to the sale to such Prospective Purchaser. The right to sell Combined Offered Shares to the Prospective Purchaser pursuant to this Section 2.3(b)(v) shall expire and the provisions of this Section 2.3(b) shall be reinstated in the event that the Prospective Purchaser has not purchased such Combined Offered Shares within ten (10) Business Days after the Free to Sell Date. (i) If a Bona Fide Offer proposes to pay a portion of the price for the Offered Shares in consideration other than cash and the Company and the Transferor have not agreed upon the value thereof (or, in the case of debt securities, if the Company has elected to pay a portion of the Company Price in equivalent securities and the Company and the Transferor have not agreed upon the value of the debt securities the Company proposes to issue) by the Close of Business on the fifth (5th) Business Day prior to the date otherwise fixed for the Closing (the "Commencement Date") then the procedures set forth in this Section 2.3(c) shall be commenced and the Closing Date shall be extended to the fifth (5th) Business Day following the date on which the fair market value of the noncash consideration (or Company issued debt securities) has been finally determined pursuant to this Section 2.3(c). (ii) The Company and the Transferor shall each retain a Qualified Appraiser and notify the other party of its selection within five (5) Business Days of the Commencement Date to render the determination required by this Section 2.3(c). If either party fails to timely select its Qualified Appraiser then the Qualified Appraiser selected by the other party shall render such determination. The Company and the Transferor shall each be responsible for the fees and expenses of the Qualified Appraiser selected by it, unless only one Qualified Appraiser is selected in which case the Company and the Transferor shall each bear 50% of such fees and expenses. If a Third Appraiser is selected pursuant to this Section 2.3(c) the fees and expenses of the Third Appraiser will be shared equally by the Company and the Transferor. (iii) The Qualified Appraisers selected by the parties shall submit their respective independent determinations of the fair market value of the noncash consideration (and, if applicable, Company issued debt securities), within 15 Business Days after the Commencement Date. If the respective determinations of such Qualified Appraisers vary by less than ten percent (10%), the fair market value of the noncash consideration (and, if applicable, Company issued debt securities) shall be the average of the two determinations. (iv) If such respective determinations vary by ten percent (10%) or more, the two Appraisers shall promptly designate a third Qualified Appraiser (the "Third Appraiser"). No party to this Agreement or any Affiliate of any party to this Agreement or Qualified Appraiser shall, provide any information to the Third Appraiser as to the determinations of the initial Qualified Appraisers or otherwise influence the Third Appraiser's determination in any way. The Third Appraiser shall submit its determination of the fair market value of the noncash consideration (and, if applicable, Company issued debt securities), within ten (10) Business Days after the date on which the Third Appraiser is retained. If a Third Appraiser is retained, the fair market value of the noncash consideration (and, if applicable, Company issued debt securities) shall equal the average of the two closest of the three determinations, except that, if the difference between the highest and middle determinations is no more than 105% and no less than 95% of the difference between the middle and lowest determinations, then the fair market value shall equal the middle determination. (v) In determining the fair market value of the noncash consideration (and, if applicable, the Company issued debt securities), each Qualified Appraiser retained pursuant to this Section 2.3(c) shall: (i) assume that the fair market value of the applicable asset is the price at which the asset would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or sell and each having reasonable knowledge of all relevant facts; (ii) assume that the applicable asset would be sold for cash; and (iii) use valuation techniques then prevailing in the relevant industry. (d) No voluntary transfers of Member Shares may be made by any Holder during the Call Period and if the Call Right is exercised, thereafter, except to the Company pursuant to the Call Right. Accordingly, without limiting the generality of the foregoing, no voluntary transfer may be made during such period pursuant to a Bona Fide Offer, notwithstanding the Transferor's compliance with this Section 2.3 prior to Xxxxxx'x death. (e) If there shall be more than one Transferor in any transaction or series of related transactions covered by an Offer Notice, and if, to the extent permitted by this Agreement, the Company pays the Company Price with more than one form of consideration, then unless otherwise agreed in writing by the Transferors, each Transferor shall receive on a per share basis substantially the same combination of consideration. (f) Notwithstanding anything in this Agreement to the contrary, one or more Members may, at any time and from time to time, sell a number of Member Shares that in the aggregate for all transfers made pursuant to this subsection by any or all of the Members is equal to or less than the number of Excepted Shares. Prior to the consummation of a disposition of any Member Shares in accordance with this Section 2.3(f), such Member Shares must be converted into shares of Low Vote Stock of the corresponding series. The number of any Member Shares disposed of pursuant to this Section 2.3(f) shall be subtracted from the number of Excepted Shares. Upon the consummation of a disposition of Member Shares pursuant to this Section 2.3(f), the Member disposing of such Member Shares shall deliver to the Company a written notice stating the number of Member Shares so disposed of by such Member and the aggregate number of Excepted Shares which such Member continues to beneficially own.
Appears in 3 contracts
Samples: Call Agreement (Liberty Media Corp), Call Agreement (Malone John C), Call Agreement (Tele Communications Inc /Co/)
Acceleration of Call Right. (a) During the term of this Agreement, neither any Member nor any Permitted Transferee shall dispose of any Member Shares, except in an Exempt Transfer. If any Related Party of any Member to whom such Member transfers any Member Shares in an Exempt Transfer ceases to be a Related Party of its transferor and is not then a Related Party of any other Member or Permitted Transferee, then unless such Person shall either transfer the Member Shares held by it to a Member, a Permitted Transferee or a Related Party of either or otherwise agrees to be bound by this Agreement with respect to such Member Shares such occurrence shall be deemed to be a Disposition of the Member Shares then held by such Person giving rise to the Company's purchase right unless the requirements of the proviso in the definition of "Related Party" in Section 1.1 hereof are satisfied.
(i) If any Member or any Permitted Transferee (as applicable, the "Transferor") receives a bona fide written offer (a "Bona Fide Offer") from a Person who is not an Affiliate of any Member or any Permitted Transferor Transferee (a "Prospective Purchaser") to purchase all or any of the Member Shares beneficially owned by the Transferor and the Transferor desires to accept the Bona Fide Offer, then prior to the acceptance of the Bona Fide Offer by the Transferor, the Call Right shall accelerate as to the Member Shares that are the subject of the Bona Fide Offer (the "Offered Shares") and the Company may exercise the Call Right in the manner and to the extent set forth in this Section 2.3(b).
(ii) The Transferor shall give written notice (the "Offer Notice") to the Company of its receipt of the Bona Fide Offer and desire to accept the same, which notice shall (A) state the identity of the Prospective Purchaser and, if the Prospective Purchaser is not its own ultimate parent within the meaning of the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, the identity of its ultimate parent(s) and (B) set forth all material terms of the Bona Fide Offer (including the purchase price and the method of payment thereof). If one or more members of the Xxxxxxx Group exercise their right pursuant to the Stockholders Agreement to tag-along on the Bona Fide Offer, the Transferor shall set forth in the Offer Notice or in a separate written notice given at any time prior to the Closing Date the names of such exercising member(s) and the number of shares of High Vote Stock beneficially owned by each such member that such member has elected to include in the sale to the Prospective Purchaser pursuant to the Stockholders Agreement (such member's "Tag-Along Shares"). The Company shall then have the option to exercise the Call Right as to all but not less than all of the Offered Shares and the Tag-Along Shares (collectively, the "Combined Offered Shares") at the applicable price determined in accordance with the following sentence and, subject to the remaining provisions of this Section 2.3, on the terms of the Bona Fide Offer (as disclosed in the Offer Notice). The price at which the Combined Offered Shares may be purchased by the Company shall be the lesser of (x) the price offered in the Bona Fide Offer and (y) an amount equal to the Gross Purchase Price, as determined in accordance with Section 2.2, that would be payable if the Combined Offered Shares were the Subject Shares (such lesser amount being, the "Company Price"). The Transferor shall enclose with the Offer Notice a true and complete copy of the Bona Fide Offer and all documents related thereto. In determining the Company Price, (i) if any portion of the price offered in the Bona Fide Offer consisted of consideration other than cash, the fair market value of such non-cash consideration shall be deemed to be equal to the amount determined by agreement of the Transferor and the Company or, failing such agreement, as determined in accordance with the procedures as set forth in Section 2.3(c); and (ii) the number of Subject Shares and the number of shares of any series included in the Subject Shares shall be calculated without duplication for any shares that may, by virtue of the definition of "beneficially owned," be deemed to be beneficially owned by more than one Member.
(iii) The Company shall have the right, exercisable (if so determined by the Independent Committee) by the written notice (an "Election Notice") given to the Transferor on or before the Close of Business on the tenth (10th) Business Day after receipt of the Offer Notice, to exercise the Call Right as to the Combined Offered Shares and to purchase all but not less than all of the Combined Offered Shares. If the Company duly delivers an Election Notice for the Combined Offered Shares in accordance with the foregoing procedure, it shall (subject to the Company's right to elect to pay a portion of the Company Price in debt securities in accordance with Section 2.3(b)(iv) and subject to the Company's right to elect to require a public sale in accordance with Section 3.1), purchase the Combined Offered Shares for cash, paid by wire transfer of next day funds on or prior to the Closing Date to an account designated by the Transferor in writing at least two (2) Business Days before such date. Notwithstanding the date fixed as the Closing Date in Section 4.1, the Closing Date for the purchase and sale of the Combined Offered Shares pursuant to this Section 2.3 shall be subject to extension in accordance with Section 2.3(c).
(iv) In the event that the Company Price is the price offered in the Bona Fide Offer and any part of the price specified in the Bona Fide Offer is proposed to be paid in debt securities, the Company may, in its discretion, elect to pay the equivalent portion of the Company Price through the issuance of debt securities with substantially similar terms in an amount the fair market value of which is equal to the fair market value of the equivalent portion of the debt securities specified in the Offer Notice, in each case as agreed by the Company and the Transferor or, failing such agreement, as determined in accordance with the procedures specified in Section 2.3(c), taking into consideration relevant credit factors relating to the Prospective Purchaser and the Company and the marketability and liquidity of such debt securities.
(v) In the event that (A) no Election Notice has been given by the tenth (10th) Business Day after receipt of the Offer Notice, or (B) if an Election Notice is given, the Closing has not occurred by the 61st day after the Election Notice is given (or such later date as the parties may have scheduled for the Closing or to which the Closing may have been extended pursuant to Section 2.3(c), for any reason other than a breach by the Transferor or another Member or Permitted Transferee of its obligations hereunder (the first to occur of such events being the "Free to Sell Date"), then each Person included within the Transferor shall have the right to sell all but not less than all of the Combined Offered Shares of such Person to the Prospective Purchaser at the price (or a greater price) and upon the terms (or terms no more favorable to the Prospective Purchaser) specified in the Offer Notice and, in connection with any such sale such Person the Transferor shall not be required to convert any of such the Offered Shares into shares of Low Vote Stock prior to the sale to such Prospective Purchaser. The Transferor's right to sell Combined the Offered Shares to the Prospective Purchaser pursuant to this Section 2.3(b)(v) shall expire and the provisions of this Section 2.3(b) shall be reinstated in the event that the Prospective Purchaser has not purchased such Combined Offered Shares within ten (10) Business Days after the Free to Sell Date.
(i) If a Bona Fide Offer proposes to pay a portion of the price for the Offered Shares in consideration other than cash and the Company and the Transferor have not agreed upon the value thereof (or, in the case of debt securities, if the Company has elected to pay a portion of the Company Price in equivalent securities and the Company and the Transferor have not agreed upon the value of the debt securities the Company proposes to issue) by the Close of Business on the fifth (5th) Business Day prior to the date otherwise fixed for the Closing (the "Commencement Date") then the procedures set forth in this Section 2.3(c) shall be commenced and the Closing Date shall be extended to the fifth (5th) Business Day following the date on which the fair market value of the noncash consideration (or Company issued debt securities) has been finally determined pursuant to this Section 2.3(c).
(ii) The Company and the Transferor shall each retain a Qualified Appraiser and notify the other party of its selection within five (5) Business Days of the Commencement Date to render the determination required by this Section 2.3(c). If either party fails to timely select its Qualified Appraiser then the Qualified Appraiser selected by the other party shall render such determination. The Company and the Transferor shall each be responsible for the fees and expenses of the Qualified Appraiser selected by it, unless only one Qualified Appraiser is selected in which case the Company and the Transferor shall each bear 50% of such fees and expenses. If a Third Appraiser is selected pursuant to this Section 2.3(c) the fees and expenses of the Third Appraiser will be shared equally by the Company and the Transferor.
(iii) The Qualified Appraisers selected by the parties shall submit their respective independent determinations of the fair market value of the noncash consideration (and, if applicable, Company issued debt securities), within 15 Business Days after the Commencement Date. If the respective determinations of such Qualified Appraisers vary by less than ten percent (10%), the fair market value of the noncash consideration (and, if applicable, Company issued debt securities) shall be the average of the two determinations.
(iv) If such respective determinations vary by ten percent (10%) or more, the two Appraisers shall promptly designate a third Qualified Appraiser (the "Third Appraiser"). No party to this Agreement or any Affiliate of any party to this Agreement or Qualified Appraiser shall, provide any information to the Third Appraiser as to the determinations of the initial Qualified Appraisers or otherwise influence the Third Appraiser's determination in any way. The Third Appraiser shall submit its determination of the fair market value of the noncash consideration (and, if applicable, Company issued debt securities), within ten (10) Business Days after the date on which the Third Appraiser is retained. If a Third Appraiser is retained, the fair market value of the noncash consideration (and, if applicable, Company issued debt securities) shall equal the average of the two closest of the three determinations, except that, if the difference between the highest and middle determinations is no more than 105% and no less than 95% of the difference between the middle and lowest determinations, then the fair market value shall equal the middle determination.
(v) In determining the fair market value of the noncash consideration (and, if applicable, the Company issued debt securities), each Qualified Appraiser retained pursuant to this Section 2.3(c) shall: (iA) assume that the fair market value of the applicable asset is the price at which the asset would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or sell and each having reasonable knowledge of all relevant facts; (iiB) assume that the applicable asset would be sold for cash; and (iiiC) use valuation techniques then prevailing in the relevant industry.
(d) No voluntary transfers of Member Shares may be made by any Holder during the Call Period and if the Call Right is exercised, thereafter, except (i) to the Company pursuant to the Call RightRight or (ii) in the case of any pre- existing Permitted Pledge that continues to qualify as a Permitted Pledge, a transfer of the pledged Member Shares to the pledgee (or its nominee) as a result of the bona fide exercise by such pledgee of its rights and remedies as contemplated by the definition of "Permitted Pledge" in Section 1.1 hereof, but not any further transfer by such assignee (it being understood that a conversion by the pledgee of the pledged Member Shares into shares of Low Vote Stock in the manner and on the terms set forth in the definition of "Permitted Pledge" in Section 1.1 hereof shall be permitted). Accordingly, without limiting the generality of the foregoing, no voluntary transfer may be made during such period pursuant to a Bona Fide Offer, notwithstanding the Transferor's compliance with this Section 2.3 prior to Xxxxxx'x death.
(e) If there shall be more than one Transferor in any transaction or series of related transactions covered by an Offer Notice, and if, to the extent permitted by this Agreement, the Company pays the Company Price with more than one form of consideration, then unless otherwise agreed in writing by the TransferorsTransferors or by the Xxxxxxx Group Representative on their behalf, each Transferor shall receive on a per share basis substantially the same combination of consideration.
(f) Notwithstanding anything in this Agreement to the contrary, one or more Members may, at any time and from time to time, sell a number of Member Shares that in the aggregate for all transfers made pursuant to this subsection by any or all of the Members is equal to or less than the number of Excepted Shares, provided that each such sale is exempt from the registration requirements of the Securities Act and is effected through unsolicited broker transactions within the meaning of paragraph (g) and the first sentence of paragraph (f) of Rule 144 of the General Rules and Regulations under the Securities Act, as in effect on the date of this Agreement. Prior to the consummation of a disposition of any Member Shares in accordance with this Section 2.3(f), such Member Shares must be converted into shares of Low Vote Stock of the corresponding series. The number of any Member Shares disposed of pursuant to this Section 2.3(f) shall be subtracted from the number of Excepted Shares. Upon the consummation of a disposition of Member Shares pursuant to this Section 2.3(f), the Member disposing of such Member Shares Xxxxxxx Group Representative shall deliver to the Company a written notice stating the number of Member Shares so disposed of by of, identifying the Member or Members selling such Member Shares and the number sold by each, and the aggregate number of Excepted Shares which such Member the Members of the Xxxxxxx Group continues to beneficially own.
(g) The Company agrees that if a Permitted Pledge of any Member Shares is made and the lender forecloses or takes any other action to enforce the security interest represented by such pledge and makes an irrevocable commitment, in accordance with the definition of "Permitted Pledge" in Section 1.1 hereof, to convert such Member Shares into shares of Low Vote Stock on a share-for-share basis, the Company shall permit such conversion and shall reasonably cooperate with such lender in effecting such conversion as promptly as reasonably practicable and shall comply with Section 6.4(b) of the Stockholders Agreement.
Appears in 2 contracts
Samples: Call Agreement (Estate of Bob Magness), Call Agreement (Estate of Betsy Magness)
Acceleration of Call Right. (a) During the term effectiveness of this Agreement, neither any Member nor any Permitted Transferee shall dispose of any Member Shares, except in an Exempt TransferTransfer or in accordance with this Section 2.3. If any Related Party of any Member to whom such Member transfers any Member Shares in an Exempt Transfer ceases to be a Related Party of its transferor and is not then a Related Party of any other Permitted Transferee, then unless such Person shall either transfer the Member Shares held by it to a Member, a Permitted Transferee or a Related Party of either or otherwise agrees to be bound by this Agreement with respect to such Member Shares such occurrence shall be deemed to be a Disposition of the Member Shares then held by such Person giving rise to the Company's purchase right as if Section 2.3(b) were to apply where the price offered for purposes of calculating Company Price is the Current Market Price as of the date of such deemed Disposition, the date of the Offer Notice is deemed to be the date of such deemed Disposition and all Member Shares then held by such Person are the Offered Shares, unless the requirements of the proviso in the definition of "“Related Party" ” in Section 1.1 hereof are satisfied.
(i) If If, in connection with any transaction that would not constitute an Exempt Transfer, any Member or any Permitted Transferee (as applicable, the "“Transferor"”) receives a bona fide written offer (a "“Bona Fide Offer"”) from a Person who is not an Affiliate of any Member or any Permitted Transferor Transferee (a "“Prospective Purchaser"”) to purchase all or any of the Member Shares beneficially owned by the Transferor and the Transferor desires to accept the Bona Fide Offer, then prior to the acceptance of the Bona Fide Offer by the Transferor, the Call Right shall accelerate as to the Member Shares that are the subject of the Bona Fide Offer (the "“Offered Shares"”) and the Company may exercise the Call Right in the manner and to the extent set forth in this Section 2.3(b). Notwithstanding anything to the contrary set forth herein, with respect to any Bona Fide Offer, the Offered Shares shall not include (A) shares of High Vote Stock underlying any options to purchase High Vote Stock held by the Transferor until such time as such options are validly exercised, in which case the shares of High Vote Stock actually received by such Transferor (net of any shares Disposed of in connection with cashless exercise of such options and Dispositions of shares of High Vote Stock to satisfy tax withholding obligations as permitted by this Agreement) upon such exercise shall constitute Offered Shares if such shares are proposed to be purchased by the Prospective Purchaser in such Bona Fide Offer and (B) restricted shares of High Vote Stock or restricted stock units with respect to shares of High Vote Stock held by the Transferor until such time as such restricted shares or restricted stock units vest, in which case such shares or shares of High Vote Stock underlying restricted stock units of High Vote Stock that actually vested (net of any dispositions of shares of High Vote Stock to satisfy tax withholding obligations as permitted by this Agreement) shall constitute Offered Shares if such shares are proposed to be purchased by the Prospective Purchaser in such Bona Fide Offer.
(ii) The Transferor shall give written notice (the "“Offer Notice"”) to the Company of its receipt of the Bona Fide Offer and desire to accept the same, which notice shall (A) state the identity of the Prospective Purchaser and, if the Prospective Purchaser is not its own ultimate parent within the meaning of the XxxxHxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, the identity of its ultimate parent(s) and (B) set forth all material terms of the Bona Fide Offer (including the purchase price and the method of payment thereof). If one or more members of the Xxxxxxx Group exercise their right pursuant to the Stockholders Agreement to tag-along on the Bona Fide Offer, the Transferor shall set forth in the Offer Notice or in a separate written notice given at any time prior to the Closing Date the names of such exercising member(s) and the number of shares of High Vote Stock beneficially owned by each such member that such member has elected to include in the sale to the Prospective Purchaser pursuant to the Stockholders Agreement (such member's "Tag-Along Shares"). The Company shall then have the option to exercise the Call Right as to all but not less than all of the Offered Shares and the Tag-Along Shares (collectively, the "Combined Offered Shares") at the applicable price determined in accordance with the following sentence and, subject to the remaining provisions of this Section 2.3, on the terms of the Bona Fide Offer (as disclosed in the Offer Notice). The price at which the Combined Offered Shares may be purchased by the Company shall be the lesser of (x) the price offered in the Bona Fide Offer and (y) an amount equal to the Gross Purchase Price, as determined in accordance with Section 2.2, that would be payable if the Combined Offered Shares were the Subject Shares (such lesser amount being, the "“Company Price"”). The Transferor shall enclose with the Offer Notice a true and complete copy of the Bona Fide Offer and all transaction documents related thereto. In determining the Company Price, (i) if any portion of the price offered in the Bona Fide Offer consisted of consideration other than cash, the fair market value of such non-cash consideration shall be deemed to be equal to the amount determined by agreement of the Transferor and the Company or, failing such agreement, as determined in accordance with the procedures as set forth in Section 2.3(c); and the number of Subject Shares and the number of shares of any series included in the Subject Shares shall be calculated without duplication for any shares that may, by virtue of the definition of "beneficially owned," be deemed to be beneficially owned by more than one Member.
(iii) The Company shall have the right, exercisable (if so determined by the Independent Committee) by the written notice (an "“Election Notice"”) given to the Transferor on or before the Close of Business on the tenth twenty-first (10th21st) Business Day day after receipt of the Offer Notice, to exercise the Call Right as to the Combined Offered Shares and to purchase all but not less than all of the Combined Offered Shares. The Company Price shall be payable in cash or in fully paid and nonassessable shares of Low Vote Stock, or any combination of the foregoing, as the Transferor may elect by a written notice given to the Company no later than five (5) Business Days after receipt of the Election Notice (the “Transferor Election Notice”); provided, however, that if such Transferor does not timely deliver a Transferor Election Notice pursuant hereto, such Transferor shall have been deemed to elect to receive the entire Company Price in cash. The Transferor Election Notice shall specify the portion of the Company Price to be paid in Low Vote Stock (such portion being the “Transferor Stock Value”). The Company Price less the Transferor Stock Value is herein referred to as the “Transferor Closing Date Amount”. If the Company duly delivers an Election Notice for the Combined Offered Shares in accordance with the foregoing procedure, it shall (subject to the Company's right to elect to pay a portion of the Company Price in debt securities in accordance with Section 2.3(b)(iv) and subject to the Company's right to elect to require a public sale in accordance with Section 3.1), purchase the Combined Offered Shares for cashthe Transferor Closing Date Amount, which shall be paid by wire transfer of next day immediately available funds on or prior to the Closing Date to an account designated by the Transferor in writing at least two (2) Business Days before such date, and, if the Transferor has timely elected in accordance with this Section 2.3(b)(iii) to receive any portion of the Company Price in shares of Low Vote Stock, such shares of Low Vote Stock in accordance with Section 2.3(b)(iv), or any combination thereof. Notwithstanding the date fixed as the Closing Date in Section 4.13.1, the Closing Date for the purchase and sale of the Combined Offered Shares pursuant to this Section 2.3 shall be subject to extension in accordance with Section 2.3(c).
(iv) In If the event that the Company Price is the price offered Transferor has timely elected in the Bona Fide Offer and accordance with Section 2.3(b)(iii) to receive any part of the price specified in the Bona Fide Offer is proposed to be paid in debt securities, the Company may, in its discretion, elect to pay the equivalent portion of the Company Price through in shares of Low Vote Stock, the issuance number of debt securities with substantially similar terms in an amount shares of Low Vote Stock to be delivered to the fair market value of which is Transferor on the Closing Date shall be equal to the fair market value quotient obtained by dividing (A) the Transferor Stock Value by (B) the Per Share Value. The shares to be so delivered on the Closing Date will not have been registered for sale under the Securities Act and may not be sold except pursuant to an effective registration statement or an exemption from the registration requirements of the equivalent portion Securities Act. The book-entry shares of Low Vote Stock to be delivered to the Transferor on the Closing Date shall bear a customary legend to the foregoing effect, but shall be free of any rights of the debt securities specified in Company hereunder, including the Offer Notice, in each case as agreed by Call Right and all other rights of the Company and the Transferor or, failing such agreement, as determined in accordance with the procedures specified in Section 2.3(c), taking into consideration relevant credit factors relating to the Prospective Purchaser and the Company and the marketability and liquidity of such debt securitieshereunder.
(v) In the event that (A) no Election Notice has been given by the tenth twenty-first (10th21st) Business Day day after receipt of the Offer Notice, or (B) if an Election Notice is given, the Closing has not occurred by the 61st day after the Election Notice is given (or such later date as the parties may have scheduled for the Closing or to which the Closing may have been extended pursuant to Section 2.3(c), for any reason other than a breach by the Transferor or another Member or Permitted Transferee of its obligations hereunder (the first to occur of such events being the "“Free to Sell Date"”)), then each Person included within the Transferor shall have the right to sell all but not less than all of the Combined Offered Shares of such Person to the Prospective Purchaser at the price (or a greater price) and upon the terms (or terms no more favorable to the Prospective Purchaser) specified in the Offer Notice and, in connection with any such sale such Person shall not be required to convert any of such Offered Shares into shares of Low Vote Stock prior to the sale to such Prospective Purchaser. The Subject to the Company’s compliance with Section 2.3(e) and Section 4.2(c), the right to sell Combined Offered Shares to the Prospective Purchaser pursuant to this Section 2.3(b)(v) shall expire and the provisions of this Section 2.3(b) shall be reinstated in the event that the Prospective Purchaser has not purchased such Combined Offered Shares within ten (10) Business Days after the Free to Sell Date.
(i) If a Prospective Purchaser in a Bona Fide Offer proposes to pay a portion of the price for the Offered Shares in consideration other than cash and the Company and the Transferor have not agreed upon the value thereof (or, in the case of debt securities, if the Company has elected to pay a portion of the Company Price in equivalent securities and the Company and the Transferor have not agreed upon the value of the debt securities the Company proposes to issue) by the Close of Business on the fifth (5th) Business Day prior to the date otherwise fixed for the Closing (the "“Commencement Date"”) then the procedures set forth in this Section 2.3(c) shall be commenced and the Closing Date shall be extended to the fifth (5th) Business Day following the date on which the fair market value of the noncash consideration (or Company issued debt securities) has been finally determined pursuant to this Section 2.3(c).
(ii) The Company and the Transferor shall each retain a Qualified Appraiser and notify the other party of its selection within five (5) Business Days of the Commencement Date to render the determination required by this Section 2.3(c). If either party fails to timely select its Qualified Appraiser then the Qualified Appraiser selected by the other party shall render such determination. The Company and the Transferor shall each be responsible for the fees and expenses of the Qualified Appraiser selected by it, unless only one Qualified Appraiser is selected in which case the Company and the Transferor shall each bear 50% of such fees and expenses. If a Third Appraiser is selected pursuant to this Section 2.3(c) the fees and expenses of the Third Appraiser will be shared equally by the Company and the Transferor.
(iii) The Qualified Appraisers selected by the parties shall submit their respective independent determinations of the fair market value of the noncash consideration (and, if applicable, Company issued debt securities), within 15 Business Days after the Commencement Date. If the respective determinations of such Qualified Appraisers vary by less than ten percent (10%), the fair market value of the noncash consideration (and, if applicable, Company issued debt securities) shall be the average of the two determinations.
(iv) If such respective determinations vary by ten percent (10%) or more, the two Qualified Appraisers shall promptly designate a third Qualified Appraiser (the "“Third Appraiser"”). No party to this Agreement or any Affiliate of any party to this Agreement or Qualified Appraiser shall, shall provide any information to the Third Appraiser as to the determinations of the initial Qualified Appraisers or otherwise influence the Third Appraiser's determination in any way. The Third Appraiser shall submit its determination of the fair market value of the noncash consideration (and, if applicable, Company issued debt securities), within ten (10) Business Days after the date on which the Third Appraiser is retained. If a Third Appraiser is retained, the fair market value of the noncash consideration (and, if applicable, Company issued debt securities) shall equal the average of the two closest of the three determinations, except that, if the difference between the highest and middle determinations is no more than 105% and no less than 95% of the difference between the middle and lowest determinations, then the fair market value shall equal the middle determination.
(v) In determining the fair market value of the noncash consideration (and, if applicable, the Company issued debt securities)consideration, each Qualified Appraiser retained pursuant to this Section 2.3(c) shall: (iA) assume that the fair market value of the applicable asset is the price at which the asset would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or sell and each having reasonable knowledge of all relevant facts; (iiB) assume that the applicable asset would be sold for cash; and (iiiC) use valuation techniques then prevailing in the relevant industry.
(d) No voluntary transfers of Member Shares may be made by any Holder during the Call Period and if the Call Right is exercised, thereafter, except to the Company pursuant to the Call Right, subject to the Company’s compliance with its obligations under Section 2.2. Accordingly, without limiting the generality of the foregoing, no voluntary transfer may be made during such period Call Period pursuant to a Bona Fide Offer, notwithstanding the Transferor's ’s compliance with this Section 2.3 prior to Xxxxxx'x Mxxxxx’x death.
(e) If there With respect to any Offer Notice for which the Free to Sell Date occurs, no later than two (2) Business Days after the Free to Sell Date, the Independent Committee, or, if the Independent Committee is no longer constituted, the Board of Directors (or such other authorized committee thereof) shall be approve, without conditions or restrictions, the acquisition of the Offered Shares by the Prospective Purchaser at the price (or a greater price) and upon the terms (or terms no more than one Transferor in any transaction or series of related transactions covered by an Offer Notice, and if, favorable to the extent permitted by Prospective Purchaser) specified in the Offer Notice for purposes of Section 203 of the General Corporation Law of the State of Delaware (the “Section 203 Resolutions”); provided, however, that this AgreementSection 2.3(e) shall not apply if the Offered Shares, together with any other voting capital stock of the Company pays beneficially owned by such Prospective Purchaser (including any shares for which the Company Price with more Prospective Purchaser has voting control), constitute less than one form of consideration, then unless otherwise agreed in writing by the Transferors, each Transferor shall receive on a per share basis substantially the same combination of consideration.
fifteen percent (f15%) Notwithstanding anything in this Agreement to the contrary, one or more Members may, at any time and from time to time, sell a number of Member Shares that in the aggregate for all transfers made pursuant to this subsection by any or all of the Members is equal to or less than the number of Excepted Shares. Prior to the consummation of a disposition of any Member Shares in accordance with this Section 2.3(f), such Member Shares must be converted into shares of Low Vote Stock voting power of the corresponding seriesCompany. The number of any Member Shares disposed of pursuant to this Section 2.3(f) Company shall be subtracted from the number of Excepted Shares. Upon the consummation of a disposition of Member Shares pursuant to this Section 2.3(f), the Member disposing of such Member Shares shall promptly deliver to the Company a written notice stating Prospective Purchaser evidence of the number adoption of Member Shares so disposed of by such Member and the aggregate number of Excepted Shares which such Member continues to beneficially ownSection 203 Resolutions.
Appears in 2 contracts
Samples: Call Agreement (Qurate Retail, Inc.), Call Agreement (Maffei Gregory B)
Acceleration of Call Right. (a) During the term of this Agreement, neither any Member nor any Permitted Transferee shall dispose of any Member Shares, except in an Exempt Transfer. If any Related Party of any Member to whom such Member transfers any Member Shares in an Exempt Transfer ceases to be a Related Party of its transferor and is not then a Related Party of any other Member or Permitted Transferee, then unless such Person shall either transfer the Member Shares held by it to a Member, a Permitted Transferee or a Related Party of either or otherwise agrees to be bound by this Agreement with respect to such Member Shares such occurrence shall be deemed to be a Disposition of the Member Shares then held by such Person giving rise to the Company's purchase right unless the requirements of the proviso in the definition of "Related Party" in Section 1.1 hereof are satisfied.
(i) If any Member or any Permitted Transferee (as applicable, the "Transferor") receives a bona fide written offer (a "Bona Fide Offer") from a Person who is not an Affiliate of any Member or any Permitted Transferor Transferee (a "Prospective Purchaser") to purchase all or any of the Member Shares beneficially owned by the Transferor and the Transferor desires to accept the Bona Fide Offer, then prior to the acceptance of the Bona Fide Offer by the Transferor, the Call Right shall accelerate as to the Member Shares that are the subject of the Bona Fide Offer (the "Offered Shares") and the Company may exercise the Call Right in the manner and to the extent set forth in this Section 2.3(b).
(ii) The Transferor shall give written notice (the "Offer Notice") to the Company of its receipt of the Bona Fide Offer and desire to accept the same, which notice shall (A) state the identity of the Prospective Purchaser and, if the Prospective Purchaser is not its own ultimate parent within the meaning of the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, the identity of its ultimate parent(s) and (B) set forth all material terms of the Bona Fide Offer (including the purchase price and the method of payment thereof). If one or more members of the Xxxxxxx Group exercise their right pursuant to the Stockholders Agreement to tag-along on the Bona Fide Offer, the Transferor shall set forth in the Offer Notice or in a separate written notice given at any time prior to the Closing Date the names of such exercising member(s) and the number of shares of High Vote Stock beneficially owned by each such member that such member has elected to include in the sale to the Prospective Purchaser pursuant to the Stockholders Agreement (such member's "Tag-Along Shares"). The Company shall then have the option to exercise the Call Right as to all but not less than all of the Offered Shares and the Tag-Along Shares (collectively, the "Combined Offered Shares") at the applicable price determined in accordance with the following sentence and, subject to the remaining provisions of this Section 2.3, on the terms of the Bona Fide Offer (as disclosed in the Offer Notice). The price at which the Combined Offered Shares may be purchased by the Company shall be the lesser of (x) the price offered in the Bona Fide Offer and (y) an amount equal to the Gross Purchase Price, as determined in accordance with Section 2.2, that would be payable if the Combined Offered Shares were the Subject Shares (such lesser amount being, the "Company Price"). The Transferor shall enclose with the Offer Notice a true and complete copy of the Bona Fide Offer and all documents related thereto. In determining the Company Price, (i) if any portion of the price offered in the Bona Fide Offer consisted of consideration other than cash, the fair market value of such non-cash consideration shall be deemed to be equal to the amount determined by agreement of the Transferor and the Company or, failing such agreement, as determined in accordance with the procedures as set forth in Section 2.3(c); and (ii) the number of Subject Shares and the number of shares of any series included in the Subject Shares shall be calculated without duplication for any shares that may, by virtue of the definition of "beneficially owned," be deemed to be beneficially owned by more than one Member.
(iii) The Company shall have the right, exercisable (if so determined by the Independent Committee) by the written notice (an "Election Notice") given to the Transferor on or before the Close of Business on the tenth (10th) Business Day after receipt of the Offer Notice, to exercise the Call Right as to the Combined Offered Shares and to purchase all but not less than all of the Combined Offered Shares. If the Company duly delivers an Election Notice for the Combined Offered Shares in accordance with the foregoing procedure, it shall (subject to the Company's right to elect to pay a portion of the Company Price in debt securities in accordance with Section 2.3(b)(iv) and subject to the Company's right to elect to require a public sale in accordance with Section 3.1), purchase the Combined Offered Shares for cash, paid by wire transfer of next day funds on or prior to the Closing Date to an account designated by the Transferor in writing at least two (2) Business Days before such date. Notwithstanding the date fixed as the Closing Date in Section 4.1, the Closing Date for the purchase and sale of the Combined Offered Shares pursuant to this Section 2.3 shall be subject to extension in accordance with Section 2.3(c).
(iv) In the event that the Company Price is the price offered in the Bona Fide Offer and any part of the price specified in the Bona Fide Offer is proposed to be paid in debt securities, the Company may, in its discretion, elect to pay the equivalent portion of the Company Price through the issuance of debt securities with substantially similar terms in an amount the fair market value of which is equal to the fair market value of the equivalent portion of the debt securities specified in the Offer Notice, in each case as agreed by the Company and the Transferor or, failing such agreement, as determined in accordance with the procedures specified in Section 2.3(c), taking into consideration relevant credit factors relating to the Prospective Purchaser and the Company and the marketability and liquidity of such debt securities.
(v) In the event that (A) no Election Notice has been given by the tenth (10th) Business Day after receipt of the Offer Notice, or (B) if an Election Notice is given, the Closing has not occurred by the 61st day after the Election Notice is given (or such later date as the parties may have scheduled for the Closing or to which the Closing may have been extended pursuant to Section 2.3(c), for any reason other than a breach by the Transferor or another Member or Permitted Transferee of its obligations hereunder (the first to occur of such events being the "Free to Sell Date"), then each Person included within the Transferor shall have the right to sell all but not less than all of the Combined Offered Shares of such Person to the Prospective Purchaser at the price (or a greater price) and upon the terms (or terms no more favorable to the Prospective Purchaser) specified in the Offer Notice and, in connection with any such sale such Person the Transferor shall not be required to convert any of such the Offered Shares into shares of Low Vote Stock prior to the sale to such Prospective Purchaser. The Transferor's right to sell Combined the Offered Shares to the Prospective Purchaser pursuant to this Section 2.3(b)(v) shall expire and the provisions of this Section 2.3(b) shall be reinstated in the event that the Prospective Purchaser has not purchased such Combined Offered Shares within ten (10) Business Days after the Free to Sell Date.
(i) If a Bona Fide Offer proposes to pay a portion of the price for the Offered Shares in consideration other than cash and the Company and the Transferor have not agreed upon the value thereof (or, in the case of debt securities, if the Company has elected to pay a portion of the Company Price in equivalent securities and the Company and the Transferor have not agreed upon the value of the debt securities the Company proposes to issue) by the Close of Business on the fifth (5th) Business Day prior to the date otherwise fixed for the Closing (the "Commencement Date") then the procedures set forth in this Section 2.3(c) shall be commenced and the Closing Date shall be extended to the fifth (5th) Business Day following the date on which the fair market value of the noncash consideration (or Company issued debt securities) has been finally determined pursuant to this Section 2.3(c).
(ii) The Company and the Transferor shall each retain a Qualified Appraiser and notify the other party of its selection within five (5) Business Days of the Commencement Date to render the determination required by this Section 2.3(c). If either party fails to timely select its Qualified Appraiser then the Qualified Appraiser selected by the other party shall render such determination. The Company and the Transferor shall each be responsible for the fees and expenses of the Qualified Appraiser selected by it, unless only one Qualified Appraiser is selected in which case the Company and the Transferor shall each bear 50% of such fees and expenses. If a Third Appraiser is selected pursuant to this Section 2.3(c) the fees and expenses of the Third Appraiser will be shared equally by the Company and the Transferor.
(iii) The Qualified Appraisers selected by the parties shall submit their respective independent determinations of the fair market value of the noncash consideration (and, if applicable, Company issued debt securities), within 15 Business Days after the Commencement Date. If the respective determinations of such Qualified Appraisers vary by less than ten percent (10%), the fair market value of the noncash consideration (and, if applicable, Company issued debt securities) shall be the average of the two determinations.
(iv) If such respective determinations vary by ten percent (10%) or more, the two Appraisers shall promptly designate a third Qualified Appraiser (the "Third Appraiser"). No party to this Agreement or any Affiliate of any party to this Agreement or Qualified Appraiser shall, provide any information to the Third Appraiser as to the determinations of the initial Qualified Appraisers or otherwise influence the Third Appraiser's determination in any way. The Third Appraiser shall submit its determination of the fair market value of the noncash consideration (and, if applicable, Company issued debt securities), within ten (10) Business Days after the date on which the Third Appraiser is retained. If a Third Appraiser is retained, the fair market value of the noncash consideration (and, if applicable, Company issued debt securities) shall equal the average of the two closest of the three determinations, except that, if the difference between the highest and middle determinations is no more than 105% and no less than 95% of the difference between the middle and lowest determinations, then the fair market value shall equal the middle determination.
(v) In determining the fair market value of the noncash consideration (and, if applicable, the Company issued debt securities), each Qualified Appraiser retained pursuant to this Section 2.3(c) shall: (iA) assume that the fair market value of the applicable asset is the price at which the asset would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or sell and each having reasonable knowledge of all relevant facts; (iiB) assume that the applicable asset would be sold for cash; and (iiiC) use valuation techniques then prevailing in the relevant industry.
(d) No voluntary transfers of Member Shares may be made by any Holder during the Call Period and if the Call Right is exercised, thereafter, except (i) to the Company pursuant to the Call RightRight or (ii) in the case of any pre-existing Permitted Pledge that continues to qualify as a Permitted Pledge, a transfer of the pledged Member Shares to the pledgee (or its nominee) as a result of the bona fide exercise by such pledgee of its rights and remedies as contemplated by the definition of "Permitted Pledge" in Section 1.1 hereof, but not any further transfer by such assignee (it being understood that a conversion by the pledgee of the pledged Member Shares into shares of Low Vote Stock in the manner and on the terms set forth in the definition of "Permitted Pledge" in Section 1.1 hereof shall be permitted). Accordingly, without limiting the generality of the foregoing, no voluntary transfer may be made during such period pursuant to a Bona Fide Offer, notwithstanding the Transferor's compliance with this Section 2.3 prior to Xxxxxx'x death.
(e) If there shall be more than one Transferor in any transaction or series of related transactions covered by an Offer Notice, and if, to the extent permitted by this Agreement, the Company pays the Company Price with more than one form of consideration, then unless otherwise agreed in writing by the TransferorsTransferors or by the Xxxxxxx Group Representative on their behalf, each Transferor shall receive on a per share basis substantially the same combination of consideration.
(f) Notwithstanding anything in this Agreement to the contrary, one or more Members may, at any time and from time to time, sell a number of Member Shares that in the aggregate for all transfers made pursuant to this subsection by any or all of the Members is equal to or less than the number of Excepted Shares, provided that each such sale is exempt from the registration requirements of the Securities Act and is effected through unsolicited broker transactions within the meaning of paragraph (g) and the first sentence of paragraph (f) of Rule 144 of the General Rules and Regulations under the Securities Act, as in effect on the date of this Agreement. Prior to the consummation of a disposition of any Member Shares in accordance with this Section 2.3(f), such Member Shares must be converted into shares of Low Vote Stock of the corresponding series. The number of any Member Shares disposed of pursuant to this Section 2.3(f) shall be subtracted from the number of Excepted Shares. Upon the consummation of a disposition of
(g) The Company agrees that if a Permitted Pledge of any Member Shares pursuant is made and the lender forecloses or takes any other action to this enforce the security interest represented by such pledge and makes an irrevocable commitment, in accordance with the definition of "Permitted Pledge" in Section 2.3(f)1.1 hereof, the Member disposing of to convert such Member Shares shall deliver to into shares of Low Vote Stock on a share-for-share basis, the Company a written notice stating shall permit such conversion and shall reasonably cooperate with such lender in effecting such conversion as promptly as reasonably practicable and shall comply with Section 6.4(b) of the number of Member Shares so disposed of by such Member and the aggregate number of Excepted Shares which such Member continues to beneficially ownStockholders Agreement.
Appears in 1 contract
Acceleration of Call Right. (a) During the term of this Agreement, neither any Member nor any Permitted Transferee shall dispose of any Member Shares, except in an Exempt Transfer. If any Related Party of any Member to whom such Member transfers any Member Shares in an Exempt Transfer ceases to be a Related Party of its transferor and is not then a Related Party of any other Member or Permitted Transferee, then unless such Person shall either transfer the Member Shares held by it to a Member, a Permitted Transferee or a Related Party of either or otherwise agrees to be bound by this Agreement with respect to such Member Shares such occurrence shall be deemed to be a Disposition of the Member Shares then held by such Person giving rise to the Company's purchase right unless the requirements of the proviso in the definition of "Related Party" in Section 1.1 hereof are satisfied.
(i) If any Member or any Permitted Transferee (as applicable, the "Transferor") receives a bona fide written offer (a "Bona Fide Offer") from a Person who is not an Affiliate of any Member or any Permitted Transferor Transferee (a "Prospective Purchaser") to purchase all or any of the Member Shares beneficially owned by the Transferor and the Transferor desires to accept the Bona Fide Offer, then prior to the acceptance of the Bona Fide Offer by the Transferor, the Call Right shall accelerate as to the Member Shares that are the subject of the Bona Fide Offer (the "Offered Shares") and the Company may exercise the Call Right in the manner and to the extent set forth in this Section 2.3(b).
(ii) The Transferor shall give written notice (the "Offer Notice") to the Company of its receipt of the Bona Fide Offer and desire to accept the same, which notice shall (A) state the identity of the Prospective Purchaser and, if the Prospective Purchaser is not its own ultimate parent within the meaning of the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, the identity of its ultimate parent(s) and (B) set forth all material terms of the Bona Fide Offer (including the purchase price and the method of payment thereof). If one or more members of the Xxxxxxx Group exercise their right pursuant to the Stockholders Agreement to tag-along on the Bona Fide Offer, the Transferor shall set forth in the Offer Notice or in a separate written notice given at any time prior to the Closing Date the names of such exercising member(s) and the number of shares of High Vote Stock beneficially owned by each such member that such member has elected to include in the sale to the Prospective Purchaser pursuant to the Stockholders Agreement (such member's "Tag-Along Shares"). The Company shall then have the option to exercise the Call Right as to all but not less than all of the Offered Shares and the Tag-Along Shares (collectively, the "Combined Offered Shares") at the applicable price determined in accordance with the following sentence and, subject to the remaining provisions of this Section 2.3, on the terms of the Bona Fide Offer (as disclosed in the Offer Notice). The price at which the Combined Offered Shares may be purchased by the Company shall be the lesser of (x) the price offered in the Bona Fide Offer and (y) an amount equal to the Gross Purchase Price, as determined in accordance with Section 2.2, that would be payable if the Combined Offered Shares were the Subject Shares (such lesser amount being, the "Company Price"). The Transferor shall enclose with the Offer Notice a true and complete copy of the Bona Fide Offer and all documents related thereto. In determining the Company Price, (i) if any portion of the price offered in the Bona Fide Offer consisted of consideration other than cash, the fair market value of such non-cash consideration shall be deemed to be equal to the amount determined by agreement of the Transferor and the Company or, failing such agreement, as determined in accordance with the procedures as set forth in Section 2.3(c); and (ii) the number of Subject Shares and the number of shares of any series included in the Subject Shares shall be calculated without duplication for any shares that may, by virtue of the definition of "beneficially owned," be deemed to be beneficially owned by more than one Member.
(iii) The Company shall have the right, exercisable (if so determined by the Independent Committee) by the written notice (an "Election Notice") given to the Transferor on or before the Close of Business on the tenth (10th) Business Day after receipt of the Offer Notice, to exercise the Call Right as to the Combined Offered Shares and to purchase all but not less than all of the Combined Offered Shares. If the Company duly delivers an Election Notice for the Combined Offered Shares in accordance with the foregoing procedure, it shall (subject to the Company's right to elect to pay a portion of the Company Price in debt securities in accordance with Section 2.3(b)(iv) and subject to the Company's right to elect to require a public sale in accordance with Section 3.1), purchase the Combined Offered Shares for cash, paid by wire transfer of next day funds on or prior to the Closing Date to an account designated by the Transferor in writing at least two (2) Business Days before such date. Notwithstanding the date fixed as the Closing Date in Section 4.1, the Closing Date for the purchase and sale of the Combined Offered Shares pursuant to this Section 2.3 shall be subject to extension in accordance with Section 2.3(c).
(iv) In the event that the Company Price is the price offered in the Bona Fide Offer and any part of the price specified in the Bona Fide Offer is proposed to be paid in debt securities, the Company may, in its discretion, elect to pay the equivalent portion of the Company Price through the issuance of debt securities with substantially similar terms in an amount the fair market value of which is equal to the fair market value of the equivalent portion of the debt securities specified in the Offer Notice, in each case as agreed by the Company and the Transferor or, failing such agreement, as determined in accordance with the procedures specified in Section 2.3(c), taking into consideration relevant credit factors relating to the Prospective Purchaser and the Company and the marketability and liquidity of such debt securities.
(v) In the event that (A) no Election Notice has been given by the tenth (10th) Business Day after receipt of the Offer Notice, or (B) if an Election Notice is given, the Closing has not occurred by the 61st day after the Election Notice is given (or such later date as the parties may have scheduled for the Closing or to which the Closing may have been extended pursuant to Section 2.3(c), for any reason other than a breach by the Transferor or another Member or Permitted Transferee of its obligations hereunder (the first to occur of such events being the "Free to Sell Date"), then each Person included within the Transferor shall have the right to sell all but not less than all of the Combined Offered Shares of such Person to the Prospective Purchaser at the price (or a greater price) and upon the terms (or terms no more favorable to the Prospective Purchaser) specified in the Offer Notice and, in connection with any such sale such Person the Transferor shall not be required to convert any of such the Offered Shares into shares of Low Vote Stock prior to the sale to such Prospective Purchaser. The Transferor's right to sell Combined the Offered Shares to the Prospective Purchaser pursuant to this Section 2.3(b)(v) shall expire and the provisions of this Section 2.3(b) shall be reinstated in the event that the Prospective Purchaser has not purchased such Combined Offered Shares within ten (10) Business Days after the Free to Sell Date.
(i) If a Bona Fide Offer proposes to pay a portion of the price for the Offered Shares in consideration other than cash and the Company and the Transferor have not agreed upon the value thereof (or, in the case of debt securities, if the Company has elected to pay a portion of the Company Price in equivalent securities and the Company and the Transferor have not agreed upon the value of the debt securities the Company proposes to issue) by the Close of Business on the fifth (5th) Business Day prior to the date otherwise fixed for the Closing (the "Commencement Date") then the procedures set forth in this Section 2.3(c) shall be commenced and the Closing Date shall be extended to the fifth (5th) Business Day following the date on which the fair market value of the noncash consideration (or Company issued debt securities) has been finally determined pursuant to this Section 2.3(c).
(ii) The Company and the Transferor shall each retain a Qualified Appraiser and notify the other party of its selection within five (5) Business Days of the Commencement Date to render the determination required by this Section 2.3(c). If either party fails to timely select its Qualified Appraiser then the Qualified Appraiser selected by the other party shall render such determination. The Company and the Transferor shall each be responsible for the fees and expenses of the Qualified Appraiser selected by it, unless only one Qualified Appraiser is selected in which case the Company and the Transferor shall each bear 50% of such fees and expenses. If a Third Appraiser is selected pursuant to this Section 2.3(c) the fees and expenses of the Third Appraiser will be shared equally by the Company and the Transferor.
(iii) The Qualified Appraisers selected by the parties shall submit their respective independent determinations of the fair market value of the noncash consideration (and, if applicable, Company issued debt securities), within 15 Business Days after the Commencement Date. If the respective determinations of such Qualified Appraisers vary by less than ten percent (10%), the fair market value of the noncash consideration (and, if applicable, Company issued debt securities) shall be the average of the two determinations.
(iv) If such respective determinations vary by ten percent (10%) or more, the two Appraisers shall promptly designate a third Qualified Appraiser (the "Third Appraiser"). No party to this Agreement or any Affiliate of any party to this Agreement or Qualified Appraiser shall, provide any information to the Third Appraiser as to the determinations of the initial Qualified Appraisers or otherwise influence the Third Appraiser's determination in any way. The Third Appraiser shall submit its determination of the fair market value of the noncash consideration (and, if applicable, Company issued debt securities), within ten (10) Business Days after the date on which the Third Appraiser is retained. If a Third Appraiser is retained, the fair market value of the noncash consideration (and, if applicable, Company issued debt securities) shall equal the average of the two closest of the three determinations, except that, if the difference between the highest and middle determinations is no more than 105% and no less than 95% of the difference between the middle and lowest determinations, then the fair market value shall equal the middle determination.
(v) In determining the fair market value of the noncash consideration (and, if applicable, the Company issued debt securities), each Qualified Appraiser retained pursuant to this Section 2.3(c) shall: (iA) assume that the fair market value of the applicable asset is the price at which the asset would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or sell and each having reasonable knowledge of all relevant facts; (iiB) assume that the applicable asset would be sold for cash; and (iiiC) use valuation techniques then prevailing in the relevant industry.
(d) No voluntary transfers of Member Shares may be made by any Holder during the Call Period and if the Call Right is exercised, thereafter, except (i) to the Company pursuant to the Call RightRight or (ii) in the case of any pre- existing Permitted Pledge that continues to qualify as a Permitted Pledge, a transfer of the pledged Member Shares to the pledgee (or its nominee) as a result of the bona fide exercise by such pledgee of its rights and remedies as ---- ---- contemplated by the definition of "Permitted Pledge" in Section 1.1 hereof, but not any further transfer by such assignee (it being understood that a conversion by the pledgee of the pledged Member Shares into shares of Low Vote Stock in the manner and on the terms set forth in the definition of "Permitted Pledge" in Section 1.1 hereof shall be permitted). Accordingly, without limiting the generality of the foregoing, no voluntary transfer may be made during such period pursuant to a Bona Fide Offer, notwithstanding the Transferor's compliance with this Section 2.3 prior to Xxxxxx'x death.
(e) If there shall be more than one Transferor in any transaction or series of related transactions covered by an Offer Notice, and if, to the extent permitted by this Agreement, the Company pays the Company Price with more than one form of consideration, then unless otherwise agreed in writing by the TransferorsTransferors or by the Xxxxxxx Group Representative on their behalf, each Transferor shall receive on a per share basis substantially the same combination of consideration.
(f) Notwithstanding anything in this Agreement to the contrary, one or more Members may, at any time and from time to time, sell a number of Member Shares that in the aggregate for all transfers made pursuant to this subsection by any or all of the Members is equal to or less than the number of Excepted Shares, provided that each such sale is exempt from the registration requirements of the Securities Act and is effected through unsolicited broker transactions within the meaning of paragraph (g) and the first sentence of paragraph (f) of Rule 144 of the General Rules and Regulations under the Securities Act, as in effect on the date of this Agreement. Prior to the consummation of a disposition of any Member Shares in accordance with this Section 2.3(f), such Member Shares must be converted into shares of Low Vote Stock of the corresponding series. The number of any Member Shares disposed of pursuant to this Section 2.3(f) shall be subtracted from the number of Excepted Shares. Upon the consummation of a disposition of
(g) The Company agrees that if a Permitted Pledge of any Member Shares pursuant is made and the lender forecloses or takes any other action to this enforce the security interest represented by such pledge and makes an irrevocable commitment, in accordance with the definition of "Permitted Pledge" in Section 2.3(f)1.1 hereof, the Member disposing of to convert such Member Shares shall deliver to into shares of Low Vote Stock on a share-for-share basis, the Company a written notice stating shall permit such conversion and shall reasonably cooperate with such lender in effecting such conversion as promptly as reasonably practicable and shall comply with Section 6.4(b) of the number of Member Shares so disposed of by such Member and the aggregate number of Excepted Shares which such Member continues to beneficially ownStockholders Agreement.
Appears in 1 contract
Acceleration of Call Right. (a) During the term of this Agreement, neither any Member nor any Permitted Transferee shall dispose of any Member Shares, except in an Exempt Transfer. If any Related Party of any Member to whom such Member transfers any Member Shares in an Exempt Transfer ceases to be a Related Party of its transferor and is not then a Related Party of any other Member or Permitted Transferee, then unless such Person shall either transfer the Member Shares held by it to a Member, a Permitted Transferee or a Related Party of either or otherwise agrees to be bound by this Agreement with respect to such Member Shares such occurrence shall be deemed to be a Disposition of the Member Shares then held by such Person giving rise to the Company's purchase right unless the requirements of the proviso in the definition of "Related Party" in Section 1.1 hereof are satisfied.
(i) If any Member or any Permitted Transferee (as applicable, the "Transferor") receives a bona fide written offer (a "Bona Fide Offer") from a Person who is not an Affiliate of any Member or any Permitted Transferor Transferee (a "Prospective Purchaser") to purchase all or any of the Member Shares beneficially owned by the Transferor and the Transferor desires to accept the Bona Fide Offer, then prior to the acceptance of the Bona Fide Offer by the Transferor, the Call Right shall accelerate as to the Member Shares that are the subject of the Bona Fide Offer (the "Offered Shares") and the Company may exercise the Call Right in the manner and to the extent set forth in this Section 2.3(b).
(ii) The Transferor shall give written notice (the "Offer Notice") to the Company of its receipt of the Bona Fide Offer and desire to accept the same, which notice shall (A) state the identity of the Prospective Purchaser and, if the Prospective Purchaser is not its own ultimate parent within the meaning of the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, the identity of its ultimate parent(s) and (B) set forth all material terms of the Bona Fide Offer (including the purchase price and the method of payment thereof). If one or more members of the Xxxxxxx Group exercise their right pursuant to the Stockholders Agreement to tag-along on the Bona Fide Offer, the Transferor shall set forth in the Offer Notice or in a separate written notice given at any time prior to the Closing Date the names of such exercising member(s) and the number of shares of High Vote Stock beneficially owned by each such member that such member has elected to include in the sale to the Prospective Purchaser pursuant to the Stockholders Agreement (such member's "Tag-Along Shares"). The Company shall then have the option to exercise the Call Right as to all but not less than all of the Offered Shares and the Tag-Along Shares (collectively, the "Combined Offered Shares") at the applicable price determined in accordance with the following sentence and, subject to the remaining provisions of this Section 2.3, on the terms of the Bona Fide Offer (as disclosed in the Offer Notice). The price at which the Combined Offered Shares may be purchased by the Company shall be the lesser of (x) the price offered in the Bona Fide Offer and (y) an amount equal to the Gross Purchase Price, as determined in accordance with Section 2.2, that would be payable if the Combined Offered Shares were the Subject Shares (such lesser amount being, the "Company Price"). The Transferor shall enclose with the Offer Notice a true and complete copy of the Bona Fide Offer and all documents related thereto. In determining the Company Price, (i) if any portion of the price offered in the Bona Fide Offer consisted of consideration other than cash, the fair market value of such non-cash consideration shall be deemed to be equal to the amount determined by agreement of the Transferor and the Company or, failing such agreement, as determined in accordance with the procedures as set forth in Section 2.3(c); and (ii) the number of Subject Shares and the number of shares of any series included in the Subject Shares shall 15 be calculated without duplication for any shares that may, by virtue of the definition of "beneficially owned," be deemed to be beneficially owned by more than one Member.
(iii) The Company shall have the right, exercisable (if so determined by the Independent Committee) by the written notice (an "Election Notice") given to the Transferor on or before the Close of Business on the tenth (10th) Business Day after receipt of the Offer Notice, to exercise the Call Right as to the Combined Offered Shares and to purchase all but not less than all of the Combined Offered Shares. If the Company duly delivers an Election Notice for the Combined Offered Shares in accordance with the foregoing procedure, it shall (subject to the Company's right to elect to pay a portion of the Company Price in debt securities in accordance with Section 2.3(b)(iv) and subject to the Company's right to elect to require a public sale in accordance with Section 3.1), purchase the Combined Offered Shares for cash, paid by wire transfer of next day funds on or prior to the Closing Date to an account designated by the Transferor in writing at least two (2) Business Days before such date. Notwithstanding the date fixed as the Closing Date in Section 4.1, the Closing Date for the purchase and sale of the Combined Offered Shares pursuant to this Section 2.3 shall be subject to extension in accordance with Section 2.3(c).
(iv) In the event that the Company Price is the price offered in the Bona Fide Offer and any part of the price specified in the Bona Fide Offer is proposed to be paid in debt securities, the Company may, in its discretion, elect to pay the equivalent portion of the Company Price through the issuance of debt securities with substantially similar terms in an amount the fair market value of which is equal to the fair market value of the equivalent portion of the debt securities specified in the Offer Notice, in each case as agreed by the Company and the Transferor or, failing such agreement, as determined in accordance with the procedures specified in Section 2.3(c), taking into consideration relevant credit factors relating to the Prospective Purchaser and the Company and the marketability and liquidity of such debt securities.
(v) In the event that (A) no Election Notice has been given by the tenth (10th) Business Day after receipt of the Offer Notice, or (B) if an Election Notice is given, the Closing has not occurred by the 61st day after the Election Notice is given (or such later date as the parties may have scheduled for the Closing or to which the Closing may have been extended pursuant to Section 2.3(c), for any reason other than a breach by the Transferor or another Member or Permitted Transferee of its obligations hereunder (the first to occur of such events being the "Free to Sell Date"), then each Person included within the Transferor shall have the right to sell all but not less than all of the Combined Offered Shares of such Person to the Prospective Purchaser at the price (or a greater price) and upon the terms (or terms no more favorable to the Prospective Purchaser) specified in the Offer Notice and, in connection with any such sale such Person the Transferor shall not be required to convert any of such the Offered Shares into shares of Low Vote Stock prior to the sale to such Prospective Purchaser. The Transferor's right to sell Combined the Offered Shares to the Prospective Purchaser pursuant to this Section 2.3(b)(v) shall expire and the provisions of this Section 2.3(b) shall be reinstated in the event that the Prospective 16 Purchaser has not purchased such Combined Offered Shares within ten (10) Business Days after the Free to Sell Date.
(i) If a Bona Fide Offer proposes to pay a portion of the price for the Offered Shares in consideration other than cash and the Company and the Transferor have not agreed upon the value thereof (or, in the case of debt securities, if the Company has elected to pay a portion of the Company Price in equivalent securities and the Company and the Transferor have not agreed upon the value of the debt securities the Company proposes to issue) by the Close of Business on the fifth (5th) Business Day prior to the date otherwise fixed for the Closing (the "Commencement Date") then the procedures set forth in this Section 2.3(c) shall be commenced and the Closing Date shall be extended to the fifth (5th) Business Day following the date on which the fair market value of the noncash consideration (or Company issued debt securities) has been finally determined pursuant to this Section 2.3(c).
(ii) The Company and the Transferor shall each retain a Qualified Appraiser and notify the other party of its selection within five (5) Business Days of the Commencement Date to render the determination required by this Section 2.3(c). If either party fails to timely select its Qualified Appraiser then the Qualified Appraiser selected by the other party shall render such determination. The Company and the Transferor shall each be responsible for the fees and expenses of the Qualified Appraiser selected by it, unless only one Qualified Appraiser is selected in which case the Company and the Transferor shall each bear 50% of such fees and expenses. If a Third Appraiser is selected pursuant to this Section 2.3(c) the fees and expenses of the Third Appraiser will be shared equally by the Company and the Transferor.
(iii) The Qualified Appraisers selected by the parties shall submit their respective independent determinations of the fair market value of the noncash consideration (and, if applicable, Company issued debt securities), within 15 Business Days after the Commencement Date. If the respective determinations of such Qualified Appraisers vary by less than ten percent (10%), the fair market value of the noncash consideration (and, if applicable, Company issued debt securities) shall be the average of the two determinations.
(iv) If such respective determinations vary by ten percent (10%) or more, the two Appraisers shall promptly designate a third Qualified Appraiser (the "Third Appraiser"). No party to this Agreement or any Affiliate of any party to this Agreement or Qualified Appraiser shall, provide any information to the Third Appraiser as to the determinations of the initial Qualified Appraisers or otherwise influence the Third Appraiser's determination in any way. The Third Appraiser shall submit its determination of the fair market value of the noncash consideration (and, if applicable, Company issued debt securities), within ten (10) Business Days after the date on which the Third Appraiser is retained. If a Third Appraiser is retained, the fair market value of the noncash consideration (and, if applicable, Company issued debt securities) shall equal the average of the two closest of the three determinations, except that, if the difference between the highest and middle determinations is no more than 105% and no less than 95% of the difference between the middle and lowest determinations, then the fair market value shall equal the middle determination.17
(v) In determining the fair market value of the noncash consideration (and, if applicable, the Company issued debt securities), each Qualified Appraiser retained pursuant to this Section 2.3(c) shall: (iA) assume that the fair market value of the applicable asset is the price at which the asset would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or sell and each having reasonable knowledge of all relevant facts; (iiB) assume that the applicable asset would be sold for cash; and (iiiC) use valuation techniques then prevailing in the relevant industry.
(d) No voluntary transfers of Member Shares may be made by any Holder during the Call Period and if the Call Right is exercised, thereafter, except (i) to the Company pursuant to the Call RightRight or (ii) in the case of any pre-existing Permitted Pledge that continues to qualify as a Permitted Pledge, a transfer of the pledged Member Shares to the pledgee (or its nominee) as a result of the bona fide exercise by such pledgee of its rights and remedies as contemplated by the definition of "Permitted Pledge" in Section 1.1 hereof, but not any further transfer by such assignee (it being understood that a conversion by the pledgee of the pledged Member Shares into shares of Low Vote Stock in the manner and on the terms set forth in the definition of "Permitted Pledge" in Section 1.1 hereof shall be permitted). Accordingly, without limiting the generality of the foregoing, no voluntary transfer may be made during such period pursuant to a Bona Fide Offer, notwithstanding the Transferor's compliance with this Section 2.3 prior to Xxxxxx'x death.
(e) If there shall be more than one Transferor in any transaction or series of related transactions covered by an Offer Notice, and if, to the extent permitted by this Agreement, the Company pays the Company Price with more than one form of consideration, then unless otherwise agreed in writing by the TransferorsTransferors or by the Xxxxxxx Group Representative on their behalf, each Transferor shall receive on a per share basis substantially the same combination of consideration.
(f) Notwithstanding anything in this Agreement to the contrary, one or more Members may, at any time and from time to time, sell a number of Member Shares that in the aggregate for all transfers made pursuant to this subsection by any or all of the Members is equal to or less than the number of Excepted Shares, provided that each such sale is exempt from the registration requirements of the Securities Act and is effected through unsolicited broker transactions within the meaning of paragraph (g) and the first sentence of paragraph (f) of Rule 144 of the General Rules and Regulations under the Securities Act, as in effect on the date of this Agreement. Prior to the consummation of a disposition of any Member Shares in accordance with this Section 2.3(f), such Member Shares must be converted into shares of Low Vote Stock of the corresponding series. The number of any Member Shares disposed of pursuant to this Section 2.3(f) shall be subtracted from the number of Excepted Shares. Upon the consummation of a disposition of
(g) The Company agrees that if a Permitted Pledge of any Member Shares pursuant is made and the lender forecloses or takes any other action to this enforce the security interest represented by such pledge and makes an irrevocable commitment, in accordance with the definition of "Permitted Pledge" in Section 2.3(f)1.1 hereof, the Member disposing of to convert such Member Shares shall deliver to into shares of Low Vote Stock on a share-for-share basis, the Company a written notice stating shall permit such conversion and shall reasonably cooperate with such lender in effecting such conversion as promptly as reasonably practicable and shall comply with Section 6.4(b) of the number of Member Shares so disposed of by such Member and the aggregate number of Excepted Shares which such Member continues to beneficially ownStockholders Agreement.
Appears in 1 contract
Samples: Call Agreement (Magness Kim)
Acceleration of Call Right. (a) During the term of this Agreement, neither any Member nor any Permitted Transferee shall dispose of any Member Shares, except in an Exempt Transfer. If any Related Party of any Member to whom such Member transfers any Member Shares in an Exempt Transfer ceases to be a Related Party of its transferor and is not then a Related Party of any other Member or Permitted Transferee, then unless such Person shall either transfer the Member Shares held by it to a Member, a Permitted Transferee or a Related Party of either or otherwise agrees to be bound by this Agreement with respect to such Member Shares such occurrence shall be deemed to be a Disposition of the Member Shares then held by such Person giving rise to the Company's purchase right unless the requirements of the proviso in the definition of "Related Party" in Section 1.1 hereof are satisfied.
(i) If any Member or any Permitted Transferee (as applicable, the "Transferor") receives a bona fide written offer (a "Bona Fide Offer") from a Person who is not an Affiliate of any Member or any Permitted Transferor Transferee (a "Prospective Purchaser") to purchase all or any of the Member Shares beneficially owned by the Transferor and the Transferor desires to accept the Bona Fide Offer, then prior to the acceptance of the Bona Fide Offer by the Transferor, the Call Right shall accelerate as to the Member Shares that are the subject of the Bona Fide Offer (the "Offered Shares") and the Company may exercise the Call Right in the manner and to the extent set forth in this Section 2.3(b).
(ii) The Transferor shall give written notice (the "Offer Notice") to the Company of its receipt of the Bona Fide Offer and desire to accept the same, which notice shall (A) state the identity of the Prospective Purchaser and, if the Prospective Purchaser is not its own ultimate parent within the meaning of the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, the identity of its ultimate parent(s) and (B) set forth all material terms of the Bona Fide Offer (including the purchase price and the method of payment thereof). If one or more members of the Xxxxxxx Group exercise their right pursuant to the Stockholders Agreement to tag-along on the Bona Fide Offer, the Transferor shall set forth in the Offer Notice or in a separate written notice given at any time prior to the Closing Date the names of such exercising member(s) and the number of shares of High Vote Stock beneficially owned by each such member that such member has elected to include in the sale to the Prospective Purchaser pursuant to the Stockholders Agreement (such member's "Tag-Along Shares"). The Company shall then have the option to exercise the Call Right as to all but not less than all of the Offered Shares and the Tag-Along Shares (collectively, the "Combined Offered Shares") at the applicable price determined in accordance with the following sentence and, subject to the remaining provisions of this Section 2.3, on the terms of the Bona Fide Offer (as disclosed in the Offer Notice). The price at which the Combined Offered Shares may be purchased by the Company shall be the lesser of (x) the price offered in the Bona Fide Offer and (y) an amount equal to the Gross Purchase Price, as determined in accordance with Section 2.2, that would be payable if the Combined Offered Shares were the Subject Shares (such lesser amount being, the "Company Price"). The Transferor shall enclose with the Offer Notice a true and complete copy of the Bona Fide Offer and all documents related thereto. In determining the Company Price, (i) if any portion of the price offered in the Bona Fide Offer consisted of consideration other than cash, the fair market value of such non-cash consideration shall be deemed to be equal to the amount determined by agreement of the Transferor and the Company or, failing such agreement, as determined in accordance with the procedures as set forth in Section 2.3(c); and (ii) the number of Subject Shares and the number of shares of any series included in the Subject Shares shall 15 be calculated without duplication for any shares that may, by virtue of the definition of "beneficially owned," be deemed to be beneficially owned by more than one Member.
(iii) The Company shall have the right, exercisable (if so determined by the Independent Committee) by the written notice (an "Election Notice") given to the Transferor on or before the Close of Business on the tenth (10th) Business Day after receipt of the Offer Notice, to exercise the Call Right as to the Combined Offered Shares and to purchase all but not less than all of the Combined Offered Shares. If the Company duly delivers an Election Notice for the Combined Offered Shares in accordance with the foregoing procedure, it shall (subject to the Company's right to elect to pay a portion of the Company Price in debt securities in accordance with Section 2.3(b)(iv) and subject to the Company's right to elect to require a public sale in accordance with Section 3.1), purchase the Combined Offered Shares for cash, paid by wire transfer of next day funds on or prior to the Closing Date to an account designated by the Transferor in writing at least two (2) Business Days before such date. Notwithstanding the date fixed as the Closing Date in Section 4.1, the Closing Date for the purchase and sale of the Combined Offered Shares pursuant to this Section 2.3 shall be subject to extension in accordance with Section 2.3(c).
(iv) In the event that the Company Price is the price offered in the Bona Fide Offer and any part of the price specified in the Bona Fide Offer is proposed to be paid in debt securities, the Company may, in its discretion, elect to pay the equivalent portion of the Company Price through the issuance of debt securities with substantially similar terms in an amount the fair market value of which is equal to the fair market value of the equivalent portion of the debt securities specified in the Offer Notice, in each case as agreed by the Company and the Transferor or, failing such agreement, as determined in accordance with the procedures specified in Section 2.3(c), taking into consideration relevant credit factors relating to the Prospective Purchaser and the Company and the marketability and liquidity of such debt securities.
(v) In the event that (A) no Election Notice has been given by the tenth (10th) Business Day after receipt of the Offer Notice, or (B) if an Election Notice is given, the Closing has not occurred by the 61st day after the Election Notice is given (or such later date as the parties may have scheduled for the Closing or to which the Closing may have been extended pursuant to Section 2.3(c), for any reason other than a breach by the Transferor or another Member or Permitted Transferee of its obligations hereunder (the first to occur of such events being the "Free to Sell Date"), then each Person included within the Transferor shall have the right to sell all but not less than all of the Combined Offered Shares of such Person to the Prospective Purchaser at the price (or a greater price) and upon the terms (or terms no more favorable to the Prospective Purchaser) specified in the Offer Notice and, in connection with any such sale such Person the Transferor shall not be required to convert any of such the Offered Shares into shares of Low Vote Stock prior to the sale to such Prospective Purchaser. The Transferor's right to sell Combined the Offered Shares to the Prospective Purchaser pursuant to this Section 2.3(b)(v) shall expire and the provisions of this Section 2.3(b) shall be reinstated in the event that the Prospective Purchaser has not purchased such Combined Offered Shares within ten (10) Business Days after the Free to Sell Date.
(i) If a Bona Fide Offer proposes to pay a portion of the price for the Offered Shares in consideration other than cash and the Company and the Transferor have not agreed upon the value thereof (or, in the case of debt securities, if the Company has elected to pay a portion of the Company Price in equivalent securities and the Company and the Transferor have not agreed upon the value of the debt securities the Company proposes to issue) by the Close of Business on the fifth (5th) Business Day prior to the date otherwise fixed for the Closing (the "Commencement Date") then the procedures set forth in this Section 2.3(c) shall be commenced and the Closing Date shall be extended to the fifth (5th) Business Day following the date on which the fair market value of the noncash consideration (or Company issued debt securities) has been finally determined pursuant to this Section 2.3(c).
(ii) The Company and the Transferor shall each retain a Qualified Appraiser and notify the other party of its selection within five (5) Business Days of the Commencement Date to render the determination required by this Section 2.3(c). If either party fails to timely select its Qualified Appraiser then the Qualified Appraiser selected by the other party shall render such determination. The Company and the Transferor shall each be responsible for the fees and expenses of the Qualified Appraiser selected by it, unless only one Qualified Appraiser is selected in which case the Company and the Transferor shall each bear 50% of such fees and expenses. If a Third Appraiser is selected pursuant to this Section 2.3(c) the fees and expenses of the Third Appraiser will be shared equally by the Company and the Transferor.
(iii) The Qualified Appraisers selected by the parties shall submit their respective independent determinations of the fair market value of the noncash consideration (and, if applicable, Company issued debt securities), within 15 Business Days after the Commencement Date. If the respective determinations of such Qualified Appraisers vary by less than ten percent (10%), the fair market value of the noncash consideration (and, if applicable, Company issued debt securities) shall be the average of the two determinations.
(iv) If such respective determinations vary by ten percent (10%) or more, the two Appraisers shall promptly designate a third Qualified Appraiser (the "Third Appraiser"). No party to this Agreement or any Affiliate of any party to this Agreement or Qualified Appraiser shall, provide any information to the Third Appraiser as to the determinations of the initial Qualified Appraisers or otherwise influence the Third Appraiser's determination in any way. The Third Appraiser shall submit its determination of the fair market value of the noncash consideration (and, if applicable, Company issued debt securities), within ten (10) Business Days after the date on which the Third Appraiser is retained. If a Third Appraiser is retained, the fair market value of the noncash consideration (and, if applicable, Company issued debt securities) shall equal the average of the two closest of the three determinations, except that, if the difference between the highest and middle determinations is no more than 105% and no less than 95% of the difference between the middle and lowest determinations, then the fair market value shall equal the middle determination.
(v) In determining the fair market value of the noncash consideration (and, if applicable, the Company issued debt securities), each Qualified Appraiser retained pursuant to this Section 2.3(c) shall: (iA) assume that the fair market value of the applicable asset is the price at which the asset would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or sell and each having reasonable knowledge of all relevant facts; (iiB) assume that the applicable asset would be sold for cash; and (iiiC) use valuation techniques then prevailing in the relevant industry.
(d) No voluntary transfers of Member Shares may be made by any Holder during the Call Period and if the Call Right is exercised, thereafter, except (i) to the Company pursuant to the Call RightRight or (ii) in the case of any pre- existing Permitted Pledge that continues to qualify as a Permitted Pledge, a transfer of the pledged Member Shares to the pledgee (or its nominee) as a result of the bona fide exercise by such pledgee of its rights and remedies as contemplated by the definition of "Permitted Pledge" in Section 1.1 hereof, but not any further transfer by such assignee (it being understood that a conversion by the pledgee of the pledged Member Shares into shares of Low Vote Stock in the manner and on the terms set forth in the definition of "Permitted Pledge" in Section 1.1 hereof shall be permitted). Accordingly, without limiting the generality of the foregoing, no voluntary transfer may be made during such period pursuant to a Bona Fide Offer, notwithstanding the Transferor's compliance with this Section 2.3 prior to Xxxxxx'x death.
(e) If there shall be more than one Transferor in any transaction or series of related transactions covered by an Offer Notice, and if, to the extent permitted by this Agreement, the Company pays the Company Price with more than one form of consideration, then unless otherwise agreed in writing by the TransferorsTransferors or by the Xxxxxxx Group Representative on their behalf, each Transferor shall receive on a per share basis substantially the same combination of consideration.
(f) Notwithstanding anything in this Agreement to the contrary, one or more Members may, at any time and from time to time, sell a number of Member Shares that in the aggregate for all transfers made pursuant to this subsection by any or all of the Members is equal to or less than the number of Excepted Shares, provided that each such sale is exempt from the registration requirements of the Securities Act and is effected through unsolicited broker transactions within the meaning of paragraph (g) and the first sentence of paragraph (f) of Rule 144 of the General Rules and Regulations under the Securities Act, as in effect on the date of this Agreement. Prior to the consummation of a disposition of any Member Shares in accordance with this Section 2.3(f), such Member Shares must be converted into shares of Low Vote Stock of the corresponding series. The number of any Member Shares disposed of pursuant to this Section 2.3(f) shall be subtracted from the number of Excepted Shares. Upon the consummation of a disposition of
(g) The Company agrees that if a Permitted Pledge of any Member Shares pursuant is made and the lender forecloses or takes any other action to this enforce the security interest represented by such pledge and makes an irrevocable commitment, in accordance with the definition of "Permitted Pledge" in Section 2.3(f)1.1 hereof, the Member disposing of to convert such Member Shares shall deliver to into shares of Low Vote Stock on a share-for-share basis, the Company a written notice stating shall permit such conversion and shall reasonably cooperate with such lender in effecting such conversion as promptly as reasonably practicable and shall comply with Section 6.4(b) of the number of Member Shares so disposed of by such Member and the aggregate number of Excepted Shares which such Member continues to beneficially ownStockholders Agreement.
Appears in 1 contract
Samples: Call Agreement (Magness Gary D)
