Additional Provisions Related to Tag-Along Sales and Drag-Along Sales. Notwithstanding anything contained in Section 4.01 or Section 4.02 to the contrary, in connection with a Tag-Along Sale under Section 4.01 or a Drag-Along Sale under Section 4.02: (a) Upon the consummation of such Tag-Along Sale or Drag-Along Sale, all Sponsors and Management Shareholders holding the same class of Company Equity Securities participating therein will receive the same form and amount of consideration per share, or, if any Investor is given an option as to the form and amount of consideration to be received in respect of a specified class of Company Equity Securities, all Investors holding such specified class of Company Equity Securities participating therein will be given the same option. (b) Each Tag-Along Offeree or Drag-Along Investor, as the case may be, shall (i) make such representations and warranties (to the best of its knowledge) and shall make such covenants and enter into such definitive agreements as are customary for transactions of the nature of the proposed Transfer, (ii) benefit from and be subject to all of the same provisions of the definitive agreements as are applicable to the Tag-Along Seller or Drag-Along Seller, as the case may be, and (iii) be required to bear its proportionate share of any escrows, holdbacks or adjustments in respect of the purchase price or indemnification obligations, and (iv) cooperate in obtaining all governmental and third-party consents and approvals reasonably necessary or desirable to consummate such Tag-Along Sale or Drag-Along Sale (as applicable). (c) In the event the consideration to be paid in exchange for Company Equity Securities in a Tag-Along Sale or a Drag-Along Sale includes securities, and the receipt thereof by a Tag-Along Offeree or Drag-Along Investor, as the case may be, would require under applicable law (a) the registration or qualification of such securities or of any Person as a broker or dealer or agent with respect to such securities where such registration or qualification is not otherwise required for the Tag-Along Sale or a Drag-Along Sale or (b) the provision to any Tag-Along Seller or Drag-Along Seller of any specified information regarding such securities or the issuer thereof that is not otherwise required to be provided for the Tag-Along Sale or Drag-Along Sale, then such Tag-Along Offeree or Drag-Along Investor, as the case may be, shall not have the right to sell Company Equity Securities in such proposed Tag-Along Sale or Drag-Along Sale. In such event, the Tag-Along Seller or Drag-Along Seller, as the case may be, shall (i) in the case of a Tag-Along Sale, have the right, but not the obligation, and (ii) in the case of a Drag-Along Sale, have the obligation, in each case, to cause to be paid to such Tag-Along Offeree or Drag-Along Investor, as the case may be, in lieu thereof, against surrender of the Company Equity Securities which would have otherwise been Transferred by such Tag-Along Offeree or Drag-Along Investor, as the case may be, to the prospective purchaser in the proposed Tag-Along Sale or a Drag-Along Sale, an amount in cash equal to the Fair Market Value of such Company Equity Securities as of the date such securities would have been issued, in exchange for such Company Equity Securities. (d) The Company and the Investors will cooperate in obtaining all governmental and third-party approvals and consents reasonably necessary or desirable to consummate such Transfer. (e) Each Tagging Person shall bear an amount of the reasonable costs and expenses incurred by the Investors or the Company in connection with any proposed Tag-Along Sale (whether or not consummated), including all attorneys fees and charges, all accounting fees and charges and all finders, brokerage or investment banking fees, charges or commissions, pro rata in proportion to the consideration paid or proposed to be paid to such Tagging Person in connection with such Tag-Along Sale as compared to the aggregate consideration to be paid to the Tag-Along Seller and all Tagging Persons in connection with such Tag-Along Sale; provided, that, in connection with any Tag-Along Sale, each Tagging Person shall bear in its entirety any attorneys fees and charges, accounting fees and charges and any other advisor fees, charges or commissions incurred by such Tagging Person in connection with such Tag-Along Sale. (f) In connection with (i) each Tag-Along Sale, each Tagging Person shall receive, with respect to the Class B Common Shares, the same amount of consideration received by the Tag-Along Sellers per Class B Common Share and (ii) each Drag-Along Sale, each Drag-Along Investor shall receive, with respect to the Class B Common Shares, the same amount of consideration received by the Drag-Along Sellers per Class B Common Share; provided, however, that in connection with any such sale (A) Class A Common Shares may be valued at (and the holder thereof entitled to receive) a lower price per share than the Class B Common Shares, and (B) after giving effect to any vesting triggered by such Tag-Along Sale or Drag-Along Sale, unvested Class A Common Shares may be valued at (and the holder thereof entitled to receive) a lower price per share than vested Class A Common Shares, in each case, to account for the different rights, powers, preferences and privileges in respect thereof as set forth in the Company’s Certificate of Incorporation and other agreements relating to such shares (including, without limitation, the right of the holders of Class B Common Shares to receive distributions in respect of their unreturned paid-in-capital of the Company prior the right of the holders of Class A Common Shares to receive distributions ratably based on the number of outstanding Shares held by such holders).
Appears in 1 contract
Additional Provisions Related to Tag-Along Sales and Drag-Along Sales. Notwithstanding anything contained in Section 4.01 or Section 4.02 to the contrary, in connection with a Tag-Along Sale under Section 4.01 or a Drag-Along Sale under Section 4.02:
(a) Upon the consummation of such Tag-Along Sale or Drag-Along Sale, all Sponsors Non-Management Shareholders and Management Shareholders holding of the same class of Company Group Equity Securities participating therein will receive the same form and amount of consideration per share, or, if any Investor Non-Management Shareholder or Management Shareholder of a specified class of Group Equity Securities is given an option as to the form and amount of consideration to be received in respect of a specified class of Company Equity Securitiesreceived, all Investors holding shareholders of such specified class of Company Group Equity Securities participating therein will be given the same option.
(b) Each Tag-Along Offeree or Drag-Along Investor, as the case may be, Management Shareholder shall (i) make such representations representations, warranties and warranties (to the best of its knowledge) and shall make such covenants and enter into such definitive agreements as are customary for transactions of the nature of the proposed Transfer, (ii) benefit from and be subject to all of the same provisions of the definitive agreements as are applicable to the Tag-Along Seller or Drag-Along Seller, as the case may be, be and (iii) be required to bear its proportionate share of any escrows, holdbacks or adjustments in respect of the purchase price or indemnification obligations; provided, that no Management Shareholder shall be obligated (A) to indemnify, other than severally indemnify, any Person in connection with such Tag-Along Sale or Drag-Along Sale, as the case may be, (B) to incur liability to any Person in connection with such Tag-Along Sale or Drag-Along Sale, as the case may be, including, without limitation, under any indemnity, in excess of the lesser of (1) its pro rata share of such liability and (2) the proceeds realized by such Management Shareholder in such sale, or (C) in its capacity as a shareholder, to agree to any non-competition or non-solicitation restrictions which are more restrictive on such Management Shareholder than those restrictions agreed to by such Management Shareholder in such Management Shareholder’s employment, severance or other written agreement with the Company or Subsidiary of the Company employing such Management Shareholder, and (iv) cooperate in obtaining all governmental and third-party consents and approvals reasonably necessary or desirable to consummate such Tag-Along Sale or Drag-Along Sale (as applicable)Sale.
(c) In the event the consideration to be paid in exchange for Company Group Equity Securities in a Tag-Along Sale or a Drag-Along Sale includes any securities, and the receipt thereof by a Tag-Along Offeree or Drag-Along Investor, as the case may be, Management Shareholder would require under applicable law (a) the registration or qualification of such securities or of any Person as a broker or dealer or agent with respect to such securities where such registration or qualification is not otherwise required for the Tag-Along Sale or a Drag-Along Sale or (b) the provision to any Tag-Along Seller or Drag-Along Seller of any specified information regarding such securities or the issuer thereof that is not otherwise required to be provided for the Tag-Along Sale or Drag-Along Sale, then such Tag-Along Offeree or Drag-Along Investor, as the case may be, Management Shareholder shall not have the right to sell Company Group Equity Securities in such proposed Tag-Along Sale or Drag-Along Sale. In such event, the Tag-Along Seller or Drag-Along Seller, as the case may be, shall (i) in the case of a Tag-Along Sale, have the right, but not the obligation, and (ii) in the case of a Drag-Along Sale, have the obligation, in each case, to cause to be paid to such Tag-Along Offeree or Drag-Along Investor, as the case may be, Management Shareholder in lieu thereof, against surrender of the Company Group Equity Securities which would have otherwise been Transferred by such Tag-Along Offeree or Drag-Along Investor, as the case may be, Management Shareholder to the prospective purchaser in the proposed Tag-Along Sale or a Drag-Along Sale, an amount in cash equal to the Fair Market Value fair market value (as determined in the reasonable determination of the Board) of such Company Group Equity Securities as of the date such securities would have been issued, issued in exchange for such Company Group Equity Securities.
(d) The Company and the Investors Management Shareholders will cooperate in the obtaining of all governmental and third-party approvals and consents reasonably necessary or desirable to consummate such Transfer.
(e) Each Tagging Person shall bear an amount of the reasonable costs and expenses incurred by the Investors Shareholders or the Company Companies in connection with any proposed Tag-Along Sale (whether or not consummated), including all attorneys fees and charges, all accounting fees and charges and all finders, brokerage or investment banking fees, charges or commissions, pro rata in proportion to the consideration paid amount transferred or proposed to be paid to transferred by such Tagging Person in connection with such Tag-Along Sale as compared to the aggregate consideration amount transferred or proposed to be paid to transferred by the Tag-Along Seller and all Tagging Persons in connection with such Tagand Non-Along SaleManagement Tagging Persons; provided, that, in connection with any Tag-Along Sale, each Tagging Person shall bear in its entirety any attorneys fees and charges, accounting fees and charges and any other advisor fees, charges or commissions incurred by such Tagging Person in connection with such Tag-Along Sale.
(f) In connection with (i) each Tag-Along Sale, each Tagging Person shall receive, with respect to the Class B Common Shares, the same amount of consideration received by the Tag-Along Sellers per Class B Common Share and (ii) each Drag-Along Sale, each Drag-Along Investor shall receive, with respect to the Class B Common Shares, the same amount of consideration received by the Drag-Along Sellers per Class B Common Share; provided, however, that in connection with any such sale (A) Class A Common Shares may be valued at (and the holder thereof entitled to receive) a lower price per share than the Class B Common Shares, and (B) after giving effect to any vesting triggered by such Tag-Along Sale or Drag-Along Sale, unvested Class A Common Shares may be valued at (and the holder thereof entitled to receive) a lower price per share than vested Class A Common Shares, in each case, to account for the different rights, powers, preferences and privileges in respect thereof as set forth in the Company’s Certificate of Incorporation and other agreements relating to such shares (including, without limitation, the right of the holders of Class B Common Shares to receive distributions in respect of their unreturned paid-in-capital of the Company prior the right of the holders of Class A Common Shares to receive distributions ratably based on the number of outstanding Shares held by such holders).
Appears in 1 contract
Samples: Management Shareholders Agreement (Warner Chilcott CORP)
Additional Provisions Related to Tag-Along Sales and Drag-Along Sales. Notwithstanding anything contained in Section 4.01 5.01 or Section 4.02 5.02 to the contrary, in connection with a Tag-Along Sale under Section 4.01 5.01 or a Drag-Along Sale under Section 4.025.02:
(a) Upon upon the consummation of such Tag-Along Sale or Drag-Along Sale, all Sponsors and Management Shareholders holding of the same class of Company Group Equity Securities participating therein will receive the same form and amount of consideration per share, or, if any Investor Shareholder of a specified class of Group Equity Securities is given an option as to the form and amount of consideration to be received in respect of a specified class of Company Equity Securitiesreceived, all Investors holding Shareholders of such specified class of Company Group Equity Securities participating therein will be given the same option.;
(b) Each Tag-Along Offeree or Drag-Along Investor, as the case may be, each Shareholder shall (i) make such representations representations, warranties and warranties (to the best of its knowledge) and shall make such covenants and enter into such definitive agreements as are customary for transactions of the nature of the proposed Transfer, (ii) benefit from and be subject to all of the same provisions of the definitive agreements as are applicable to the Tag-Along Seller or Drag-Along Seller, as the case may be, and (iii) be required to bear its proportionate share of any escrows, holdbacks or adjustments in respect of the purchase price or indemnification obligations; provided, that no Shareholder shall be obligated (A) to indemnify, other than severally indemnify, any Person in connection with such Tag-Along Sale or Drag-Along Sale, as the case may be, (B) to incur liability to any Person in connection with such Tag-Along Sale or Drag-Along Sale, as the case may be, including, without limitation, under any indemnity, in excess of the lesser of (1) its pro rata share of such liability and (2) the proceeds realized by such Shareholder in such sale, or (C) to agree not to compete with or solicit customers or employees of any Person, and (iv) cooperate in obtaining all governmental and third-party consents and approvals reasonably necessary or desirable to consummate such Tag-Along Sale or Drag-Along Sale (as applicable).Sale;
(c) In in the event the consideration to be paid in exchange for Company Group Equity Securities in a Tag-Along Sale or a Drag-Along Sale includes any securities, and the receipt thereof by a Tag-Along Offeree or Drag-Along Investor, as the case may be, Shareholder would require under applicable law (a) the registration or qualification of such securities or of any Person as a broker or dealer or agent with respect to such securities where such registration or qualification is not otherwise required for the Tag-Along Sale or a Drag-Along Sale or (b) the provision to any Tag-Along Seller or Drag-Along Seller of any specified information regarding such securities or the issuer thereof that is not otherwise required to be provided for the Tag-Along Sale or Drag-Along Sale, then such Tag-Along Offeree or Drag-Along Investor, as the case may be, Shareholder shall not have the right to sell Company Group Equity Securities in such proposed Tag-Along Sale or Drag-Along Sale. In such event, the Tag-Along Seller or Drag-Along Seller, as the case may be, shall (i) in the case of a Tag-Along Sale, have the right, but not the obligation, and (ii) in the case of a Drag-Along Sale, have the obligation, in each case, to cause to be paid to such Tag-Along Offeree or Drag-Along Investor, as the case may be, Shareholder in lieu thereof, against surrender of the Company Group Equity Securities which would have otherwise been Transferred by such Tag-Along Offeree or Drag-Along Investor, as the case may be, Shareholder to the prospective purchaser in the proposed Tag-Along Sale or a Drag-Along Sale, an amount in cash equal to the Fair Market Value fair market value (as determined in the reasonable determination of the Board) of such Company Group Equity Securities as of the date such securities would have been issued, issued in exchange for such Company Group Equity Securities.;
(d) The in connection with a Drag-Along Sale, if requested by a majority of the members of the Board, the Company will promptly engage, on customary terms (including customary indemnification from the Company), a nationally recognized investment banking firm selected by the Drag-Along Seller to provide financial advisory services to the Company, the Drag-Along Seller and the Other Shareholders, and the Companies shall pay the fees and expenses of such investment banking firm;
(e) in connection with a Drag-Along Sale, the Company will, if applicable, enter into a definitive agreement with the proposed transferee(s) providing for such Transfer and make and agree to representations, warranties, covenants and indemnities and other similar agreements that are reasonable and customary for negotiated transactions of the type contemplated by such Transfer;
(f) the Company agrees to cooperate with any Shareholder and any proposed transferee (other than a Company Competitor in the case of a Tag-Along Sale), and their respective advisors, to facilitate and effect any Tag-Along Sale or Drag-Along Sale and, upon the request of any Shareholder that proposes to make a Tag-Along Sale or Drag-Along Sale, subject to any proposed transferee (other than a Company Competitor in the case of a Tag-Along Sale) executing a reasonably satisfactory confidentiality agreement with the Company, the Company will, and will cause its and its Subsidiaries’ employees and personnel to, use its and their reasonable best efforts to facilitate and support any due diligence process being undertaken in connection with such proposed Tag-Along Sale or Drag-Along Sale;
(g) the Company and the Investors Shareholders will cooperate in the obtaining of all governmental and third-party approvals and consents reasonably necessary or desirable to consummate such Transfer.; and
(eh) Each Tagging Person shall bear an amount of the all reasonable costs and expenses incurred by the Investors Shareholders or the Company Companies in connection with any proposed Drag-Along Sale (whether or not consummated), including all attorneys fees and charges, all accounting fees and charges and all finders, brokerage or investment banking fees, charges or commissions, shall be paid by the Companies. The Sponsors may retain, and the Companies will pay the reasonable fees and expenses of, a single legal counsel (and such local counsel as may be appropriate) in connection with any proposed Drag-Along Sale (whether or not consummated). All reasonable costs and expenses incurred by the Shareholders, the Management Tagging Persons or the Companies in connection with any proposed Tag-Along Sale (whether or not consummated), including all attorneys fees and charges, all accounting fees and charges and all finders, brokerage or investment banking fees, charges or commissions, pro rata shall be borne by each transferor of Group Equity Securities, including the Management Tagging Persons, in proportion to the consideration paid amount transferred or proposed to be paid to transferred, as the case may be, by each such Tagging Person in connection with such Tag-Along Sale as compared to the aggregate consideration to be paid to the Tag-Along Seller and all Tagging Persons in connection with such Tag-Along Sale; provided, that, in connection with any Tag-Along Sale, each Tagging Person shall bear in its entirety any attorneys fees and charges, accounting fees and charges and any other advisor fees, charges or commissions incurred by such Tagging Person in connection with such Tag-Along Saletransferor.
(f) In connection with (i) each Tag-Along Sale, each Tagging Person shall receive, with respect to the Class B Common Shares, the same amount of consideration received by the Tag-Along Sellers per Class B Common Share and (ii) each Drag-Along Sale, each Drag-Along Investor shall receive, with respect to the Class B Common Shares, the same amount of consideration received by the Drag-Along Sellers per Class B Common Share; provided, however, that in connection with any such sale (A) Class A Common Shares may be valued at (and the holder thereof entitled to receive) a lower price per share than the Class B Common Shares, and (B) after giving effect to any vesting triggered by such Tag-Along Sale or Drag-Along Sale, unvested Class A Common Shares may be valued at (and the holder thereof entitled to receive) a lower price per share than vested Class A Common Shares, in each case, to account for the different rights, powers, preferences and privileges in respect thereof as set forth in the Company’s Certificate of Incorporation and other agreements relating to such shares (including, without limitation, the right of the holders of Class B Common Shares to receive distributions in respect of their unreturned paid-in-capital of the Company prior the right of the holders of Class A Common Shares to receive distributions ratably based on the number of outstanding Shares held by such holders).
Appears in 1 contract
Additional Provisions Related to Tag-Along Sales and Drag-Along Sales. Notwithstanding anything contained in Section 4.01 5.01 or Section 4.02 5.02 to the contrary, in connection with a Tag-Along Sale under Section 4.01 5.01 or a Drag-Along Sale under Section 4.025.02:
(a) Upon upon the consummation of such Tag-Along Sale or Drag-Along Sale, all Sponsors and Management Shareholders holding Stockholders of the same class of Company Equity Securities participating therein will receive the same form and amount of consideration per shareshare (it being understood that any payments made pursuant to the Monitoring Agreement shall not, in the case of a Tag-Along or Drag-Along Sale, be deemed to constitute consideration for Equity Securities), or, if any Investor Stockholder of a specified class of Equity Securities is given an option as to the form and amount of consideration to be received in respect of a specified class of Company Equity Securities(other than stock rollover offered exclusively to Management Stockholders), all Investors holding Stockholders of such specified class of Company Equity Securities participating therein will be given the same option.;
(b) Each Tag-Along Offeree or Drag-Along Investor, as the case may be, each Stockholder shall (i) make such representations representations, warranties and warranties (to the best of its knowledge) and shall make such covenants and enter into such definitive agreements as are customary for transactions of the nature of the proposed Transfer; provided, that no Stockholder (other than Management Stockholders) shall be obliged to agree not to compete with, or solicit customers or employees of, any Person; provided, further, that no Management Stockholder who is a party to the Stock Purchase Agreement shall be obligated to agree in connection with such Tag-Along Sale or Drag-Along Sale not to compete with, or solicit customers or employees of, any Person to the extent such agreement restricts such Management Stockholder for a longer period of time than, or otherwise is more restrictive in the aggregate than, any non-competition and/or non-solicitation restrictions contained in the Stock Purchase Agreement (it being acknowledged and agreed that nothing in this proviso shall limit any non-competition and/or non-solicitation restrictions to which any Management Stockholder is subject), (ii) benefit from and be subject to all of the same provisions of the definitive agreements as are applicable to the Tag-Along Seller or Drag-Along Seller, as the case may be, and (iii) be required to bear its proportionate share of any escrows, holdbacks or adjustments in respect of the purchase price or indemnification obligations; provided, that no Stockholder shall be obligated (A) to indemnify, other than severally indemnify, any Person in connection with such Tag-Along Sale or Drag-Along Sale, as the case may be, or (B) to incur liability to any Person in connection with such Tag-Along Sale or Drag-Along Sale, as the case may be, including under any indemnity, in excess of the lesser of (1) its pro rata share of any liability of the Stockholders based on the proceeds to be realized by such Stockholder in such sale and (2) the proceeds realized by such Stockholder in such sale other than, in each case, for fraud by such Stockholder, and (iv) reasonably cooperate in obtaining all governmental and third-party consents and approvals reasonably necessary or desirable to consummate such Tag-Along Sale or Drag-Along Sale (as applicable).Sale;
(c) In in the event the consideration to be paid in exchange for Company Equity Securities in a Tag-Along Sale or a Drag-Along Sale includes any securities, and the receipt thereof by a Tag-Along Offeree or Drag-Along Investor, as the case may be, Stockholder would require under applicable law (ai) the registration or qualification of such securities or of any Person as a broker or dealer or agent with respect to such securities where such registration or qualification is not otherwise required for the Tag-Along Sale or a Drag-Along Sale Sale, or (bii) the provision to any Tag-Along Seller or Drag-Along Seller of any specified information regarding such securities or the issuer thereof that is not otherwise required to be provided for the Tag-Along Sale or Drag-Along Sale, then such Tag-Along Offeree or Drag-Along Investor, as the case may be, shall not have the right to sell Company Equity Securities in such proposed Tag-Along Sale or Drag-Along Sale. In such event, Sale shall not be consummated unless the Tag-Along Seller or Drag-Along Seller, as the case may be, shall Seller (iin its sole discretion) in the case of a Tag-Along Sale, have the right, but not the obligation, and (ii) in the case of a Drag-Along Sale, have the obligation, in each case, to cause causes to be paid to such Tag-Along Offeree or Drag-Along Investor, as the case may be, Stockholder in lieu thereof, against surrender of the Company Equity Securities which would have otherwise been Transferred by such Tag-Along Offeree or Drag-Along Investor, as the case may be, Stockholder to the prospective purchaser in the proposed Tag-Along Sale or a Drag-Along Sale, an amount in cash equal to the Fair Market Value fair market value (as reasonably determined by the Board) of such Company Equity Securities as of the date such securities would have been issued, issued in exchange for such Company Equity Securities.;
(d) The in connection with a Drag-Along Sale, if requested by the Drag-Along Seller, the Company will promptly engage, on customary terms (including customary indemnification from the Company), a nationally recognized investment banking firm selected by the Drag-Along Seller to provide financial advisory services to the Company, the Drag-Along Seller and the Other Stockholders, and the Company shall pay the fees and expenses of such investment banking firm; provided that such firm would not be affiliated with the Drag-Along Seller;
(e) in connection with a Drag-Along Sale, the Company will, if applicable, enter into a definitive agreement with the proposed transferee(s) providing for such Transfer and make and agree to representations, warranties, covenants and indemnities and other similar agreements that are reasonable and customary for negotiated transactions of the type contemplated by such Transfer;
(f) the Company agrees to reasonably cooperate with any Stockholder and any proposed transferee (other than a Company Competitor in the case of a Tag-Along Sale), and their respective advisors, to facilitate and effect any Tag-Along Sale or Drag-Along Sale and, upon the request of any Stockholder that proposes to make a Tag-Along Sale or Drag-Along Sale, subject to any proposed transferee (other than a Company Competitor in the case of a Tag-Along Sale) executing a reasonably satisfactory confidentiality agreement with the Company, the Company will, and will cause its and its Subsidiaries’ employees and personnel to, use its and their reasonable best efforts to facilitate and support any due diligence process being undertaken in connection with such proposed Tag-Along Sale or Drag-Along Sale;
(g) the Company and the Investors Stockholders will reasonably cooperate in the obtaining of all governmental and third-party approvals and consents reasonably necessary or desirable to consummate such Transfer.; and
(eh) Each Tagging Person shall bear an amount of the all reasonable costs and expenses incurred by (i) the Investors Avista Entities and the Company in connection with any proposed Drag-Along Sale (whether or not consummated) including all attorneys fees and charges, all accounting fees and charges and all finders, brokerage or investment banking fees, charges or commissions, shall be borne by the Company, (ii) by the Tag-Along Seller in connection with any proposed Tag-Along Sale (whether or not consummated) including all attorneys fees and charges, all accounting fees and charges and all finders, brokerage or investment banking fees, charges or commissions, shall be borne by the Tag-Along Seller and the Tagging Persons on a pro rata basis (based on the number of Offered Securities Transferred or proposed to be Transferred) to the extent such expenses are not otherwise paid by the Company or any other Person, and (iii) all other costs and expenses incurred by the Stockholders, or the Company in connection with any proposed Tag-Along Sale (whether or not consummated), including all attorneys fees and charges, all accounting fees and charges and all finders, brokerage or investment banking fees, charges or commissions, pro rata in proportion to the consideration paid or proposed to shall be paid to such Tagging Person in connection with such Tag-Along Sale as compared to the aggregate consideration to be paid to the Tag-Along Seller and all Tagging Persons in connection with such Tag-Along Sale; provided, that, in connection with any Tag-Along Sale, each Tagging Person shall bear in its entirety any attorneys fees and charges, accounting fees and charges and any other advisor fees, charges or commissions incurred by such Tagging Person in connection with such Tag-Along Sale.
(f) In connection with (i) each Tag-Along Sale, each Tagging Person shall receive, with respect to the Class B Common Shares, the same amount of consideration received borne by the Tag-Along Sellers per Class B Common Share party incurring such costs and (ii) each Drag-Along Sale, each Drag-Along Investor shall receive, with respect to the Class B Common Shares, the same amount of consideration received by the Drag-Along Sellers per Class B Common Share; provided, however, that in connection with any such sale (A) Class A Common Shares may be valued at (and the holder thereof entitled to receive) a lower price per share than the Class B Common Shares, and (B) after giving effect to any vesting triggered by such Tag-Along Sale or Drag-Along Sale, unvested Class A Common Shares may be valued at (and the holder thereof entitled to receive) a lower price per share than vested Class A Common Shares, in each case, to account for the different rights, powers, preferences and privileges in respect thereof as set forth in the Company’s Certificate of Incorporation and other agreements relating to such shares (including, without limitation, the right of the holders of Class B Common Shares to receive distributions in respect of their unreturned paid-in-capital of the Company prior the right of the holders of Class A Common Shares to receive distributions ratably based on the number of outstanding Shares held by such holders)expenses.
Appears in 1 contract
Additional Provisions Related to Tag-Along Sales and Drag-Along Sales. Notwithstanding anything contained in Section 4.01 5.01 or Section 4.02 5.02 to the contrary, in connection with a Tag-Along Sale under Section 4.01 5.01 or a Drag-Along Sale under Section 4.025.02:
(a) Upon upon the consummation of such Tag-Along Sale or Drag-Along Sale, all Sponsors and Management Shareholders holding Stockholders of the same class of Company Equity Securities participating therein will receive the same form and amount of consideration per shareshare (it being understood that any payments made pursuant to the Monitoring Agreement shall not, in the case of a Tag-Along or Drag-Along Sale, be deemed to constitute consideration for Equity Securities), or, if any Investor Stockholder of a specified class of Equity Securities is given an option as to the form and amount of consideration to be received in respect of a specified class of Company Equity Securities(other than stock rollover offered exclusively to Management Stockholders), all Investors holding Stockholders of such specified class of Company Equity Securities participating therein will be given the same option.;
(b) Each Tag-Along Offeree or Drag-Along Investor, as the case may be, each Stockholder shall (i) make such representations representations, warranties and warranties (to the best of its knowledge) and shall make such covenants and enter into such definitive agreements as are customary for transactions of the nature of the proposed Transfer; provided, that no Stockholder (other than Management Stockholders) shall be obliged to agree not to compete with, or solicit customers or employees of, any Person, (ii) benefit from and be subject to all of the same provisions of the definitive agreements as are applicable to the Tag-Along Seller or Drag-Along Seller, as the case may be, and (iii) be required to bear its proportionate share of any escrows, holdbacks or adjustments in respect of the purchase price or indemnification obligations; provided, that no Stockholder shall be obligated (A) to indemnify, other than severally indemnify, any Person in connection with such Tag-Along Sale or Drag-Along Sale, as the case may be, or (B) to incur liability to any Person in connection with such Tag-Along Sale or Drag-Along Sale, as the case may be, including under any indemnity, in excess of the lesser of (1) its pro rata share of such liability based on the proceeds to be realized by such Stockholder in such sale and (2) the proceeds realized by such Stockholder in such sale other than, in each case, for fraud by such Stockholder, and (iv) reasonably cooperate in obtaining all governmental and third-party consents and approvals reasonably necessary or desirable to consummate such Tag-Along Sale or Drag-Along Sale (as applicable).Sale;
(c) In in the event the consideration to be paid in exchange for Company Equity Securities in a Tag-Along Sale or a Drag-Along Sale includes any securities, and the receipt thereof by a Tag-Along Offeree or Drag-Along Investor, as the case may be, Stockholder would require under applicable law (ai) the registration or qualification of such securities or of any Person as a broker or dealer or agent with respect to such securities where such registration or qualification is not otherwise required for the Tag-Along Sale or a Drag-Along Sale Sale, or (bii) the provision to any Tag-Along Seller or Drag-Along Seller of any specified information regarding such securities or the issuer thereof that is not otherwise required to be provided for the Tag-Along Sale or Drag-Along Sale, then such Tag-Along Offeree or Drag-Along Investor, as the case may be, Stockholder shall not have the right to sell Company Equity Securities in such proposed Tag-Along Sale or Drag-Along Sale. In such event, the Tag-Along Seller or Drag-Along Seller, as the case may be, shall (i) in the case of a Tag-Along Sale, have the right, but not the obligation, and (ii) in the case of a Drag-Along Sale, have the obligation, in each case, to cause to be paid to such Tag-Along Offeree or Drag-Along Investor, as the case may be, Stockholder in lieu thereof, against surrender of the Company Equity Securities which would have otherwise been Transferred by such Tag-Along Offeree or Drag-Along Investor, as the case may be, Stockholder to the prospective purchaser in the proposed Tag-Along Sale or a Drag-Along Sale, an amount in cash equal to the Fair Market Value fair market value (as reasonably determined by the Board) of such Company Equity Securities as of the date such securities would have been issued, issued in exchange for such Company Equity Securities.;
(d) The in connection with a Drag-Along Sale, if requested by the Drag-Along Seller, the Company will promptly engage, on customary terms (including customary indemnification from the Company), a nationally recognized investment banking firm selected by the Drag-Along Seller to provide financial advisory services to the Company, the Drag-Along Seller and the Other Stockholders, and the Company shall pay the fees and expenses of such investment banking firm;
(e) in connection with a Drag-Along Sale, the Company will, if applicable, enter into a definitive agreement with the proposed transferee(s) providing for such Transfer and make and agree to representations, warranties, covenants and indemnities and other similar agreements that are reasonable and customary for negotiated transactions of the type contemplated by such Transfer;
(f) the Company agrees to reasonably cooperate with any Stockholder and any proposed transferee (other than a Company Competitor in the case of a Tag-Along Sale), and their respective advisors, to facilitate and effect any Tag-Along Sale or Drag-Along Sale and, upon the request of any Stockholder that proposes to make a Tag-Along Sale or Drag-Along Sale, subject to any proposed transferee (other than a Company Competitor in the case of a Tag-Along Sale) executing a reasonably satisfactory confidentiality agreement with the Company, the Company will, and will cause its and its Subsidiaries’ employees and personnel to, use its and their reasonable best efforts to facilitate and support any due diligence process being undertaken in connection with such proposed Tag-Along Sale or Drag-Along Sale;
(g) the Company and the Investors Stockholders will reasonably cooperate in the obtaining of all governmental and third-party approvals and consents reasonably necessary or desirable to consummate such Transfer.; and
(eh) Each Tagging Person shall bear an amount of the all reasonable costs and expenses incurred by (i) the Investors Avista Entities and the Company in connection with any proposed Drag-Along Sale (whether or not consummated) including all attorneys fees and charges, all accounting fees and charges and all finders, brokerage or investment banking fees, charges or commissions, shall be borne by the Company, (ii) by the Tag-Along Seller in connection with any proposed Tag-Along Sale (whether or not consummated) including all attorneys fees and charges, all accounting fees and charges and all finders, brokerage or investment banking fees, charges or commissions, shall be borne by the Tag-Along Seller and the Tagging Persons on a pro rata basis (based on the number of Offered Securities Transferred or proposed to be Transferred) to the extent such expenses are not otherwise paid by the Company or any other Person, and (iii) all other costs and expenses incurred by the Stockholders, or the Company in connection with any proposed Tag-Along Sale (whether or not consummated), including all attorneys fees and charges, all accounting fees and charges and all finders, brokerage or investment banking fees, charges or commissions, pro rata in proportion to the consideration paid or proposed to shall be paid to such Tagging Person in connection with such Tag-Along Sale as compared to the aggregate consideration to be paid to the Tag-Along Seller and all Tagging Persons in connection with such Tag-Along Sale; provided, that, in connection with any Tag-Along Sale, each Tagging Person shall bear in its entirety any attorneys fees and charges, accounting fees and charges and any other advisor fees, charges or commissions incurred by such Tagging Person in connection with such Tag-Along Sale.
(f) In connection with (i) each Tag-Along Sale, each Tagging Person shall receive, with respect to the Class B Common Shares, the same amount of consideration received borne by the Tag-Along Sellers per Class B Common Share party incurring such costs and (ii) each Drag-Along Sale, each Drag-Along Investor shall receive, with respect to the Class B Common Shares, the same amount of consideration received by the Drag-Along Sellers per Class B Common Share; provided, however, that in connection with any such sale (A) Class A Common Shares may be valued at (and the holder thereof entitled to receive) a lower price per share than the Class B Common Shares, and (B) after giving effect to any vesting triggered by such Tag-Along Sale or Drag-Along Sale, unvested Class A Common Shares may be valued at (and the holder thereof entitled to receive) a lower price per share than vested Class A Common Shares, in each case, to account for the different rights, powers, preferences and privileges in respect thereof as set forth in the Company’s Certificate of Incorporation and other agreements relating to such shares (including, without limitation, the right of the holders of Class B Common Shares to receive distributions in respect of their unreturned paid-in-capital of the Company prior the right of the holders of Class A Common Shares to receive distributions ratably based on the number of outstanding Shares held by such holders)expenses.
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Additional Provisions Related to Tag-Along Sales and Drag-Along Sales. Notwithstanding anything contained in Section 4.01 3.04 or Section 4.02 3.05 to the contrary, in connection with a Tag-Along Sale under Section 4.01 3.04 or a Drag-Along Sale under Section 4.023.05:
(a) Upon the consummation of such Tag-Along Sale or Drag-Along Sale, all Sponsors and Management Shareholders holding the same class of Company Equity Securities Stockholders participating therein will receive the same form and amount of consideration per shareCompany Security, or, if any Investor Stockholder is given an option as to the form and amount of consideration to be received in respect of a specified class of Company Equity Securitiesreceived, all Investors holding such specified class of Company Equity Securities Stockholders participating therein will be given the same option.
(b) Each Tag-Along Offeree or Drag-Along Investor, as the case may be, Stockholder shall (i) make such representations representations, warranties and warranties (to the best of its knowledge) and shall make such covenants and enter into such definitive agreements as are customary for transactions of the nature of the proposed Transfer, (ii) benefit from and be subject to all of the same provisions of the definitive agreements as are applicable to the Tag-Along Seller or Drag-Along Seller, as the case may be, and (iii) be required to bear its proportionate share of any escrows, holdbacks or adjustments in respect of the purchase price or indemnification obligations; provided, and that no Stockholder shall be obligated (ivA) cooperate to make any representations or warranties except as to such Stockholder, (B) to indemnify, other than severally indemnify, any Person in obtaining all governmental and third-party consents and approvals reasonably necessary or desirable to consummate connection with such Tag-Along Sale or Drag-Along Sale, as the case may be, or (C) to incur liability to any Person in connection with such Tag-Along Sale or Drag-Along Sale, as the case may be, including, without limitation, under any indemnity, in each case in excess of the lesser of (as applicable)1) its pro rata share of such liability and (2) the gross proceeds realized by such Stockholder in such sale.
(c) In the event the consideration to be paid in exchange for Company Equity Securities in a Tag-Along Sale or a Drag-Along Sale includes any securities, and the receipt thereof by a Tag-Along Offeree or Drag-Along Investor, as the case may be, Stockholder would require under applicable law (ai) the registration or qualification of such securities or of any Person as a broker or dealer or agent with respect to such securities where such registration or qualification is not otherwise required for the Tag-Along Sale or a Drag-Along Sale or (bii) the provision to any Tag-Along Seller or Drag-Along Seller of any specified information regarding such securities or the issuer thereof that is not otherwise required to be provided for the Tag-Along Sale or Drag-Along Sale, then such Tag-Along Offeree or Drag-Along Investor, as the case may be, Stockholder shall not have the right to sell Company Equity Securities in such proposed Tag-Along Sale or Drag-Along Sale. In such eventthe cause of either clause (i) or (ii) above, the Tag-Along Seller or Drag-Along Seller, as the case may be, shall (ia) in the case of a Tag-Along Sale, have the right, but not the obligation, and (iib) in the case of a Drag-Along Sale, have the obligation, in each case, to cause to be paid to such Tag-Along Offeree or Drag-Along Investor, as the case may be, Stockholder in lieu thereof, against surrender of the Company Equity Securities which would have otherwise been Transferred by such Tag-Along Offeree or Drag-Along Investor, as the case may be, Stockholder to the prospective purchaser in the proposed Tag-Along Sale or a Drag-Along Sale, an amount in cash equal to the Fair Market Value fair market value (as determined in the reasonable determination of the Board) of such Company Equity Securities as of the date such securities would have been issued, issued in exchange for such Company Equity Securities.
(d) The Company and the Investors will cooperate in obtaining all governmental and third-party approvals and consents reasonably necessary or desirable to consummate such Transfer.
(e) Each Tagging Person shall bear an amount of the reasonable costs and expenses incurred by the Investors or the Company in connection with any proposed Tag-Along Sale (whether or not consummated), including all attorneys fees and charges, all accounting fees and charges and all finders, brokerage or investment banking fees, charges or commissions, pro rata in proportion to the consideration paid or proposed to be paid to such Tagging Person in connection with such Tag-Along Sale as compared to the aggregate consideration to be paid to the Tag-Along Seller and all Tagging Persons in connection with such Tag-Along Sale; provided, that, in connection with any Tag-Along Sale, each Tagging Person shall bear in its entirety any attorneys fees and charges, accounting fees and charges and any other advisor fees, charges or commissions incurred by such Tagging Person in connection with such Tag-Along Sale.
(f) In connection with (i) each Tag-Along Sale, each Tagging Person shall receive, with respect to the Class B Common Shares, the same amount of consideration received by the Tag-Along Sellers per Class B Common Share and (ii) each Drag-Along Sale, each Drag-Along Investor shall receive, with respect to the Class B Common Shares, the same amount of consideration received by the Drag-Along Sellers per Class B Common Share; provided, however, that in connection with any such sale (A) Class A Common Shares may be valued at (and the holder thereof entitled to receive) a lower price per share than the Class B Common Shares, and (B) after giving effect to any vesting triggered by such Tag-Along Sale or Drag-Along Sale, unvested Class A Common Shares may be valued at (and the holder thereof entitled to receive) a lower price per share than vested Class A Common Shares, in each case, to account for the different rights, powers, preferences and privileges in respect thereof as set forth in the Company’s Certificate of Incorporation and other agreements relating to such shares (including, without limitation, the right of the holders of Class B Common Shares to receive distributions in respect of their unreturned paid-in-capital of the Company prior the right of the holders of Class A Common Shares to receive distributions ratably based on the number of outstanding Shares held by such holders).
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