Approved Sale. If the Board of Directors of the Company (the “Board”) shall deliver a notice to Grantee (a “Sale Event Notice”) stating that the Board has approved a sale of all or a portion of the Company (an “Approved Sale”) and specifying the name and address of the proposed parties to such transaction and the consideration payable in connection therewith, Grantee shall (i) consent to and raise no objections against the Approved Sale or the process pursuant to which the Approved Sale was arranged, (ii) waive any dissenter’s rights and other similar rights, and (iii) if the Approved Sale is structured as a sale of securities, agree to sell Grantee’s Shares on the terms and conditions of the Approved Sale which terms and conditions shall treat all stockholders of the Company equally (on a pro rata basis), except that shares having a liquidation preference may, if so provided in the documents governing such shares, receive an amount of consideration equal to such liquidation preference in addition to the consideration being paid to the holders of Shares not having a liquidation preference. Grantee shall take all necessary and desirable lawful actions as directed by the Board and the stockholders of the Company approving the Approved Sale in connection with the consummation of any Approved Sale, including without limitation, the execution of such agreements and such instruments and other actions reasonably necessary to (A) provide the representations, warranties, indemnities, covenants, conditions, non-compete agreements, escrow agreements and other provisions and agreements relating to such Approved Sale and, (B) effectuate the allocation and distribution of the aggregate consideration upon the Approved Sale, provided, that this Section 8 shall not require Grantee to indemnify the purchaser in any Approved Sale for breaches of the representations, warranties or covenants of the Company or any other stockholder, except to the extent (x) Grantee is not required to incur more than its pro rata share of such indemnity obligation (based on the total consideration to be received by all stockholders that are similarly situated and hold the same class or series of capital stock) and (y) such indemnity obligation is provided for and limited to a post-closing escrow or holdback arrangement of cash or stock paid in connection with the Approved Sale.
Appears in 5 contracts
Samples: Restricted Stock Grant Agreement (Originoil Inc), Restricted Stock Grant Agreement (Originoil Inc), Restricted Stock Grant Agreement (Solar3d, Inc.)
Approved Sale. If the Board of Directors of the Company (the “Board”) shall deliver a notice to Grantee Optionee (a “Sale Event Notice”) stating that the Board has approved a sale of all or a portion of the Company (an “Approved Sale”) and specifying the name and address of the proposed parties to such transaction and the consideration payable in connection therewith, Grantee Optionee shall (i) consent to and raise no objections against the Approved Sale or the process pursuant to which the Approved Sale was arranged, (ii) waive any dissenter’s rights and other similar rights, and (iii) if the Approved Sale is structured as a sale of securities, agree to sell GranteeOptionee’s Shares on the terms and conditions of the Approved Sale which terms and conditions shall treat all stockholders of the Company equally (on a pro rata basis), except that shares having a liquidation preference may, if so provided in the documents governing such shares, may receive an amount of consideration equal to such liquidation preference in addition to the consideration being paid to the holders of Shares shares not having a liquidation preference. Grantee Notwithstanding the foregoing, the sale of the Shares in an Approved Sale shall be further subject to the terms of the Plan, including without limitation Section 14 of the Plan. Optionee will take all necessary and desirable lawful actions as directed by the Board and the stockholders of the Company approving the Approved Sale in connection with the consummation of any Approved Sale, including without limitation, the execution of such agreements and such instruments and other actions reasonably necessary to (A) provide the representations, warranties, indemnities, covenants, conditions, non-compete agreements, escrow agreements and other provisions and agreements relating to such Approved Sale and, (B) effectuate the allocation and distribution of the aggregate consideration upon the Approved Sale, provided, that this Section 8 6 shall not require Grantee Optionee to indemnify the purchaser in any Approved Sale for breaches of the representations, warranties or covenants of the Company or any other stockholder, except to the extent (x) Grantee Optionee is not required to incur more than its pro rata share of such indemnity obligation (based on the total consideration to be received by all stockholders that are similarly situated and hold the same class or series of capital stock) and (y) such indemnity obligation is provided for and limited to a post-closing escrow or holdback arrangement of cash or stock paid in connection with the Approved Sale.
Appears in 5 contracts
Samples: Stock Option Agreement (Demand Media Inc.), Stock Option Agreement (Demand Media Inc.), Stock Option Agreement (Demand Media Inc.)
Approved Sale. If the Board of Directors of the Company (the “"Board”") shall deliver a notice to Grantee (a “"Sale Event Notice”") stating that the Board has approved a sale of all or a portion of the Company through a sale of assets, securities, or otherwise (an “"Approved Sale”") and specifying the name and address of the proposed parties to such transaction and the consideration payable in connection therewith, Grantee shall (i) consent to and raise no objections against the Approved Sale or the process pursuant to which the Approved Sale was arranged, (ii) waive any dissenter’s 's rights and other similar rights, and (iii) if the Approved Sale is structured as a sale of securities, agree to sell Grantee’s 's Shares on the terms and conditions of the Approved Sale which terms and conditions shall treat all stockholders of the Company equally (on a pro rata basis), except that shares having a liquidation preference may, if so provided in the documents governing such shares, receive an amount of consideration equal to such liquidation preference in addition to the consideration being paid to the holders of Shares not having a liquidation preference. Grantee shall take all necessary and desirable lawful actions as directed by the Board and the stockholders of the Company approving the Approved Sale in connection with the consummation of any Approved Sale, including without limitation, the execution of such agreements and such instruments and other actions reasonably necessary to (A) provide the representations, warranties, indemnities, covenants, conditions, non-compete agreements, escrow agreements and other provisions and agreements relating to such Approved Sale and, (B) effectuate the allocation and distribution of the aggregate consideration upon the Approved Sale, provided, that this Section 8 7 shall not require Grantee to indemnify the purchaser in any Approved Sale for breaches of the representations, warranties or covenants of the Company or any other stockholder, except to the extent (x) Grantee is not required to incur more than its pro rata share of such indemnity obligation (based on the total consideration to be received by all stockholders that are similarly situated and hold the same class or series of capital stock) and (y) such indemnity obligation is provided for and limited to a post-closing escrow or holdback arrangement of cash or stock paid in connection with the Approved Sale.
Appears in 5 contracts
Samples: Restricted Stock Grant Agreement, Restricted Stock Grant Agreement (Envision Solar International, Inc.), Restricted Stock Grant Agreement (Envision Solar International, Inc.)
Approved Sale. If the Board seeks or approves a bona fide sale of Directors over 50% of the assets of the Company (or any direct Subsidiary thereof or of equity with over 50% of the “Board”) shall deliver a notice to Grantee (a “Sale Event Notice”) stating that the Board has approved a sale of all or a portion voting power of the Company or of any direct Subsidiary thereof (whether by merger, consolidation, recapitalization, transfer of equity securities or otherwise), in each case to an independent third party other than an Affiliate of Investor (as so approved, an “Approved Sale”) and specifying ), if requested by the name and address of the proposed parties to such transaction and the consideration payable in connection therewithBoard, Grantee shall (i) Employee will consent to and raise no objections against the such Approved Sale or the process pursuant to which the Approved Sale was arrangedSale, (ii) waive any dissenter’s rights and other similar dissenters’ rights, appraisal rights or similar rights in connection with such Approved Sale, and (iii) if the Approved Sale is structured as a sale of securities, agree to sell Grantee’s Shares on the terms and conditions of the Approved Sale which terms and conditions shall treat all stockholders of the Company equally (on a pro rata basis), except that shares having a liquidation preference may, if so provided in the documents governing such shares, receive an amount of consideration equal to such liquidation preference in addition to the consideration being paid to the holders of Shares not having a liquidation preference. Grantee shall take all necessary and or desirable lawful actions as directed by the Board and the stockholders of the Company approving the Approved Sale in connection with the consummation of the Approved Sale as requested by the Board (including, without limitation, by executing and delivering definitive agreements with respect thereto); provided that, in connection with any Approved Sale, including without limitation, (i) any proceeds paid to the execution of such agreements and such instruments and other actions reasonably necessary to (A) provide the representations, warranties, indemnities, covenants, conditions, non-compete agreements, escrow agreements and other provisions and agreements relating to Interest Holders in such Approved Sale and, (Bin their capacity as such) effectuate shall be allocated among the allocation and distribution Interest Holders participating in such sale based upon the amount that such Interest Holders would have received if the aggregate proceeds paid to such Interest Holders in such Approved Sale (in their capacity as such) had been distributed by the Company pursuant to Section 5.1 of the aggregate consideration upon Operating Agreement and (ii) subject to clause (i) above and the Approved Salefollowing sentence, provided, that this Section 8 Employee shall not require Grantee have no obligation to indemnify any party with respect to his Incentive Units or his Units, as the purchaser in any Approved Sale for breaches case may be, arising out of the representations, warranties or and covenants of the Company or any other stockholder, except to the extent (x) Grantee is not required to incur more than its pro rata share of such indemnity obligation (based on the total consideration to be received by all stockholders that are similarly situated and hold the same class or series of capital stock) and (y) such indemnity obligation is provided for and limited to a post-closing escrow or holdback arrangement of cash or stock paid in connection with the Approved Sale that is on a basis which is less favorable than the similar indemnification obligations of Investor with respect to its Common Units. Employee will be obligated to join on a pro rata basis (severally and not jointly) in any purchase price adjustments, indemnification or other obligations that the sellers of Incentive Units or Units are required to provide in connection with the Approved Sale such that proceeds will be distributed as if they had been distributed after giving effect to such adjustments, indemnification and other obligations (e.g., if the aggregate proceeds to be distributed in connection with such Approved Sale is equal to $120, and subsequent to the consummation of such Approved Sale a purchase price reduction (in connection with a purchase price adjustment) in an amount equal to $20 is required, then Employee shall be required to give back any proceeds that he, she or it had received in excess of the aggregate proceeds he would have received if an amount equal to $100 were distributed to the sellers of Incentive Units and other Units in connection with such Approved Sale) (other than any such obligations that relate solely to a particular Interest Holder, such as indemnification with respect to representations and warranties given by a Interest Holder regarding such Interest Holder’s title to and ownership of Incentive Units or other Units, due authorization to enter into and perform the sale agreement, enforceability of the agreement, noncontravention and any other individual representation or warranties of such Interest Holder transferring securities, in respect of which only such Interest Holder will be liable).
Appears in 4 contracts
Samples: Executive Unit Agreement (AmWINS GROUP INC), Executive Unit Agreement (AmWINS GROUP INC), Executive Unit Agreement (AmWINS GROUP INC)
Approved Sale. If the Board of Directors of the Company (the “Board”) shall deliver a notice to Grantee Optionee (a “"Sale Event Notice”") stating that the Board has approved a sale of all or a portion of the Company (an “"Approved Sale”") and specifying the name and address of the proposed parties to such transaction and the consideration payable in connection therewith, Grantee Optionee shall (i) consent to and raise no objections against the Approved Sale or the process pursuant to which the Approved Sale was arranged, (ii) waive any dissenter’s 's rights and other similar rights, and (iii) if the Approved Sale is structured as a sale of securities, agree to sell Grantee’s Optionee's Shares on the terms and conditions of the Approved Sale which terms and conditions shall treat all stockholders of the Company equally (on a pro rata basis), except that shares having a liquidation preference may, if so provided in the documents governing such shares, may receive an amount of consideration equal to such liquidation preference in addition to the consideration being paid to the holders of Shares shares not having a liquidation preference. Grantee Notwithstanding the foregoing, the sale of the Shares in an Approved Sale shall be further subject to the terms of the Plan. Optionee will take all necessary and desirable lawful actions as directed by the Board and the stockholders of the Company approving the Approved Sale in connection with the consummation of any Approved Sale, including without limitation, the execution of such agreements and such instruments and other actions reasonably necessary to (A) provide the representations, warranties, indemnities, covenants, conditions, non-compete agreements, escrow agreements and other provisions and agreements relating to such Approved Sale and, (B) effectuate the allocation and distribution of the aggregate consideration upon the Approved Sale, provided, that this Section 8 5 shall not require Grantee Optionee to indemnify the purchaser in any Approved Sale for breaches of the representations, warranties or covenants of the Company or any other stockholder, except to the extent (x) Grantee Optionee is not required to incur more than its pro rata share of such indemnity obligation (based on the total consideration to be received by all stockholders that are similarly situated and hold the same class or series of capital stock) and (y) such indemnity obligation is provided for and limited to a post-closing escrow or holdback arrangement of cash or stock paid in connection with the Approved Sale.
Appears in 4 contracts
Samples: Non Qualified Stock Option Agreement (Black Ridge Oil & Gas, Inc.), Stock Option Agreement (Black Ridge Oil & Gas, Inc.), Stock Option Agreement (Black Ridge Oil & Gas, Inc.)
Approved Sale. If the Board of Directors of the Company (the “Board”) shall deliver a notice to Grantee (a “Sale Event Notice”) stating that the Board has approved a sale of all or a portion of the Company (an “Approved Sale”) and specifying the name and address of the proposed parties to such transaction and the consideration payable in connection therewith, Grantee shall (i) consent to and raise no objections against the Approved Sale or the process pursuant to which the Approved Sale was arranged, (ii) waive any dissenter’s rights and other similar rights, and (iii) if the Approved Sale is structured as a sale of securities, agree to sell Grantee’s Shares on the terms and conditions of the Approved Sale which terms and conditions shall treat all stockholders of the Company equally (on a pro rata basis), except that shares having a liquidation preference may, if so provided in the documents governing such shares, receive an amount of consideration equal to such liquidation preference in addition to the consideration being paid to the holders of Shares not having a liquidation preference. Grantee shall take all necessary and desirable lawful actions as directed by the Board and the stockholders of the Company approving the Approved Sale in connection with the consummation of any Approved Sale, including without limitation, the execution of such agreements and such instruments and other actions reasonably necessary to (A) provide the representations, warranties, indemnities, covenants, conditions, non-compete agreements, escrow agreements and other provisions and agreements relating to such Approved Sale and, (B) effectuate the allocation and distribution of the aggregate consideration upon the Approved Sale, provided, that this Section 8 7 shall not require Grantee to indemnify the purchaser in any Approved Sale for breaches of the representations, warranties or covenants of the Company or any other stockholder, except to the extent (x) Grantee is not required to incur more than its pro rata share of such indemnity obligation (based on the total consideration to be received by all stockholders that are similarly situated and hold the same class or series of capital stock) and (y) such indemnity obligation is provided for and limited to a post-closing escrow or holdback arrangement of cash or stock paid in connection with the Approved Sale.
Appears in 4 contracts
Samples: Restricted Stock Grant Agreement (Originoil Inc), Restricted Stock Grant Agreement (Originoil Inc), Restricted Stock Grant Agreement (Originoil Inc)
Approved Sale. If the Board of Directors of Rockpoint Preferred Holders fail to deliver an Acceptance Notice with respect to a proposed Approved Sale under Section 12(d), the Company (General Partner shall have the “Board”right to cause the Partnership to enter into an Approved Sale, subject to its prior compliance with Section 8, Section 12(d) shall deliver a notice to Grantee (a “Sale Event Notice”) stating that and this Section 12(e). If the Board has approved General Partner approves a sale of all or a portion substantially all of the Company Partnership’s assets determined on a consolidated basis or proposes a sale of a majority of the then-outstanding Partnership Interests, in each case whether by merger, recapitalization, consolidation, reorganization, combination or otherwise, to any bona fide third party purchaser (collectively, if consummated, an “Approved Sale”) and specifying (such bona fide third purchaser, a “Proposed Purchaser”), the name and address of General Partner shall deliver written notice to the proposed parties to such transaction and the consideration payable Partners setting forth in connection therewith, Grantee shall (i) consent to and raise no objections against the Approved Sale or the process pursuant to which the Approved Sale was arranged, (ii) waive any dissenter’s rights and other similar rights, and (iii) if the Approved Sale is structured as a sale of securities, agree to sell Grantee’s Shares on reasonable detail the terms and conditions of the Approved Sale (including, to the extent then determined, the consideration to be paid with respect to each Partner which shall be determined by reference to its Partnership Interest Liquidation Value). Rockpoint Preferred Holders shall be given the right to approve such Approved Sale in their sole and absolute discretion; provided, for avoidance of doubt, that any such disapproval shall not be deemed to restrict or otherwise modify the General Partner’s right and obligation to acquire the Put/Call Interests in connection with an Approved Sale that is not an RP Approved Sale pursuant to Section 13. If Rockpoint Preferred Holders approve such Approved Sale (an “RP Approved Sale”) in writing within twenty (20) calendar days following receipt of notice thereof from the General Partner, then each Partner will be deemed to have consented to and agrees to raise no objections against (and to confirm in writing such consent to) such RP Approved Sale, whether such RP Approved Sale is with the Rockpoint Preferred Holders or their Affiliate, pursuant to Section 12(d), or the Proposed Purchaser. If Rockpoint Preferred Holders do not approve such Approved Sale in writing within such period, then as a condition to consummating an Approved Sale that is not an RP Approved Sale the General Partner shall be required to purchase the Put/Call Interests solely through exercise of an Early Purchase as provided in Section 13 (if the Approved Sale would occur during the Lockout Period) or solely through the exercise of the Call Right in Section 13(g)(i) (if the Approved Sale would occur outside the Lockout Period), in exchange for the Purchase Payments under terms described in Section 13 by giving notice thereof in writing to the Rockpoint Preferred Holders (a “Section 12(e) Notice”) within twenty (20) days following the earlier of (1) the date that one or both the Rockpoint Preferred Holders provide written notice that they do not approve the sale or (2) the date that the Rockpoint Preferred Holders are deemed not to approve the sale due to their failure to respond within twenty (20) days after receiving notice of the intended Approved Sale from the General Partner. If the RP Approved Sale is structured as a merger, consolidation or other transaction for which dissenter’s appraisal or similar rights are available under applicable law, each Partner will waive any dissenter’s rights, appraisal rights or similar rights in connection with such transaction. The obligations of the Partners with respect to an RP Approved Sale are subject to each Partner being entitled to and receiving the same terms and conditions shall treat all stockholders as any other holder of the Company equally (on a pro rata basis)Partnership Interests, except provided that shares having a liquidation preference may, if so provided in the documents governing such shares, receive an amount of consideration equal to such liquidation preference in addition to the consideration being paid to the holders of Shares not having a liquidation preferenceeach Partner receives its Partnership Interest Liquidation Value. Grantee Each Partner shall take all necessary and or desirable lawful actions as directed by the Board and the stockholders of the Company approving the Approved Sale in connection with the consummation of any the RP Approved SaleSale as reasonably requested by the General Partner, including without limitationby executing, the execution of such agreements acknowledging and such instruments delivering any and all customary consents, assignments, waivers and other actions reasonably necessary to documents or instruments (A) provide the representationsincluding any applicable purchase agreement, warrantiesstockholders agreement, indemnitiesindemnification agreement or contribution agreement), covenantsfurnishing information and copies of documents, conditionsfiling applications, non-compete agreementsreports, escrow agreements returns and other provisions documents or instruments with governmental authorities, and agreements otherwise cooperating reasonably with the Proposed Purchaser. Each Partner shall only be required to make representations and warranties personal to it relating to such Approved Sale andits ownership of Partnership Interests to be transferred; provided, (B) effectuate the allocation however, that each Partner shall be obligated to join strictly on a pro rata basis with respect to all operational representations and distribution warranties made in respect of the Partnership and its Subsidiaries (as if such obligations reduced the aggregate consideration upon proceeds available for distribution or payment to the Approved Sale, provided, that this Section 8 shall not require Grantee to indemnify Partners in the purchaser determination of Partnership Interest Liquidation Value) in any Approved Sale for breaches of customary indemnification, escrow, holdback or other obligations that the representations, warranties Partnership or covenants of the Company or any other stockholder, except Partners agree to the extent (x) Grantee is not required to incur more than its pro rata share of such indemnity obligation (based on the total consideration to be received by all stockholders that are similarly situated and hold the same class or series of capital stock) and (y) such indemnity obligation is provided for and limited to a post-closing escrow or holdback arrangement of cash or stock paid provide in connection with the RP Approved Sale and that are customary in amount and duration for transactions involving the sale of real estate generally in the United States; provided, however, that in connection with the closing of any such RP Approved Sale, each Rockpoint Preferred Holder shall receive at closing all consideration owed to such Rockpoint Preferred Holder pursuant to such RP Approved Sale, other than such amounts retained on a pro rata basis pursuant to such permitted indemnification, escrow, or other holdback.
Appears in 4 contracts
Samples: Limited Partnership Agreement (Mack Cali Realty L P), Preferred Equity Investment Agreement (Mack Cali Realty L P), Limited Partnership Agreement (Mack Cali Realty L P)
Approved Sale. If the Board of Directors of the Company (the “Board”) shall deliver a notice to Grantee (a “Sale Event Notice”) stating that the Board has approved a sale of all or a portion of the Company through a sale of assets, securities, or otherwise (an “Approved Sale”) and specifying the name and address of the proposed parties to such transaction and the consideration payable in connection therewith, Grantee shall (i) consent to and raise no objections against the Approved Sale or the process pursuant to which the Approved Sale was arranged, (ii) waive any dissenter’s rights and other similar rights, and (iii) if the Approved Sale is structured as a sale of securities, agree to sell Grantee’s Shares on the terms and conditions of the Approved Sale which terms and conditions shall treat all stockholders of the Company equally (on a pro rata basis), except that shares having a liquidation preference may, if so provided in the documents governing such shares, receive an amount of consideration equal to such liquidation preference in addition to the consideration being paid to the holders of Shares not having a liquidation preference. Grantee shall take all necessary and desirable appropriate lawful actions as directed by the Board and the stockholders of the Company approving the Approved Sale in connection with the consummation of any Approved Sale, including without limitation, the execution of such agreements and such instruments and other actions reasonably necessary to (A) provide the representations, warranties, indemnities, covenants, conditions, non-compete agreements, escrow agreements and other provisions and agreements relating necessary or reasonably appropriate to effect such Approved Sale andSale, and (B) effectuate the allocation and distribution of the aggregate consideration upon from the Approved Sale, provided, that this Section 8 7 shall not require Grantee to indemnify the purchaser in any Approved Sale for breaches of the representations, warranties or covenants of the Company or any other stockholder, except to the extent (x) Grantee is not required to incur more than its pro rata share of such indemnity obligation (based on the total consideration to be received by all stockholders that are similarly situated and hold the same class or series of capital stock) ), and (y) such indemnity obligation is provided for and limited to a post-closing escrow or holdback arrangement of cash or stock paid in connection with the Approved Sale.
Appears in 3 contracts
Samples: Restricted Stock Grant Agreement (Envision Solar International, Inc.), Restricted Stock Grant Agreement (Envision Solar International, Inc.), Restricted Stock Grant Agreement (Envision Solar International, Inc.)
Approved Sale. If Upon the Board approval of Directors a Change of Control Event by (x) the Company Managing Member and (y) so long as the “Board”) shall deliver a notice to Grantee (a “Sale Event Notice”) stating that Founder Member Ownership Threshold is met, the Board has approved a sale of all or a portion of the Company Founder Member Representative (an “Approved Sale”), the Company shall provide each Member at such time other than the Managing Member (each, an “Other Member”) and specifying the name and address with prompt written notice of the proposed parties material terms of the Approved Sale. Each Other Member agrees to such transaction and the consideration payable in connection therewith, Grantee shall (i) consent to and raise no objections against to the Approved Sale and take all other actions reasonably necessary or the process pursuant desirable to which effect the Approved Sale was arrangedSale, including, without limitation:
(ii) waive any dissenter’s rights and other similar rights, and (iiia) if the Approved Sale is structured as a sale of securitiesUnits or shares of Capital Stock of the Managing Member, each Other Member shall agree to sell Grantee’s Shares all Units and Capital Stock of the Managing Member held by such Other Member on the terms and conditions of the Approved Sale which terms and conditions shall treat all stockholders of the Company equally (on a pro rata basis), except that shares having a liquidation preference may, if so provided in the documents governing such shares, receive an amount of consideration equal to such liquidation preference in addition to the consideration being paid to the holders of Shares not having a liquidation preference. Grantee shall take all necessary and desirable lawful actions as directed approved by the Board Managing Member and, so long as the Founder Member Ownership Threshold is met, the Founder Member Representative, and the stockholders of the Company approving the Approved Sale shall execute all agreements, instruments, certificates and other documents reasonably required in connection with such Approved Sale; and
(b) to the consummation extent that the Other Member has any appraisal or dissenters’ rights under applicable laws with respect to the Units held by such Other Member or any shares of any Capital Stock of the Managing Member held by such Other Member in connection with such Approved Sale, including without limitationeach Other Member shall waive, the execution of and shall not exercise or perfect, such agreements and such instruments and other actions reasonably necessary to (A) provide the representations, warranties, indemnities, covenants, conditions, non-compete agreements, escrow agreements and other provisions and agreements relating appraisal or dissenters’ rights with respect to such Approved Sale andSale. Notwithstanding the foregoing, (B) effectuate the allocation and distribution obligations of the aggregate consideration upon the Approved Sale, provided, that Other Members under this Section 8 shall not require Grantee 9.6 are subject to indemnify the purchaser in any following conditions: (i) the consideration payable upon consummation of such Approved Sale for breaches to all of the representations, warranties Members in respect of their Units shall be allocated among the Members in accordance with Section 10.2; (ii) the expenses incurred by the Managing Member or covenants of the Company or any other stockholder, except to the extent (x) Grantee is not required to incur more than its pro rata share of such indemnity obligation (based on the total consideration to be received by all stockholders that are similarly situated and hold the same class or series of capital stock) and (y) such indemnity obligation is provided additional escrow for and limited to a post-closing escrow expenses established by the Managing Member shall be borne by the Members in accordance with each Member’s Percentage Interest, and (iii) no Other Member participating in an Approved Sale shall be obligated to execute and deliver any document which would require such Other Member to (1) make any representations or holdback arrangement warranties about the Company (other than, for the avoidance of cash doubt, Permitted Representations with respect to such Other Member’s Units or stock paid shares of Capital Stock of the Managing Member, as applicable), or (2) assume any indemnification obligation or liability of any kind, other than (i) an obligation to indemnify for any breach of such Other Member’s representations, warranties and covenants and (ii) an obligation to indemnify on a several (and not joint) basis for the breach of any other representations, warranties and covenants relating to the Company (whether made by the Company or the Managing Member on behalf of the Company), which liability shall not in connection with any event exceed the Approved Salevalue of the consideration received by such Other Member in such sale (other than liability resulting from such Other Member’s fraud or intentional misconduct).
Appears in 3 contracts
Samples: Limited Liability Company Agreement, Limited Liability Company Agreement (ZAIS Group Holdings, Inc.), Investment Agreement (Hf2 Financial Management Inc.)
Approved Sale. If the Board of Directors approves or the Investors notify the Board that they desire to consummate a Sale of the Company (the “Board”) shall deliver a notice LLC to Grantee (a “Sale Event Notice”) stating that the Board has approved a sale of all one or a portion of the Company more Independent Third Parties (an “Approved Sale”), each Unitholder (and each Person that retains voting control of any Units Transferred to a Permitted Transferee) and specifying the name and address of the proposed parties to such transaction and the consideration payable in connection therewith, Grantee shall (iand shall cause any Manager(s) designated by it to) vote for (whether at a meeting of Unitholders or Managers or by written consent), consent to and raise no objections against the Approved Sale or the process pursuant to which the Approved Sale was arranged, (ii) waive any dissenter’s rights and other similar rightsagainst, and (iii) not otherwise impede or delay, and take such actions required or reasonably requested by the Board and/or the Investors to effectuate such Approved Sale. In furtherance of the foregoing, if the Approved Sale is structured as a (x) merger or consolidation, each Unitholder shall waive any dissenters rights, appraisal rights or similar rights in connection with such merger or consolidation or (y) sale of securitiesUnits, each Unitholder shall agree to sell Grantee’s Shares sell, and shall sell, all of his, her or its Units and rights to acquire Units on the terms and conditions of approved by the Approved Sale which terms and conditions shall treat all stockholders of Board and/or the Company equally (on a pro rata basis), except that shares having a liquidation preference may, if so provided in the documents governing such shares, receive an amount of consideration equal to such liquidation preference in addition to the consideration being paid to the holders of Shares not having a liquidation preferenceInvestors. Grantee Each Unitholder shall take all necessary and or desirable lawful actions as directed by the Board and the stockholders of the Company approving the Approved Sale in connection with the consummation of the Approved Sale as requested by the Board and/or the Investors (including executing and delivering any Approved Saleand all agreements, including without limitation, the execution of such agreements and such instruments and other actions reasonably necessary documents executed by the Investors on terms no less favorable to (A) provide such Unitholders than to the representationsInvestors, warrantiesincluding any applicable purchase agreement, indemnitiesstockholders agreement and/or indemnification and/or contribution agreement and, covenantsonly in the case of Unitholders and their Affiliates who are also employees of the LLC or any of its Subsidiaries, conditionsexecuting and delivering any requested reaffirmation of any then existing non-competition and non-solicitation agreements between the LLC or any of its Subsidiaries and any such employee), it being understood, for the avoidance of doubt, that no terms of the Approved Sale shall result in any non-competition, non-compete agreementssolicitation or similar restrictions on the operations of any Unitholder that is not also an employee of the LLC or any of its Subsidiaries. Notwithstanding anything in this Agreement to the contrary, escrow agreements and other provisions and agreements relating to such upon the request of the Investor, an Approved Sale andshall be structured to include the sale of equity securities of any corporation that is an Affiliate of such Investor, and directly or indirectly is the beneficial owner of any Units (B) effectuate the allocation and distribution of the aggregate consideration upon the Approved Salewith no other operations, provided, that this Section 8 shall not require Grantee to indemnify the purchaser in any Approved Sale for breaches of the representations, warranties assets or covenants of the Company or any liabilities other stockholder, except to the extent (x) Grantee is not required to incur more than its pro rata share of direct or indirect interest in such indemnity obligation (based on the total consideration to be received by all stockholders that are similarly situated and hold the same class or series of capital stock) and (y) such indemnity obligation is provided for and limited to a post-closing escrow or holdback arrangement of cash or stock paid in connection with the Approved SaleUnits).
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Emmis Communications Corp), Limited Liability Company Agreement (Emmis Communications Corp)
Approved Sale. If (a) Rackable and each Founder (and any other holder of Founder Shares) hereby agrees that if at any time the Board of Directors of the Company (the “Board”) shall deliver Purchaser approves a notice to Grantee (a “Sale Event Notice”) stating that the Board has approved a sale of all or a portion of the Company (an “Approved Sale”), Rackable and each Founder (and any other holder of Founder Shares) and specifying the name and address of the proposed parties to such transaction and the consideration payable in connection therewithwill vote for, Grantee shall (i) consent to to, and raise no objections against such Approved Sale, provided that Rackable and the Founders participating in such Approved Sale or will, upon the process pursuant consummation of such Approved Sale, be entitled to which receive the Approved Sale was arrangedsame type of consideration as to be received by the preferred stockholders of the Company and provided further that, (ii) waive any dissenter’s rights if there is more than one type of consideration, that each type of consideration be allocated proportionately among the preferred stockholders of the Company and other similar rights, the Founders based upon the total value of consideration to be received by the Preferred Stockholders and (iii) if the Founders in the transaction. If the Approved Sale is structured (x) as a merger or consolidation, each such holder of Founder Shares will waive any dissenters rights, appraisal rights or similar rights in conjunction with such merger or consolidation or (y) as a sale of securitiesequity, each such holder of Founder Shares will agree to sell Grantee’s up to all of such Founder Shares on the terms and conditions approved by the Company, and (z) as a sale of assets, each such holder of Founder Shares will vote in favor of any subsequent liquidation or other distribution of the Approved Sale which terms proceeds therefrom as approved by the Board. The Company, Rackable and conditions shall treat all stockholders each Founder (and any other holder of the Company equally (on a pro rata basis), except that shares having a liquidation preference may, if so provided in the documents governing such shares, receive an amount of consideration equal to such liquidation preference in addition to the consideration being paid to the holders of Shares not having a liquidation preference. Grantee shall Founder Shares) will take all necessary and or desirable lawful actions as directed by the Board and the stockholders of the Company approving the Approved Sale in connection with the consummation of any the Approved Sale as requested by the Board, including the execution of all agreements, documents and instruments in connection therewith in the form presented by the Company.
(b) Upon the consummation of the Approved Sale, including without limitation, the execution each holder of such agreements and such instruments and other actions reasonably necessary to (A) provide the representations, warranties, indemnities, covenants, conditions, non-compete agreements, escrow agreements and other provisions and agreements relating to Founder Shares participating in such Approved Sale and, (B) effectuate will receive the allocation and distribution same portion of the aggregate consideration upon available to be distributed to the Approved Sale, provided, that this Section 8 shall not require Grantee to indemnify the purchaser in any Approved Sale for breaches of the representations, warranties or covenants common stockholders of the Company or any other stockholder, except (in their capacity as such) that such holders participating in such sale (in their capacity as stockholders of the Company) would have received if such aggregate consideration had been distributed by the Company in complete liquidation pursuant to the extent rights and preferences set forth in the Company’s Certificate of Incorporation as in effect immediately before such Approved Sale (xa “Liquidation”) Grantee is not (and, in the event of a sale of stock, assuming that the only securities of the Company outstanding were those shares of capital stock involved in such sale), and assuming that the holders of convertible securities had converted their shares if by converting such holders would have received more proceeds upon a Liquidation (for the purposes of clarity, any holders of options or warrants shall only be entitled to receive proceeds in respect thereof if such options or warrants are exercised in connection with such Approved Sale).
(c) Each holder of Founder Shares will be obligated to join on a pro rata basis (applied such that after giving effect thereto, the aggregate consideration paid to each such holder would comply with the provisions of Section 5(b)) in any purchase price adjustments, indemnification or other obligations that the sellers of Founder Shares are required to incur more than its pro rata share of such indemnity obligation (based on the total consideration to be received by all stockholders that are similarly situated and hold the same class or series of capital stock) and (y) such indemnity obligation is provided for and limited to a post-closing escrow or holdback arrangement of cash or stock paid provide in connection with the Approved Sale (other than any such obligations that relate solely to a particular holder of Founder Shares, such as indemnification with respect to representations and warranties given by a holder regarding such holder’s title to and ownership of Founder Shares, in respect of which only such holder will be liable) (and, without limiting the foregoing, in the Company’s sole discretion, the proceeds with respect to an Approved Sale may be withheld from any holder pending the execution of such documents or posting of security as the Board deems necessary to cover any purchase price adjustments, indemnification or other such obligations of the Company or such holder).
(d) If the Company enters into a negotiation or transaction for which Rule 506 (or any similar rule then in effect) promulgated by the Securities and Exchange Commission may be available with respect to such negotiation or transaction (including a merger, consolidation or other reorganization), Rackable and the Founders (and any other holder of Founder Shares) will, at the request of the Board, appoint a stockholder representative (as such term is defined in Rule 501) reasonably acceptable to the Board. If any of holder of Founder Shares appoints a stockholder representative designated by the Board, the Company will pay the fees of such stockholder representative, but if any holder of Founder Shares declines to appoint the stockholder representative designated by the Board such holder will appoint another stockholder representative, and such holder will be responsible for the fees of the stockholder representative so appointed.
(e) Each holder of Founder Shares will bear their pro rata share (applied such that after giving effect thereto, the aggregate consideration paid to each such holder would comply with the provisions of Section 5(b)) of the costs of any sale of such Founder Shares pursuant to an Approved Sale to the extent such costs are incurred for the benefit of all holders of Founder Shares participating in such Approved Sale and are not otherwise paid by the Company or the acquiring party. Costs incurred by the Founders or Rackable (or any other holder of Founder Shares) on their own behalf will not be considered costs of the transaction hereunder; it being understood that the fees and disbursements of one counsel chosen by the Purchaser will be deemed for the benefit of all holders of Founder Shares participating in such Approved Sale.
(f) If any holder of Founder Shares fails to deliver any certificates representing its Founder Shares as required by this Section 5, such holder (i) will not be entitled to the consideration that such holder would otherwise receive in the Approved Sale until such holder cures such failure by providing the Company with reasonably satisfactory evidence (an affidavit of the registered holder shall be satisfactory) of the ownership and the loss, theft, destruction or mutilation of any certificate evidencing his or its Founder Shares, and indemnify in respect thereto which is reasonably satisfactory to the Company (provided that, after curing such failure, such holder will be so entitled to such consideration without interest), (ii) will be deemed, for all purposes, no longer to be a stockholder of the Company and will have no voting rights, (iii) will not be entitled to any dividends or other distributions declared after the Approved Sale with respect to the Founder Shares held by such holder, (iv) will have no other rights or privileges granted to the Founders or Rackable (or any other holder of Founder Shares) under
Appears in 2 contracts
Samples: Founders Repurchase and Rights Agreement, Founders Repurchase and Rights Agreement (Rackable Systems, Inc.)
Approved Sale. If (i) Notwithstanding the Board of Directors of foregoing, in the Company (the “Board”) shall deliver a notice to Grantee (a “Sale Event Notice”) stating event that the Board has approved votes for and consents to a sale of all or a portion of the Company Sale Trigger Event (an “Approved Sale”) Holder (which term when used in this Section 8.2 shall include Holder’s successors, assigns and specifying transferees) shall vote for (to the name and address of the proposed parties to such transaction and the consideration payable in connection therewithextent Holder has voting rights), Grantee shall (i) consent to and raise no objections against the such Approved Sale or the process pursuant to which the Approved Sale was arranged, (ii) waive any dissenter’s rights and other similar rights, and (iii) if Sale. If the Approved Sale is structured (A) as a merger or consolidation, Holder shall waive any dissenters rights, appraisal rights or similar rights in connection with such merger or consolidation and agree to accept in exchange for the Warrant, the consideration the Holder would have received had the Warrant been exercised for shares of Common Stock prior to such merger or consolidation, or (B) as a sale of securities, Holder shall agree to sell Granteeall of Holder’s Warrants, Warrant Shares and other securities of Company held by Holder on the terms and conditions of the Approved Sale which terms and conditions shall treat all stockholders of the Company equally (on a pro rata basis), except that shares having a liquidation preference may, if so provided in the documents governing such shares, receive an amount of consideration equal to such liquidation preference in addition to the consideration being paid to the holders of Shares not having a liquidation preferenceSale. Grantee Holder shall take all necessary and or desirable lawful actions as directed by the Board and the stockholders of the Company approving the Approved Sale in connection with the consummation of any the Approved Sale, including without limitation, Sale as reasonably requested by the execution Board.
(ii) The obligations of such agreements and such instruments and other actions reasonably necessary Holder with respect to an Approved Sale are subject to the satisfaction of the following conditions: (A) provide upon the representations, warranties, indemnities, covenants, conditions, non-compete agreements, escrow agreements and other provisions and agreements relating to such Approved Sale and, (B) effectuate the allocation and distribution consummation of the aggregate consideration upon the Approved Sale, providedHolder shall, that this Section 8 shall not require Grantee to indemnify the purchaser without duplication, receive in any Approved Sale for breaches consideration of the representationsshares of Common Stock then held by Holder (including shares acquired by Holder upon exercise of its Warrants in connection with such Approved Sale), warranties the same per share consideration that is received by other holders of Common Stock in consideration of their shares of Common Stock that are sold in or covenants voted in favor of such Approved Sale, and (B) if the Company holders of Common Stock and/or Class B Preferred Stock (or any other stockholder, except equity securities exchangeable therefor) are given an option as to the extent (x) Grantee is not required to incur more than its pro rata share of such indemnity obligation (based on the total form and consideration to be received by all stockholders that are similarly situated and hold received, Holder shall be given the same class or series of capital stock) and (y) such indemnity obligation is provided for and limited to a post-closing escrow or holdback arrangement of cash or stock paid in connection with the Approved Saleoption.
Appears in 2 contracts
Samples: Warrant Agreement (Cbeyond Communications Inc), Stock Subscription Warrant (Cbeyond Communications Inc)
Approved Sale. If the Board or if the holders of Directors a majority of the Company (the “Board”) shall deliver Investor Shares then outstanding approve a notice to Grantee (a “Sale Event Notice”) stating that the Board has approved a sale of all or a portion of the Company (an “"Approved Sale”) and specifying "), the name and address holders of the proposed parties to such transaction and the consideration payable in connection therewith, Grantee Retained Shareholder Shares shall (i) consent to and raise no objections against the Approved Sale or the process pursuant to which the Approved Sale was arranged, (ii) waive any dissenter’s rights and other similar rightsSale, and (iii) if the Approved Sale is structured as (i) a merger or consolidation of the Company or a sale of securitiesall or substantially all of the Company's assets, each holder of Retained Shareholder Shares hereby waives any dissenters rights, appraisal rights or similar rights in connection with such merger, consolidation or asset sale, or (ii) a sale of the Company's Stock, the holders of Retained Shareholder Shares hereby agree to sell Grantee’s their Retained Shareholder Shares on the terms and conditions of approved by the Approved Sale which terms and conditions shall treat all stockholders of the Company equally (on a pro rata basis), except that shares having a liquidation preference may, if so provided in the documents governing such shares, receive an amount of consideration equal to such liquidation preference in addition to the consideration being paid to Board or the holders of a majority of the then outstanding Investor Shares, as the case may be. The holders of Retained Shareholder Shares not having a liquidation preference. Grantee shall take all necessary and desirable lawful actions as directed by the Board and the stockholders of the Company approving the Approved Sale in connection with the consummation of any the Approved Sale, including without limitationincluding, but not limited to, the execution of such agreements and such instruments and other actions reasonably necessary to (A) provide the representations, warranties, indemnities, covenants, conditions, non-compete agreements, escrow agreements and other provisions and agreements relating to such Approved Sale andSale. In the event that any holder of Retained Shareholder Shares fails for any reason to take any of the foregoing actions, (B) he, she or it hereby grants an irrevocable power of attorney to any Shareholder, Board member or the Company to take all actions and execute and deliver all documents deemed by such Persons necessary to effectuate the allocation and distribution terms of the aggregate consideration upon the Approved Sale, provided, that this Section 8 6. Any Retained Shareholder who shall not require Grantee to indemnify the purchaser in any Approved Sale for breaches of the representations, warranties or covenants of the Company or any other stockholder, except to the extent (x) Grantee is not required to incur more than its pro rata share of such indemnity obligation (based on the total consideration to be received by all stockholders that are similarly situated and hold the same class or series of capital stock) and (y) such indemnity obligation is provided for and limited to a post-closing escrow or holdback arrangement of cash or stock paid Transfer Retained Shareholder Shares in connection with an Approved Sale shall receive the same type of consideration in respect of his Retained Shareholder Shares and upon the same terms and conditions as all other Shareholders participating in such Approved Sale.
Appears in 2 contracts
Samples: Shareholders' Agreement (Greenfield Online Inc), Stock Purchase and Redemption Agreement (Greenfield Online Inc)
Approved Sale. (a) If the Board of Directors of Class A Unitholders and the Company Class B Holder, pursuant to Section 6.12(e), or the Class A Unitholders, pursuant to Section 6.9 (the “BoardApproving Unitholders”) shall deliver a notice to Grantee (a “Sale Event Notice”) stating that the Board has approved approve a sale of all or a portion substantially all of the Company Company’s assets determined on a consolidated basis or a sale of all of the Company’s outstanding Units to any prospective transferee or group of prospective transferees (whether by merger, exchange, contribution, recapitalization, consolidation, reorganization, combination or otherwise) (collectively an “Approved Sale”) and specifying ), the name and address of Company shall deliver written notice to the proposed parties to such transaction and the consideration payable Unitholders, setting forth in connection therewith, Grantee shall (i) consent to and raise no objections against the Approved Sale or the process pursuant to which the Approved Sale was arranged, (ii) waive any dissenter’s rights and other similar rights, and (iii) if the Approved Sale is structured as a sale of securities, agree to sell Grantee’s Shares on reasonable detail the terms and conditions of the Approved Sale (including, to the extent then determined, the consideration to be paid with respect to each class of Units eligible to participate in such Approved Sale). Each Unitholder will be deemed to have consented to and agrees to raise no objections against (and to confirm such consent in writing to) such Approved Sale. If the Approved Sale is structured as (i) a merger, consolidation or other transaction for which dissenter’s rights, appraisal rights or similar rights are available under applicable law, each Unitholder will waive any and all dissenter’s rights, appraisal rights or similar rights in connection with such transaction or (ii) a sale of Units (including by recapitalization, consolidation, reorganization, combination or otherwise), each Unitholder will agree to sell all of its Units and rights to acquire Units on the terms and conditions approved by the Approving Unitholders and to sign any definitive written sale agreement that is signed by the Approving Unitholders with respect to such sale, so long as such terms and conditions are not contrary to the provisions of this Section 12.9. Each Unitholder shall treat all stockholders of the Company equally (be obligated to join in writing on a pro rata basis), except that shares having a liquidation preference may, if so provided basis (based upon the consideration paid in the documents governing respect of such shares, receive an amount of consideration equal to Unitholder’s Units in such liquidation preference Approved Sale in addition relation to the aggregate consideration being paid to the holders in respect of Shares not having a liquidation preference. Grantee shall take all necessary and desirable lawful actions as directed by the Board and the stockholders of Units in such Approved Sale) in any indemnification, escrow, holdback or other obligations that the Company approving or the Approving Unitholders agrees to provide in connection with the Approved Sale (other than any such non-escrow obligations that relate solely to a particular Unitholder, such as indemnification with respect to representations and warranties given by a Unitholder regarding such Unitholder’s title to and ownership of Units, in respect of which only such Unitholder shall be liable). In addition, each such Unitholder shall agree in writing to the same individual covenants applicable to all Unitholders in their capacity as such (which, for the avoidance of doubt, shall not include any non-competition or non-solicitation covenants). Each such Unitholder will take all reasonably necessary actions in connection with the consummation of any Approved Sale, including without limitation, the execution of such agreements and such instruments and other actions reasonably necessary to (A) provide the representations, warranties, indemnities, covenants, conditions, non-compete agreements, escrow agreements and other provisions and agreements relating to such Approved Sale and, as reasonably requested by the Approving Unitholders.
(Bb) effectuate the allocation and distribution The obligations of the aggregate consideration Unitholders with respect to an Approved Sale are subject to the satisfaction of the following conditions: (i) upon the Approved Sale, provided, that this Section 8 shall not require Grantee to indemnify consummation of the purchaser in any Approved Sale for breaches of the representations, warranties or covenants of the Company or any other stockholder, except and subject to the extent (x) Grantee is not required to incur more than provisions of this Agreement, each Unitholder will receive its pro rata share of such indemnity obligation (based on the total aggregate consideration to be received by all stockholders that are similarly situated and hold other holders of Units in the same class or series form of capital stock) and consideration as any other holder of Units (y) which portion of consideration, subject to the provisions of this Agreement, shall reflect that as such indemnity obligation is provided for and limited to a post-closing escrow or holdback arrangement of cash or stock Unitholder would have received if the aggregate consideration paid in connection with closing such Approved Sale had been paid directly to the Company and then distributed by the Company in a complete liquidation (but without the Company paying any amounts in such liquidation with respect to any obligations that are being assumed by the buyer in connection with such Approved Sale)); (ii) if any holders of Units are given an option as to the form and amount of consideration to be received, each holder of Units will be given the same option; (iii) in no event shall a Unitholder be liable, in connection with any indemnification obligations relating to an Approved Sale, for an amount in excess of the consideration received or receivable by such Unitholder in connection with such Approved Sale, and (iv) no Unitholder shall be required to make any representations and warranties not made by all the other Unitholders in connection with an Approved Sale (except representations and warranties regarding (A) such Unitholder’s ownership of his or its Units to be Transferred free and clear of all liens, claims and encumbrances, other than those arising hereunder, (B) such Unitholder’s power and authority to effect such Approved Sale, (C) the valid, binding and enforceable nature of the agreements entered into by such Unitholder in order to effect such Approved Sale and (D) the absence of any legal or contractual impediments to the Approved Sale of such Unitholder’s Units).
(c) If the Company or the holders of the Company’s Equity Securities enter into any negotiation or transaction for which Rule 506 (or any similar rule then in effect) promulgated by the Securities and Exchange Commission may be available with respect to such negotiation or transaction (including a sale of assets, merger, consolidation or other reorganization), the Unitholders, at the request of the Company, will appoint a purchaser representative (as such term is defined in Rule 501 promulgated by the Securities and Exchange Commission) reasonably acceptable to the Board. If any such Unitholder appoints a purchaser representative designated by the Company, the Company will pay the fees of such purchaser representative, but if any such Unitholder declines to appoint the purchaser representative designated by the Company, such holder will appoint another purchaser representative, and such holder will be responsible for the fees of the purchaser representative so appointed.
(d) Each Unitholder shall bear the out-of-pocket costs of any sale of Units pursuant to an Approved Sale, to the extent such costs are incurred for the benefit of all such Unitholders and are not otherwise paid by the Company or the acquiring party, in the same proportion in which such Unitholders receive the net proceeds realized by the Company from such Approved Sale. Costs incurred by the Class B Unitholder on their own behalf will not be considered costs of the transaction hereunder.
(e) Subject to the other provisions of this Section 12.9, each Unitholder, whether in his or its capacity as an equity holder, officer or manager of the Company, or otherwise, shall take or cause to be taken all such actions as may be necessary or reasonably desirable in order to consummate an Approved Sale and any related transactions, including, without limitation, executing, acknowledging and delivering consents, assignments, waivers and other documents or instruments; furnishing information and copies of documents; filing applications, reports, returns, filings and other documents or instruments with governmental authorities; and otherwise reasonably cooperating with the Approving Unitholders and the prospective purchaser. In connection with an Approved Sale, each Unitholder hereby appoints the Approving Unitholders (i) as the Member representative to act on behalf of all of the Members and (ii) as its true and lawful proxy and attorney-in-fact, with full power of substitution, to transfer such Units (but solely in compliance with the terms of this Section 12.9) and to execute any purchase agreement or other documentation (but solely in compliance with the terms of this Section 12.9) required to consummate such Approved Sale. The powers granted herein shall be deemed to be coupled with an interest, shall be irrevocable and shall survive death, incompetency or dissolution of any such Member.
(f) The Approving Unitholders shall, in their sole discretion, decide whether or not to pursue, consummate, postpone or abandon any proposed Approved Sale and the terms and conditions thereof. No Approving Unitholder nor any Affiliate of any Approving Unitholder shall have any liability to any Member arising from, relating to or in connection with the pursuit, consummation, postponement, abandonment or terms and conditions of any proposed Approved Sale except to the extent such Approving Unitholder shall have failed to comply with the provisions of this Section 12.9.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Vertex Energy Inc.), Limited Liability Company Agreement (Vertex Energy Inc.)
Approved Sale. (a) If the Board of Directors of the Company one or more Class A Members beneficially owning Interests representing more than a 50% Class A Percentage Interest (the “BoardTriggering Group”) shall deliver a notice to Grantee (a “approves the Sale Event Notice”) stating that the Board has approved a sale of all or a portion of the Company (an “Approved Sale”) ), each Class A Member will consent to, cooperate with, and specifying the name and address will not object or otherwise impede consummation of the proposed parties Approved Sale; provided, that no Sale of the Company shall occur unless the Class B Member retains its rights to such transaction the Class B Distributions as described in Section 5.2 upon terms and conditions reasonably acceptable to the consideration payable in connection therewith, Grantee Class B Member. The Class B Member shall have no right to vote on a Sale of the Company.
(ib) consent to and raise no objections against the Approved Sale or the process pursuant to which the Approved Sale was arranged, (ii) waive any dissenter’s rights and other similar rights, and (iii) if If the Approved Sale is structured as (i) a merger or consolidation, each Class A Member shall vote its Interests to approve such merger or consolidation, whether by written consent or at a Members meeting (as requested by the Triggering Group), (ii) a sale of securitiesInterests, each Class A Member shall agree to sell Grantee’s Shares sell, and shall sell, that portion of its Interests and rights to acquire Interests on the terms and conditions so approved; provided, that the Triggering Group shall have no right to cause IMS Nevada to sell any portion of the IMS’ Carried Interest as part of an Approved Sale which terms unless such Approved Sale contemplates the sale of all of the Interests in the Company, or (iii) a sale of assets, each Class A Member shall vote its Interests to approve such sale and conditions shall treat all stockholders any subsequent liquidation of the Company equally or other distribution of the proceeds therefrom, whether by written consent or at a members meeting (on a pro rata basisas requested by the Triggering Group). In furtherance of the foregoing, except that shares having a liquidation preference mayeach Class A Member shall (I) waive all dissenter’s rights, if so provided appraisal rights and similar rights in the documents governing connection with such sharesApproved Sale, receive an amount of consideration equal and (II) take, with respect to such liquidation preference in addition to the consideration being paid to the holders of Shares not having a liquidation preference. Grantee shall take Person’s Interests, all necessary and or desirable lawful actions as directed reasonably requested by the Board and the stockholders of the Company approving the Approved Sale Triggering Group in connection with the consummation of the Approved Sale, including voting to approve such transaction and executing the applicable purchase agreement. In any Approved Sale, including without limitationeach holder of Class A Interests shall be obligated to make representations and warranties as to such Class A Member’s title to and ownership of Class A Interests, the authorization, execution and delivery of relevant documents and instruments by such Class A Member, enforceability of relevant agreements against such Class A Member and other matters, to enter into covenants in respect of a Transfer of such agreements and such instruments and other actions reasonably necessary to (A) provide the representations, warranties, indemnities, covenants, conditions, non-compete agreements, escrow agreements and other provisions and agreements relating to Class A Member’s Interests in connection with such Approved Sale andand to enter into indemnification obligations, (B) effectuate in each case to the allocation extent that the Triggering Group is similarly obligated. Notwithstanding the foregoing, no Class A Member shall be obligated to make any representation or warranties concerning the Company or its business, and distribution any indemnification shall be limited to the amount of cash consideration plus any set-off or reduction in the aggregate consideration upon the value of any promissory note or deferred compensation received by such Member. Upon consummation of an Approved Sale, if a Class A Member has not delivered any documents and instruments as contemplated by this Section 9.8, such Member shall no longer be considered a holder of an Interest in the Company to the extent of the Approved Sale and such Member’s sole rights with respect to such Interest shall be to receive the consideration receivable in connection with such Approved Sale upon delivery of the appropriate documents and instruments.
(i) In the case of an Approved Sale consisting of a sale of all of the Interests held by all Class A Members in the Company or a sale of all or substantially all of the Company’s assets, the portion of the net proceeds (whether cash or property) from such Approved Sale payable to each Class A Member shall be the portion of such net proceeds that would be distributed to such Member had the aggregate amount (in the case of cash net proceeds) or Value (in the case of non-cash net proceeds) of such net proceeds been distributed to the Class A Members pursuant to Section 5.1.
(ii) In the case of an Approved Sale consisting of a sale of less than all of the Interests held by the Class A Members in the Company, the portion of the net proceeds (whether cash or property) from such Approved Sale shall be payable to each Class A Capital Member pro rata in proportion to the Interests so transferred by all Class A Capital Members.
(d) If the Company enters into any negotiation or transaction for which Rule 506 of the Securities Act (or any similar rule then in effect) may be available with respect to such negotiation or transaction (including a merger, consolidation or other reorganization), each Member that is not an “accredited investor” shall, at the request of the Company or the Triggering Group, appoint a purchaser representative (as such term is defined in Rule 501 of the Securities Act) reasonably acceptable to the Company. If any Member appoints a purchaser representative designated by the Company, the Company shall pay the fees of such purchaser representative, but if any Member declines to appoint the purchaser representative designated by the Company such Member shall appoint another purchaser representative, and such Member will be responsible for the fees of the purchaser representative so appointed.
(e) The Company shall bear the costs of any sale of Interests pursuant to an Approved Sale to the extent such costs are incurred for the benefit of all Members and are not otherwise paid by the Company the acquiring party. For purposes of this Section 9.8(e), costs incurred in exercising reasonable efforts to take all necessary actions in connection with the consummation of an Approved Sale in accordance with Section 9.8(a) shall be deemed to be for the benefit of all Members, except that costs incurred by any Member in connection with the Transfer of its own Interest or otherwise on its own behalf will not be considered costs of the transaction hereunder and will be the responsibility of such Member.
(f) In furtherance of the provisions of this Section 9.8, each Class A Member (and their successors, heirs, legal representatives, and permitted assigns and transferees) hereby (i) irrevocably appoints the Manager as such Member’s agent and attorney-in-fact (the “Drag-Along Agent”) (with full power of substitution) to execute all agreements (including any amendments to this Agreement), instruments and certificates and take all actions necessary or desirable to effectuate any Approved Sale as contemplated under this Section 9.8, and (ii) grants to each Drag-Along Agent a proxy (which shall be deemed to be coupled with an interest and to be irrevocable) to vote the Interests having voting power held by such Person and exercise any consent rights applicable thereto in favor of any such Approved Sale as provided in this Section 9.8; provided, however, that the Drag-Along Agent shall not exercise such powers-of-attorney or proxies with respect to any such Person unless such Person refuses or fails to timely comply with its obligations under this Section 8 shall not require Grantee 9.8. THE AGREEMENTS CONTAINED IN THIS SECTION 9.8(f) ARE COUPLED WITH AN INTEREST AND EXCEPT AS PROVIDED IN THIS AGREEMENT MAY NOT BE REVOKED OR TERMINATED DURING THE TERM OF THIS AGREEMENT.
(g) Notwithstanding anything to indemnify the contrary herein, any Member may participate as a potential purchaser or bidder in any Approved Sale for breaches of the representations, warranties or covenants of the Company or any other stockholder, except to the extent (x) Grantee is not required to incur more than its pro rata share of such indemnity obligation (based on the total consideration to be received by all stockholders that are similarly situated same terms and hold the same class or series of capital stock) conditions as other potential purchasers and (y) such indemnity obligation is provided for and limited to a post-closing escrow or holdback arrangement of cash or stock paid in connection with the Approved Salebidders.
Appears in 2 contracts
Samples: Equity Funding Agreement, Equity Funding Agreement (Fulcrum Bioenergy Inc)
Approved Sale. If (a) In the Board event of Directors of the Company (the “Board”) shall deliver a notice to Grantee (a “Sale Event Notice”) stating that the Board has approved a sale of all or a portion of the Company (an “Approved Sale”) and specifying the name and address of the proposed parties to such transaction and the consideration payable in connection therewith, Grantee shall each Unit Investor will (i) consent to and raise no objections against the Approved Sale or the process pursuant to which the Approved Sale was arrangedSale, (ii) waive any dissenter’s 's rights and other similar rights, and (iii) if the Approved Sale is structured as a sale of securitiesstock, each Unit Investor will agree to sell Grantee’s its Securityholder Shares on the terms and conditions of the Approved Sale which terms and conditions shall treat all stockholders of the Company equally (on a pro rata basis), except that shares having a liquidation preference may, if so provided in the documents governing such shares, receive an amount of consideration equal to such liquidation preference in addition to the consideration being paid to the holders of Shares not having a liquidation preferenceSale. Grantee shall Each Unit Investor will take all reasonably necessary and desirable lawful actions as directed by the Board and the stockholders of the Company approving the Approved Sale in connection with the consummation of any Approved Sale, including including, without limitation, executing the execution of such agreements and such instruments and other actions reasonably necessary to (A) provide the representations, warranties, indemnities, covenants, conditions, non-compete applicable purchase agreements, escrow agreements and other provisions and agreements relating to such Approved Sale and, (B) effectuate the allocation and distribution of the aggregate consideration upon the Approved Sale, ; provided, that this Section 8 each Unit Investor shall not require Grantee only be required to indemnify the purchaser in any Approved Sale for breaches of the make customary and reasonable representations, warranties or covenants and indemnities regarding such Unit Investor's title to and ownership of its Securityholder Shares. The obligations of the Unit Investors with respect to an Approved Sale shall be subject to the receipt by the Company from a nationally recognized investment bank of a written fairness opinion that the consideration received by the Securityholders is fair and adequate.
(b) If the Company or the holders of the Company's securities enter into any negotiation or transaction for which Rule 506 (or any similar rule then in effect) under the Securities Act may be available with respect to such negotiation or transaction (including a merger, consolidation or other stockholderreorganization), except each Unit Investor will, at the request of the Company, appoint a purchaser representative (as such term is defined in Rule 501) reasonably acceptable to the Company. If any Unit Investor appoints a purchaser representative designated by the Company, the Company will pay the fees of such purchaser representative, but if any Unit Investor declines to appoint the purchaser representative designated by the Company such holder will appoint another purchaser representative (reasonably acceptable to the Company), and such holder will be responsible for the fees of the purchaser representative so appointed.
(c) All Unit Investors will bear their pro rata share (based upon the number of shares sold) of the reasonable costs of any sale of Securityholder Shares pursuant to an Approved Sale to the extent (x) Grantee is such costs are incurred for the benefit of all selling Securityholders and are not required to incur more than otherwise paid by the Company or the acquiring party. Costs incurred by any Securityholder on its pro rata share own behalf will not be considered costs of such indemnity obligation (based on the total consideration to be received by all stockholders that are similarly situated and hold the same class or series of capital stock) and (y) such indemnity obligation is provided for and limited to a post-closing escrow or holdback arrangement of cash or stock paid in connection with the Approved Saletransaction hereunder.
Appears in 2 contracts
Samples: Registration Rights and Securityholders Agreement (Cottontops Inc), Registration Rights and Securityholders Agreement (Anvil Holdings Inc)
Approved Sale. If From and after the Board Drag Along Trigger Date, AF may cause a sale of Directors the business, in one or a series of related transactions, by way of selling 100% of the outstanding equity securities of the Company (the “Board”whether by amalgamation, merger, consolidation, recapitalization, sale or Units or otherwise) shall deliver a notice to Grantee (a “Sale Event Notice”) stating that the Board has approved a sale of or all or a portion substantially all of the Company Company’s assets to one or more third parties, including third parties not yet identified by AF, who are not Affiliates of AF (an “Approved Sale”). AF may elect to cause an Approved Sale by sending written notice (a “Sale Notice”) and specifying thereof to the name and address of the proposed parties to such transaction Manager and the consideration payable in connection therewith, Grantee other Members. The Manager and NutraCea shall (i) consent to and raise no objections against the Approved Sale or the process pursuant to which the Approved Sale was arranged, (ii) waive any dissenter’s rights and other similar rights, and (iii) if the Approved Sale is structured as a sale of securities, agree to sell Grantee’s Shares on the terms and conditions of the Approved Sale which terms and conditions shall treat all stockholders of cause the Company equally (on a pro rata basis), except that shares having a liquidation preference may, if so provided in the documents governing such shares, receive an amount of consideration equal to such liquidation preference in addition to the consideration being paid to the holders of Shares not having a liquidation preference. Grantee shall and its Subsidiaries to) promptly take all necessary and desirable lawful actions as are reasonably directed by the Board and the stockholders of the Company approving the Approved Sale AF in connection with the consummation of any Approved Sale, including without limitation, (i) cooperating with the execution of such agreements and such instruments and other actions reasonably necessary to (A) provide proposed advisor that will lead the representations, warranties, indemnities, covenants, conditions, non-compete agreements, escrow agreements and other provisions and agreements relating to such Approved Sale and, (B) effectuate the allocation and distribution of the aggregate consideration upon the Approved Sale, provided, that this Section 8 shall not require Grantee to indemnify the purchaser in any Approved Sale for breaches of the representations, warranties or covenants sale process of the Company or its assets and cooperating with the proposed buyer(s) (each, a “Proposed Buyer”) and AF in the evaluation of an Approved Sale, (ii) hiring legal counsel selected by AF to act on behalf of the Company and the Members in connection with such Approved Sale, (iii) facilitating each Proposed Buyer’s due diligence process in respect of any such Approved Sale, (iv) executing sale contracts and other stockholdercustomary documents approved by AF, except (v) making required governmental filings, (vi) obtaining any audit required by a Proposed Buyer’s financing sources, and (vii) in the case of NutraCea, causing the Manager and the NutraCea Designees to take all necessary or reasonably desirable actions to effect such Approved Sale. The Company shall bear all costs and expenses of any actual or proposed Approved Sale to the extent such costs or expenses are incurred by the Company or on behalf of the Members generally (x) Grantee is including, but not required limited to, the advisors and legal counsel which provide services to incur more than its pro rata share of such indemnity obligation (based on the total consideration Company with respect to be received by all stockholders that are similarly situated and hold the same class or series of capital stock) and (y) such indemnity obligation is provided for and limited to a post-closing escrow or holdback arrangement of cash or stock paid in connection with the Approved Sale); provided, that the Company shall not bear the costs of additional advisors or legal counsel which provide services that only benefit a specific Member or Members.
Appears in 2 contracts
Samples: Membership Interest Purchase Agreement (Nutracea), Limited Liability Company Agreement (Nutracea)
Approved Sale. If the Board of Directors of the Company (the “Board”) shall deliver a notice to Grantee Optionee (a “Sale Event Notice”) stating that the Board has approved a sale of all or a portion of the Company (an “Approved Sale”) and specifying the name and address of the proposed parties to such transaction and the consideration payable in connection therewith, Grantee Optionee shall (i) consent to and raise no objections against the Approved Sale or the process pursuant to which the Approved Sale was arranged, (ii) waive any dissenter’s rights and other similar rights, and (iii) if the Approved Sale is structured as a sale of securities, agree to sell GranteeOptionee’s Shares on the terms and conditions of the Approved Sale which terms and conditions shall treat all stockholders of the Company equally (on a pro rata basis), except that shares having a liquidation preference may, if so provided in the documents governing such shares, may receive an amount of consideration equal to such liquidation preference in addition to the consideration being paid to the holders of Shares shares not having a liquidation preference. Grantee Notwithstanding the foregoing, the sale of the Shares in an Approved Sale shall be further subject to the terms of the Plan. Optionee will take all necessary and desirable lawful actions as directed by the Board and the stockholders of the Company approving the Approved Sale in connection with the consummation of any Approved Sale, including without limitation, the execution of such agreements and such instruments and other actions reasonably necessary to (A) provide the representations, warranties, indemnities, covenants, conditions, non-compete agreements, escrow agreements and other provisions and agreements relating to such Approved Sale and, (B) effectuate the allocation and distribution of the aggregate consideration upon the Approved Sale, provided, that this Section 8 5 shall not require Grantee Optionee to indemnify the purchaser in any Approved Sale for breaches of the representations, warranties or covenants of the Company or any other stockholder, except to the extent (x) Grantee Optionee is not required to incur more than its pro rata share of such indemnity obligation (based on the total consideration to be received by all stockholders that are similarly situated and hold the same class or series of capital stock) and (y) such indemnity obligation is provided for and limited to a post-closing escrow or holdback arrangement of cash or stock paid in connection with the Approved Sale.
Appears in 2 contracts
Samples: Incentive Stock Option Agreement (Black Ridge Oil & Gas, Inc.), Non Qualified Stock Option Agreement (Black Ridge Oil & Gas, Inc.)
Approved Sale. If the Board of Directors of the Company (the “"Board”") shall deliver a notice to Grantee (a “Sale Event Notice”"SALE EVENT NOTICE") stating that the Board has approved a sale of all or a portion of the Company (an “Approved Sale”"APPROVED SALE") and specifying the name and address of the proposed parties to such transaction and the consideration payable in connection therewith, Grantee shall (i) consent to and raise no objections against the Approved Sale or the process pursuant to which the Approved Sale was arranged, (ii) waive any dissenter’s 's rights and other similar rights, and (iii) if the Approved Sale is structured as a sale of securities, agree to sell Grantee’s 's Shares on the terms and conditions of the Approved Sale which terms and conditions shall treat all stockholders of the Company equally (on a pro rata basis), except that shares having a liquidation preference may, if so provided in the documents governing such shares, receive an amount of consideration equal to such liquidation preference in addition to the consideration being paid to the holders of Shares not having a liquidation preference. Grantee shall take all necessary and desirable lawful actions as directed by the Board and the stockholders of the Company approving the Approved Sale in connection with the consummation of any Approved Sale, including without limitation, the execution of such agreements and such instruments and other actions reasonably necessary to (A) provide the representations, warranties, indemnities, covenants, conditions, non-compete agreements, escrow agreements and other provisions and agreements relating to such Approved Sale and, (B) effectuate the allocation and distribution of the aggregate consideration upon the Approved Sale, providedPROVIDED, that this Section 8 shall not require Grantee to indemnify the purchaser in any Approved Sale for breaches of the representations, warranties or covenants of the Company or any other stockholder, except to the extent (x) Grantee is not required to incur more than its pro rata share of such indemnity obligation (based on the total consideration to be received by all stockholders that are similarly situated and hold the same class or series of capital stock) and (y) such indemnity obligation is provided for and limited to a post-closing escrow or holdback arrangement of cash or stock paid in connection with the Approved Sale.
Appears in 2 contracts
Samples: Restricted Stock Grant Agreement (Solar3d, Inc.), Restricted Stock Grant Agreement (Solar3d, Inc.)
Approved Sale. If the Board of Directors of the Company (the “Board”) shall deliver a notice to Grantee Purchaser (a “Sale Event Notice”) stating that the Board has approved a sale of all or a portion of the Company (an “Approved Sale”) and specifying the name and address of the proposed parties to such transaction and the consideration payable in connection therewith, Grantee Purchaser shall (i) consent to and raise no objections against the Approved Sale or the process pursuant to which the Approved Sale was arranged, (ii) waive any dissenter’s rights and other similar rights, and (iii) if the Approved Sale is structured as a sale of securities, agree to sell GranteePurchaser’s Shares on the terms and conditions of the Approved Sale which terms and conditions shall treat all stockholders of the Company equally (on a pro rata basis), except that shares having a liquidation preference may, if so provided in the documents governing such shares, may receive an amount of consideration equal to such liquidation preference in addition to the consideration being paid to the holders of Shares shares not having a liquidation preference. Grantee Notwithstanding the foregoing, the sale of the Shares in an Approved Sale, including without limitation any Unvested Shares, shall be further subject to the terms of the Plan, including without limitation Section 14 of the Plan. Purchaser will take all necessary and desirable lawful actions as directed by the Board and the stockholders of the Company approving the Approved Sale in connection with the consummation of any Approved Sale, including without limitation, the execution of such agreements and such instruments and other actions reasonably necessary to (A) provide the representations, warranties, indemnities, covenants, conditions, non-compete agreements, escrow agreements and other provisions and agreements relating to such Approved Sale and, (B) effectuate the allocation and distribution of the aggregate consideration upon the Approved Sale, provided, that this Section 8 5 shall not require Grantee Purchaser to indemnify the purchaser in any Approved Sale for breaches of the representations, warranties or covenants of the Company or any other stockholder, except to the extent (x) Grantee Purchaser is not required to incur more than its pro rata share of such indemnity obligation (based on the total consideration to be received by all stockholders that are similarly situated and hold the same class or series of capital stock) and (y) such indemnity obligation is provided for and limited to a post-closing escrow or holdback arrangement of cash or stock paid in connection with the Approved Sale.
Appears in 2 contracts
Samples: Restricted Stock Purchase Agreement (Demand Media Inc.), Restricted Stock Purchase Agreement (Demand Media Inc.)
Approved Sale. If at any time Holding's Board of Directors approves the sale of Holding or its business, whether by merger, consolidation, sale of all or substantially all of the assets or capital stock of Holding and/or one or more of its Subsidiaries, or otherwise, and (x) if after the second anniversary of the date hereof, such approval was permitted pursuant to Section 2.2(a), and (y) if prior to the second anniversary of the date hereof, each of the Majority AGI Holders, the Majority Heritage Holders and the Majority Klearfold Holders have consented to such sale pursuant to and in accordance with such Section 3.2 (any such proposed sale, or any sale to one or more AGI Prospective Purchasers pursuant to and in accordance with Section 2.2(a), an "Approved Sale"), then: -------- ----
(i) Holding and each of the Stockholders shall cooperate fully in any Approved Sale and shall not take any action that is prejudicial to or inconsistent with such Approved Sale.
(ii) Each Stockholder (A) shall vote or cause to be voted all Securities having voting rights that are owned by such Stockholder or over which such Stockholder has voting control to approve the terms of any such Approved Sale and such matters ancillary thereto as may be necessary or appropriate, in the judgment of the Board of Directors of the Company (the “Board”) shall deliver a notice Holding, to Grantee (a “Sale Event Notice”) stating that the Board has approved a sale of all or a portion of the Company (an “effect such Approved Sale”, (B) hereby irrevocably waives and specifying relinquishes, to the name fullest extent permitted by applicable law, all rights to object to or dissent from such Approved Sale (including without limitation any appraisal or similar rights), and address of the proposed parties agrees to such transaction and the consideration payable in connection therewith, Grantee shall (i) consent to and raise no objections against the against, such Approved Sale, (C) with respect to any Approved Sale or the process pursuant to which the Approved Sale was arranged, (ii) waive any dissenter’s rights and other similar rights, and (iii) if the Approved Sale is structured as a sale of securitiesstock, agree to shall sell Grantee’s Shares all of such Stockholder's Securities on the terms and conditions of the Approved Sale which terms and conditions shall treat all stockholders of the Company equally (on a pro rata basis), except that shares having a liquidation preference may, if so provided in the documents governing such shares, receive an amount of consideration equal to such liquidation preference in addition to the consideration being paid to the holders of Shares not having a liquidation preference. Grantee shall take all necessary and desirable lawful actions as directed approved by the Board of Directors of Holding, and (D) upon Holding's request, shall deliver the stockholders certificates representing all Securities owned or controlled by such Stockholder (duly endorsed, or accompanied by duly executed instruments of transfer) in escrow (pending receipt of the Company approving the purchase price therefor) to Holding's counsel in such sale.
(iii) Holding shall cause its officers, employees, agents, contractors, and other Persons under its control to cooperate in any Approved Sale in connection with and not to take any action that might impede any such sale. Without limiting the consummation generality of the foregoing, any resignation of any office of Holding prior to closing of any Approved Sale by a director or executive officer of Holding shall be a breach of this Section 2.2(c)(iii). Pending the completion of any Approved Sale, including without limitation, Holding shall operate only in the execution of such agreements ordinary course and such instruments and other actions reasonably necessary shall use all commercially reasonable efforts to (A) provide the representations, warranties, indemnities, covenants, conditions, non-compete agreements, escrow agreements and other provisions and agreements relating to such Approved Sale and, (B) effectuate the allocation and distribution of the aggregate consideration upon the Approved Sale, provided, that this Section 8 shall not require Grantee to indemnify the purchaser maintain all existing business relationships in any Approved Sale for breaches of the representations, warranties or covenants of the Company or any other stockholder, except to the extent (x) Grantee is not required to incur more than its pro rata share of such indemnity obligation (based on the total consideration to be received by all stockholders that are similarly situated and hold the same class or series of capital stock) and (y) such indemnity obligation is provided for and limited to a post-closing escrow or holdback arrangement of cash or stock paid in connection with the Approved Salegood standing.
Appears in 1 contract
Approved Sale. If the Board of Directors and MDP approve a Sale of the Company (the “Board”) shall deliver a notice to Grantee (a “Sale Event Notice”) stating that the Board has approved a sale of all or a portion of the Company (an “Approved Sale”) and specifying the name and address ), all holders of the proposed parties to such transaction and the consideration payable in connection therewithRestricted Securities shall consent to, Grantee shall (i) consent to vote for and raise no objections against the Approved Sale or the process pursuant to which the Approved Sale was arranged, (ii) waive any dissenter’s rights and other similar rightsSale, and (iii) if the Approved Sale is structured as a sale of securitiesstock, the holders of Restricted Securities shall agree to sell Grantee’s Shares their Restricted Securities on the terms and conditions of approved by the Approved Sale which terms Board and conditions shall treat all stockholders of the Company equally (on a pro rata basis), except that shares having a liquidation preference may, if so provided in the documents governing such shares, receive an amount of consideration equal to such liquidation preference in addition to the consideration being paid to the MDP. The holders of Shares not having a liquidation preference. Grantee Restricted Securities shall take all necessary and desirable lawful actions as directed by the Board and the stockholders of the Company approving the Approved Sale in connection with the consummation of any the Approved Sale and shall not impair or delay the Approved Sale. In furtherance of the foregoing, including without limitation, if the execution of such agreements and such instruments and other actions reasonably necessary to Approved Sale is structured as (A) provide the representationsa merger or consolidation, warrantieseach holder of Restricted Securities shall vote its Restricted Securities to approve such merger or consolidation, indemnitieswhether by written consent or at a stockholders meeting (as requested by MDP), covenantsand waive all dissenter’s rights, conditions, non-compete agreements, escrow agreements appraisal rights and other provisions and agreements relating to similar rights in connection with such Approved Sale andmerger or consolidation, (B) effectuate a sale of stock, each holder of Restricted Securities shall agree to sell, and shall sell, all of its Restricted Securities and rights to acquire Restricted Securities on the allocation terms and distribution conditions so approved, or (C) a sale of the aggregate consideration upon the Approved Saleassets, provided, that this Section 8 each holder of Restricted Securities shall not require Grantee vote its Restricted Securities to indemnify the purchaser in approve such sale and any Approved Sale for breaches of the representations, warranties or covenants subsequent liquidation of the Company or any other stockholderdistribution of the proceeds therefrom, except to the extent whether by written consent or at a stockholders meeting (x) Grantee is not required to incur more than its pro rata share of such indemnity obligation (based on the total consideration to be received as requested by MDP), and waive all stockholders that are similarly situated dissenter’s rights, appraisal rights and hold the same class or series of capital stock) and (y) such indemnity obligation is provided for and limited to a post-closing escrow or holdback arrangement of cash or stock paid similar rights in connection with the Approved Salesuch sale of assets.
Appears in 1 contract
Samples: Subscription Agreement (Great Lakes Dredge & Dock Corp)
Approved Sale. (a) If the Board of Directors of Class A Unitholders and the Company Class B Holder, pursuant to Section 6.12(e), or the Class B Unitholders, pursuant to Section 6.9 (the “BoardApproving Unitholders”) shall deliver a notice to Grantee (a “Sale Event Notice”) stating that the Board has approved approve a sale of all or a portion substantially all of the Company Company’s assets determined on a consolidated basis or a sale of all of the Company’s outstanding Units to any prospective transferee or group of prospective transferees (whether by merger, exchange, contribution, recapitalization, consolidation, reorganization, combination or otherwise) (collectively an “Approved Sale”) and specifying ), the name and address of Company shall deliver written notice to the proposed parties to such transaction and the consideration payable Unitholders, setting forth in connection therewith, Grantee shall (i) consent to and raise no objections against the Approved Sale or the process pursuant to which the Approved Sale was arranged, (ii) waive any dissenter’s rights and other similar rights, and (iii) if the Approved Sale is structured as a sale of securities, agree to sell Grantee’s Shares on reasonable detail the terms and conditions of the Approved Sale (including, to the extent then determined, the consideration to be paid with respect to each class of Units eligible to participate in such Approved Sale). Each Unitholder will be deemed to have consented to and agrees to raise no objections against (and to confirm such consent in writing to) such Approved Sale. If the Approved Sale is structured as (i) a merger, consolidation or other transaction for which dissenter’s rights, appraisal rights or similar rights are available under applicable law, each Unitholder will waive any and all dissenter’s rights, appraisal rights or similar rights in connection with such transaction or (ii) a sale of Units (including by recapitalization, consolidation, reorganization, combination or otherwise), each Unitholder will agree to sell all of its Units and rights to acquire Units on the terms and conditions approved by the Approving Unitholders and to sign any definitive written sale agreement that is signed by the Approving Unitholders with respect to such sale, so long as such terms and conditions are not contrary to the provisions of this Section 12.9. Each Unitholder shall treat be obligated to join in writing on a pro-rata basis (based upon the consideration paid in respect of such Unitholder’s Units in such Approved Sale in relation to the aggregate consideration paid in respect of all stockholders of Units in such Approved Sale) in any indemnification, escrow, holdback or other obligations that the Company equally (on a pro rata basis), except that shares having a liquidation preference may, if so provided or the Approving Unitholders agrees to provide in the documents governing such shares, receive an amount of consideration equal to such liquidation preference in addition to the consideration being paid to the holders of Shares not having a liquidation preference. Grantee shall take all necessary and desirable lawful actions as directed by the Board and the stockholders of the Company approving connection with the Approved Sale (other than any such non-escrow obligations that relate solely to a particular Unitholder, such as indemnification with respect to representations and warranties given by a Unitholder regarding such Unitholder’s title to and ownership of Units, in respect of which only such Unitholder shall be liable). In addition, each such Unitholder shall agree in writing to the same individual covenants applicable to all Unitholders in their capacity as such (which, for the avoidance of doubt, shall not include any non-competition or non-solicitation covenants). Each such Unitholder will take all reasonably necessary actions in connection with the consummation of the Approved Sale as reasonably requested by the Approving Unitholders.
(b) The obligations of the Unitholders with respect to an Approved Sale are subject to the satisfaction of the following conditions: (i) upon the consummation of the Approved Sale and subject to the provisions of this Agreement, each Unitholder will receive its pro-rata share of the aggregate consideration received by other holders of Units in the same form of consideration as any other holder of Units (which portion of consideration, subject to the provisions of this Agreement, shall reflect that as such Unitholder would have received if the aggregate consideration paid in connection with closing such Approved Sale had been paid directly to the Company and then distributed by the Company in a complete liquidation (but without the Company paying any amounts in such liquidation with respect to any obligations that are being assumed by the buyer in connection with such Approved Sale)); (ii) if any holders of Units are given an option as to the form and amount of consideration to be received, each holder of Units will be given the same option; (iii) in no event shall a Unitholder be liable, in connection with any indemnification obligations relating to an Approved Sale, including without limitationfor an amount in excess of the consideration received or receivable by such Unitholder in connection with such Approved Sale, and (iv) no Unitholder shall be required to make any representations and warranties not made by all the execution of such agreements other Unitholders in connection with an Approved Sale (except representations and such instruments and other actions reasonably necessary to warranties regarding (A) provide the representationssuch Unitholder’s ownership of his or its Units to be Transferred free and clear of all liens, warrantiesclaims and encumbrances, indemnities, covenants, conditions, non-compete agreements, escrow agreements and other provisions and agreements relating to such Approved Sale andthan those arising hereunder, (B) effectuate the allocation such Unitholder’s power and distribution of the aggregate consideration upon the authority to effect such Approved Sale, provided(C) the valid, that this Section 8 shall not require Grantee binding and enforceable nature of the agreements entered into by such Unitholder in order to indemnify the purchaser in any effect such Approved Sale for breaches and (D) the absence of any legal or contractual impediments to the representations, warranties or covenants Approved Sale of such Unitholder’s Units).
(c) If the Company or the holders of the Company’s Equity Securities enter into any negotiation or transaction for which Rule 506 (or any similar rule then in effect) promulgated by the Securities and Exchange Commission may be available with respect to such negotiation or transaction (including a sale of assets, merger, consolidation or other stockholderreorganization), the Unitholders, at the request of the Company, will appoint a purchaser representative (as such term is defined in Rule 501 promulgated by the Securities and Exchange Commission) reasonably acceptable to the Board. If any such Unitholder appoints a purchaser representative designated by the Company, the Company will pay the fees of such purchaser representative, but if any such Unitholder declines to appoint the purchaser representative designated by the Company, such holder will appoint another purchaser representative, and such holder will be responsible for the fees of the purchaser representative so appointed.
(d) Each Unitholder shall bear the out-of-pocket costs of any sale of Units pursuant to an Approved Sale, to the extent such costs are incurred for the benefit of all such Unitholders and are not otherwise paid by the Company or the acquiring party, in the same proportion in which such Unitholders receive the net proceeds realized by the Company from such Approved Sale. Costs incurred by the Class B Unitholder on their own behalf will not be considered costs of the transaction hereunder.
(e) Subject to the other provisions of this Section 12.9, each Unitholder, whether in his or its capacity as an equity holder, officer or manager of the Company, or otherwise, shall take or cause to be taken all such actions as may be necessary or reasonably desirable in order to consummate an Approved Sale and any related transactions, including, without limitation, executing, acknowledging and delivering consents, assignments, waivers and other documents or instruments; furnishing information and copies of documents; filing applications, reports, returns, filings and other documents or instruments with governmental authorities; and otherwise reasonably cooperating with the Approving Unitholders and the prospective purchaser. In connection with an Approved Sale, each Unitholder hereby appoints the Approving Unitholders (i) as the Member representative to act on behalf of all of the Members and (ii) as its true and lawful proxy and attorney-in-fact, with full power of substitution, to transfer such Units (but solely in compliance with the terms of this Section 12.9) and to execute any purchase agreement or other documentation (but solely in compliance with the terms of this Section 12.9) required to consummate such Approved Sale. The powers granted herein shall be deemed to be coupled with an interest, shall be irrevocable and shall survive death, incompetency or dissolution of any such Member.
(f) The Approving Unitholders shall, in their sole discretion, decide whether or not to pursue, consummate, postpone or abandon any proposed Approved Sale and the terms and conditions thereof. No Approving Unitholder nor any Affiliate of any Approving Unitholder shall have any liability to any Member arising from, relating to or in connection with the pursuit, consummation, postponement, abandonment or terms and conditions of any proposed Approved Sale except to the extent (x) Grantee is not required such Approving Unitholder shall have failed to incur more than its pro rata share of such indemnity obligation (based on the total consideration to be received by all stockholders that are similarly situated and hold the same class or series of capital stock) and (y) such indemnity obligation is provided for and limited to a post-closing escrow or holdback arrangement of cash or stock paid in connection comply with the Approved Saleprovisions of this Section 12.9.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Vertex Energy Inc.)
Approved Sale. (a) If the Board of Directors Holdco Equityholders holding Equity Interests representing a majority of the Company outstanding Units (which majority includes a majority of the Units held by Xxxxxxxx Equityholders and a majority of the Units held by Bank Equityholders) (the “BoardTriggering Group”) shall deliver a notice to Grantee approves the Sale of Holdco (a “Sale Event Notice”) stating that the Board has approved a sale of all or a portion of the Company (an “Approved Sale”) by written notice to Holdco and specifying each Holdco Equityholder (a “Required Seller” and, collectively, the name “Required Sellers”), each Required Seller will vote for, consent to, cooperate with and address will not object or otherwise impede consummation of the proposed parties to such transaction and the consideration payable in connection therewith, Grantee shall Approved Sale.
(ib) consent to and raise no objections against the Approved Sale or the process pursuant to which the Approved Sale was arranged, (ii) waive any dissenter’s rights and other similar rights, and (iii) if If the Approved Sale is structured as (i) a merger or consolidation, each Equityholder shall vote (to the extent having the right to vote) its Equity Interests to approve such merger or consolidation and all matters ancillary thereto, whether by written consent or at an Equityholders meeting (as requested by the Triggering Group), and waive all rights to object to, dissenter’s rights, appraisal rights and similar rights in connection with such merger or consolidation, (ii) a sale of securitiesEquity Interests, each Required Seller shall agree to sell Grantee’s Shares sell, and shall sell, all of its Equity Interests on the terms and conditions approved by the Triggering Group, or (iii) a sale of assets, each Equityholder shall vote its Equity Interests to approve such sale and any subsequent liquidation of the Approved Sale which terms and conditions shall treat all stockholders Companies or other distribution of the Company equally proceeds therefrom, whether by written consent or at an Equityholders meeting (on a pro rata basisas requested by the Triggering Group). In furtherance of the foregoing, except that shares having a liquidation preference mayeach Equityholder shall cooperate with and take, if so provided in the documents governing such shares, receive an amount of consideration equal with respect to such liquidation preference in addition to the consideration being paid to the holders of Shares not having a liquidation preference. Grantee shall take Person’s Equity Interests, all necessary and or desirable lawful actions as directed reasonably requested by the Board and the stockholders of the Company approving the Approved Sale Triggering Group in connection with the consummation of any the Approved Sale, including without limitation, reasonably cooperating at the execution of such agreements and such instruments Companies’ expense to obtain all reasonably necessary or required Gaming Licenses and other actions reasonably necessary governmental consents and approvals and executing the applicable agreements on terms substantially identical to or no less favorable to the Required Sellers than those applicable to the Triggering Group (which agreements may, subject to the provisions of this Section 4.1, require a Required Seller to enter into agreements with customary representations, indemnities, holdbacks and escrows). Notwithstanding anything to the contrary in this Agreement, (A) provide the representations, warranties, indemnities, covenants, conditions, non-compete agreements, escrow agreements and other provisions and agreements relating to such Approved Sale and, (B) effectuate the allocation and distribution of the aggregate consideration upon the Approved Sale, provided, that this Section 8 shall not require Grantee to indemnify the purchaser in any Approved Sale for breaches of the only representations, warranties or covenants that a Required Seller shall be required to make are with respect to itself as to its title to and ownership of Equity Interests of the Companies, authorization, execution and enforceability of relevant agreements against such Required Seller, absence of conflicts with any laws to which such Required Seller is subject and any agreements to which such Required Seller is a party or otherwise bound, and Organizational Documents of such Required Seller, any required consents and other customary matters and reasonable covenants regarding confidentiality, publicity and similar matters; (B) the liability of each Required Seller with respect to any representation and warranty or covenant made by any Company or in connection with an Approved Sale shall be several and not joint with any other stockholderPerson and shall be limited to the lesser of (i) such Required Seller’s pro rata portion of any such liability, except to be determined in accordance with such holder’s pro rata share of Equity Interests prior to sale, and (ii) the total consideration (net of broker fees and other selling expenses) paid to such Required Seller in connection with the Approved Sale, other than with respect to the representations, warranties and covenants described above in clause (A); and (C) to the extent that an indemnification escrow has been established, such liability shall be satisfied solely out of any funds escrowed for such purpose prior to recourse against such Required Seller.
(c) The obligations of each Required Seller under this Section 4.1 with respect to an Approved Sale are subject to the satisfaction of the following conditions: (i) upon the consummation of such Approved Sale, each such Required Seller shall receive in respect of its Units the same form of consideration or the same option as described in clause (ii) below with respect to its Equity Interests in Holdco; (ii) if any Required Seller or member of the Triggering Group is given an option as to the form and amount of consideration to be received with respect to its Equity Interests in Holdco, such Required Seller shall be given the same option, (iii) each holder of then currently exercisable warrants, options, securities or instruments exercisable for, or rights to acquire, Units shall be given an opportunity to exercise such warrants, options, securities, instruments or rights prior to the consummation of the Approved Sale and participate in such sale as holders of Units, and each outstanding warrant, option, security or instrument exercisable for, or right to acquire, Units not so exercised or not exercisable shall, at the election of the Triggering Group, be (A) treated in accordance with its terms or (B) entitled to consideration for each Unit underlying such warrants, options, securities, instruments and rights equal to the greater of (x) Grantee zero dollars and (y) the per Unit consideration paid in the Sale of Holdco minus the relevant per Unit exercise price, and (iv) each holder of a debt instrument convertible into Equity Interests may elect not to participate in such Approved Sale and instead continue to hold such debt instrument; provided, that, upon consummation of the Approved Sale, such holder shall agree to modify such debt instrument so that upon consummation of such sale, such instrument is not no longer convertible into Equity Interests. Provided that the conditions of this Section 4.1 are satisfied, the Voteco Equityholders shall, if required by the Approved Sale, transfer their Equity Interests in Voteco to incur the buyer or its designated Affiliates for no or nominal consideration.
(d) The provisions of this Section 4.1 shall apply regardless of the form of consideration received in the Approved Sale.
(e) No Required Seller shall bear more than its pro rata share of such indemnity obligation (based on the total portion of the consideration received in such Approved Sale to which such Required Seller is entitled) of the costs incurred pursuant to an Approved Sale to the extent such costs are incurred for the benefit of all holders of Units and not paid by a Company or the acquiring party; provided, that no Required Seller shall be received by all stockholders that are similarly situated and hold the same class required to make any non de minimis out-of-pocket expenditures or series of capital stock) and (y) such indemnity obligation is provided for and limited to a post-closing escrow or holdback arrangement of cash or stock paid pay any non pro rata expenses incurred in connection with the Approved SaleSale (other than costs incurred, including attorneys’ fees and expenses, by such Required Seller for its sole benefit). For purposes of this Section 4.1(e), costs incurred in exercising reasonable efforts to take all necessary actions in connection with the consummation of an Approved Sale in accordance with Section 4.1(a) shall be deemed to be for the benefit of all holders of Units.
(f) Notwithstanding anything to the contrary herein, any holder of Units may participate as a potential purchaser or bidder in any Approved Sale on the same terms and conditions as other potential purchasers and bidders.
(g) In furtherance of the provisions of this Section 4.1, for so long as this Section 4.1 is in effect, each of the Holdco Equityholders (and their successors, heirs, legal representatives, and permitted assigns and transferees) hereby (i) irrevocably appoints the Board of Directors of Holdco, and any Person designated by a Supermajority of the Board of Directors of Holdco as agent and attorney-in-fact (the “Drag-Along Agents”) to execute all agreements, instruments and certificates and take all actions necessary or desirable to effectuate any Approved Sale as contemplated under this Section 4.1, and (ii) grants to the Drag-Along Agents a proxy (which shall be deemed to be coupled with an interest and to be irrevocable) to vote the Units having voting power held by such Person and exercise any consent rights applicable thereto in favor of any such Approved Sale as provided in this Section 4.1; provided, however, that the Drag-Along Agents shall not exercise such powers-of-attorney or proxies with respect to any such Person unless such Person refuses or fails in a timely manner to comply with its obligations under this Section 4.1 and the exercise of rights under such powers-of-attorney and proxies shall be subject to all applicable Gaming Laws. THE AGREEMENTS CONTAINED IN THIS SECTION 4.1 ARE COUPLED WITH AN INTEREST AND EXCEPT AS PROVIDED IN THIS AGREEMENT MAY NOT BE REVOKED OR TERMINATED DURING THE TERM OF THIS AGREEMENT.
Appears in 1 contract
Approved Sale. If (a) In the event that a Disposition Event is approved by the Company’s Board of Directors and consented to by Wave (an “Approved Sale”), each Stockholder hereby waives, to the extent permitted by applicable law, all rights to object to or dissent from such Approved Sale and hereby agrees to consent to and raise no objection against such Approved Sale. The Company and the Stockholders hereby agree to cooperate fully in any Approved Sale and not to take any action prejudicial to or inconsistent with such Approved Sale. Without limiting the generality of the foregoing, each Stockholder hereby agrees to (i) vote such Stockholder’s Securities to approve the terms of any such Approved Sale and such matters ancillary thereto as may be necessary in the judgment of the Board of Directors of the Company (the “Board”) shall deliver a notice to Grantee (a “Sale Event Notice”) stating that the Board has approved a sale of all or a portion of the Company (an “effect such Approved Sale”) and specifying the name and address of the proposed parties to such transaction and the consideration payable in connection therewith, Grantee shall (i) consent to and raise no objections against the Approved Sale or the process pursuant to which the Approved Sale was arranged, (ii) waive any dissenter’s appraisal rights and other similar rightsthat such Stockholder would have with respect to such Approved Sale, and (iii) if the in an Approved Sale is structured as a sale of securitiesstock, agree to sell Granteeall of such Stockholder’s Shares Securities on the terms and conditions approved by the Board of the Approved Sale which terms and conditions shall treat all stockholders Directors of the Company equally and (on a pro rata basis)iv) upon request, except deliver such Stockholder’s Securities (together with executed instruments of transfer) in escrow (pending receipt of the purchase price therefor) to counsel for the Company in such sale.
(b) The obligations of the Stockholders with respect to any Approved Sale are subject to the satisfaction of the conditions that shares having a liquidation preference may(i) upon the consummation of such Approved Sale, if so provided in all of the documents governing such shares, sellers of Common Stock will receive an the same form and amount of consideration equal to per share of Common Stock, or if any such liquidation preference in addition sellers are given an option as to the form and amount of consideration being paid to the be received per share of Common Stock, all holders of Shares not having Common Stock will be given the same option, and (ii) the aggregate liability of a liquidation preference. Grantee shall take all necessary and desirable lawful actions as directed by the Board and the stockholders of the Company approving the Approved Sale Stockholder with respect to indemnification obligations in connection with such Approved Sale shall be limited to the consummation of proceeds received by such Stockholder in connection with such Approved Sale.
(c) Each Stockholder hereby appoints Wave as such Stockholder’s true and lawful proxy and attorney in connection with any Approved Sale, including without limitationwith full power of substitution, to vote all Shares owned by such Stockholder or over which such Stockholder has voting control to effectuate the execution agreements set forth in this Section 3.3 in the event of any breach by such Stockholder of its obligations under this Section 3.3. The proxies and powers granted by each Stockholder pursuant to this Section 3.3(c) are coupled with an interest and are given to secure the performance of such agreements and such instruments and other actions reasonably necessary to (A) provide the representations, warranties, indemnities, covenants, conditions, non-compete agreements, escrow agreements and other provisions and agreements relating to such Approved Sale and, (B) effectuate the allocation and distribution of the aggregate consideration upon the Approved Sale, provided, that Stockholder’s duties under this Section 8 shall not require Grantee to indemnify 3.3. Such proxies are irrevocable for so long as this Section 3.3 remains in effect and will survive the purchaser in death, incompetence or disability of any Approved Sale for breaches Stockholder who is an individual and the merger, liquidation or dissolution of the representationsany Stockholder that is a corporation, warranties limited liability company, partnership or covenants of the Company or any other stockholder, except to the extent (x) Grantee is not required to incur more than its pro rata share of such indemnity obligation (based on the total consideration to be received by all stockholders that are similarly situated and hold the same class or series of capital stock) and (y) such indemnity obligation is provided for and limited to a post-closing escrow or holdback arrangement of cash or stock paid in connection with the Approved Saleentity.
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Approved Sale. If (a) In the Board event of Directors of the Company (the “Board”) shall deliver a notice to Grantee (a “Sale Event Notice”) stating that the Board has approved a sale of all or a portion of the Company (an “Approved Sale”, each holder of Stockholder Shares (including, without limitation, each Permitted Transferee) and specifying the name and address of the proposed parties to such transaction and the consideration payable in connection therewith, Grantee shall (i) will consent to and raise no objections against the Approved Sale or the process pursuant to which the Approved Sale was arranged, (ii) arranged and waive any dissenter’s 's rights and other similar rights, and (iii) if the Approved Sale is structured as a sale of securities, agree to sell Grantee’s Shares on the terms and conditions of the Approved Sale which terms and conditions shall treat all stockholders of the Company equally (on a pro rata basis), except that shares having a liquidation preference may, if so provided in the documents governing such shares, receive an amount of consideration equal to such liquidation preference in addition to the consideration being paid to the holders of Shares not having a liquidation preference. Grantee shall Such holder will take all necessary and desirable lawful actions as directed by the Board and the stockholders of the Company approving the Approved Sale or MDCP in connection with the consummation of any Approved Sale, including the execution and delivery of all documents and instruments as the Board or MDCP may reasonably request to effect the Approved Sale; provided, however, that no holder shall be required to incur indemnification obligations in excess of the net proceeds received by such holder.
(b) In connection with an Approved Sale, MDCP may require each holder of Stockholder Shares (including, without limitation, each Permitted Transferee) to sell, or cause to be sold, the execution same proportionate number of Stockholder Shares (and in the same proportion of Junior Preferred Stock and Common Stock) owned by each such agreements holder as are proposed to be sold or transferred by MDCP for the same consideration per share and such instruments otherwise on the same terms and other actions reasonably necessary to (A) provide the representations, warranties, indemnities, covenants, conditions, non-compete agreements, escrow agreements and other provisions and agreements relating to such Approved Sale and, (B) effectuate the allocation and distribution of the aggregate consideration upon conditions obtained by MDCP in the Approved Sale. On the closing date of the sale of such Stockholder Shares under this paragraph 2, providedthe consideration then due such holder of Stockholder Shares shall be paid in full to such holder against delivery of a certificate or certificates, that this Section 8 shall not require Grantee as the case may be, representing the Stockholder Shares sold by such holder duly endorsed for transfer.
(c) Each holder of Stockholder Shares (including, without limitation, each Permitted Transferee) will bear such holder's pro rata share (based upon the number of shares sold) of the reasonable costs of any sale of Stockholder Shares pursuant to indemnify the purchaser in any an Approved Sale to the extent such costs are incurred for breaches the benefit of the representations, warranties or covenants of all selling Stockholders and are not otherwise paid by the Company or the acquiring party. Costs incurred by any other stockholder, except holder of Stockholder Shares on such holder's own behalf will not be considered costs of the transaction hereunder.
(d) The provisions of this paragraph 2 shall terminate immediately prior to the extent (x) Grantee is not required to incur more than its pro rata share closing of such indemnity obligation (based on the total consideration to be received by all stockholders that are similarly situated and hold the same class or series of capital stock) and (y) such indemnity obligation is provided for and limited to a post-closing escrow or holdback arrangement of cash or stock paid in connection with the Approved Saleany Qualified Public Offering.
Appears in 1 contract
Samples: Stockholders Agreement (Tmil Corp)
Approved Sale. (i) If the Board of Directors of the Company (the “Board”) shall deliver Majority Founder Investors approve a notice to Grantee (a “Sale Event Notice”) stating that the Board has approved a sale of all or a portion of the Company (an “Approved Sale”), each Member and each Unitholder (and each Person that retains voting control of any Units Transferred to a Permitted Transferee) and specifying the name and address shall vote for (whether at a meeting of the proposed parties to such transaction and the consideration payable in connection therewithUnitholders or by written consent), Grantee shall (i) consent to and raise no objections against the Approved Sale or the process pursuant to which the Approved Sale was arranged, (ii) waive any dissenter’s rights and other similar rightsagainst, and (iii) not otherwise impede or delay, such Approved Sale. In furtherance of the foregoing, if the Approved Sale is structured as a (x) merger or consolidation, each Member and Unitholder shall waive any dissenters rights, appraisal rights or similar rights in connection with such merger or consolidation or (y) sale of securitiesUnits, each Member and Unitholder shall agree to sell Grantee’s Shares sell, and shall sell, all of his, her or its Units and rights to acquire Units (or, if less than all, than the same percentage or his, her or its Units or rights as the Majority Founder Investors are selling) on the terms and conditions of approved by the Approved Sale which terms Majority Founder Investors.
(ii) Each Member and conditions shall treat all stockholders of the Company equally (on a pro rata basis), except that shares having a liquidation preference may, if so provided in the documents governing such shares, receive an amount of consideration equal to such liquidation preference in addition to the consideration being paid to the holders of Shares not having a liquidation preference. Grantee Unitholder shall take all necessary and or desirable lawful actions as directed by the Board and the stockholders of the Company approving the Approved Sale in connection with the consummation of any the Approved SaleSale as requested by the Majority Founder Investors (including, including without limitation, the execution of such agreements executing and such delivering any and all agreements, instruments and other actions reasonably necessary to (A) provide documents executed by any of the representationsMajority Founder Investors, warrantiesincluding any applicable purchase agreement, indemnities, covenants, conditions, non-compete agreements, escrow agreements and other provisions and agreements relating to such Approved Sale stockholders agreement and/or indemnification and/or contribution agreement and, (B) effectuate only in the allocation case of Unitholders and distribution of the aggregate consideration upon the Approved Sale, provided, that this Section 8 shall not require Grantee to indemnify the purchaser in any Approved Sale for breaches of the representations, warranties or covenants their Affiliates who are also employees of the Company or any other stockholderof its Subsidiaries, except to executing and delivering non-competition and non-solicitation agreements and/or “rollover” agreements, in each case, whether or not executed by the extent (x) Grantee is not required to incur more than its pro rata share of such indemnity obligation (based on the total consideration to be received by all stockholders that are similarly situated and hold the same class or series of capital stockMajority Founder Investors) and otherwise cooperating with the Majority Founder Investors, the prospective buyer and their respective representatives with such Approved Sale. [*] INDICATES CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS BEEN FILED SEPARATELY WITH THE COMMISSION
(yiii) such indemnity obligation is provided for In connection with any Approved Sale, each Member, Unitholder and limited to a post-closing escrow the Company shall (and the Company shall cause each of its Subsidiaries and each of its and their respective officers, directors, employees, financial advisors, consultants, attorneys and other agents and representatives to) take all necessary or holdback arrangement of cash or stock paid desirable actions in connection with the consummation of the Approved Sale and any related transactions (including any auction or competitive bid process in connection with or preceding such Approved Sale) as reasonably requested by the Majority Founder Investors, including (A) retaining investment bankers and other advisors approved by the Majority Founder Investors; (B) participating in management meetings and preparing pitchbooks and confidential information memorandums, (C) furnishing information and copies of documents, (D) preparing and making filings with Governmental Entities; (E) providing assistance with legal, accounting, tax, financial, benefits and other due diligence; and (F) otherwise cooperating with the Majority Founder Investors, the prospective buyer(s), any investment bankers, consultants or other professional advisors who have been retained in connection with such Approved Sale and their respective representatives.
(iv) In furtherance of the foregoing, and not in limitation, if the Majority Founder Investors, in connection with such Approved Sale, appoint a sellers representative (the “Sellers’ Representative”), including any Founder Investor, with respect to matters affecting the Members or Unitholders under the applicable definitive transaction agreements following consummation of such Approved Sale, then each Member and Unitholder agrees (A) to consent to (1) the appointment of such Sellers’ Representative, (2) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (3) the payment of such Member’s or Unitholders pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Sellers’ Representative in connection with such Sellers’ Representative’s services and duties in connection with such Approved Sale and its related service as the representative of the Members and Unitholders, and (B) not to assert any claim or commence any suit against the Sellers’ Representative or any other Members with respect to any action or inaction taken or failed to be taken by the Sellers’ Representative in connection with its service as the Sellers’ Representative, absent fraud or willful misconduct.
Appears in 1 contract
Samples: Limited Liability Company Agreement (ChromaDex Corp.)
Approved Sale. If From and after the Board Drag Along Trigger Date, AF may cause a sale of Directors the business, in one or a series of related transactions, by way of selling 100% of the outstanding equity securities of the Company (the “Board”whether by amalgamation, merger, consolidation, recapitalization, sale or Units or otherwise) shall deliver a notice to Grantee (a “Sale Event Notice”) stating that the Board has approved a sale of or all or a portion substantially all of the Company Company’s assets to one or more third parties, including third parties not yet identified by AF, who are not Affiliates of AF (an “Approved Sale”). AF may elect to cause an Approved Sale by sending written notice (a “Sale Notice”) and specifying thereof to the name and address of the proposed parties to such transaction Manager and the consideration payable in connection therewith, Grantee other Members. The Manager and XXX shall (i) consent to and raise no objections against the Approved Sale or the process pursuant to which the Approved Sale was arranged, (ii) waive any dissenter’s rights and other similar rights, and (iii) if the Approved Sale is structured as a sale of securities, agree to sell Grantee’s Shares on the terms and conditions of the Approved Sale which terms and conditions shall treat all stockholders of cause the Company equally (on a pro rata basis), except that shares having a liquidation preference may, if so provided in the documents governing such shares, receive an amount of consideration equal to such liquidation preference in addition to the consideration being paid to the holders of Shares not having a liquidation preference. Grantee shall and its Subsidiaries to) promptly take all necessary and desirable lawful actions as are reasonably directed by the Board and the stockholders of the Company approving the Approved Sale AF in connection with the consummation of any Approved Sale, including without limitation, (i) cooperating with the execution of such agreements and such instruments and other actions reasonably necessary to (A) provide proposed advisor that will lead the representations, warranties, indemnities, covenants, conditions, non-compete agreements, escrow agreements and other provisions and agreements relating to such Approved Sale and, (B) effectuate the allocation and distribution of the aggregate consideration upon the Approved Sale, provided, that this Section 8 shall not require Grantee to indemnify the purchaser in any Approved Sale for breaches of the representations, warranties or covenants sale process of the Company or its assets and cooperating with the proposed buyer(s) (each, a “Proposed Buyer”) and AF in the evaluation of an Approved Sale, (ii) hiring legal counsel selected by AF to act on behalf of the Company and the Members in connection with such Approved Sale, (iii) facilitating each Proposed Buyer’s due diligence process in respect of any such Approved Sale, (iv) executing sale contracts and other stockholdercustomary documents approved by AF, except (v) making required governmental filings, (vi) obtaining any audit required by a Proposed Buyer’s financing sources, and (vii) in the case of XXX, causing the Manager and the XXX Designees to take all necessary or reasonably desirable actions to effect such Approved Sale. The Company shall bear all costs and expenses of any actual or proposed Approved Sale to the extent such costs or expenses are incurred by the Company or on behalf of the Members generally (x) Grantee is including, but not required limited to, the advisors and legal counsel which provide services to incur more than its pro rata share of such indemnity obligation (based on the total consideration Company with respect to be received by all stockholders that are similarly situated and hold the same class or series of capital stock) and (y) such indemnity obligation is provided for and limited to a post-closing escrow or holdback arrangement of cash or stock paid in connection with the Approved Sale); provided, that the Company shall not bear the costs of additional advisors or legal counsel which provide services that only benefit a specific Member or Members.
Appears in 1 contract
Samples: Limited Liability Company Agreement (RiceBran Technologies)
Approved Sale. If (a) In the Board of Directors of the Company event that MatlinPatterson (the “BoardProposing Shareholder”) shall deliver a notice to Grantee (a “approves the Sale Event Notice”) stating that the Board has approved a sale of all or a portion of the Company (an “Approved Sale”) and specifying delivers written notice thereof to the name Company and address the Sellers not less than 30 calendar days before the consummation of the proposed parties Approved Sale, each Seller will vote for, consent to, cooperate with and will not object or otherwise impede consummation of the Approved Sale; provided, that Sellers will retain the right to such transaction convey their objections to, and discuss with MatlinPatterson, the consideration payable to be received in connection therewith, Grantee shall such Approved Sale.
(ib) consent to and raise no objections against the Approved Sale or the process pursuant to which the Approved Sale was arranged, (ii) waive any dissenter’s rights and other similar rights, and (iii) if If the Approved Sale is structured as (i) a merger or consolidation, each Seller shall vote (to the extent having the right to vote) its Shares to approve such merger or consolidation and all matters ancillary thereto, whether by written consent or at a shareholders meeting, (ii) a sale of securitiesequity, each Seller shall agree to sell Grantee’s sell, and shall sell, all of its Shares on the terms and conditions so approved, or (iii) a sale of the Approved Sale which terms assets, each Seller shall vote its Shares to approve such sale and conditions shall treat all stockholders any subsequent liquidation of the Company equally (on or other distribution of the proceeds therefrom, whether by written consent or at a pro rata basis)shareholders meeting. In furtherance of the foregoing, except that shares having a liquidation preference mayeach Seller shall cooperate with and take, if so provided in the documents governing such shares, receive an amount of consideration equal with respect to such liquidation preference in addition to the consideration being paid to the holders of Shares not having a liquidation preference. Grantee shall take Seller’s Shares, all necessary and or desirable lawful actions as directed reasonably requested by the Board and the stockholders of the Company approving the Approved Sale MatlinPatterson in connection with the consummation of the Approved Sale, including executing the applicable agreements (which agreements may, subject to the provisions of this Section 4.1, require a Seller to sell a pro rata portion or all of its Shares and customary representations, indemnities, holdbacks and escrows); provided, however, in any Approved Sale, including without limitationthe terms and conditions of such agreements, including, but not limited to, the execution form or forms of such agreements and such instruments and other actions reasonably necessary to consideration (Ain the same relative proportions
(c) provide The provisions of this Section 4.1 shall apply regardless of the representationsform of consideration received in the Approved Sale; provided, warrantieshowever, indemnities, covenants, conditions, non-compete agreements, escrow agreements and other provisions and agreements relating to if the consideration received in such Approved Sale andis in a form other than cash or freely transferable public securities (“Other Consideration”), (B) effectuate then each Seller shall have the allocation and distribution right to elect to not be bound by this Section 4.1 unless the Company will, at the written request of such Seller, which shall be made not later than 15 calendar days after notice of the aggregate nature of the consideration upon was provided to the Seller, concurrently with the closing of the Approved Sale, providedpay to such Seller, that in cash, the fair market value of such Other Consideration in lieu of such Other Consideration. The Board’s determination of the fair market value of any Other Consideration shall be conclusive.
(d) In furtherance of the provisions of this Section 8 shall not require Grantee 4.1, for so long as this Section 4.1 is in effect, each Seller (and its successors, heirs, legal representatives, and permitted assigns and transferees) hereby (i) irrevocably appoints each of the directors of the Company as his or its agent and attorney-in-fact (the “Drag-Along Agents”) (with full power of substitution) to indemnify the purchaser in execute all agreements, instruments and certificates and take all actions necessary or desirable to effectuate any Approved Sale for breaches of the representationsas contemplated under this Section 4.1, warranties or covenants of the Company or any other stockholder, except and (ii) grants to the extent each Drag-Along Agent a proxy (x) Grantee is not required to incur more than its pro rata share of such indemnity obligation (based on the total consideration which shall be deemed to be received coupled with an interest and to be irrevocable) to vote the Shares having voting power held by all stockholders such Seller and exercise any consent rights applicable thereto in favor of any such Approved Sale as provided in this Section 4.1; provided, however, that are similarly situated and hold the same class Drag-Along Agents shall not exercise such powers-of-attorney or series of capital stock) and (y) proxies with respect to any such indemnity obligation is provided for and limited Seller unless such Seller refuses or fails to a post-closing escrow or holdback arrangement of cash or stock paid in connection comply with the Approved Saleits obligations under this Section 4.1. THE AGREEMENTS CONTAINED IN THIS SECTION 4.1 ARE COUPLED WITH AN INTEREST AND EXCEPT AS PROVIDED IN THIS AGREEMENT MAY NOT BE REVOKED OR TERMINATED DURING THE TERM OF THIS AGREEMENT.
Appears in 1 contract
Approved Sale. If At any time the Board of Directors of approves a Sale Transaction or causes the Company to enter into a Sale Transaction or to begin a process that could result in or lead to a Sale Transaction (the “Board”) shall deliver a notice to Grantee (a “Sale Event Notice”) stating that the Board has approved a sale of all or a portion of the Company (in each case, an “Approved Sale”) and specifying the name and address of the proposed parties to such transaction ” and the consideration payable in connection therewithparty approving such Sale Transaction or process, Grantee the “Approving Party”), the Company and each Member shall (iincluding in such Member’s capacity as a Manager or by causing any Manager appointed by such Member to) consent to and raise no objections against against, and not otherwise impede or delay, such Approved Sale; provided that, in the case of any Approved Sale or the process pursuant to in which the Approved Board is the Approving Party, the Company will use reasonable best efforts to (A) provide 10 days’ prior notice to the Sponsor of its approval of a Sale was arranged, (ii) waive any dissenter’s rights and other similar rights, Transaction and (iiiB) at the request of the Sponsor and with respect to the Sponsor Equity, structure the Sale Transaction as a purchase of Sponsor Equity or a direct or indirect equity interest in the holder of Sponsor Equity. In furtherance of the foregoing, if the Approved Sale is structured as a (x) merger, conversion or consolidation or sale of securitiesassets, each Member shall waive any dissenters rights, appraisal rights or similar rights (if any are applicable) in connection with such merger, conversion or consolidation or sale of assets or (y) sale of Units or other Equity Securities, each Member shall agree to sell Granteeand Transfer, and shall sell and Transfer, all (or such lesser portion reflecting such Person’s Shares proportionate interest in the aggregate portion of the Total Equity Value being sold or disposed of in such Approved Sale) of such Member’s Units and other Equity Securities on the terms and conditions of approved by the Approved Sale which terms Approving Party. The Company and conditions shall treat all stockholders of the Company equally (on a pro rata basis), except that shares having a liquidation preference may, if so provided in the documents governing such shares, receive an amount of consideration equal to such liquidation preference in addition to the consideration being paid to the holders of Shares not having a liquidation preference. Grantee each Member shall take all necessary and or desirable lawful actions as directed by the Board and the stockholders of the Company approving the Approved Sale in connection with the consummation of any the Approved SaleSale (whether in such Person’s capacity as a Member, Manager, officer or otherwise), including without limitationexecuting and delivering any and all agreements, instruments, consents, waivers, including any applicable purchase agreement, stockholders agreement, indemnification agreement and contribution agreement, taking into consideration any changes in the execution conduct of business from the Closing through the date of such agreements and such instruments and other actions reasonably necessary Sale Transaction (it being understood that no member of the Sponsor Group shall be required to (A) provide the representations, warranties, indemnities, covenants, conditionsbecome bound by any non-competition, non-compete agreements, escrow solicitation or other similar agreements containing other restrictive covenants) the terms and other provisions and agreements relating to such Approved Sale and, (B) effectuate conditions of which shall be reasonably determined by the allocation and distribution of the aggregate consideration upon the Approved Sale, provided, that this Section 8 shall not require Grantee to indemnify the purchaser in Approving Party. In any Approved Sale for breaches (whether initiated pursuant to clause (i) or clause (ii) of this Section 10.3(a)), Sponsor shall (with the prior consent of the representationsBoard, warranties which consent shall not be unreasonably withheld, conditioned or covenants of delayed) select the financial advisor, investment bank, accounting firm and any other third-party advisor to advise the Company or any other stockholder, except to and the extent (x) Grantee is not required to incur more than its pro rata share of such indemnity obligation (based on the total consideration to be received by all stockholders that are similarly situated and hold the same class or series of capital stock) and (y) such indemnity obligation is provided for and limited to a post-closing escrow or holdback arrangement of cash or stock paid Company Subsidiaries in connection with the Approved Salesuch Sale Transaction (or process to effect a Sale Transaction).
Appears in 1 contract
Approved Sale. If (a) At any time after the Board of Directors 20th anniversary of the Company Port Xxxxxx Facility Commencement Date, either the Darling Member or the Valero Member (the “BoardTriggering Member”) shall may deliver a notice to Grantee the other Member (a the “Approved Sale Event Notice”) stating that the Board has approved it wishes to effect a Company Sale or a sale of all or a portion all, but not less than all, of the Company its Units and Equity Securities (in either case, an “Approved Sale”) in accordance with this Section 11.1. The Member that did not deliver the Approved Sale Notice pursuant to the previous sentence (whether the Darling Member or the Valero Member) shall be referred to herein as the “Non-Triggering Member”. In the event that an Approved Sale Notice is delivered in accordance with this Section 11.1(a), the Non-Triggering Member shall have the right, pursuant to a written notice (the “Approved Sale Response Notice”) to the Company and specifying the name and address Triggering Member delivered within 60 days after receipt of the proposed parties Approved Sale Notice from the Triggering Member, to offer to purchase all, but not less than all, of the outstanding Units and Equity Securities and any Company Loans and Member Loans held by the Triggering Member (the “Triggering Member Sale”) at the price and on the terms and conditions set forth in such Approved Sale Response Notice.
(b) If the Non-Triggering Member makes an offer pursuant to and in accordance with Section 11.1(a) and the Triggering Member accepts such offer within the time period set forth in such Approved Sale Response Notice (which such time period shall be no less than 15 days nor more than 30 days), then the Approved Sale Response Notice shall constitute the legally binding obligation of each Member to complete the Triggering Member Sale on the terms and conditions set forth therein. The form of the definitive agreements relating to such transaction Triggering Member Sale shall be mutually agreed upon and contain the terms and conditions set forth in the Approved Sale Response Notice and such other customary representations, warranties and covenants for transactions similar to the Triggering Member Sale. The Members shall fix a closing date, which must be a Business Day not later than 120 days following the date of delivery of the Approved Sale Response Notice. If the closing date is not so fixed, then such date shall automatically be 120 days following the date of delivery of the Approved Sale Response Notice; provided, however, that if such date is not a Business Day, then such date shall be the next Business Day; provided, further, that if the consummation of the Triggering Member Sale requires the approval of any Governmental Entity, then the closing date may be extended to the first Business Day following the receipt of such approval.
(c) If the Non-Triggering Member fails to deliver, or waives its right to deliver, the Approved Sale Response Notice as set forth in Section 11.1(a) or the Triggering Member rejects the Non-Triggering Member’s offer as set forth in the Approved Sale Response Notice, then the Non-Triggering Member and the consideration payable Board of Managers shall, and shall cause the Company and its management to, cooperate in connection therewith, Grantee shall good faith with the Triggering Member to (i) consent to and raise no objections against prepare the Approved Sale or the process pursuant to which the Approved Sale was arrangedCompany for sale, (ii) waive any dissenter’s rights engage a financial advisor experienced in the industry and other the sale of similar rightsassets to assist in the sale of the Company by drafting an offering memorandum or similar document and soliciting indications of interest from qualified buyers, and (iii) assist such financial advisor in conducting a sale process designed to achieve the highest price possible by actively pursuing such interested and qualified buyers. The Members and the Board of Managers shall cause the Company to provide reasonable access to Company management and facilities and the Company’s books and records and outside auditors for the purpose of (x) providing requested information to the Triggering Member and any financial advisor engaged to assist with the Company Sale, (y) attending meetings with prospective buyers and their financing sources, and (z) providing reasonable access to customary due diligence materials requested by prospective buyers. The Triggering Member shall secure customary confidentiality agreements from any prospective buyer and shall be in breach of its own confidentiality obligations to the Company and the other Member if it fails to do so. The Members and the Company shall require the financial adviser engaged to conduct such sale process to deliver within 90 days (or such other reasonable time period as advised by the financial adviser) of its engagement a report (the “Approved Sale Report”) to the Board of Managers setting forth in detail any indications of interest, and the valuations and any restrictions related thereto, from any such qualified buyer.
(d) Within 60 days after delivery of the Approved Sale is structured Report, the Non-Triggering Member shall have the right, pursuant to a written notice (the “Approved Sale Report Notice”) to the Company and the Triggering Member delivered within such 60-day period, to offer to purchase all, but not less than all, of the outstanding Units and Equity Securities and any Company Loans and Member Loans held by the Triggering Member at a price and on terms and conditions based on the indications of interest and the related valuations of the Company in the Approved Sale Report. If the Triggering Member accepts the Non-Triggering Member’s offer as a sale set forth in the Approved Sale Report Notice, then the Approved Sale Report Notice shall constitute the legally binding obligation of securities, agree each Member to sell Grantee’s Shares complete the proposed purchase of such Units and Equity Securities and any Company Loans and Member Loans held by the Triggering Member on the terms and conditions set forth therein. The Members shall fix a closing date, which must be a Business Day not later than 120 days following the date of delivery of the Approved Sale which Report Notice. If the closing date is not so fixed, then such date shall automatically be 120 days following the date of delivery of the Approved Sale Report Notice; provided, however, that if such date is not a Business Day, then such date shall be the next Business Day; provided, further, that if the consummation of such sale requires the approval of any Governmental Entity, then the closing date may be extended to the first Business Day following the receipt of such approval.
(e) If the Non-Triggering Member fails to deliver, or waives its right to deliver, the Approved Sale Report Notice as set forth in Section 11.1(d) or the Triggering Member rejects the Non-Triggering Member’s offer as set forth in the Approved Sale Report Notice, then the Members may mutually agree in writing to pursue a Company Sale and the Company and each Member shall use its commercially reasonable efforts to effect such Company Sale to a third party as promptly as practicable based on the indications of interest and the related valuations of the Company set forth in the Approved Sale Report and upon the terms and conditions shall treat all stockholders of negotiated by the Company equally (on a pro rata basis)and such third party, except that shares having a liquidation preference may, if so provided in the documents governing such shares, receive an amount of consideration equal which shall be reasonably acceptable to such liquidation preference in addition each Member and no less favorable to the consideration being paid to Triggering Member than the holders of Shares not having a liquidation preference. Grantee shall take all necessary and desirable lawful actions Non-Triggering Member’s offer as directed by the Board and the stockholders of the Company approving set forth in the Approved Sale Report Notice, if any. The Members and the Company shall fix an outside closing date, which must be a Business Day not later than 120 days (or such other time period agreed to in connection with writing by the Members) following the date of delivery of the Approved Sale Report. If the closing date is not so fixed, then such date shall automatically be 120 days following the date of delivery of the Approved Sale Report; provided, however, that if such date is not a Business Day, then such date shall be the next Business Day; provided, further, that if the consummation of such Company Sale requires the approval of any Governmental Entity, then the closing date may be extended to the first Business Day following the receipt of such approval. The Non-Triggering Member may, at any time, withdraw from the pursuit of a Company Sale pursuant to this Section 11.1(e) and the Triggering Member shall then be entitled to pursue such Company Sale pursuant to Section 11.1(f).
(f) Subject to the Non-Triggering Member’s rights set forth in Section 11.2, if following delivery of an Approved Sale, including without limitationSale Notice, the execution Darling Member and the Valero Member do not consummate an Approved Sale or sale of all of the outstanding Units and Equity Securities and any Company Loans held by the Triggering Member pursuant to and in accordance with any of Section 11.1(b), (d) or (e), as applicable, then the Triggering Member shall have the right to require the Non-Triggering Member and the Company to effect a Company Sale to a third party; provided, however, that such agreements Company Sale must be based on the indications of interest by bidders with demonstrable access to funds and such instruments and other actions reasonably necessary at a cash purchase price equal to (A) provide or higher than the representations, warranties, indemnities, covenants, conditions, non-compete agreements, escrow agreements and other provisions and agreements median of the valuations relating to such indications of interest and on customary terms and conditions reasonably acceptable to each Member, but no less favorable to the Triggering Member than the Non-Triggering Member’s offer as set forth in the Approved Sale andResponse Notice or the Approved Sale Report Notice, if any. Such third party buyer must have demonstrable access to funds allowing it to effect such purchase in cash and must otherwise be qualified to consummate such transaction within the timeframe specified.
(Bg) effectuate If an Approved Sale to a third party is not consummated within one year from the allocation and distribution date of delivery of an Approved Sale Notice, the Company shall terminate the sale process for a period of at least six months before the Triggering Member may again exercise its rights under Section 11.1(a); provided, further, that the foregoing termination of the aggregate consideration upon the Approved Sale, provided, that this Section 8 sale process shall not require Grantee affect or apply to indemnify the purchaser in any binding agreement to consummate an Approved Sale for breaches to a third party entered into prior to the one-year anniversary of the representations, warranties or covenants date of the Company or any other stockholder, except to the extent (x) Grantee is not required to incur more than its pro rata share delivery of such indemnity obligation (based on the total consideration to be received by all stockholders that are similarly situated and hold the same class or series of capital stock) and (y) such indemnity obligation is provided for and limited to a post-closing escrow or holdback arrangement of cash or stock paid in connection with the an Approved SaleSale Notice.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Darling Ingredients Inc.)
Approved Sale. If the Board of Directors of the Company (the “Board”unanimously approves a Sale Transaction in accordance with Section 6.3(b)(i) shall deliver a notice to Grantee (a “Sale Event Notice”) stating that the Board has approved a sale of all or a portion of the Company Final Sale Transaction Offer or a Final Third Party Offer is accepted pursuant to Section 9.10, in each case, to a bona fide Third Party Purchaser and solely for cash consideration (an “Approved Sale”) and specifying the name and address of the proposed parties to such transaction and the consideration payable ), then each Member will vote for, consent to, participate in connection therewith, Grantee shall (i) consent to and raise no objections against against, and not otherwise impede or delay, such Approved Sale if and to the extent that a vote or consent of the Members is required to consummate the Approved Sale. In furtherance of the foregoing, (i) if the Approved Sale is structured as an asset sale, merger or the process pursuant to which the Approved Sale was arrangedconsolidation, then each Member will waive any dissenters rights, appraisal rights or similar rights in connection with such asset sale, merger or consolidation, (ii) waive any dissenter’s rights and other similar rights, and (iii) if the Approved Sale is structured as a sale of securitiesUnits or other Equity Securities, then each Member will agree to sell Granteeand Transfer, and will sell and Transfer, all (or such lesser portion reflecting such Person’s Shares proportionate interest in the aggregate portion of the Total Equity Value being sold or disposed of in such Approved Sale) of such Member’s Units and other Equity Securities on the terms approved by the Board, and conditions (iii) each Member, to the extent requested by the Board, will be obligated to: (A) use its commercially reasonable efforts to engage on behalf of the Member such financial advisors as may be reasonably necessary to identify potential or other Third Party Purchasers in connection with or to consummate such Approved Sale Sale; (B) assist in providing reasonable due diligence, financial and other information and materials regarding such Member to the parties to the Approved Sale; (C) reasonably participate in meetings, drafting sessions, diligence sessions and other discussions in connection with such Approved Sale; (D) reasonably assist the Third Party Purchaser and its financing sources in the preparation, if applicable, of definitive transaction documents and an offering document in connection with such Approved Sale; (E) provide such other consents, waivers, documents, covenants, releases and agreements regarding such Member as may be reasonably requested by the Board in connection with such Approved Sale; provided that no Member shall be required to enter into any restrictive covenants in connection with such Approved Sale, including any non-competition, non-solicitation of employees or customers, non-disparagement or similar provisions; (F) reasonably cooperate with the marketing efforts in connection with such Approved Sale; and (G) further waive any potential claim, including any claim for breach of fiduciary duty, which terms and conditions shall treat all stockholders it may have against any member of the Company equally (on a pro rata basis)Board, except that shares having a liquidation preference maythe Company, if so provided in the documents governing such sharesInitial Members, receive an amount any of consideration equal to such liquidation preference in addition their respective Affiliates, or its or their officers or directors, to the consideration being paid extent arising out of or relating to any Approved Sale, including any authorization and approval by the holders Board thereof (but excluding any claims under any agreement entered into in connection with such Approved Sale, any indemnification rights of Shares not having a liquidation preferencesuch Member and any claims for fraud). Grantee shall Each Member will take all necessary and desirable lawful actions as directed by the Board actions, and the stockholders receipt of the Company approving the any proceeds of such Approved Sale will be conditioned upon the taking of such actions, in connection with the consummation of any Approved Sale, including without limitation, the execution of such agreements and such instruments and other actions reasonably necessary to (A) provide the representations, warranties, indemnities, covenants, conditions, non-compete agreements, escrow agreements and other provisions and agreements relating to such Approved Sale and(whether in such Person’s capacity as a Member, (BManager, Officer or otherwise) effectuate as requested by the allocation Board and distribution of the aggregate consideration upon the Approved Sale, provided, that this Section 8 shall not require Grantee applicable to indemnify the purchaser in any Approved Sale for breaches of the representations, warranties or covenants of the Company or any all other stockholder, except to the extent (x) Grantee is not required to incur more than its pro rata share of such indemnity obligation (based on the total consideration to be received by all stockholders that are similarly situated and hold selling Members holding the same class or series of capital stock) Units, including executing and (y) such indemnity obligation is provided for delivering any and limited to a post-closing escrow or holdback arrangement all agreements, instruments, consents, waivers and other documents in substantially the same forms executed by the Initial Members, including any applicable purchase agreement, equityholders agreement, indemnification agreement, support agreement, letter of cash or stock paid in connection with the Approved Saletransmittal and contribution agreement.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Symbotic Inc.)
Approved Sale. If at any time prior to the Board consummation of Directors an IPO or a Sale Transaction, one or more Members (together with their respective Affiliates) who hold more than [60]% of the Company then outstanding Membership Interests (individually and collectively, the “BoardDrag Along Selling Member”) shall deliver a notice propose to Grantee (a “Sale Event Notice”) stating that the Board has approved a sale of all or a portion sell Membership Interests representing more than [60]% of the Company then outstanding Membership Interests in a single transaction or related series of transactions (an “Approved Sale”), such Drag Along Selling Member shall have the right, after delivering the Drag Along Notice and subject to compliance with this Section 9.4, to require all other Members (each, a “Dragged Holder,” and, collectively, the “Dragged Holders”) and specifying the name and address of the proposed parties to such transaction and the consideration payable in connection therewithvote for, Grantee shall (i) consent to and raise no objections against the Approved Sale or the process pursuant to which the Approved Sale was arranged, (ii) waive any dissenter’s rights and other similar rightsagainst, and (iii) cooperate in any reasonable manner with the Drag Along Selling Member in connection with, such Approved Sale. In furtherance of the foregoing, if the Approved Sale is structured as a (x) merger or consolidation, a conversion or sale of securitiesassets, each Dragged Holder shall waive any dissenters’ rights, appraisal rights or similar rights in connection with such merger or consolidation or sale of assets, or (y) sale of Membership Interests or other Equity Securities, each Dragged Holder shall agree to sell Granteeand Transfer, and shall sell and Transfer, all (or such lesser portion reflecting such Dragged Holder’s Shares Pro Rata Share of the aggregate portion of the Total Equity Value implied in the Approved Sale being Transferred in such Approved Sale) of such Dragged Holder’s Membership Interests and other Equity Securities, in each case, on the terms and conditions approved by the Drag Along Selling Member; provided, that such terms and conditions shall not be less favorable to any Dragged Holder than those terms and conditions applicable to the Drag Along Selling Member (taking into account the Pro Rata Share of each Membership Interest to be sold in such Approved Sale). Each Dragged Holder shall take all reasonably necessary actions in connection with the consummation of the Approved Sale (whether in such Person’s capacity as a Member, Manager or otherwise) as reasonably requested by the Drag Along Selling Member (including executing and delivering any and all reasonable and customary agreements, instruments, consents, waivers and other documents that are required by the buyer in such Approved Sale in the same forms executed by the Drag Along Selling Member (including any applicable purchase agreement, stockholders agreement, escrow agreement and/or indemnification and/or contribution agreement); [provided, that a Dragged Holder shall not be required to enter into any non- competition or non-solicitation agreement (except for a Dragged Holder that is subject to an Employment Agreement, who may be required to enter into a non-competition or non- solicitation agreement, provided that such agreement is no more restrictive than the most restrictive non-competition or non-solicitation covenant in such Dragged Holder’s Employment Agreement)] ; provided, that no Dragged Holder shall be required to make any payment or incur any expenses in connection therewith, except as set forth in Section 9.4(c). The Drag Along Selling Member shall provide each Dragged Holder with written notice (the “Drag Along Sale Notice”) specifying in reasonable detail the material terms and conditions of the Approved Sale which terms and conditions shall treat all stockholders Sale, including the identity of the Company equally (on a pro rata basis), except that shares having a liquidation preference may, if so provided prospective buyer in the documents governing such shares, receive an amount of consideration equal to such liquidation preference in addition to the consideration being paid to the holders of Shares not having a liquidation preference. Grantee shall take all necessary and desirable lawful actions as directed by the Board and the stockholders of the Company approving the Approved Sale in connection with the consummation of any Approved Sale, including without limitation, the execution number of such agreements Membership Interests to be Transferred and such instruments the proposed amount and other actions reasonably necessary to (A) provide the representations, warranties, indemnities, covenants, conditions, non-compete agreements, escrow agreements and other provisions and agreements relating to such Approved Sale and, (B) effectuate the allocation and distribution form of the aggregate consideration upon the Approved Sale, provided, that this Section 8 shall not require Grantee to indemnify the purchaser in any Approved Sale for breaches of the representations, warranties or covenants of the Company or any other stockholder, except to the extent (x) Grantee is not required to incur more than its pro rata share of such indemnity obligation (based on the total consideration to be received by all stockholders that are similarly situated and hold the same class or series of capital stock) and (y) such indemnity obligation is provided for and limited to a post-closing escrow or holdback arrangement of cash or stock paid in connection with the such Approved Sale, at least [ten (10)] Business Days prior to any such Approved Sale, and the Drag Along Selling Member shall attach to any such Drag Along Sale Notice draft copies of all of the agreements referred to in the immediately preceding sentence; provided that each Dragged Holder shall retain and treat such copies in accordance with Section 6.7.
Appears in 1 contract
Samples: Limited Liability Company Agreement
Approved Sale. If In the event a Company Sale is approved by the Board of Directors of and the Company (the “Board”) shall deliver a notice to Grantee (a “Sale Event Notice”) stating that the Board has approved a sale of all or a portion of the Company Majority Stockholders (an “Approved Sale”), such Majority Stockholders may, at their joint election, require each other Stockholder to participate in such Approved Sale in a manner set forth in Section 3.2. Any such election shall be made by written notice to the Company, and upon receipt of such election notice the Company shall be required to promptly deliver notice of such exercise to all other Stockholders no less than twenty (20) days prior to the consummation of such Approved Sale. Such notice to the other Stockholders shall describe in reasonable detail the material terms and specifying conditions of such Approved Sale, including the name and address of the proposed parties to such transaction acquirer and the consideration payable in connection therewithexpected date, Grantee time and location of the proposed closing, and shall include a copy of the term sheet or letter of intent, if any. Any Approved Sale shall be subject to the following conditions:
(i) consent each such Stockholder shall receive, with respect to such Stockholder’s Securities, consideration that is no less than every other Stockholder receives with respect to his, her or its Securities of the same type, class and raise no objections against series (provided, that differences in net proceeds attributable to differing exercise or conversion prices with respect to Securities of the Approved Sale same type, class or the process pursuant series shall not be deemed to which the Approved Sale was arranged, constitute differing consideration);
(ii) waive any dissenter’s rights and other similar rights, liquidation preferences provided by the Charter shall be honored and all amounts payable pursuant to any Approved Sale shall be otherwise paid in accordance with the Charter (including pursuant to the last paragraph of Section 2.1 of the Charter);
(iii) if any Stockholder is given an option as to the Approved Sale is structured form and amount of consideration to be received as a sale of securities, agree to sell Grantee’s Shares on the terms and conditions result of the Approved Sale which terms with respect to any class and conditions series of Securities, each other Stockholder shall treat all stockholders of have been given the Company equally (on a pro rata basis), except that shares having a liquidation preference may, if so provided in the documents governing such shares, receive an amount of consideration equal same option with respect to such liquidation preference in addition to the consideration being paid to the holders class and series of Shares not having a liquidation preference. Grantee shall take all necessary and desirable lawful actions as directed by the Board and the stockholders of the Company approving the Approved Sale in connection with the consummation of Securities;
(iv) no Stockholder, other than any Approved Sale, including without limitation, the execution of such agreements and such instruments and other actions reasonably necessary to (A) provide the representations, warranties, indemnities, covenants, conditions, non-compete agreements, escrow agreements and other provisions and agreements relating to such Approved Sale and, (B) effectuate the allocation and distribution of the aggregate consideration upon the Approved Sale, provided, that this Section 8 shall not require Grantee to indemnify the purchaser in any Approved Sale for breaches of the representations, warranties Stockholder who may be an officer or covenants employee of the Company or its Affiliates, shall be required to agree to any non-competition, non-solicitation or similar restriction or to provide any release other stockholderthan a release of claims relating directly to such Stockholder’s authority, except ownership and the ability to convey title to their respective Securities;
(v) no Stockholder shall be obligated to undertake any indemnity that is joint in nature or could exceed (I) in the case of any indemnity relating to a breach of representations and warranties relating to the extent Company (x) Grantee is and not required to incur more than its such Stockholder), such Stockholder’s pro rata share of such indemnity indemnification obligation (calculated based on such Stockholder’s pro rata share of the total consideration to be aggregate net proceeds received by all stockholders that are similarly situated Stockholders in connection with such Approved Sale, or (II) in any case, the amount of the proceeds received by such Stockholder in the Approved Sale; and
(vi) any representations and hold the same class or series of capital stock) and (y) such indemnity obligation is provided for and limited warranties to a post-closing escrow or holdback arrangement of cash or stock paid be made by each Stockholder in connection with the Approved Sale shall be limited to representations and warranties as to such Stockholder only (and not the Company) related to authority, ownership and the ability to convey title to their respective Securities, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Securities such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized by or on behalf of the Stockholder, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by such Stockholder and delivered to the acquirer and are enforceable against such Stockholder in accordance with their respective terms, subject to equitable exceptions, and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of such Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, or order or decree of any court or governmental agency, to which it is bound which would impair such Stockholder’s ability to consummate the Approved Sale.
Appears in 1 contract
Approved Sale. (a) If the Board of Directors of the Company Approving Equityholders (the “Board”as herein defined) shall deliver a notice to Grantee (a “Sale Event Notice”) stating that the Board has approved approve a sale of all or a portion substantially all of the Company Company's assets determined on a consolidated basis or a sale of all (or, for accounting, tax or other reasons, substantially all) of the Common Shares (in either case, whether by merger, recapitalization, consolidation, reorganization, combination or otherwise) or any other transaction which has substantially the same effect as any of the foregoing to an “Unaffiliated Third Party or group of Unaffiliated Third Parties (each such sale or transaction, an "Approved Sale”) and specifying the name and address "), then each holder of the proposed parties to such transaction and the consideration payable in connection therewithEquityholder Shares will vote for, Grantee shall (i) consent to and raise no objections against the such Approved Sale or subject to the process pursuant to which the Approved Sale was arranged, (ii) waive any dissenter’s rights and other similar rights, and (iii) if terms set forth below. If the Approved Sale is structured as (i) a merger or consolidation, each holder of Equityholder Shares will waive any dissenters' rights, appraisal rights or similar rights in connection with such merger or consolidation or (ii) a sale of securitiesstock, each holder of Equityholder Shares will agree to sell Grantee’s all of its Equityholder Shares and rights to acquire Equityholder Shares on the same terms and conditions (subject to the proviso below) as applicable to all of the Approved Sale which terms and conditions shall treat all stockholders Equityholder Shares held by the Approving Equityholders. Each holder of the Company equally (on a pro rata basis), except that shares having a liquidation preference may, if so provided in the documents governing such shares, receive an amount of consideration equal to such liquidation preference in addition to the consideration being paid to the holders of Equityholder Shares not having a liquidation preference. Grantee shall will take all reasonably necessary and or desirable lawful actions as directed by the Board and the stockholders of the Company approving the Approved Sale in connection with the consummation of the Approved Sale as reasonably requested by the Approving Equityholders including without limitation (but subject to Section 7(c)) executing any applicable purchase agreement and, if necessary, exercising any outstanding options or warrants held by such holder of Equityholder Shares; provided, that, notwithstanding the foregoing, no Equityholder may be required to be jointly or jointly and severally liable for any indemnification obligations provided by the Equityholders in connection with any Approved Sale and no Equityholder may be liable as a result of any such indemnification obligations for more than the net proceeds actually received by such Equityholder as consideration for the Equityholder Shares it sold in such Approved Sale.
(b) Each Equityholder will bear their pro-rata share (based upon the amount of consideration received) of the reasonable out-of-pocket costs of any sale of Equityholder Shares pursuant to an Approved Sale to the extent such costs are incurred for the benefit of all holders of Equityholder Shares and are not otherwise paid by the Company or the acquiring party. Costs incurred by any Equityholder on their own behalf will not be considered costs of the transaction hereunder.
(c) The obligations of the Equityholders with respect to any Approved Sale are subject to the satisfaction of the following conditions: (i) in connection with the consummation of such Approved Sale, including without limitation, each Equityholder will be entitled to receive the execution same form and amount (on a share-for-share basis) of consideration with respect to each Equityholder Share sold in such agreements and such instruments and other actions reasonably necessary to (A) provide the representations, warranties, indemnities, covenants, conditions, non-compete agreements, escrow agreements and other provisions and agreements relating to such Approved Sale and, (B) effectuate the allocation and distribution of the aggregate consideration upon the Approved Sale, provided, that this Section 8 shall not require Grantee to indemnify (ii) if any holder of Equityholder Shares is given the purchaser in any Approved Sale for breaches of the representations, warranties or covenants of the Company or any other stockholder, except option as to the extent (x) Grantee is not required to incur more than its pro rata share form and amount of such indemnity obligation (based on the total consideration to be received by all stockholders that are similarly situated and hold in connection with such Approved Sale, then each holder of Equityholder Shares shall be given the same class or series of capital stock) option and (yiii) such indemnity obligation is provided for and limited to a post-closing escrow or holdback arrangement the receipt of cash or stock paid all the material regulatory approvals which are necessary in connection with the consummation of such Approved Sale. Notwithstanding anything contained herein to the contrary, the term "consideration" as used in this Section 7 shall not include any closing fees received by any Saw Mill Investor or any Affiliate of any Saw Mill Investor in connection with an Approved Sale and shall not include any salary, bonuses or other form of compensation (whether incentive or otherwise) received by any Executive in connection with an Approved Sale.
(d) For purposes of this Section 7, the term "Approving Equityholders" means either (i) the holders of at least 66-2/3% of the number of outstanding Equityholders Shares or (ii) at any time after the date five years after the date hereof, the Saw Mill Supermajority Holders, but only if the Saw Mill Supermajority Holders have complied with the provisions of Section 6 hereof to the extent such Section 6 has not been previously terminated.
Appears in 1 contract
Samples: Stockholders Agreement (Jason Inc)
Approved Sale. If (i) Notwithstanding the Board of Directors of foregoing, in the Company (the “Board”) shall deliver a notice to Grantee (a “Sale Event Notice”) stating event that the Board has approved votes for and consents to a sale of all or a portion Sale of the Company (an “Approved Sale”) Holder (which term when used in this Section 8.2 shall include Holder’s successors, assigns and specifying transferees) shall vote for (to the name and address of the proposed parties to such transaction and the consideration payable in connection therewithextent Holder has voting rights), Grantee shall (i) consent to and raise no objections against the such Approved Sale or the process pursuant to which the Approved Sale was arranged, (ii) waive any dissenter’s rights and other similar rights, and (iii) if Sale. If the Approved Sale is structured (A) as a merger or consolidation, Holder shall waive any dissenters rights, appraisal rights or similar rights in connection with such merger or consolidation or (B) as a sale of securities, Holder shall agree to sell Granteeall of Holder’s Warrants and Warrant Shares on the terms and conditions of the Approved Sale which terms and conditions shall treat all stockholders of the Company equally (on a pro rata basis), except that shares having a liquidation preference may, if so provided in the documents governing such shares, receive an amount of consideration equal to such liquidation preference in addition to the consideration being paid to the holders of Shares not having a liquidation preferenceSale. Grantee Holder shall take all necessary and or desirable lawful actions as directed by the Board and the stockholders of the Company approving the Approved Sale in connection with the consummation of any the Approved Sale as reasonably requested by the board of directors of Company.
(ii) The obligations of Holder with respect to an Approved Sale are subject to the satisfaction of the following conditions: (A) upon the consummation of the Approved Sale, Holder shall, without duplication, receive (1) in consideration of the shares of Common Stock then held by Holder (including without limitationshares acquired by Holder upon exercise of its Warrants in connection with such Approved Sale), the execution same per share consideration that is received by other holders of such agreements and such instruments and other actions reasonably necessary to (A) provide the representations, warranties, indemnities, covenants, conditions, non-compete agreements, escrow agreements and other provisions and agreements relating to Common Stock in consideration of their shares of Common Stock that are sold in or voted in favor of such Approved Sale andand (2) in consideration of the Warrants then held by Holder and Warrant Shares then held by Holder with respect to which Holder does not exercise its Warrants prior to or in connection with such Approved Sale, an amount equal to (x) the amount that Holder would have received (in accordance with the foregoing clause (1)) if such Warrants had been fully exercised into shares of Common Stock immediately prior to or in connection with such Approved Sale less (y) an amount equal to the aggregate amount of the exercise price of Holder’s Warrant Shares with respect to which its Warrants are not exercised prior to or in connection with such Approved Sale, (B) effectuate if the allocation and distribution holders of the aggregate consideration upon the Approved Sale, provided, that this Section 8 shall not require Grantee to indemnify the purchaser in any Approved Sale for breaches of the representations, warranties Common Stock and/or Series B Preferred Stock (or covenants of the Company or any other stockholder, except equity securities exchangeable therefor) are given an option as to the extent (x) Grantee is not required to incur more than its pro rata share of such indemnity obligation (based on the total form and consideration to be received by all stockholders that are similarly situated and hold received, Holder shall be given the same class option, and (C) Holder shall be given the opportunity to exercise its then exercisable rights to acquire Common Stock prior to the consummation of the Approved Sale and to participate in such sale as a holder of Common Stock.
(iii) As used in this Section, “Sale of the Company” means either (A) the sale, lease, transfer, conveyance or other disposition, in one or a series of related transactions, of all or substantially all of the assets of Company and its subsidiaries, taken as a whole (other than a collateral assignment by Company and its subsidiaries of such assets to any lender as security for Company’s and its subsidiaries obligations to such lender), or (B) a transaction or series of capital stocktransactions (including by way of merger, consolidation, sale of securities, recapitalization or otherwise) the result of which is that (1) any “person” or “group” (as such terms are used in Section 13(d)(3) of the Exchange Act) other than Parent or Parent’s largest equity holder as of the Date of Initial Issuance (and its affiliates) becomes the “beneficial owner” (as such term is defined in Rule 13d-3 and Rule 13d-5 promulgated under the Exchange Act), directly or indirectly through one or more intermediaries, of more than 50% of the voting power of the outstanding voting stock of Company or (2) the beneficial owners of Company’s outstanding voting stock immediately prior to the transaction cease to own directly or indirectly at least 50% of the voting power of the outstanding voting stock of Company other than as a result of a sale of stock which is a public offering.
(iv) The provisions of this Section 8.2 shall terminate upon the earlier to occur of (i) the consummation of an initial public offering and (yii) such indemnity obligation is provided for and limited to the completion of a post-closing escrow or holdback arrangement Sale of cash or stock paid in connection with the Approved SaleCompany.
Appears in 1 contract
Approved Sale. If (i) Holding and each of the Securityholders shall cooperate fully in any Approved Sale and shall not take any action that is prejudicial to or inconsistent with such Approved Sale.
(ii) Each Securityholder (A) shall vote or cause to be voted all Securities having voting rights that are owned by such Securityholder or over which such Securityholder has voting control to approve the terms of any such Approved Sale and such matters ancillary thereto as may be necessary or appropriate, in the judgment of the Board of Directors of the Company (the “Board”) shall deliver a notice Holding, to Grantee (a “Sale Event Notice”) stating that the Board has approved a sale of all or a portion of the Company (an “effect such Approved Sale”, (B) hereby irrevocably waives and specifying relinquishes, to the name fullest extent permitted by applicable law, all rights to object to or dissent from such Approved Sale (including without limitation any appraisal or similar rights), and address of the proposed parties agrees to such transaction and the consideration payable in connection therewith, Grantee shall (i) consent to and raise no objections against the against, such Approved Sale, (C) with respect to any Approved Sale or the process pursuant to which the Approved Sale was arranged, (ii) waive any dissenter’s rights and other similar rights, and (iii) if the Approved Sale is structured as a sale of securitiesstock, agree to shall sell Grantee’s Shares all of such Securityholder's Securities on the terms and conditions of the Approved Sale which terms and conditions shall treat all stockholders of the Company equally (on a pro rata basis), except that shares having a liquidation preference may, if so provided in the documents governing such shares, receive an amount of consideration equal to such liquidation preference in addition to the consideration being paid to the holders of Shares not having a liquidation preference. Grantee shall take all necessary and desirable lawful actions as directed approved by the Board of Directors of Holding, and (D) upon Holding's request, shall deliver the stockholders certificates representing all Securities owned or controlled by such Securityholder (duly endorsed, or accompanied by duly executed instruments of transfer) in escrow (pending receipt of the Company approving the purchase price therefor) to Holding's counsel in such sale.
(iii) Holding shall cause its officers, employees, agents, contractors, and other Persons under its control to cooperate in any Approved Sale in connection with and not to take any action that might impede any such sale. Without limiting the consummation generality of the foregoing, any resignation of any office of Holding prior to closing of any Approved Sale by a director or executive officer of Holding shall be a breach of this Section 2.1(iii). Pending the completion of any Approved Sale, including without limitationHolding shall operate only in the ordinary course and shall use all commercially reasonable efforts to maintain all existing business relationships in good standing. Notwithstanding the foregoing, the execution of such agreements and such instruments and other actions reasonably necessary Warrant Securityholders shall not be obligated under subparagraphs (i)-(iii) above with respect to any particular Approved Sale if (Ai) provide the representations, warranties, indemnities, covenants, conditions, non-compete agreements, escrow agreements and other provisions and agreements relating to such Approved Sale andis to any Securityholder or any Affiliate of any Securityholder, (B) effectuate the allocation and distribution of the aggregate consideration upon the Approved Sale, provided, that this Section 8 shall not require Grantee to indemnify the purchaser in any other than an Approved Sale for breaches of the representations, warranties or covenants of the Company or any other stockholder, except to the extent (x) Grantee is not required AGI Prospective Purchasers pursuant to incur more than its pro rata share of such indemnity obligation (based on Section 2.2 or as may otherwise be approved by the total consideration to be received by all stockholders that are similarly situated and hold the same class or series of capital stock) Majority Heritage Holders, and (yii) such indemnity obligation is provided for and limited to a post-closing escrow or holdback arrangement of cash or stock paid in connection with Approved Sale has not been approved by the Approved SaleMajority Warrant Holders.
Appears in 1 contract
Approved Sale. If In the Board of Directors event that the holders of the Preferred Shares exercise redemption rights pursuant to Section 3 of Article Fourth of the Company's Amended Certificate and the Company is unable to redeem, is legally prevented from redeeming or otherwise fails to redeem all of the Preferred Shares it is obligated to redeem under such Section 31 and such failure to redeem continues for sixty (60) days after the date on which the redemption should have been effected, then the Investor, by written notice to the Company and the other Stockholders (the “Board”) "Sale Notice"), shall deliver a notice be entitled to Grantee (a “Sale Event Notice”) stating that require the Board has approved a sale of all or a portion substantially all of the assets or capital stock of the Company whether by merger, consolidation, sale of assets or stock or otherwise (an “the Approved Sale”) "). Each Stockholder shall vote his Shares for, and specifying consent to, the name and address of the proposed parties to such transaction and the consideration payable in connection therewith, Grantee shall (i) consent to and raise no objections against Approved Sale. If the Approved Sale is structured as a merger or the process pursuant to which consolidation and the Approved Sale was arrangedprovides for similar consideration for the Common Shares and the Preferred Shares (determined by assuming, (ii) for purposes of this Section 6.1, the full conversion of the Preferred Shares to Common Shares), each Stockholder shall waive any dissenter’s rights and other similar 's rights, and (iii) if appraisal rights or similar rights in connection with such merger or consolidation. If the Approved Sale is structured as a sale of securitiesstock, each Stockholder shall agree to sell Grantee’s all of his Shares and rights to acquire Shares on the terms and conditions approved by the Board The Stockholders shall take any and all action necessary (including, without limitation, voting their Shares, executing and delivering written consents of Stockholders, calling special stockholders' meetings, and causing the Company to engage an investment banking firm) to effectuate the consummation of the Approved Sale which terms as promptly as possible and conditions shall treat all stockholders The any event within six (6) months after receipt by the Company of the Company equally (on a pro rata basis), except that shares having a Sale Notice. Subject to the liquidation preference may, if so provided in the documents governing such shares, receive an amount of consideration equal to such liquidation preference in addition payable to the consideration being paid Investor pursuant to the holders Amended and Restated Certificate of Shares not having a liquidation preference. Grantee shall take all necessary and desirable lawful actions as directed by the Board and the stockholders Incorporation of the Company approving the Approved Sale in connection with the consummation of any Approved SaleCompany, including without limitation, the execution of such agreements and such instruments and other actions reasonably necessary to (A) provide the representations, warranties, indemnities, covenants, conditions, non-compete agreements, escrow agreements and other provisions and agreements relating to such Approved Sale and, (B) effectuate the allocation and distribution of the aggregate consideration upon the Approved Sale, provided, that this Section 8 shall not require Grantee to indemnify the purchaser in any Approved Sale for breaches of the representations, warranties or covenants of the Company or any other stockholder, except to the extent (x) Grantee is not required to incur more than its pro rata share applicable, each of such indemnity obligation (based on the total consideration to be received by all stockholders that are similarly situated and hold Stockholders shall receive the same class or series form of capital stock) and (y) such indemnity obligation is provided for and limited to a post-closing escrow or holdback arrangement of cash or stock paid in connection with the consideration upon an Approved Sale.
Appears in 1 contract
Approved Sale. If (a) Subject to any other limitations set forth herein, if at any time following December 31, 2024, the Board and Parent approve (and, in the case of Directors any sale or other fundamental change which requires the approval of the Company (Board pursuant to the “Board”) shall deliver a notice to Grantee (a “Sale Event Notice”) stating that Delaware Act, the Board has shall have approved such sale or other fundamental transaction) a sale of all or a portion of the Company Liquidity Event (collectively an “Approved Sale”) and specifying the name and address ), each holder of the proposed parties to such transaction and the consideration payable in connection therewithEquity Securities will vote for, Grantee shall (i) consent to and raise no objections against the such Approved Sale or the process pursuant to which the Approved Sale was arranged, (ii) waive any dissenter’s rights and other similar rights, and (iii) if Sale. If the Approved Sale is structured as (i) a merger or consolidation or asset sale or other transaction for which dissenter’s, appraisal or similar rights are available under applicable law, each holder of Equity Securities will waive any dissenter’s rights, appraisal rights or similar rights in connection with such transaction, or (ii) a sale of securitiesUnits (including by recapitalization, consolidation, reorganization, combination or otherwise), each holder of Equity Securities will agree to sell Grantee’s Shares all of its Units and rights to acquire Units on the terms and conditions approved by the Board and Parent. Each holder of the Approved Sale which terms and conditions shall treat all stockholders of the Company equally (on a pro rata basis), except that shares having a liquidation preference may, if so provided in the documents governing such shares, receive an amount of consideration equal to such liquidation preference in addition to the consideration being paid to the holders of Shares not having a liquidation preference. Grantee shall Equity Securities will take all necessary and desirable lawful appropriate actions as directed by the Board and the stockholders of the Company approving the Approved Sale in connection with the consummation of any the Approved SaleSale as requested by Parent and the Company, including without limitation, limitation voting such holder’s Units that are voting units and any other voting securities of the execution Company over which such holder has voting control in favor of such agreements Approved Sale. In order to secure the performance by such holder of his, her or its obligations under this Section 12.8, such holder hereby appoints each CG Board Member as his, her or its true and lawful proxy and attorney-in-fact, with full power of substitution, to vote all of his, her or its Units that are voting units and any other voting securities of the Company over which such holder has voting control in favor of an Approved Sale and such instruments other matters as provided for in this Section 12.8. Each CG Board Member may exercise the proxy granted to it hereunder by such holder at any time (and from time to time) if such holder fails to comply with its obligations under this Section 12.8. The proxies and powers granted by such holder pursuant to this Section 12.8 are coupled with an interest and are given to secure the performance obligations under this Section 12.8 and are irrevocable and shall survive the death, incompetency, disability, bankruptcy or dissolution of such holder and any subsequent holder of his, her or its Units or right to acquire Units. No holder of Units and no holder of rights to acquire Units shall grant any proxy or become party to any voting trust or other actions reasonably necessary agreement (whether written or oral) that is inconsistent with, conflicts with or violates any provision of this Section 12.8.
(b) The obligations of each holder of Equity Securities with respect to (A) provide the representations, warranties, indemnities, covenants, conditions, non-compete agreements, escrow agreements and other provisions and agreements relating to such an Approved Sale andare subject to the satisfaction of the following conditions: (i) upon the consummation of the Approved Sale and subject to the provisions of this Agreement, (B) effectuate each holder of Equity Securities shall receive the allocation and distribution same portion of the aggregate consideration upon the Approved Sale, provided, from such transaction that this Section 8 shall not require Grantee to indemnify the purchaser in any Approved Sale for breaches of the representations, warranties or covenants of such holder would have received if such aggregate consideration had been distributed by the Company or any other stockholder, except in a complete liquidation pursuant to the extent rights and preferences set forth in this Agreement as in effect immediately prior to such transaction, (xii) Grantee is not required to incur more than its pro rata share each holder of such indemnity obligation (based on the total consideration to be received by all stockholders that are similarly situated and hold the same a class or series of capital stockUnits shall receive the same form of consideration as other holders in such class or series, and, if any holder of a class or series of Units is given an option as to the form of consideration to be received, each holder of such class or series of Units will be given the same option; provided, however, that, notwithstanding the foregoing provisions of this Section 12.8(b), if the consideration to be paid in exchange for the Equity Securities held by such Holder pursuant to this Section 12.8(b) includes any securities and due receipt thereof by any Holder would require under applicable law (x) the registration or qualification of such securities or of any Person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Holder of any information other than such indemnity obligation is provided information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Holder or in lieu thereof, an amount in cash equal to the Fair Market Value (as determined in good faith by the Board) of the securities which such Holder would otherwise receive as of the date of the issuance of such securities in exchange for and limited to the Equity Securities held by such Holder, (iii) in no event shall a post-closing escrow or holdback arrangement holder of cash or stock paid Equity Securities be liable, in connection with the any indemnification obligations relating to an Approved Sale, for an amount in excess of the consideration received or receivable by such holder of Equity Securities in connection with such Approved Sale (including the payment of a proportionate piece of the Company’s then outstanding indebtedness), and (iv) no holder of Equity Securities shall be required to make any representations and warranties not made by all the other holders of Equity Securities in connection with an Approved Sale (except as to such holder’s title to its Equity Securities, its authority to enter into such Approved Sale and the enforceability of its obligations thereunder).
(c) If the Company or the holders of the Company’s securities enter into any negotiation or transaction for which Rule 506 (or any similar rule then in effect) promulgated by the Securities and Exchange Commission may be available with respect to such negotiation or transaction (including a merger, consolidation or other reorganization), the holders of Equity Securities that are not “accredited investors” (as such term is defined in Rule 501 promulgated under the Securities Act) will, at the request of the Company, appoint a “purchaser representative” (as such term is defined in Rule 501 promulgated by the Securities and Exchange Commission) reasonably acceptable to the Company. If any such holder of Equity Securities appoints a purchaser representative designated by the Company, the Company will pay the fees of such purchaser representative, but if any such holder of Equity Securities declines to appoint the purchaser representative designated by the Company, such holder will appoint another purchaser representative, and such holder will be responsible for the fees of the purchaser representative so appointed.
(d) The provisions of this Section 12.8 will terminate on the first to occur of (i) the consummation of an IPO and (ii) the consummation of an Approved Sale (except as such provisions relate to any such Approved Sale).
Appears in 1 contract
Samples: Limited Liability Company Agreement (CarGurus, Inc.)
Approved Sale. If (a) Each Stockholder hereby agrees that if at any time the Board of Directors of the Company (the “Board”) shall deliver approves a notice to Grantee (a “Sale Event Notice”) stating that the Board has approved a sale of all or a portion of the Company (an “"Approved Sale”) and specifying the name and address of the proposed parties to such transaction and the consideration payable in connection therewith"), Grantee shall (i) each Stockholder will vote for, consent to to, and raise no objections against the such Approved Sale or the process pursuant to which the Approved Sale was arranged, (ii) waive any dissenter’s rights and other similar rights, and (iii) if Sale. If the Approved Sale is structured (x) as a merger or consolidation, each such holder will waive any dissenters rights, appraisal rights or similar rights in conjunction with such merger or consolidation or (y) as a sale of securitiesequity, each such Stockholder will agree to sell Grantee’s up to all of such Stockholder's Shares on the terms and conditions approved by the Company, and (z) as a sale of assets, each such Stockholder will vote in favor of any subsequent liquidation or other distribution of the Approved Sale which terms proceeds therefrom as approved by the Board. The Company and conditions shall treat all stockholders of the Company equally (on a pro rata basis), except that shares having a liquidation preference may, if so provided in the documents governing such shares, receive an amount of consideration equal to such liquidation preference in addition to the consideration being paid to the holders of Shares not having a liquidation preference. Grantee shall each Stockholder will take all necessary and or desirable lawful actions as directed by the Board and the stockholders of the Company approving the Approved Sale in connection with the consummation of any the Approved Sale as requested by the Board, including the execution of all agreements, documents and instruments in connection therewith in the form presented by the Company.
(b) Upon the consummation of the Approved Sale, including without limitation, the execution of such agreements and such instruments and other actions reasonably necessary to (A) provide the representations, warranties, indemnities, covenants, conditions, non-compete agreements, escrow agreements and other provisions and agreements relating to each Stockholder participating in such Approved Sale and, (B) effectuate will receive the allocation and distribution same portion of the aggregate consideration upon available to be distributed to the Approved Sale, provided, that this Section 8 shall not require Grantee to indemnify the purchaser in any Approved Sale for breaches of the representations, warranties or covenants stockholders of the Company or any other stockholder, except (in their capacity as such) that such Stockholders participating in such sale (in their capacity as stockholders of the Company) would have received if such aggregate consideration had been distributed by the Company in complete liquidation pursuant to the extent rights and preferences set forth in the Company's Certificate of Incorporation as in effect immediately before such Approved Sale (xa "Liquidation") Grantee is not (and, in the event of a sale of stock, assuming that the only securities of the Company outstanding were those Stockholder Shares and other shares of capital stock involved in such sale), and assuming that the holders of convertible securities had converted their shares if by converting such holders would have received more proceeds upon a Liquidation.
(c) Each Stockholder will be obligated to join on a pro rata basis (applied such that after giving effect thereto, the aggregate consideration paid to each Stockholder would comply with the provisions of Section 5(b)) in any purchase price adjustments, indemnification or other obligations that the sellers of Stockholder Shares are required to incur more than its pro rata share of such indemnity obligation (based on the total consideration to be received by all stockholders that are similarly situated and hold the same class or series of capital stock) and (y) such indemnity obligation is provided for and limited to a post-closing escrow or holdback arrangement of cash or stock paid provide in connection with the Approved SaleSale (other than any such obligations that relate solely to a particular Stockholder, such as indemnification with respect to representations and warranties given by a Stockholder regarding such Stockholder's title to and ownership of Stockholder Shares, in respect of which only such Stockholder will be liable); provided that no holder will be obligated in connection with such indemnification or other obligations with respect to an amount in excess of the consideration received by such holder in connection with such transfer.
(d) If the Company enters into a negotiation or transaction for which Rule 506 (or any similar rule then in effect) promulgated by the Securities and Exchange Commission may be available with respect to such negotiation or transaction (including a merger, consolidation or other reorganization), the Stockholder will, at the request of the Board, appoint a Stockholder representative (as such term is defined in Rule 501) reasonably acceptable to the Board. If any Stockholder appoints a Stockholder representative designated by the Board, the Company will pay the fees of such Stockholder representative, but if any holder of Stockholder declines to appoint the Stockholder representative designated by the Board such holder will appoint another Stockholder representative, and such holder will be responsible for the fees of the Stockholder representative so appointed.
(e) If any Stockholder fails to deliver any certificates representing its Stockholder Shares as required by this Section 5, such Stockholder (i) will not be entitled to the consideration that such Stockholder would otherwise receive in the Approved Sale until such Stockholder cures such failure by providing the Company with reasonably satisfactory evidence (an affidavit of the registered holder shall be satisfactory) of the ownership and the loss, theft, destruction or mutilation of any certificate evidencing his Stockholder Shares, and indemnify in respect thereto which is reasonably satisfactory to the Company (provided that, after curing such failure, such holder will be so entitled to such consideration without interest), (ii) will be deemed, for all purposes, no longer to be a Stockholder of the Company and will have no voting rights, (iii) will not be entitled to any dividends or other distributions declared after the Approved Sale with respect to the Stockholder Shares held by such Stockholder, (iv) will have no other rights or privileges granted to Stockholders under this or any future agreement, and (v) in the event of liquidation of the Company, such Stockholder's rights with respect to any consideration that such holder would have received if such holder had complied with this Section 5, if any, will be subordinate to the rights of any equity holder.
(f) In order to secure each Stockholder's obligation to vote its Stockholder Shares and other voting securities of the Company in accordance with, and to take the other actions required by, the provisions of this Section 5 and of Section 8, each Stockholder hereby appoints the Purchaser as its true and lawful proxy and attorney-in-fact, with full power of substitution, to vote all of its Stockholder Shares and other voting securities of the Company for the matters expressly provided for in this Section 5. The Purchaser may exercise the irrevocable proxy granted to it hereunder at any time any Stockholder fails to comply with the provisions of this Section 5. The proxies and powers granted by each Stockholder pursuant to this Section 5(f) are coupled with an interest and are given to secure the performance of such Stockholder's obligations under this Section 5. Such proxies and powers shall be irrevocable and shall survive the death, incompetency, disability or bankruptcy of such Stockholder and the subsequent holders of its Stockholder Shares.
Appears in 1 contract
Approved Sale. (a) If the Board of Directors of the Company one or more Members beneficially owning Interests representing more than a 50% Percentage Interest (the “BoardTriggering Group”) shall deliver a notice to Grantee (a “approves the Sale Event Notice”) stating that the Board has approved a sale of all or a portion of the Company (an “Approved Sale”) ), each Member will consent to, cooperate with, and specifying the name and address will not object or otherwise impede consummation of the proposed parties to such transaction and the consideration payable in connection therewith, Grantee shall Approved Sale.
(ib) consent to and raise no objections against the Approved Sale or the process pursuant to which the Approved Sale was arranged, (ii) waive any dissenter’s rights and other similar rights, and (iii) if If the Approved Sale is structured as (i) a merger or consolidation, each Member shall vote its Interests to approve such merger or consolidation, whether by written consent or at a Members meeting (as requested by the Triggering Group), (ii) a sale of securitiesInterests, each Member shall agree to sell Grantee’s Shares sell, and shall sell, that portion of its Interests and rights to acquire Interests on the terms and conditions so approved; provided, that the Triggering Group shall have no right to cause IMS Nevada to sell any portion of the IMS’ Carried Interest as part of an Approved Sale which terms unless such Approved Sale contemplates the sale of all of the Interests in the Company, or (iii) a sale of assets, each Member shall vote its Interests to approve such sale and conditions shall treat all stockholders any subsequent liquidation of the Company equally or other distribution of the proceeds therefrom, whether by written consent or at a members meeting (on a pro rata basisas requested by the Triggering Group). In furtherance of the foregoing, except that shares having a liquidation preference mayeach Member shall (I) waive all dissenter’s rights, if so provided appraisal rights and similar rights in the documents governing connection with such sharesApproved Sale, receive an amount of consideration equal and (II) take, with respect to such liquidation preference in addition to the consideration being paid to the holders of Shares not having a liquidation preference. Grantee shall take Person’s Interests, all necessary and or desirable lawful actions as directed reasonably requested by the Board and the stockholders of the Company approving the Approved Sale Triggering Group in connection with the consummation of the Approved Sale, including voting to approve such transaction and executing the applicable purchase agreement. In any Approved Sale, including without limitationeach holder of Interests shall be obligated to make representations and warranties as to such Member’s title to and ownership of Interests, the authorization, execution and delivery of relevant documents and instruments by such Member, enforceability of relevant agreements against such Member and other matters, to enter into covenants in respect of a Transfer of such agreements and such instruments and other actions reasonably necessary to (A) provide the representations, warranties, indemnities, covenants, conditions, non-compete agreements, escrow agreements and other provisions and agreements relating to Member’s Interests in connection with such Approved Sale andand to enter into indemnification obligations, (B) effectuate in each case to the allocation extent that the Triggering Group is similarly obligated. Notwithstanding the foregoing, no Member shall be obligated to make any representation or warranties concerning the Company or its business, and distribution any indemnification shall be limited to the amount of cash consideration plus any set-off or reduction in the aggregate consideration upon the value of any promissory note or deferred compensation received by such Member. Upon consummation of an Approved Sale, if a Member has not delivered any documents and instruments as contemplated by this Section 9.8, such Member shall no longer be considered a holder of an Interest in the Company to the extent of the Approved Sale and such Member’s sole rights with respect to such Interest shall be to receive the consideration receivable in connection with such Approved Sale upon delivery of the appropriate documents and instruments.
(i) In the case of an Approved Sale consisting of a sale of all of the Interests held by all Members in the Company or a sale of all or substantially all of the Company’s assets, the portion of the net proceeds (whether cash or property) from such Approved Sale payable to each Member shall be the portion of such net proceeds that would be distributed to such Member had the aggregate amount (in the case of cash net proceeds) or Value (in the case of non-cash net proceeds) of such net proceeds been distributed to the Members pursuant to Section 5.1.
(ii) In the case of an Approved Sale consisting of a sale of less than all of the Interests held by the Members in the Company, the portion of the net proceeds (whether cash or property) from such Approved Sale shall be payable to each Capital Member pro rata in proportion to the Interests so transferred by all Capital Members.
(d) If the Company enters into any negotiation or transaction for which Rule 506 of the Securities Act (or any similar rule then in effect) may be available with respect to such negotiation or transaction (including a merger, consolidation or other reorganization), each Member that is not an “accredited investor” shall, at the request of the Company or the Triggering Group, appoint a purchaser representative (as such term is defined in Rule 501 of the Securities Act) reasonably acceptable to the Company. If any Member appoints a purchaser representative designated by the Company, the Company shall pay the fees of such purchaser representative, but if any Member declines to appoint the purchaser representative designated by the Company such Member shall appoint another purchaser representative, and such Member will be responsible for the fees of the purchaser representative so appointed.
(e) The Company shall bear the costs of any sale of Interests pursuant to an Approved Sale to the extent such costs are incurred for the benefit of all Members and are not otherwise paid by the Company the acquiring party. For purposes of this Section 9.8(e), costs incurred in exercising reasonable efforts to take all necessary actions in connection with the consummation of an Approved Sale in accordance with Section 9.8(a) shall be deemed to be for the benefit of all Members, except that costs incurred by any Member in connection with the Transfer of its own Interest or otherwise on its own behalf will not be considered costs of the transaction hereunder and will be the responsibility of such Member.
(f) In furtherance of the provisions of this Section 9.8, each Member (and their successors, heirs, legal representatives, and permitted assigns and transferees) hereby (i) irrevocably appoints the Manager as such Member’s agent and attorney-in-fact (the “Drag-Along Agent”) (with full power of substitution) to execute all agreements (including any amendments to this Agreement), instruments and certificates and take all actions necessary or desirable to effectuate any Approved Sale as contemplated under this Section 9.8, and (ii) grants to each Drag-Along Agent a proxy (which shall be deemed to be coupled with an interest and to be irrevocable) to vote the Interests having voting power held by such Person and exercise any consent rights applicable thereto in favor of any such Approved Sale as provided in this Section 9.8; provided, however, that the Drag-Along Agent shall not exercise such powers-of-attorney or proxies with respect to any such Person unless such Person refuses or fails to timely comply with its obligations under this Section 8 shall not require Grantee 9.8. THE AGREEMENTS CONTAINED IN THIS SECTION 9.8(f) ARE COUPLED WITH AN INTEREST AND EXCEPT AS PROVIDED IN THIS AGREEMENT MAY NOT BE REVOKED OR TERMINATED DURING THE TERM OF THIS AGREEMENT.
(g) Notwithstanding anything to indemnify the contrary herein, any Member may participate as a potential purchaser or bidder in any Approved Sale for breaches of the representations, warranties or covenants of the Company or any other stockholder, except to the extent (x) Grantee is not required to incur more than its pro rata share of such indemnity obligation (based on the total consideration to be received by all stockholders that are similarly situated same terms and hold the same class or series of capital stock) conditions as other potential purchasers and (y) such indemnity obligation is provided for and limited to a post-closing escrow or holdback arrangement of cash or stock paid in connection with the Approved Salebidders.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Fulcrum Bioenergy Inc)
Approved Sale. If From and after the Board Drag Along Trigger Date, [•] may cause a sale of Directors the business, in one or a series of related transactions, by way of selling 100% of the outstanding equity securities of the Company (the “Board”whether by amalgamation, merger, consolidation, recapitalization, sale or Units or otherwise) shall deliver a notice to Grantee (a “Sale Event Notice”) stating that the Board has approved a sale of or all or a portion substantially all of the Company Company’s assets to one or more third parties, including third parties not yet identified by [•], who are not Affiliates of [•] (an “Approved Sale”). [•] may elect to cause an Approved Sale by sending written notice (a “Sale Notice”) and specifying thereof to the name and address of the proposed parties to such transaction Manager and the consideration payable in connection therewith, Grantee other Members. The Manager and NutraCea shall (i) consent to and raise no objections against the Approved Sale or the process pursuant to which the Approved Sale was arranged, (ii) waive any dissenter’s rights and other similar rights, and (iii) if the Approved Sale is structured as a sale of securities, agree to sell Grantee’s Shares on the terms and conditions of the Approved Sale which terms and conditions shall treat all stockholders of cause the Company equally (on a pro rata basis), except that shares having a liquidation preference may, if so provided in the documents governing such shares, receive an amount of consideration equal to such liquidation preference in addition to the consideration being paid to the holders of Shares not having a liquidation preference. Grantee shall and its Subsidiaries to) promptly take all necessary and desirable lawful actions as are reasonably directed by the Board and the stockholders of the Company approving the Approved Sale [•] in connection with the consummation of any Approved Sale, including without limitation, (i) cooperating with the execution of such agreements and such instruments and other actions reasonably necessary to (A) provide proposed advisor that will lead the representations, warranties, indemnities, covenants, conditions, non-compete agreements, escrow agreements and other provisions and agreements relating to such Approved Sale and, (B) effectuate the allocation and distribution of the aggregate consideration upon the Approved Sale, provided, that this Section 8 shall not require Grantee to indemnify the purchaser in any Approved Sale for breaches of the representations, warranties or covenants sale process of the Company or its assets and cooperating with the proposed buyer(s) (each, a “Proposed Buyer”) and [•] in the evaluation of an Approved Sale, (ii) hiring legal counsel selected by [•] to act on behalf of the Company and the Members in connection with such Approved Sale, (iii) facilitating each Proposed Buyer’s due diligence process in respect of any such Approved Sale, (iv) executing sale contracts and other stockholdercustomary documents approved by [•], except (v) making required governmental filings, (vi) obtaining any audit required by a Proposed Buyer’s financing sources, and (vii) in the case of NutraCea, causing the Manager and the NutraCea Designees to take all necessary or reasonably desirable actions to effect such Approved Sale. The Company shall bear all costs and expenses of any actual or proposed Approved Sale to the extent such costs or expenses are incurred by the Company or on behalf of the Members generally (x) Grantee is including, but not required limited to, the advisors and legal counsel which provide services to incur more than its pro rata share of such indemnity obligation (based on the total consideration Company with respect to be received by all stockholders that are similarly situated and hold the same class or series of capital stock) and (y) such indemnity obligation is provided for and limited to a post-closing escrow or holdback arrangement of cash or stock paid in connection with the Approved Sale); provided, that the Company shall not bear the costs of additional advisors or legal counsel which provide services that only benefit a specific Member or Members.
Appears in 1 contract
Approved Sale. If the Board of Directors of the Company (the “Board”unanimously approves a Sale Transaction in accordance with Section 6.3(b)(i) shall deliver a notice to Grantee (a “Sale Event Notice”) stating that the Board has approved a sale of all or a portion of the Company Sale Transaction Offer or a Final Third Party Offer is accepted pursuant to Section 9.10, in each case, to a bona fide Third Party Purchaser and solely for cash consideration (an “Approved Sale”) and specifying the name and address of the proposed parties to such transaction and the consideration payable ), then each Member will vote for, consent to, participate in connection therewith, Grantee shall (i) consent to and raise no objections against against, and not otherwise impede or delay, such Approved Sale if and to the extent that a vote or consent of the Members is required to consummate the Approved Sale. In furtherance of the foregoing, (i) if the Approved Sale is structured as an asset sale, merger or the process pursuant to which the Approved Sale was arrangedconsolidation, then each Member will waive any dissenters rights, appraisal rights or similar rights in connection with such asset sale, merger or consolidation, (ii) waive any dissenter’s rights and other similar rights, and (iii) if the Approved Sale is structured as a sale of securitiesUnits or other Equity Securities, then each Member will agree to sell Granteeand Transfer, and will sell and Transfer, all (or such lesser portion reflecting such Person’s Shares proportionate interest in the aggregate portion of the Total Equity Value being sold or disposed of in such Approved Sale) of such Member’s Units and other Equity Securities on the terms approved by the Board, and conditions (iii) each Member, to the extent requested by the Board, will be obligated to: (A) use its commercially reasonable efforts to engage on behalf of the Member such financial advisors as may be reasonably necessary to identify potential or other Third Party Purchasers in connection with or to consummate such Approved Sale Sale; (B) assist in providing reasonable due diligence, financial and other information and materials regarding such Member to the parties to the Approved Sale; (C) reasonably participate in meetings, drafting sessions, diligence sessions and other discussions in connection with such Approved Sale; (D) reasonably assist the Third Party Purchaser and its financing sources in the preparation, if applicable, of definitive transaction documents and an offering document in connection with such Approved Sale; (E) provide such other consents, waivers, documents, covenants, releases and agreements regarding such Member as may be reasonably requested by the Board in connection with such Approved Sale; provided that no Member shall be required to enter into any restrictive covenants in connection with such Approved Sale, including any non-competition, non-solicitation of employees or customers, non-disparagement or similar provisions; (F) reasonably cooperate with the marketing efforts in connection with such Approved Sale; and (G) further waive any potential claim, including any claim for breach of fiduciary duty, which terms and conditions shall treat all stockholders it may have against any member of the Company equally (on a pro rata basis)Board, except that shares having a liquidation preference maythe Company, if so provided in the documents governing such sharesInitial Members, receive an amount any of consideration equal to such liquidation preference in addition their respective Affiliates, or its or their officers or directors, to the consideration being paid extent arising out of or relating to any Approved Sale, including any authorization and approval by the holders Board thereof (but excluding any claims under any agreement entered into in connection with such Approved Sale, any indemnification rights of Shares not having a liquidation preferencesuch Member and any claims for fraud). Grantee shall Each Member will take all necessary and desirable lawful actions as directed by the Board actions, and the stockholders receipt of the Company approving the any proceeds of such Approved Sale will be conditioned upon the taking of such actions, in connection with the consummation of any Approved Sale, including without limitation, the execution of such agreements and such instruments and other actions reasonably necessary to (A) provide the representations, warranties, indemnities, covenants, conditions, non-compete agreements, escrow agreements and other provisions and agreements relating to such Approved Sale and(whether in such Person’s capacity as a Member, (BManager, Officer or otherwise) effectuate as requested by the allocation Board and distribution of the aggregate consideration upon the Approved Sale, provided, that this Section 8 shall not require Grantee applicable to indemnify the purchaser in any Approved Sale for breaches of the representations, warranties or covenants of the Company or any all other stockholder, except to the extent (x) Grantee is not required to incur more than its pro rata share of such indemnity obligation (based on the total consideration to be received by all stockholders that are similarly situated and hold selling Members holding the same class or series of capital stock) Units, including executing and (y) such indemnity obligation is provided for delivering any and limited to a postall agreements, instruments, consents, waivers and other documents in substantially the 4859-closing escrow or holdback arrangement 2554-6723 v.3 same forms executed by the Initial Members, including any applicable purchase agreement, equityholders agreement, indemnification agreement, support agreement, letter of cash or stock paid in connection with the Approved Saletransmittal and contribution agreement.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Symbotic Inc.)
Approved Sale. If the Board of Directors of the Company (the “Board”) shall deliver a notice to Grantee Optionee (a “Sale Event Notice”) stating that the Board has approved a sale of all or a portion of the Company (an “Approved Sale”) and specifying the name and address of the proposed parties to such transaction and the consideration payable in connection therewith, Grantee Optionee shall (i) consent to and raise no objections against the Approved Sale or the process pursuant to which the Approved Sale was arranged, (ii) waive any dissenter’s rights and other similar rights, and (iii) if the Approved Sale is structured as a sale of securities, agree to sell GranteeOptionee’s Shares on the terms and conditions of the Approved Sale which terms and conditions shall treat all stockholders of the Company equally (on a pro rata basis), except that shares having a liquidation preference may, if so provided in the documents governing such shares, receive an amount of consideration equal to such liquidation preference in addition to the consideration being paid to the holders of Shares not having a liquidation preference. Grantee Notwithstanding the foregoing, the sale of the Shares in an Approved Sale shall be further subject to the terms of the Plan. Optionee will take all necessary and desirable lawful actions as directed by the Board and the stockholders of the Company approving the Approved Sale in connection with the consummation of any Approved Sale, including without limitation, the execution of such agreements and such instruments and other actions reasonably necessary to (A) provide the representations, warranties, indemnities, covenants, conditions, non-compete agreements, escrow agreements and other provisions and agreements relating to such Approved Sale and, (B) effectuate the allocation and distribution of the aggregate consideration upon the Approved Sale, provided, that this Section 8 5 shall not require Grantee Optionee to indemnify the purchaser in any Approved Sale for breaches of the representations, warranties or covenants of the Company or any other stockholder, except to the extent (x) Grantee Optionee is not required to incur more than its pro rata share of such indemnity obligation (based on the total consideration to be received by all stockholders that are similarly situated and hold the same class or series of capital stock) and (y) such indemnity obligation is provided for and limited to a post-closing escrow or holdback arrangement of cash or stock paid in connection with the Approved Sale.
Appears in 1 contract
Samples: Stock Option Agreement (Envision Solar International, Inc.)
Approved Sale. If (a) In the Board of Directors of the Company event that MatlinPatterson (the “BoardProposing Shareholder”) shall deliver a notice to Grantee (a “approves the Sale Event Notice”) stating that the Board has approved a sale of all or a portion of the Company (an “Approved Sale”) and specifying delivers written notice thereof to the name Company and address the Sellers not less than 30 calendar days before the consummation of the proposed parties Approved Sale, each Seller will vote for, consent to, cooperate with and will not object or otherwise impede consummation of the Approved Sale; provided, that Sellers will retain the right to such transaction convey their objections to, and discuss with MatlinPatterson, the consideration payable to be received in connection therewith, Grantee shall such Approved Sale.
(ib) consent to and raise no objections against the Approved Sale or the process pursuant to which the Approved Sale was arranged, (ii) waive any dissenter’s rights and other similar rights, and (iii) if If the Approved Sale is structured as (i) a merger or consolidation, each Seller shall vote (to the extent having the right to vote) its Shares to approve such merger or consolidation and all matters ancillary thereto, whether by written consent or at a shareholders meeting, (ii) a sale of securitiesequity, each Seller shall agree to sell Grantee’s sell, and shall sell, all of its Shares on the terms and conditions so approved, or (iii) a sale of the Approved Sale which terms assets, each Seller shall vote its Shares to approve such sale and conditions shall treat all stockholders any subsequent liquidation of the Company equally (on or other distribution of the proceeds therefrom, whether by written consent or at a pro rata basis)shareholders meeting. In furtherance of the foregoing, except that shares having a liquidation preference mayeach Seller shall cooperate with and take, if so provided in the documents governing such shares, receive an amount of consideration equal with respect to such liquidation preference in addition to the consideration being paid to the holders of Shares not having a liquidation preference. Grantee shall take Seller’s Shares, all necessary and or desirable lawful actions as directed reasonably requested by the Board and the stockholders of the Company approving the Approved Sale MatlinPatterson in connection with the consummation of the Approved Sale, including executing the applicable agreements (which agreements may, subject to the provisions of this Section 4.1, require a Seller to sell a pro rata portion or all of its Shares and customary representations, indemnities, holdbacks and escrows); provided, however, in any Approved Sale, including without limitationthe terms and conditions of such agreements, including, but not limited to, the execution form or forms of consideration (in the same relative proportions if more than one form is received) and the indemnification obligations (which in no event shall expose any such agreements other Seller to liability greater than the consideration to be received), shall be on terms substantially identical for the Sellers and such instruments and other actions reasonably necessary to MatlinPatterson.
(Ac) provide The provisions of this Section 4.1 shall apply regardless of the representationsform of consideration received in the Approved Sale; provided, warrantieshowever, indemnities, covenants, conditions, non-compete agreements, escrow agreements and other provisions and agreements relating to if the consideration received in such Approved Sale andis in a form other than cash or freely transferable public securities (“Other Consideration”), (B) effectuate then each Seller shall have the allocation and distribution right to elect to not be bound by this Section 4.1 unless the Company will, at the written request of such Seller, which shall be made not later than 15 calendar days after notice of the aggregate nature of the consideration upon was provided to the Seller, concurrently with the closing of the Approved Sale, providedpay to such Seller, that in cash, the fair market value of such Other Consideration in lieu of such Other Consideration. The Board’s determination of the fair market value of any Other Consideration shall be conclusive.
(d) In furtherance of the provisions of this Section 8 shall not require Grantee 4.1, for so long as this Section 4.1 is in effect, each Seller (and its successors, heirs, legal representatives, and permitted assigns and transferees) hereby (i) irrevocably appoints each of the directors of the Company as his or its agent and attorney-in-fact (the “Drag-Along Agents”) (with full power of substitution) to indemnify the purchaser in execute all agreements, instruments and certificates and take all actions necessary or desirable to effectuate any Approved Sale for breaches of the representationsas contemplated under this Section 4.1, warranties or covenants of the Company or any other stockholder, except and (ii) grants to the extent each Drag-Along Agent a proxy (x) Grantee is not required to incur more than its pro rata share of such indemnity obligation (based on the total consideration which shall be deemed to be received coupled with an interest and to be irrevocable) to vote the Shares having voting power held by all stockholders such Seller and exercise any consent rights applicable thereto in favor of any such Approved Sale as provided in this Section 4.1; provided, however, that are similarly situated and hold the same class Drag-Along Agents shall not exercise such powers-of-attorney or series of capital stock) and (y) proxies with respect to any such indemnity obligation is provided for and limited Seller unless such Seller refuses or fails to a post-closing escrow or holdback arrangement of cash or stock paid in connection comply with the Approved Saleits obligations under this Section 4.1. THE AGREEMENTS CONTAINED IN THIS SECTION 4.1 ARE COUPLED WITH AN INTEREST AND EXCEPT AS PROVIDED IN THIS AGREEMENT MAY NOT BE REVOKED OR TERMINATED DURING THE TERM OF THIS AGREEMENT.
Appears in 1 contract
Approved Sale. (a) If the Board of Directors of the Company one or more Members beneficially owning Interests representing more than a 50% Percentage Interest (the “BoardTriggering Group”) shall deliver a notice to Grantee (a “approves the Sale Event Notice”) stating that the Board has approved a sale of all or a portion of the Company (an “Approved Sale”) ), each Member will consent to, cooperate with, and specifying the name and address will not object or otherwise impede consummation of the proposed parties to such transaction and the consideration payable in connection therewith, Grantee shall Approved Sale.
(ib) consent to and raise no objections against the Approved Sale or the process pursuant to which the Approved Sale was arranged, (ii) waive any dissenter’s rights and other similar rights, and (iii) if If the Approved Sale is structured as (i) a merger or consolidation, each Member shall vote its Interests to approve such merger or consolidation, whether by written consent or at a Members meeting (as requested by the Triggering Group), (ii) a sale of securitiesInterests, each Member shall agree to sell Grantee’s Shares sell, and shall sell, that portion of its Interests and rights to acquire Interests on the terms and conditions so approved; provided, that the Triggering Group shall have no right to cause IMS Nevada to sell any portion of the IMS’ Carried Interest as part of an Approved Sale which terms unless such Approved Sale contemplates the sale of all of the Interests in the Company, or (iii) a sale of assets, each Member shall vote its Interests to approve such sale and conditions shall treat all stockholders any subsequent liquidation of the Company equally or other distribution of the proceeds therefrom, whether by written consent or at a members meeting (on a pro rata basisas requested by the Triggering Group). In furtherance of the foregoing, except that shares having a liquidation preference mayeach Member shall (I) waive all dissenter’s rights, if so provided appraisal rights and similar rights in the documents governing connection with such sharesApproved Sale, receive an amount of consideration equal and (II) take, with respect to such liquidation preference in addition to the consideration being paid to the holders of Shares not having a liquidation preference. Grantee shall take Person’s Interests, all necessary and or desirable lawful actions as directed reasonably requested by the Board and the stockholders of the Company approving the Approved Sale Triggering Group in connection with the consummation of the Approved Sale, including voting to approve such transaction and executing the applicable purchase agreement. In any Approved Sale, including without limitationeach holder of Interests shall be obligated to make representations and warranties as to such Member’s title to and ownership of Interests, the authorization, execution and delivery of relevant documents and instruments by such Member, enforceability of relevant agreements against such Member and other matters, to enter into covenants in respect of a Transfer of such agreements and such instruments and other actions reasonably necessary to (A) provide the representations, warranties, indemnities, covenants, conditions, non-compete agreements, escrow agreements and other provisions and agreements relating to Member’s Interests in connection with such Approved Sale andand to enter into indemnification obligations, (B) effectuate in each case to the allocation extent that the Triggering Group is similarly obligated. Notwithstanding the foregoing, no Member shall be obligated to make any representation or warranties concerning the Company or its business, and distribution any indemnification shall be limited to the amount of cash consideration plus any set-off or reduction in the aggregate consideration upon the value of any promissory note or deferred compensation received by such Member. Upon consummation of an Approved Sale, if a Member has not delivered any documents and instruments as contemplated by this Section 9.8, such Member shall no longer be considered a holder of an Interest in the Company to the extent of the Approved Sale and such Member’s sole rights with respect to such Interest shall be to receive the consideration receivable in connection with such Approved Sale upon delivery of the appropriate documents and instruments.
(i) In the case of an Approved Sale consisting of a sale of all of the Interests held by all Members in the Company or a sale of all or substantially all of the Company’s assets, the portion of the net proceeds (whether cash or property) from such
(ii) In the case of an Approved Sale consisting of a sale of less than all of the Interests held by the Members in the Company, the portion of the net proceeds (whether cash or property) from such Approved Sale shall be payable to each Capital Member pro rata in proportion to the Interests so transferred by all Capital Members.
(d) If the Company enters into any negotiation or transaction for which Rule 506 of the Securities Act (or any similar rule then in effect) may be available with respect to such negotiation or transaction (including a merger, consolidation or other reorganization), each Member that is not an “accredited investor” shall, at the request of the Company or the Triggering Group, appoint a purchaser representative (as such term is defined in Rule 501 of the Securities Act) reasonably acceptable to the Company. If any Member appoints a purchaser representative designated by the Company, the Company shall pay the fees of such purchaser representative, but if any Member declines to appoint the purchaser representative designated by the Company such Member shall appoint another purchaser representative, and such Member will be responsible for the fees of the purchaser representative so appointed.
(e) The Company shall bear the costs of any sale of Interests pursuant to an Approved Sale to the extent such costs are incurred for the benefit of all Members and are not otherwise paid by the Company the acquiring party. For purposes of this paragraph (e), costs incurred in exercising reasonable efforts to take all necessary actions in connection with the consummation of an Approved Sale in accordance with Section 9.8(a) shall be deemed to be for the benefit of all Members, except that costs incurred by any Member in connection with the Transfer of its own Interest or otherwise on its own behalf will not be considered costs of the transaction hereunder and will be the responsibility of such Member.
(f) In furtherance of the provisions of this Section 9.8, each Member (and their successors, heirs, legal representatives, and permitted assigns and transferees) hereby (i) irrevocably appoints the Manager as such Member’s agent and attorney-in-fact (the “Drag-Along Agent”) (with full power of substitution) to execute all agreements (including any amendments to this Agreement), instruments and certificates and take all actions necessary or desirable to effectuate any Approved Sale as contemplated under this Section 9.8, and (ii) grants to each Drag-Along Agent a proxy (which shall be deemed to be coupled with an interest and to be irrevocable) to vote the Interests having voting power held by such Person and exercise any consent rights applicable thereto in favor of any such Approved Sale as provided in this Section 9.8; provided, however, that the Drag-Along Agent shall not exercise such powers-of-attorney or proxies with respect to any such Person unless such Person refuses or fails to timely comply with its obligations under this Section 8 shall not require Grantee 9.8. THE AGREEMENTS CONTAINED IN THIS SECTION 9.8(f) ARE COUPLED WITH AN INTEREST AND EXCEPT AS PROVIDED IN THIS AGREEMENT MAY NOT BE REVOKED OR TERMINATED DURING THE TERM OF THIS AGREEMENT.
(g) Notwithstanding anything to indemnify the contrary herein, any Member may participate as a potential purchaser or bidder in any Approved Sale for breaches of the representations, warranties or covenants of the Company or any other stockholder, except to the extent (x) Grantee is not required to incur more than its pro rata share of such indemnity obligation (based on the total consideration to be received by all stockholders that are similarly situated same terms and hold the same class or series of capital stock) conditions as other potential purchasers and (y) such indemnity obligation is provided for and limited to a post-closing escrow or holdback arrangement of cash or stock paid in connection with the Approved Salebidders.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Fulcrum Bioenergy Inc)
Approved Sale. If the Board of Directors of the Company (the “Board”) shall deliver a notice to Grantee (a “Sale Event Notice”) stating that the Board has approved a sale of all or a portion of the Company through a sale of assets, securities, or otherwise (an “Approved Sale”) and specifying the name and address of the proposed parties to such transaction and the consideration payable in connection therewith, Grantee shall (i) consent to and raise no objections against the Approved Sale or the process pursuant to which the Approved Sale was arranged, (ii) waive any dissenter’s rights and other similar rights, and (iii) if the Approved Sale is structured as a sale of securities, agree to sell Grantee’s Shares on the terms and conditions of the Approved Sale which terms and conditions shall treat all stockholders of the Company equally (on a pro rata basis), except that shares having a liquidation preference may, if so provided in the documents governing such shares, receive an amount of consideration equal to such liquidation preference in addition to the consideration being paid to the holders of Shares not having a liquidation preference. Grantee shall take all necessary and desirable lawful actions as directed by the Board and the stockholders of the Company approving the Approved Sale in connection with the consummation of any Approved Sale, including without limitation, the execution of such agreements and such instruments and other actions reasonably necessary to (A) provide the representations, warranties, indemnities, covenants, conditions, non-compete agreements, escrow agreements and other provisions and agreements relating to such Approved Sale and, (B) effectuate the allocation and distribution of the aggregate consideration upon the Approved Sale, provided, that this Section 8 7 shall not require Grantee to indemnify the purchaser in any Approved Sale for breaches of the representations, warranties or covenants of the Company or any other stockholder, except to the extent (x) Grantee is not required to incur more than its pro rata share of such indemnity obligation (based on the total consideration to be received by all stockholders that are similarly situated and hold the same class or series of capital stock) and (y) such indemnity obligation is provided for and limited to a post-closing escrow or holdback arrangement of cash or stock paid in connection with the Approved Sale.
Appears in 1 contract
Samples: Restricted Stock Grant Agreement (Envision Solar International, Inc.)
Approved Sale. If At any time prior to the Board consummation of Directors an IPO, if (i) the Major Sponsors acting jointly, or a Principal Sponsor acting individually pursuant to its rights under Section 7, desires to effectuate a Sale of the Company (the “Board”) shall deliver a notice to Grantee (a “Sale Event Notice”) stating that the Board has approved a sale an Independent Third Party or group of all or a portion of the Company Independent Third Parties (an “Approved Sale”), then, in each case, if the party or parties (as applicable) desiring to effectuate such Approved Sale (the “Initiating Party”) delivers written notice to the other holders of Stockholder Shares that the Initiating Party is invoking the provisions of this Section 5, each holder of Stockholder Shares shall vote for (to the extent entitled to vote), at a stockholders meeting or by written consent, and specifying the name and address of the proposed parties to such transaction and the consideration payable shall consent to, participate in connection therewith, Grantee shall (i) consent to and raise no objections against against, the Approved Sale or and the process pursuant to by which the such Approved Sale was is arranged, (ii) waive any dissenter’s rights and other similar rights, and (iii) if . If the Approved Sale is structured as (x) a sale of securitiesassets or a merger or consolidation, agree to sell Grantee’s each holder of Stockholder Shares on shall waive all dissenters’ rights, appraisal rights and similar rights in connection with such sale of assets, merger or consolidation, (y) a sale of assets, each holder of Stockholder Shares shall vote in favor of the terms dissolution and conditions liquidation of the Company following consummation of the Approved Sale if requested by the Initiating Party or (z) a sale of Company Capital Stock, each holder of Stockholder Shares shall agree to sell and surrender a proportionate amount of such holder’s Stockholder Shares and rights to acquire Stockholder Shares at the price determined by the Company’s Certificate of Incorporation and on the same other terms and conditions, as applicable, as approved by the Initiating Party (other than, in any transaction in which the consideration paid to the Initiating Party and other holders of Stockholder Shares is partially or completely in the form of securities, if applicable, different governance or liquidity terms and conditions shall treat all stockholders of the applicable to Sponsors as compared to Executives or Other Investors). The Company equally (on a pro rata basis), except that shares having a liquidation preference may, if so provided in the documents governing such shares, receive an amount of consideration equal to such liquidation preference in addition to the consideration being paid to the and holders of Stockholder Shares not having a liquidation preference. Grantee shall take all necessary and or desirable lawful actions as directed reasonably requested in good faith by the Board and the stockholders of the Company approving the Approved Sale Initiating Party in connection with the consummation of any the Approved Sale, including and execute all agreements, documents and instruments in connection therewith, as reasonably requested in good faith by the Initiating Party (including, without limitation, (i) with respect to the execution Company, providing potential purchasers with reasonable due diligence access to the books and records, personnel and facilities of such the Company and its subsidiaries (subject to customary confidentiality provisions) in order to facilitate an Approved Sale, (ii) with respect to Sponsors, Executives and Other Stockholders, entering into confidentiality agreements and such non-solicitation and non-hire agreements for a term not to exceed one year, in each case as requested by the proposed purchaser and (iii) with respect to all holders of Stockholder Shares, entering into a sale contract, letters of transmittal and similar agreements and instruments and other actions as reasonably necessary required in good faith by the Initiating Party pursuant to which each holder shall: (A) provide the severally (but not jointly) be liable for such representations, warranties, indemnities, covenants, conditionsescrows and indemnities regarding the Company and its subsidiaries and their assets, liabilities and businesses (the “Company Reps”) as approved by the Initiating Party and (B) solely on behalf of such holder, make such representations, warranties, covenants (including with respect to any applicable escrow) and indemnities concerning such holder and the Capital Stock to be sold by such holder as may be similarly agreed to by the Initiating Party in its individual capacity and as set forth in any agreement approved by the Initiating Party (the “Holder Reps”), except that non-compete agreements, competition covenants shall not be required by either of the foregoing sub clauses (A) or (B); provided that the allocable share of any holder of Stockholder Shares for any amounts payable (x) into an escrow agreements and other provisions and agreements relating to account in connection with such Approved Sale and, or (By) effectuate the allocation and distribution of the aggregate consideration upon the Approved Sale, provided, that this Section 8 shall not require Grantee to indemnify in connection with any claim by the purchaser in any Approved Sale for breaches of the representations, warranties or covenants a breach of the Company or Reps (any other stockholdersuch amount payable, except to the extent (xa “Company Loss”) Grantee is not required to incur shall be determined in accordance with Section 5(c), and if any holder of Stockholder Shares pays for more than its such holder’s allocable share of a Company Loss (such overpayment, the “Excess Amount”), then each other holder of Stockholder Shares shall promptly contribute to such holder an amount equal to such other holder’s pro rata share of such indemnity obligation (based on Excess Amount as determined in accordance with Section 5(c)). Notwithstanding anything to the contrary herein, no holder of Stockholder Shares shall be required to agree to be liable pursuant to the terms of this Agreement for an amount greater than the total consideration to be actually received by all stockholders that are similarly situated and hold the same class or series such holder of capital stock) and (y) such indemnity obligation is provided for and limited to a post-closing escrow or holdback arrangement of cash or stock paid Stockholder Shares in connection with the such Approved Sale.
Appears in 1 contract
Samples: Stockholders Agreement (Aveanna Healthcare Holdings, Inc.)
Approved Sale. (a) If the Board holders of Directors a majority of the Company shares of voting Stockholder Shares then outstanding, voting together as if a single class, (the “Board”"Approving Stockholders") shall deliver a notice to Grantee (a “Sale Event Notice”) stating that the Board has approved approve a sale of all or a portion substantially all of the Company Company's assets determined on a consolidated basis or a sale of all (or, for accounting, tax or other reasons, substantially all) of the Company's outstanding capital stock (other than capital stock which is not Common Stock or convertible into Common Stock) (whether by merger, recapitalization, consolidation, reorganization, combination or otherwise) to an “Unaffiliated Third Party or group of Unaffiliated Third Parties (each such sale, an "Approved Sale”) and specifying the name and address "), then each holder of the proposed parties to such transaction and the consideration payable in connection therewithStockholder Shares will vote for, Grantee shall (i) consent to and raise no objections against the such Approved Sale or subject to the process pursuant terms set forth below. In connection with any Stockholders exercising their rights under this Section 5(a), such Stockholders shall send a written notice at least ten (10) business days prior to which the any Approved Sale was arranged, (ii) waive any dissenter’s rights and to all other similar rights, and (iii) if Stockholders setting forth the principal terms of the proposed Approved Sale. If the Approved Sale is structured as (i) a merger or consolidation, each holder of Stockholder Shares will waive any dissenters' rights, appraisal rights or similar rights in connection with such merger or consolidation or (ii) a sale of securitiesstock, each holder of Stockholder Shares will agree to sell Grantee’s all of its Stockholder Shares and rights to acquire Stockholder Shares on the same terms and conditions as applicable to all of the Approved Sale which terms and conditions shall treat all stockholders Stockholder Shares held by the Approving Stockholders. Each holder of the Company equally (on a pro rata basis), except that shares having a liquidation preference may, if so provided in the documents governing such shares, receive an amount of consideration equal to such liquidation preference in addition to the consideration being paid to the holders of Stockholder Shares not having a liquidation preference. Grantee shall will take all reasonably necessary and or desirable lawful actions as directed by the Board and the stockholders of the Company approving the Approved Sale in connection with the consummation of the Approved Sale as reasonably requested by the Investors approving such Approved Sale including without limitation (but subject to Section 5(c)) executing any applicable purchase agreement.
(b) Each Stockholder will bear their pro-rata share (based upon the number of shares sold) of the costs of any sale of Stockholder Shares pursuant to an Approved Sale to the extent such costs are incurred for the benefit of all holders of Stockholder Shares and are not otherwise paid by the Company or the acquiring party. Costs incurred by any Stockholder on their own behalf will not be considered costs of the transaction hereunder.
(c) The obligations of the Stockholders with respect to any Approved Sale are subject to the satisfaction of the following conditions: (i) in connection with the consummation of such Approved Sale, each Stockholder will be entitled to receive (x) the same form and amount (on a share-for-share basis) of consideration, with respect to each share of Common Stock sold in such Approved Sale and (y) the same form and amount (on a share-for-share basis) of consideration, with respect to each share of Convertible Preferred Stock sold in such Approved Sale, (ii) if any holder of Common Stock or Convertible Preferred Stock is given the option as to the form and amount of consideration to be received in connection with such Approved Sale (other than to remedy a Regulatory Problem for such holder), then each holder of Common Stock or Convertible Preferred Stock, as the case may be, shall be given the same option, (iii) if Cornerstone or any Affiliate of Cornerstone owns directly or indirectly more than 5% of any class of capital stock of any of the Unaffiliated Third Parties, then such Approved Sale shall have been approved by at least five of the seven members of the Board (each such number to be reduced by any member of the Board who is not eligible to vote on such Approved Sale) and the Board shall have received a fairness opinion from a nationally recognized investment banking firm with respect to the terms of such Approved Sale. No holder of BT Shares shall be required to participate in an Approved Sale unless such holder receives consideration that does not cause a Regulatory Problem for such holder or any of its Affiliates, and (iv) no Investor shall be required to provide an indemnity in connection with any Approved Sale, including without limitation, the execution of such agreements and such instruments and other actions reasonably necessary to (A) provide the representations, warranties, indemnities, covenants, conditions, non-compete agreements, escrow agreements and other provisions and agreements relating to unless all sellers in such Approved Sale andprovide such an indemnity, (B) effectuate and in the allocation and distribution of the aggregate consideration upon event that all sellers are required to provide an indemnity in connection with the Approved Sale, provided, all parties hereto agree to enter into a contribution agreement among themselves which provides that this Section 8 no Investor shall not require Grantee to indemnify the purchaser in any Approved Sale be liable for breaches of the representations, warranties or covenants of the Company or any other stockholder, except to the extent (x) Grantee is not required to incur more than the less of (A) its pro rata share of such indemnity obligation indemnification payments (based on upon the total consideration to be received by such holder divided by the total consideration received by all stockholders that are similarly situated and hold the same class or series of capital stockseller sin such Approved Sale) and (yB) the net proceeds actually received by such indemnity obligation is provided holder as consideration for its shares of proceeds actually received by such holder as a consideration for its shares of capital stock of the Company in such Approved Sale. In connection with any Approved Sale, each Investor shall be entitled to receive, and limited the Company shall deliver all information relating to the Company and its Subsidiaries as such Investor shall reasonably request. The Company shall deliver to each Investor a post-closing escrow copy of the acquisition agreement (and related documents) relating to any Approved Sale in a reasonably timely manner to allow for adequate review by the Investors and shall include in the disclosure schedules attached thereto any information reasonably requested to be included therein by such Investor. Notwithstanding anything contained herein to the contrary, the term "consideration" as used in this subsection (c) shall not include any management, advisory, closing, legal or holdback arrangement similar fees received by any Stockholder or any Affiliate of cash or stock paid any Stockholder in connection with the an Approved Sale.
(d) The provisions of this Section 5 will terminate upon the occurrence of the earlier of (i) the consummation of a Qualified Public Offering and (ii) the date on which Cornerstone and its Affiliates no longer own at least 25% of the then outstanding shares of Common Stock.
Appears in 1 contract
Samples: Shareholders Agreement (McMS Inc)
Approved Sale. If (a) At any time after the Board of Directors 20th anniversary of the Company commissioning of the Facility, either the Darling Member or the Valero Member (the “BoardTriggering Member”) shall may deliver a notice to Grantee the other Member (a the “Approved Sale Event Notice”) stating that the Board has approved it wishes to effect a Company Sale or a sale of all or a portion all, but not less than all, of the Company its Units and Equity Securities (in either case, an “Approved Sale”) in accordance with this Section 11.1. The Member that did not deliver the Approved Sale Notice pursuant to the previous sentence (whether the Darling Member or the Valero Member) shall be referred to herein as the “Non-Triggering Member”. In the event that an Approved Sale Notice is delivered in accordance with this Section 11.1(a), the Non-Triggering Member shall have the right, pursuant to a written notice (the “Approved Sale Response Notice”) to the Company and specifying the name and address Triggering Member delivered within 60 days after receipt of the proposed parties Approved Sale Notice from the Triggering Member, to offer to purchase all, but not less than all, of the outstanding Units and Equity Securities and any Company Loans held by the Triggering Member (the “Triggering Member Sale”) at the price and on the terms and conditions set forth in such Approved Sale Response Notice.
(b) If the Non-Triggering Member makes an offer pursuant to and in accordance with Section 11.1(a) and the Triggering Member accepts such offer within the time period set forth in such Approved Sale Response Notice (which such time period shall be no less than 15 days nor more than 30 days), then the Approved Sale Response Notice shall constitute the legally binding obligation of each Member to complete the Triggering Member Sale on the terms and conditions set forth therein. The form of the definitive agreements relating to such transaction Triggering Member Sale shall be mutually agreed upon and contain the terms and conditions set forth in the Approved Sale Response Notice and such other customary representations, warranties and covenants for transactions similar to the Triggering Member Sale. The Members shall fix a closing date, which must be a Business Day not later than 120 days following the date of delivery of the Approved Sale Response Notice. If the closing date is not so fixed, then such date shall automatically be 120 days following the date of delivery of the Approved Sale Response Notice; provided, however, that if such date is not a Business Day, then such date shall be the next Business Day; provided, further, that if the consummation of the Triggering Member Sale requires the approval of any Governmental Entity, then the closing date may be extended to the first Business Day following the receipt of such approval.
(c) If the Non-Triggering Member fails to deliver, or waives its right to deliver, the Approved Sale Response Notice as set forth in Section 11.1(a) or the Triggering Member rejects the Non-Triggering Member’s offer as set forth in the Approved Sale Response Notice, then the Non-Triggering Member and the consideration payable Board of Managers shall, and shall cause the Company and its management to, cooperate in connection therewith, Grantee shall good faith with the Triggering Member to (i) consent to and raise no objections against prepare the Approved Sale or the process pursuant to which the Approved Sale was arrangedCompany for sale, (ii) waive any dissenter’s rights engage a financial advisor experienced in the industry and other the sale of similar rightsassets to assist in the sale of the Company by drafting an offering memorandum or similar document and soliciting indications of interest from qualified buyers, and (iii) assist such financial advisor in conducting a sale process designed to achieve the highest price possible by actively pursuing such interested and qualified buyers. The Members and the Board of Managers shall cause the Company to provide reasonable access to Company management and facilities and the Company’s books and records and outside auditors for the purpose of (x) providing requested information to the Triggering Member and any financial advisor engaged to assist with the Company Sale, (y) attending meetings with prospective buyers and their financing sources, and (z) providing reasonable access to customary due diligence materials requested by prospective buyers. The Triggering Member shall secure customary confidentiality agreements from any prospective buyer and shall be in breach of its own confidentiality obligations to the Company and the other Member if it fails to do so. The Members and the Company shall require the financial adviser engaged to conduct such sale process to deliver within 90 days (or such other reasonable time period as advised by the financial adviser) of its engagement a report (the “Approved Sale is structured as a sale Report”) to the Board of securitiesManagers setting forth in detail any indications of interest, agree to sell Grantee’s Shares on and the terms valuations and conditions any restrictions related thereto, from any such qualified buyer.
(d) Within 60 days after delivery of the Approved Sale which Report, the Non-Triggering Member shall have the right, pursuant to a written notice (the “Approved Sale Report Notice”) to the Company and the Triggering Member delivered within such 60-day period, to offer to purchase all, but not less than all, of the outstanding Units and Equity Securities and any Company Loans held by the Triggering Member at a price and on terms and conditions shall treat all stockholders based on the indications of interest and the related valuations of the Company equally (on a pro rata basis), except that shares having a liquidation preference may, if so provided in the documents governing such shares, receive an amount of consideration equal to such liquidation preference in addition to the consideration being paid to the holders of Shares not having a liquidation preference. Grantee shall take all necessary and desirable lawful actions as directed by the Board and the stockholders of the Company approving the Approved Sale in connection with the consummation of any Approved Sale, including without limitation, the execution of such agreements and such instruments and other actions reasonably necessary to (A) provide the representations, warranties, indemnities, covenants, conditions, non-compete agreements, escrow agreements and other provisions and agreements relating to such Approved Sale and, (B) effectuate the allocation and distribution of the aggregate consideration upon the Approved Sale, provided, that this Section 8 shall not require Grantee to indemnify the purchaser in any Approved Sale for breaches of the representations, warranties or covenants of the Company or any other stockholder, except to the extent (x) Grantee is not required to incur more than its pro rata share of such indemnity obligation (based on the total consideration to be received by all stockholders that are similarly situated and hold the same class or series of capital stock) and (y) such indemnity obligation is provided for and limited to a post-closing escrow or holdback arrangement of cash or stock paid in connection with the Approved Sale.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Darling International Inc)
Approved Sale. If Subject to the Board provisions of Directors subsection 3(c), if an IPO has not been completed by the Company by December 22, 2008, then until such time as an IPO is completed by the Company, a Majority of Investors may elect by written notice (a “Required Sale Notice”) to require the GP to effect a Sale of the Company (that satisfies the “Board”conditions indicated in Section 3(b) shall deliver a notice to Grantee (a “Sale Event Notice”) stating that the Board has approved a sale of all or a portion of the Company below (an “Approved Sale”) ). Upon receipt of a Required Sale Notice and specifying if a Majority of Investors do not accept the name and address GP Offer Price, the GP shall undertake to effect a Sale of the proposed Company as promptly as commercially reasonable with a view to maximizing the aggregate consideration to be received for such sale; provided, however, that all parties shall work in good faith to such transaction complete an Approved Sale within one hundred eighty (180) days after receipt of the Required Sale Notice by the GP. Upon receipt of a Required Sale Notice and if a Majority of Investors do not accept the consideration payable in connection therewithGP Offer Price, Grantee the Conflicts Committee of the Board shall engage an investment banking firm of national reputation to seek Qualifying Offers (as defined below) for an Approved Sale. The Conflicts Committee of the Board shall have the primary responsibility for negotiating the terms of any potential Qualifying Offer and shall present to the Investors all offers received for a Sale of the Company that satisfy the conditions for an Approved Sale (a “Qualifying Offer”). Subject to Section 3(c), if a Majority of Investors agrees to accept a Qualifying Offer, then all of the parties hereto shall (i) consent to to, vote for and raise no objections against the Approved Sale Qualifying Offer or the process pursuant to which the Approved Sale Qualifying Offer was arranged, (ii) waive any dissenter’s dissenters’, appraisal and similar rights and other similar rightswith respect thereto, and (iii) if the Approved Sale Qualifying Offer is structured as a sale of securities, the Partnership Interests agree to sell Grantee’s Shares all of their Partnership Interests and Member Interests on the terms and conditions of the Approved Sale which terms and conditions shall treat all stockholders of the Company equally (on a pro rata basis), except that shares having a liquidation preference may, if so provided in the documents governing such shares, receive an amount of consideration equal to such liquidation preference in addition to the consideration being paid to the holders of Shares not having a liquidation preferenceQualifying Offer. Grantee The parties hereto shall take all necessary and desirable lawful actions as directed by the Board and the stockholders of the Company approving the Approved Sale in connection with the consummation of any Approved Sale, including including, without limitation, the execution of such agreements and such instruments and other actions reasonably necessary to (A) provide the representations, warranties, indemnities, covenants, conditions, non-compete agreements, escrow agreements and other provisions and agreements relating to such Approved Sale andSale, and (B) effectuate the allocation and distribution of the aggregate consideration upon the Approved Sale, provided, that this Section 8 shall not require Grantee to indemnify the purchaser in any Approved Sale for breaches of the representations, warranties or covenants of the Company or any other stockholder, except to the extent (x) Grantee is not required to incur more than its pro rata share of such indemnity obligation (based on the total consideration to be received by all stockholders that are similarly situated and hold the same class or series of capital stock) and (y) such indemnity obligation is provided for and limited to a post-closing escrow or holdback arrangement of cash or stock paid in connection with the Approved Saleas set forth below.
Appears in 1 contract
Approved Sale. If the Board of Directors of the Company (the “Board”) shall deliver a notice to Grantee Optionee (a “"Sale Event Notice”") stating that the Board has approved a sale of all or a portion of the Company (an “"Approved Sale”") and specifying the name and address of the proposed parties to such transaction and the consideration payable in connection therewith, Grantee Optionee shall (i) consent to and raise no objections against the Approved Sale or the process pursuant to which the Approved Sale was arranged, (ii) waive any dissenter’s 's rights and other similar rights, and (iii) if the Approved Sale is structured as a sale of securities, agree to sell Grantee’s Optionee's Shares on the terms and conditions of the Approved Sale which terms and conditions shall treat all stockholders of the Company equally (on a pro rata basis), except that shares having a liquidation preference may, if so provided in the documents governing such shares, receive an amount of consideration equal to such liquidation preference in addition to the consideration being paid to the holders of Shares not having a liquidation preference. Grantee Notwithstanding the foregoing, the sale of the Shares in an Approved Sale shall be further subject to the terms of the Plan. Optionee will take all necessary and desirable lawful actions as directed by the Board and the stockholders of the Company approving the Approved Sale in connection with the consummation of any Approved Sale, including without limitation, the execution of such agreements and such instruments and other actions reasonably necessary to (A) provide the representations, warranties, indemnities, covenants, conditions, non-compete agreements, escrow agreements and other provisions and agreements relating to such Approved Sale and, (B) effectuate the allocation and distribution of the aggregate consideration upon the Approved Sale, provided, that this Section 8 5 shall not require Grantee Optionee to indemnify the purchaser in any Approved Sale for breaches of the representations, warranties or covenants of the Company or any other stockholder, except to the extent (x) Grantee Optionee is not required to incur more than its pro rata share of such indemnity obligation (based on the total consideration to be received by all stockholders that are similarly situated and hold the same class or series of capital stock) and (y) such indemnity obligation is provided for and limited to a post-closing escrow or holdback arrangement of cash or stock paid in connection with the Approved Sale.
Appears in 1 contract
Approved Sale. If the Board of Directors of the Company (the “"Board”") shall deliver a notice to Grantee (a “"Sale Event Notice”") stating that the Board has approved a sale of all or a portion of the Company (an “"Approved Sale”") and specifying the name and address of the proposed parties to such transaction and the consideration payable in connection therewith, Grantee shall (i) consent to and raise no objections against the Approved Sale or the 4 process pursuant to which the Approved Sale was arranged, (ii) waive any dissenter’s 's rights and other similar rights, and (iii) if the Approved Sale is structured as a sale of securities, agree to sell Grantee’s 's Shares on the terms and conditions of the Approved Sale which terms and conditions shall treat all stockholders of the Company equally (on a pro rata basis), except that shares having a liquidation preference may, if so provided in the documents governing such shares, receive an amount of consideration equal to such liquidation preference in addition to the consideration being paid to the holders of Shares not having a liquidation preference. Grantee shall take all necessary and desirable lawful actions as directed by the Board and the stockholders of the Company approving the Approved Sale in connection with the consummation of any Approved Sale, including without limitation, the execution of such agreements and such instruments and other actions reasonably necessary to (A) provide the representations, warranties, indemnities, covenants, conditions, non-compete agreements, escrow agreements and other provisions and agreements relating to such Approved Sale and, (B) effectuate the allocation and distribution of the aggregate consideration upon the Approved Sale, provided, that this Section 8 7 shall not require Grantee to indemnify the purchaser in any Approved Sale for breaches of the representations, warranties or covenants of the Company or any other stockholder, except to the extent (x) Grantee is not required to incur more than its pro rata share of such indemnity obligation (based on the total consideration to be received by all stockholders that are similarly situated and hold the same class or series of capital stock) and (y) such indemnity obligation is provided for and limited to a post-closing escrow or holdback arrangement of cash or stock paid in connection with the Approved Sale.
Appears in 1 contract
Samples: Restricted Stock Grant Agreement (Envision Solar International, Inc.)
Approved Sale. (a) If the Board of Directors of the Company (the “Board”) shall deliver Requisite Majority approves a notice to Grantee (a “Sale Event Notice”) stating that the Board has approved a sale of all or a portion of the Company (an “Approved Sale”) and specifying ), then, if the name and address Requisite Majority gives written notice to the Stockholders that they are invoking the provisions of the proposed parties to such transaction and the consideration payable in connection therewiththis Section 6.1, Grantee shall (i) each holder of Stockholder Shares or other Equity Securities will vote for, consent to and raise no objections against such Approved Sale and in connection therewith shall waive any claims related thereto, including claims relating to the fairness of the Approved Sale, the price paid for the Company’s Equity Securities in such Approved Sale, the process or timing of the Approved Sale or the process pursuant to which any similar claims; provided that the Approved Sale was arrangedcomplies with provisions of Section 6.1(c).
(b) Subject to Section 6.1(c), (ii) waive any dissenter’s rights and other similar rights, and (iii) if the Approved Sale is structured as (i) a merger or consolidation or asset sale or other transaction for which dissenter’s, appraisal or similar rights are available under applicable law, each holder of Stockholder Shares or other Equity Securities will waive any dissenter’s rights, appraisal rights or similar rights in connection with such transaction or (ii) a sale of securitiesStockholder Shares (including by recapitalization, consolidation, reorganization, combination or otherwise), each holder of Stockholder Shares or other Equity Securities will agree to sell Granteethe same proportion (excluding any management rollover associated with such Approved Sale) of such holder’s Stockholder Shares or other Equity Securities as are to be sold by the Requisite Majority initiating the Approved Sale, on the terms and conditions of the Approved Sale which terms and conditions shall treat all stockholders of the Company equally (on a pro rata basis), except that shares having a liquidation preference may, if so provided in the documents governing such shares, receive an amount of consideration equal to such liquidation preference in addition to the consideration being paid to the holders of Shares not having a liquidation preference. Grantee shall take all necessary and desirable lawful actions as directed approved by the Board and the stockholders Requisite Majority. The Company and each of its Subsidiaries, and subject to Section 6.1(c), each holder of Stockholder Shares or other Equity Securities, will take all necessary or desirable actions to assist the Requisite Majority and the Company approving the Approved Sale in connection with the consummation of any Approved Sale, including without limitation, voting such holder’s Stockholder Shares and any other voting securities of the Company over which such holder has voting control in favor of such Approved Sale and the execution of all required transaction documentation.
(c) With respect to any Approved Sale, (i) the type of consideration and payment terms applicable with respect to all Stockholder Shares within each respective class or series of Stockholder Shares (if applicable) shall be identical, and, other than with respect to any management rollover, if any holders of Stockholder Shares are given an option as to the form and amount of consideration to be received, each holder of Stockholder Shares shall be given the same option; provided, however, that nothing herein shall entitle any Stockholder to receive any form of consideration that such Stockholder would be ineligible to receive as a result of such Stockholder’s failure to satisfy any condition, requirement or limitation that is generally applicable to the Company’s Stockholders, (ii) Stockholders shall be required only to make individual representations and warranties as to the unencumbered title to such Stockholder’s Stockholder Shares (subject to customary exceptions), the power, capacity, authority and legal right to such Stockholder’s Stockholder Shares, enforceability, the non-contravention of other agreements and the absence of any adverse claim with respect to such instruments Stockholder Shares (and no representations and warranties as to any other actions reasonably necessary to Stockholder), and be liable (Awhether by purchase price adjustment, indemnity payments or otherwise) provide the in respect of representations, warranties, indemnitiescovenants and agreements in respect of the Company and its Subsidiaries on a several (but not joint or joint and several basis), covenants, conditions(iii) no Stockholder’s aggregate liability shall exceed the proceeds received by such Stockholder in connection with such sale and (iv) all Management Stockholders (if requested by the Requisite Majority) must enter into customary non-competition, non-compete agreementssolicitation, escrow no-hire and non-disparagement agreements and other provisions and agreements relating to arrangements that are no more restrictive on such Approved Sale and, (B) effectuate Management Stockholder than any agreement then in effect or in effect on the allocation and distribution of the aggregate consideration upon the Approved Sale, provided, that this Section 8 shall not require Grantee to indemnify the purchaser in any Approved Sale for breaches of the representations, warranties or covenants of Effective Date between the Company or any of its Subsidiaries, on the one hand, and such Management Stockholder, on the other stockholderhand, except that contains agreements, arrangements or covenants with respect to the extent non-competition, non-solicitation, no-hire and/or non-disparagement.
(xd) Grantee is not required to incur more than Each Stockholder will bear its pro rata share of the out-of-pocket costs (including reasonable out-of-pocket legal and accounting costs) incurred by the Sponsor Investor in connection with such indemnity obligation Approved Sale (based on the total relative consideration to be received by the Stockholders as set forth in Section 6.1(c)), which costs shall be deemed incurred for the benefit of all stockholders Stockholders, to the extent such costs are not otherwise paid by the Company or the acquiring party. Costs incurred by any Stockholder other than the Sponsor Investor will not be considered costs of the Approved Sale hereunder.
(e) If the Company or the holders of the Company’s securities enter into any negotiation or transaction for which Rule 506 (or any similar rule then in effect) promulgated by the SEC may be available with respect to such negotiation or transaction (including a merger, consolidation or other reorganization), the holders of Stockholder Shares that are similarly situated not “Accredited Investors” (as such term is defined under Rule 501 promulgated by the SEC) will, at the request of the Company, appoint a purchaser representative (as such term is defined in Rule 501 promulgated by the SEC) reasonably acceptable to the Company. Such holders will be responsible for the fees of any purchaser representative so appointed.
(f) In connection with any Approved Sale, unless otherwise determined by the Board, each Stockholder irrevocably constitutes and hold appoints, and will constitute and appoint, the same class Sponsor Investor, or series any individual or entity designated by the Sponsor Investor (the “Seller Representative”), as his, her or its representative, agent and attorney-in-fact with, subject to the terms and conditions in this Agreement, full power of capital stocksubstitution to act and to do any and all things and execute any and all documents on behalf of such Stockholder that may be necessary, convenient or appropriate to facilitate the consummation of the Approved Sale and/or the administration of and carrying out of the terms of agreements governing such Approved Sale, including the power (i) to give and receive all notices and communications to be given or received under the terms of any agreements (the “Approved Sale Agreements”) entered into in connection with such Approved Sale and to receive service of process in connection with any claims under the Approved Sale Agreements, including service of process in connection with arbitration; (ii) to make decisions on behalf of the Stockholders with respect to the transactions and other matters contemplated by this Agreement and the Approved Sale Agreements, including regarding (A) adjustments to the purchase price, (B) indemnification and purchase-price-adjustment claims, (C) amendments to the Approved Sale Agreements or any other agreements contemplated thereby to which it is a party and (yD) the defense of third party suits that may be the subject of indemnification claims, and to negotiate, enter into settlements and compromises of, and demand litigation or arbitration with respect to such indemnity obligation third party suits or claims by any purchaser for indemnification as well as purchase-price-adjustment claims; (iii) to receive funds, make payments of funds and give receipts for funds or to receive funds for the payment of expenses of the Stockholders or to deposit such funds in such accounts as the Seller Representative deems appropriate and apply such funds in payment for such expenses; (iv) to establish and maintain such reserves as the Seller Representative deems necessary to satisfy any obligations or expenses of the Stockholders; and (v) to take all actions which under this Agreement may be taken by Stockholders and to do or refrain from doing any further act or deed on behalf of the Stockholders the Seller Representative deems necessary or appropriate in its sole discretion relating to the subject matter of the Approved Sale Agreements as fully and completely as such Stockholders could do if personally present. The relationship created herein is provided not to be construed as a joint venture or any form of partnership between or among the Seller Representative or any Stockholder for any purpose of U.S. federal or state law, including federal or state income tax purposes. Neither the Seller Representative nor any of its Affiliates owes or will owe any fiduciary or other duty to any Stockholder. This appointment of the Seller Representative is and limited will be coupled with an interest and shall not be revocable by any Stockholder in any manner or for any reason. This power of attorney shall not be affected by the death, illness, dissolution, disability, incapacity or other inability to act of the Stockholder pursuant to any applicable law. The Seller Representative shall not be liable to any Stockholder in its capacity as the Seller Representative for any liability of a post-closing escrow Stockholder or holdback arrangement for any error of cash judgment made in good faith, or stock paid any act done or step taken or omitted by it in good faith or for any mistake in fact or law, or for anything which it may do or refrain from doing in connection with the agreements related to such Approved Sale. The Stockholders shall severally, but not jointly, pro rata in accordance with their respective proceeds from such Approved Sale, indemnify and hold harmless the Seller Representative from any and all losses, liabilities and expenses (including the reasonable fees and expenses of counsel) arising out of or related to the Seller Representative’s service as the Seller Representative.
(g) The provisions of this Section 6.1 will terminate on the first to occur of (i) the consummation of a Public Transaction and (ii) the consummation of an Approved Sale (except as such provisions relate to any such Approved Sale).
Appears in 1 contract
Samples: Rollover Agreement (Mayer Marc O)
Approved Sale. If (a) TAO (which for the Board purpose of Directors this Section 6.9 shall also include its Permitted Transferees) shall have the right, but not the obligation, by giving written notice (an “Approved Sale Notice”) to the Company and the Members to cause a Sale of the Company (in accordance with the “Board”) shall deliver a notice to Grantee (a “Sale Event Notice”) stating that the Board has approved a sale terms of all or a portion of the Company this Section 6.9 (an “Approved Sale”) and specifying the name and address of the proposed parties to such transaction and the consideration payable in connection therewith, Grantee shall ): (i) consent prior to and raise no objections against or on the fifth anniversary of the date of this Agreement, subject to Hakkasan Parent (which for the purpose of this Section 6.9 shall also include its Permitted Transferees) receiving from such Approved Sale a portion of the Sale Aggregate Consideration (as defined below) equal to or in excess of the process pursuant consideration that would be payable based on a valuation of the Company and its Subsidiaries, taken as a whole, that is equal to which the Approved Sale was arrangedMinimum Valuation, (ii) after the fifth anniversary of the date of this Agreement (other than as contemplated by clause (iii), regardless of the valuation); or (iii) in the event of a Put Notice having already been delivered (but prior to consummation of the Put) in accordance with Section 6.6, or in the event of the closing of an Approved Sale during the period in which a Put Notice may be validly delivered in accordance with Section 6.6, subject to Hakkasan Parent receiving from such Approved Sale a portion of the Sale Aggregate Consideration (as defined below) equal to or in excess of the consideration that would be payable based on a valuation of the Company and its Subsidiaries, taken as a whole, that is equal to the Minimum Valuation. If TAO delivers an Approved Sale Notice, (x) in the event TAO has not already obtained a proposal with respect to such Sale of the Company, TAO shall be authorized to initiate a process to seek a Sale of the Company for which definitive documents are entered into no later than one hundred and eighty (180) days of the delivery of such Approved Sale Notice and that is consummated within a period of two hundred and forty (240) days after delivery of such Approved Sale Notice (an “Approved Sale Period”) and to direct and control all decisions in connection therewith (including the hiring or termination of any investment bank and/or other professional advisers and making all decisions regarding valuation and consideration) and (y) the Company shall participate in, and reasonably cooperate in good faith with, such process, in each case as reasonably requested by TAO; provided, however, that TAO shall conduct any such process in good faith and in regular consultation with Hakkasan Parent and will keep Hakkasan Parent promptly apprised of all material developments related to any such process.
(b) In the event of an Approved Sale, (i) each Member will waive any applicable dissenter’s rights and other similar rights, rights and (iiiii) if the Approved Sale is structured as a sale of securities, subject to Section 6.9(c), each Member will agree to sell Granteesuch Member’s Shares Interests on the terms and conditions of the Approved Sale which terms and conditions shall treat all stockholders of the Company equally (on a pro rata basis), except that shares having a liquidation preference may, if so provided in the documents governing such shares, receive an amount of consideration equal to such liquidation preference in addition to the consideration being paid to the holders of Shares not having a liquidation preferenceSale. Grantee shall Each Member will take all reasonably necessary and desirable lawful actions as directed reasonably requested by the Board and the stockholders of the Company approving the Approved Sale TAO in connection with the consummation of any Approved Sale, including without limitationby executing the applicable transaction agreements subject to Section 6.9(d) and Section 6.9(e).
(c) In an Approved Sale, the execution aggregate consideration payable upon consummation of such agreements and such instruments and other actions reasonably necessary to (A) provide the representations, warranties, indemnities, covenants, conditions, non-compete agreements, escrow agreements and other provisions and agreements relating to such Approved Sale andto all Members in respect of their Interests (the “Sale Aggregate Consideration”) shall be allocated among and paid promptly to the Members based on the Distribution Priorities; provided, however, that notwithstanding any references to payment by the Distribution Priorities in this Section 6.9(c), in the event of an Approved Sale contemplated by clause (Bi) effectuate or (iii) of Section 6.9(a), if the allocation Sale Aggregate Consideration is not equal to or in excess of the consideration that would be payable based on a valuation of the Company and its Subsidiaries (taken as a whole) that is equal to the Minimum Valuation, the other Members shall consent to a disproportionate payment to Hakkasan Parent to allocate, simultaneously with any distribution of the Sale Aggregate Consideration to the other Members, an aggregate portion of the Sale Aggregate Consideration to Hakkasan Parent that is equal to the consideration upon that would be payable to it if the Approved Sale, provided, that this Sale Aggregate Consideration was based on the Minimum Valuation.
(d) Notwithstanding the foregoing but subject to Section 8 shall not require Grantee to indemnify 6.9(e): (i) neither TAO nor any of its Affiliates may be the purchaser in an Approved Sale; (ii) the costs and expenses (including reasonable and documented out-of-pocket costs and expenses incurred by the Members in connection with an Approved Sale), and any Approved purchase price adjustments, escrow amounts, holdbacks, insurance costs, indemnity obligations of and other similar items shall be deemed to reduce (or increase, as the case may be) the Sale for breaches Aggregate Consideration; (iii) any consideration paid to any Member following the applicable closing in respect of purchase price adjustment increase, escrow amounts, holdbacks, insurance payments, indemnification payments or earn-out payments shall be allocated among the Interests of the representationsMembers as such amounts would have been allocated at the applicable closing had such amounts been included in the Sale Aggregate Consideration (based on the Distribution Priorities); and (iv) in the event Excluded Consideration is included in the Sale Aggregate Consideration, warranties or covenants TAO and its Permitted Transferees shall receive the entire portion of such Excluded Consideration, and in lieu of the Company portion of Sale Aggregate Consideration consisting of Excluded Consideration (if any) that was allocable to Hakkasan Parent and its Permitted Transferees based on the Distribution Priorities, TAO shall pay or any other stockholder, except cause to be paid to Hakkasan Parent cash and/or Liquid Marketable Securities (calculated based on the total valuation of the Sale Aggregate Consideration (and the relevant portion of Excluded Consideration allocable to Hakkasan Parent and its Permitted Transferees based on the Distribution Priorities ) in such Approved Sale).
(e) Notwithstanding anything to the extent contrary contained in this Section 6.9, in connection with an Approved Sale: (xi) Grantee no Member shall be required to make any representation or warranty that is not the same as or equivalent to those made by the other Members, (ii) each Member shall only be required to incur make representations and warranties that are made by the other Members on a several and not joint basis (other than with respect to claims against an escrow, which may be on a joint and several basis subject to Hakkasan Parent and its Permitted Transferees not being required to bear any reduction of proceeds from such escrow by more than its pro rata share as to such claims) with respect to the Company and its Subsidiaries, (iii) no Member shall be required to incur indemnification or similar obligations (outside of such indemnity obligation an escrow in accordance with the parenthetical in clause (based on ii) above) in the total consideration to be received by all stockholders that are similarly situated and hold the same class or series of capital stock) and (y) such indemnity obligation is provided for and limited to a post-closing escrow or holdback arrangement of cash or stock paid aggregate in connection with such Drag-Along Sale in excess of the lesser of (1) the proceeds actually received by such Member in connection with such Approved Sale, and (2) the pro rata share of such Member of any “cap” on indemnification obligations of the Members in such Approved Sale, provided, however, that if TAO is bound to an obligation with respect to fraud or fundamental representations as to TAO (and not the Company or its Subsidiaries) in excess of its proceeds, Hakkasan Parent and its Permitted Transferees shall be bound accordingly as to Hakkasan Parent’s and its Permitted Transferees’ fraud or fundamental representations, and (iv) each Member shall remain subject to any non-competition or non-solicitation arrangement or similar restrictive covenant existing as of the date of such Approved Sale in accordance with the terms thereof as then in effect; provided, however, that no Member shall be obligated to enter into new restrictive covenants or extensions of the existing restrictive covenants, regardless of what any other Member may agree to accept.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Madison Square Garden Entertainment Corp.)
Approved Sale. If (a) In the Board event of Directors of the Company (the “Board”) shall deliver a notice to Grantee (a “Sale Event Notice”) stating that the Board has approved a sale of all or a portion of the Company (an “any Approved Sale”) and specifying the name and address of the proposed parties to such transaction and the consideration payable in connection therewith, Grantee shall each Unitholder will (i) consent to and raise no objections against the Approved Sale or the process pursuant to which the Approved Sale was arranged, and (ii) waive any dissenter’s 's rights and other similar rights, and (iii) if rights available to such Unitholder. If the Approved Sale is structured as a sale of securitiesUnits that include Junior Common Units, each Unitholder will agree to sell Grantee’s Shares all of its Units on the terms and conditions of the Approved Sale; PROVIDED that, if the Approved Sale which terms consists of a sale of Units, the portion of the aggregate selling price (net of expenses of the Approved Sale) (the "SELLING PRICE") to be delivered to each Unitholder that is selling Units in the Approved Sale shall be equal to the amount such Unitholder would receive in respect of their Units sold in the Approved Sale if (i) in the case of an Approved Sale of all outstanding Units, (A) all of the Company's assets were sold for an amount (net of all Company liabilities and conditions shall treat all stockholders expenses of the Approved Sale not described in Section 8.3(c)) equal to the Selling Price and (B) such Selling Price were distributed to the Unitholders in liquidation of the Company equally (on a pro rata basispursuant to Section 9.2(b)(iii), except that shares having a liquidation preference may, if so provided and (ii) in the documents governing such sharescase of an Approved Sale of less than all outstanding Units, receive (A) all of the Company's assets were sold for an amount (net of consideration all Company liabilities and expenses of the Approved Sale not described in Section 8.3(c)) equal to the Fair Market Value of such liquidation preference assets (determined consistent with the pricing for the Approved Sale and net of all Company liabilities and expenses of the Approved Sale not described in addition Section 8.3(c)) and (B) such amount were distributed to the consideration being paid Unitholders in liquidation of the Company pursuant to the holders of Shares not having a liquidation preferenceSection 9.2(b)(iii). Grantee shall Each Unitholder will take all necessary and desirable lawful actions as directed by the Board and the stockholders of the Company approving the Approved Sale reasonably requested in connection with the consummation of any Approved Sale, including without limitationbut shall not be required to execute any purchase agreement, undertake any obligation except as provided herein or grant indemnification other than identical indemnification rights (whether directly to the execution buyer of the Units or pursuant to the provisions of a contribution agreement) PRO RATA based on the number of Junior Common Units to be sold by such agreements and such instruments and other actions reasonably necessary Unitholders pursuant to (A) provide the representations, warranties, indemnities, covenants, conditions, non-compete agreements, escrow agreements and other provisions and agreements relating to such Approved Sale and, capped at an amount not greater than the proceeds thereof.
(Bb) effectuate the allocation and distribution of the aggregate consideration upon the Approved Sale, provided, that this Section 8 shall not require Grantee to indemnify the purchaser in any Approved Sale for breaches of the representations, warranties or covenants of If the Company or any Unitholder or group of Unitholders enter into any negotiation or transaction for which Rule 506 (or any similar rule then in effect) under the Securities Act may be available with respect to such negotiation or transaction (including a merger, consolidation, or other stockholderreorganization), except the Other Unitholders will, at the request of the Company, appoint a purchaser representative (as such term is defined in Rule 501) reasonably acceptable to the extent Company.
(xc) Grantee is Costs incurred by any Unitholder on its own behalf will not required to incur more than its pro rata share be considered costs of such indemnity obligation (based on the total consideration to be received by all stockholders that are similarly situated and hold the same class or series of capital stock) and (y) such indemnity obligation is provided for and limited to a post-closing escrow or holdback arrangement of cash or stock paid in connection with the Approved Saletransaction hereunder.
Appears in 1 contract
Samples: Limited Liability Company Agreement (American Commercial Lines LLC)
Approved Sale. If (a) In the Board event of Directors of the Company (the “Board”) shall deliver a notice to Grantee (a “Sale Event Notice”) stating that the Board has approved a sale of all or a portion of the Company (an “any Approved Sale”) and specifying the name and address of the proposed parties to such transaction and the consideration payable in connection therewith, Grantee shall each Unitholder will (i) consent to and raise no objections against the Approved Sale or the process pursuant to which the Approved Sale was arranged, and (ii) waive any dissenter’s 's rights and other similar rights, and (iii) if rights available to such Unitholder. If the Approved Sale is structured as a sale of securitiesUnits that include Junior Common Units, each Unitholder will agree to sell Grantee’s Shares all of its Units on the terms and conditions of the Approved Sale; provided that, if the Approved Sale which terms consists of a sale of Units, the portion of the aggregate selling price (net of expenses of the Approved Sale) (the "Selling Price") to be delivered to each Unitholder that is selling Units in the Approved Sale shall be equal to the amount such Unitholder would receive in respect of their Units sold in the Approved Sale if (i) in the case of an Approved Sale of all outstanding Units, (A) all of the Company's assets were sold for an amount (net of all Company liabilities and conditions shall treat all stockholders expenses of the Approved Sale not described in Section 8.3(c)) equal to the Selling Price and (B) such Selling Price were distributed to the Unitholders in liquidation of the Company equally (on a pro rata basispursuant to Section 9.2(b)(iii), except that shares having a liquidation preference may, if so provided and (ii) in the documents governing such sharescase of an Approved Sale of less than all outstanding Units, receive (A) all of the Company's assets were sold for an amount (net of consideration all Company liabilities and expenses of the Approved Sale not described in Section 8.3(c)) equal to the Fair Market Value of such liquidation preference assets (determined consistent with the pricing for the Approved Sale and net of all Company liabilities and expenses of the Approved Sale not described in addition Section 8.3(c)) and (B) such amount were distributed to the consideration being paid Unitholders in liquidation of the Company pursuant to the holders of Shares not having a liquidation preferenceSection 9.2(b)(iii). Grantee shall Each Unitholder will take all necessary and desirable lawful actions as directed by the Board and the stockholders of the Company approving the Approved Sale reasonably requested in connection with the consummation of any Approved Sale, including without limitationbut shall not be required to execute any purchase agreement, undertake any obligation except as provided herein or grant indemnification other than identical indemnification rights (whether directly to the execution buyer of the Units or pursuant to the provisions of a contribution agreement) pro rata based on the number of Junior Common Units to be sold by such agreements and such instruments and other actions reasonably necessary Unitholders pursuant to (A) provide the representations, warranties, indemnities, covenants, conditions, non-compete agreements, escrow agreements and other provisions and agreements relating to such Approved Sale and, capped at an amount not greater than the proceeds thereof.
(Bb) effectuate the allocation and distribution of the aggregate consideration upon the Approved Sale, provided, that this Section 8 shall not require Grantee to indemnify the purchaser in any Approved Sale for breaches of the representations, warranties or covenants of If the Company or any Unitholder or group of Unitholders enter into any negotiation or transaction for which Rule 506 (or any similar rule then in effect) under the Securities Act may be available with respect to such negotiation or transaction (including a merger, consolidation, or other stockholderreorganization), except the Other Unitholders will, at the request of the Company, appoint a purchaser representative (as such term is defined in Rule 501) reasonably acceptable to the extent Company.
(xc) Grantee is Costs incurred by any Unitholder on its own behalf will not required to incur more than its pro rata share be considered costs of such indemnity obligation (based on the total consideration to be received by all stockholders that are similarly situated and hold the same class or series of capital stock) and (y) such indemnity obligation is provided for and limited to a post-closing escrow or holdback arrangement of cash or stock paid in connection with the Approved Saletransaction hereunder.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Acl Capital Corp)
Approved Sale. (a) If the Board holders of Directors a majority of the Investor Stock (voting together as a single class) approve a Sale of the Company (the “Board”) shall deliver a notice any such transaction being hereinafter referred to Grantee (a “Sale Event Notice”) stating that the Board has approved a sale of all or a portion of the Company (as an “Approved Sale” and the holders of such Investor Stock being hereinafter referred to as the “Approving Stockholders”) ), then upon receipt of written notice from the Company or the Approving Stockholders describing the terms of such Approved Sale (including the purchaser, the consideration and specifying the name and address form of the proposed parties to such transaction and the consideration payable in connection therewithtransaction), Grantee each Stockholder shall (i) vote for, consent to and raise no objections against such Approved Sale, and shall, subject to Section 4.1(c), take all necessary or desirable actions in connection with the consummation of the Approved Sale, including any amendments to the Certificate of Incorporation and By-laws, as reasonably requested by the Company or the Approving Stockholders and each Warrantholder shall raise no objections against such Approved Sale (provided such Approved Sale does not violate or conflict with this Agreement or the Warrants), and shall, subject to Section 4.1(c), take all necessary or desirable actions in connection with the consummation of the Approved Sale as reasonably requested by the Company or the process Approving Stockholders. For the avoidance of doubt, the obligations of the Equityholders pursuant to which the foregoing sentence shall apply irrespective of the amount of consideration (if any) to be paid to the Equityholders pursuant to the Approved Sale.
(b) In furtherance of the foregoing:
(i) Each Equityholder shall cooperate fully with the transaction and take all steps reasonably requested by the Approving Stockholders to effect the transaction.
(ii) Each Equityholder shall execute a purchase and sale agreement and any other agreement reasonably necessary to effectuate the Approved Sale was arranged, (ii) waive any dissenter’s rights in the form entered into by the Company and other similar rights, and the Approving Stockholders.
(iii) if If the Approved Sale is structured as a merger, consolidation or sale of assets, each Stockholder shall waive any dissenters rights, appraisal rights or similar rights in connection with such merger or consolidation.
(iv) If the Approved Sale is structured as a sale of securitiesstock, each Equityholder shall agree to sell Grantee’s all of its Company Shares or Shares Equivalents on the terms and conditions of approved by the Approving Stockholders.
(v) If the Approved Sale which terms and conditions is structured as a sale of assets, each Stockholder shall treat all stockholders approve any subsequent liquidation of the Company equally (on a pro rata basis), except that shares having a liquidation preference may, if so provided in the documents governing such shares, receive an amount of consideration equal to such liquidation preference in addition to the consideration being paid to the holders of Shares not having a liquidation preference. Grantee shall take all necessary and desirable lawful actions as directed by the Board and the stockholders of the Company approving the Approved Sale in connection with the consummation of therewith.
(vi) Each Equityholder agrees not to assert, at any Approved Saletime, including without limitation, the execution of such agreements and such instruments and other actions reasonably necessary to (A) provide the representations, warranties, indemnities, covenants, conditions, non-compete agreements, escrow agreements and other provisions and agreements relating to such Approved Sale and, (B) effectuate the allocation and distribution of the aggregate consideration upon the Approved Sale, provided, that this Section 8 shall not require Grantee to indemnify the purchaser in any Approved Sale for breaches of the representations, warranties or covenants of claim against the Company or any other stockholderEquityholder in connection with such Approved Sale.
(c) The obligations of the Equityholders with respect to the Approved Sale are subject to the satisfaction of the following conditions, except and neither the Company nor any Stockholder shall consummate the Approved Sale unless and until such conditions shall have been satisfied: (i) upon the consummation of the Approved Sale, each Stockholder shall receive in respect of its Company Shares an amount (if any) that is no less than the same portion of the aggregate consideration attributable to all Company Shares that such Stockholder would have received if such aggregate consideration had been distributed by the Company pursuant to the rights and preferences set forth herein and in the Certificate of Incorporation; (ii) if any holders of a class of Company Shares are given an option as to the form and amount of consideration to be received, each other holder of such class shall be given the same option; (iii) each holder of Share Equivalents shall be given an opportunity to either (A) exercise such rights prior to the consummation of the Approved Sale (but only to the extent such Share Equivalents are then vested or would be vested on an accelerated basis pursuant to the terms thereof) and participate in such sale as a Stockholder, or (B) upon the consummation of the Approved Sale, receive in exchange for such currently exercisable Share Equivalents consideration equal to the product of (x) Grantee is not required to incur more than its pro rata share the same amount of such indemnity obligation (based on the total cash consideration to be per Common Stock received by all stockholders that are similarly situated the holders of Common Stock in connection with the Approved Sale (less the exercise price per Share Equivalent and hold the same class or series of capital stockany applicable withholding obligation) and (y) the number of Share Equivalents held by such indemnity obligation is provided for Person (but only to the extent such Share Equivalents are then vested) and limited (iv) the obligations, expenses or potential obligations or expenses incurred by an Equityholder pursuant to a post-closing escrow or holdback arrangement of this Section 4.1 in connection with such Approved Sale shall not exceed the net cash or stock proceeds paid to such Equityholder in connection with the Approved Sale.
(d) Each Equityholder Transferring Company Shares pursuant to this Section
4.1 shall pay its pro rata share (based on its share of the purchase price received by all holders of Capital Stock) of any expenses incurred by the Approving Stockholders in connection with such Approved Sale and shall be obligated to join on a several, pro rata
(e) Each Stockholder shall be obligated to make representations or warranties solely as to such Stockholder’s (i) title and ownership of the Company Shares being sold by such Stockholder; (ii) authorization, execution and delivery of relevant documents by such Stockholder; and (iii) and the enforceability of relevant documents against such Stockholder. Each holder of Share Equivalents shall be obligated to make representations or warranties solely as to such holder’s (i) title and ownership of any Share Equivalents being sold by such Stockholder; (ii) authorization, execution and delivery of relevant documents by such holder; and (iii) and the enforceability of relevant documents against such holder. No Investor Stockholder or Warrantholder shall be required, without such Investor Stockholder’s or Warrantholder’s prior written consent, to enter into any post-closing restrictive covenants in connection with such Approved Sale.
(f) No Equityholder may disclose to any Person (except (i) to the Equityholder’s limited partners, Affiliated investment funds, legal counsel or financial adviser or to another Equityholder, in each case on a confidential basis, (ii) with the Company’s prior written consent or (iii) as required under applicable law, order or legal or investigative process) any information related to a potential Approved Sale; provided, however, that the foregoing limitation shall not apply to any confidential information that
Appears in 1 contract
Samples: Equityholders Agreement
Approved Sale. (a) If the Xxxx Holders request and the Board approves (i) a Transfer of Directors a majority of the Company (the “Board”) shall deliver Company’s assets determined on a notice to Grantee (a “Sale Event Notice”) stating that the Board has approved a sale of all consolidated basis or a portion majority of the Company’s outstanding Common Stock (whether by merger (including one in which the Company is the surviving corporation), recapitalization, consolidation, reorganization, combination or otherwise) to any Independent Third Party or group of Independent Third Parties or (ii) a Transfer of any shares of Common Stock in connection with a Strategic Transaction (collectively an “Approved Sale”) and specifying the name and address ), each holder of the proposed parties to such transaction and the consideration payable in connection therewithStockholder Shares will vote for, Grantee shall (i) consent to and raise no objections against the such Approved Sale or the process pursuant to which the Approved Sale was arranged, (ii) waive any dissenter’s rights and other similar rights, and (iii) if Sale. If the Approved Sale is structured as (i) a sale merger (including one in which the Company is the surviving corporation) or consolidation, each holder of securitiesStockholder Shares will waive any dissenter’s rights, appraisal rights or similar rights in connection with such merger or consolidation and will not otherwise exercise any such right or (ii) Transfer of stock (including by recapitalization, consolidation, reorganization, combination or otherwise), each holder of Stockholder Shares will agree to sell Grantee’s all (or whatever is required to be sold in connection with such Approved Sale) of its Stockholder Shares and rights to acquire Stockholder Shares on the terms and conditions approved by the Xxxx Holders. Each holder of the Approved Sale which terms and conditions Stockholder Shares shall treat all stockholders of the Company equally (be obligated to join on a pro rata basis), except basis (based on the number of Stockholder Shares to be sold) in any indemnification or other obligations that shares having a liquidation preference may, if so provided the sellers of Stockholder Shares are required to provide in the documents governing such shares, receive an amount of consideration equal to such liquidation preference in addition to the consideration being paid to the holders of Shares not having a liquidation preference. Grantee shall take all necessary and desirable lawful actions as directed by the Board and the stockholders of the Company approving connection with the Approved Sale (other than any such obligations that relate solely to a particular Stockholder, such as indemnification with respect to representations and warranties given by a Stockholder regarding such Stockholder’s title to and ownership of Stockholder Shares, in respect of which only such Stockholder shall be liable). Each holder of Stockholder Shares will take all reasonable actions in connection with the consummation of any the Approved Sale as requested by the Board (which actions may include, at the request of the Board, continuing arrangements among the stockholders of the Company substantially similar to the terms of this Agreement).
(b) The obligations of the holders of Common Stock with respect to an Approved Sale are subject to the satisfaction of the following conditions: (i) upon the consummation of the Approved Sale, including without limitation, each holder of Common Stock will Transfer such Common Stock on the execution same terms and will receive the same form of such agreements consideration and such instruments and other actions reasonably necessary to (A) provide the representations, warranties, indemnities, covenants, conditions, non-compete agreements, escrow agreements and other provisions and agreements relating to such Approved Sale and, (B) effectuate the allocation and distribution same portion of the aggregate consideration upon that such holders of Common Stock would have received if such aggregate consideration had been distributed by the Company in complete liquidation pursuant to the rights and preferences set forth in the Certificate of Incorporation as in effect immediately prior to such Approved Sale; (ii) all holders of shares of a class of Common Stock will be given the same consideration with respect to each share of such class, and if any holders of a class of Common Stock are given an option as to the form and amount of consideration to be received, each holder of such class of Common Stock will be given the same option with respect to each share of such class; and (iii) each holder of then currently exercisable rights to acquire shares of a class of Common Stock will be given an opportunity to exercise such rights prior to the consummation of the Approved Sale, provided, that this Section 8 shall not require Grantee to indemnify the purchaser Sale and participate in any Approved Sale for breaches such sale as holders of the representations, warranties or covenants such class of Common Stock.
(c) If the Company or the holders of the Company’s securities enter into any negotiation or transaction for which Rule 506 (or any similar rule then in effect) promulgated by the Securities and Exchange Commission may be available with respect to such negotiation or transaction (including a merger, consolidation or other stockholderreorganization), except the holders of Stockholder Shares will, at the request of the Company, appoint a purchaser representative (as such term is defined in Rule 501) reasonably acceptable to the extent (xCompany. If any holder of Stockholder Shares appoints a purchaser representative designated by the Company, the Company will pay the fees of such purchaser representative, but if any holder of Stockholder Shares declines to appoint the purchaser representative designated by the Company such holder will appoint another purchaser representative, and such holder will be responsible for the fees of the purchaser representative so appointed. This Section 3(c) Grantee is not shall apply only to holders of Stockholder Shares that are required to incur more than its appoint a purchaser representative under Regulation D (or any successor regulation then in effect) promulgated by the Securities and Exchange Commission.
(d) Subject to Section 3(c) above, holders of Stockholder Shares will bear their pro rata share of such indemnity obligation (based on upon the total consideration proceeds to be received by holders of Stockholder Shares) of the costs of any sale of Stockholder Shares pursuant to an Approved Sale to the extent such costs are incurred for the benefit of all stockholders that holders of Common Stock and are similarly situated and hold not otherwise paid by the same class Company or series the acquiring party. For purposes of capital stockthis Section 3(d) and (yabove, costs incurred in exercising reasonable efforts to take all necessary actions for the consummation of an Approved Sale in accordance with Section 3(a) such indemnity obligation is provided above shall be deemed to be for and limited to a post-closing escrow or holdback arrangement the benefit of cash or stock paid in connection with all holders of Common Stock. Costs incurred by holders of Stockholder Shares on their own behalf will not be considered costs of the Approved Saletransaction hereunder.
Appears in 1 contract
Samples: Stockholders Agreement (Innophos Investment Holdings, Inc.)
Approved Sale. If the Board of Directors of the Company (the “Board”) shall deliver a notice to Grantee Optionee (a “Sale Event Notice”"SALE EVENT NOTICE") stating that the Board has approved a sale of all or a portion of the Company (an “Approved Sale”"APPROVED SALE") and specifying the name and address of the proposed parties to such transaction and the consideration payable in connection therewith, Grantee Optionee shall (i) consent to and raise no objections against the Approved Sale or the process pursuant to which the Approved Sale was arranged, (ii) waive any dissenter’s 's rights and other similar rights, and (iii) if the Approved Sale is structured as a sale of securities, agree to sell Grantee’s Optionee's Shares on the terms and conditions of the Approved Sale which terms and conditions shall treat all stockholders of the Company equally (on a pro rata basis), except that shares having a liquidation preference may, if so provided in the documents governing such shares, receive an amount of consideration equal to such liquidation preference in addition to the consideration being paid to the holders of Shares not having a liquidation preference. Grantee Notwithstanding the foregoing, the sale of the Shares in an Approved Sale shall be further subject to the terms of the Plan. Optionee will take all necessary and desirable lawful actions as directed by the Board and the stockholders of the Company approving the Approved Sale in connection with the consummation of any Approved Sale, including without limitation, the execution of such agreements and such instruments and other actions reasonably necessary to (A) provide the representations, warranties, indemnities, covenants, conditions, non-compete agreements, escrow agreements and other provisions and agreements relating to such Approved Sale and, (B) effectuate the allocation and distribution of the aggregate consideration upon the Approved Sale, providedPROVIDED, that this Section 8 5 shall not require Grantee Optionee to indemnify the purchaser in any Approved Sale for breaches of the representations, warranties or covenants of the Company or any other stockholder, except to the extent (x) Grantee Optionee is not required to incur more than its pro rata share of such indemnity obligation (based on the total consideration to be received by all stockholders that are similarly situated and hold the same class or series of capital stock) and (y) such indemnity obligation is provided for and limited to a post-closing escrow or holdback arrangement of cash or stock paid in connection with the Approved Sale.
Appears in 1 contract
Approved Sale. If the Board of Directors of the Company (the “"Board”") shall deliver a notice to Grantee (a “Sale Event Notice”"SALE EVENT NOTICE") stating that the Board has approved a sale of all or a portion of the Company (an “Approved Sale”"APPROVED SALE") and specifying the name and address of the proposed parties to such transaction and the consideration payable in connection therewith, Grantee shall (i) consent to and raise no objections against the Approved Sale or the process pursuant to which the Approved Sale was arranged, (ii) waive any dissenter’s 's rights and other similar rights, and (iii) if the Approved Sale is structured as a sale of securities, agree to sell Grantee’s 's Shares on the terms and conditions of the Approved Sale which terms and conditions shall treat all stockholders of the Company equally (on a pro rata basis), except that shares having a liquidation preference may, if so provided in the documents governing such shares, receive an amount of consideration equal to such liquidation preference in addition to the consideration being paid to the holders of Shares not having a liquidation preference. Grantee shall take all necessary and desirable lawful actions as directed by the Board and the stockholders of the Company approving the Approved Sale in connection with the consummation of any Approved Sale, including without limitation, the execution of such agreements and such instruments and other actions reasonably necessary to (A) provide the representations, warranties, indemnities, covenants, conditions, non-compete agreements, escrow agreements and other provisions and agreements relating to such Approved Sale and, (B) effectuate the allocation and distribution of the aggregate consideration upon the Approved Sale, providedPROVIDED, that this Section 8 7 shall not require Grantee to indemnify the purchaser in any Approved Sale for breaches of the representations, warranties or covenants of the Company or any other stockholder, except to the extent (x) Grantee is not required to incur more than its pro rata share of such indemnity obligation (based on the total consideration to be received by all stockholders that are similarly situated and hold the same class or series of capital stock) and (y) such indemnity obligation is provided for and limited to a post-closing escrow or holdback arrangement of cash or stock paid in connection with the Approved Sale.
Appears in 1 contract
Samples: Restricted Stock Grant Agreement (Envision Solar International, Inc.)
Approved Sale. If (a) At any time after the Board of Directors 20th anniversary of the Company New Facility Commencement Date, either the Darling Member or the Valero Member (the “BoardTriggering Member”) shall may deliver a notice to Grantee the other Member (a the “Approved Sale Event Notice”) stating that the Board has approved it wishes to effect a Company Sale or a sale of all or a portion all, but not less than all, of the Company its Units and Equity Securities (in either case, an “Approved Sale”) in accordance with this Section 11.1. The Member that did not deliver the Approved Sale Notice pursuant to the previous sentence (whether the Darling Member or the Valero Member) shall be referred to herein as the “Non-Triggering Member”. In the event that an Approved Sale Notice is delivered in accordance with this Section 11.1(a), the Non-Triggering Member shall have the right, pursuant to a written notice (the “Approved Sale Response Notice”) to the Company and specifying the name and address Triggering Member delivered within 60 days after receipt of the proposed parties Approved Sale Notice from the Triggering Member, to offer to purchase all, but not less than all, of the outstanding Units and Equity Securities and any Company Loans and Member Loans held by the Triggering Member (the “Triggering Member Sale”) at the price and on the terms and conditions set forth in such Approved Sale Response Notice.
(b) If the Non-Triggering Member makes an offer pursuant to and in accordance with Section 11.1(a) and the Triggering Member accepts such offer within the time period set forth in such Approved Sale Response Notice (which such time period shall be no less than 15 days nor more than 30 days), then the Approved Sale Response Notice shall constitute the legally binding obligation of each Member to complete the Triggering Member Sale on the terms and conditions set forth therein. The form of the definitive agreements relating to such transaction Triggering Member Sale shall be mutually agreed upon and contain the terms and conditions set forth in the Approved Sale Response Notice and such other customary representations, warranties and covenants for transactions similar to the Triggering Member Sale. The Members shall fix a closing date, which must be a Business Day not later than 120 days following the date of delivery of the Approved Sale Response Notice. If the closing date is not so fixed, then such date shall automatically be 120 days following the date of delivery of the Approved Sale Response Notice; provided, however, that if such date is not a Business Day, then such date shall be the next Business Day; provided, further, that if the consummation of the Triggering Member Sale requires the approval of any Governmental Entity, then the closing date may be extended to the first Business Day following the receipt of such approval.
(c) If the Non-Triggering Member fails to deliver, or waives its right to deliver, the Approved Sale Response Notice as set forth in Section 11.1(a) or the Triggering Member rejects the Non-Triggering Member’s offer as set forth in the Approved Sale Response Notice, then the Non-Triggering Member and the consideration payable Board of Managers shall, and shall cause the Company and its management to, cooperate in connection therewith, Grantee shall good faith with the Triggering Member to (i) consent to and raise no objections against prepare the Approved Sale or the process pursuant to which the Approved Sale was arrangedCompany for sale, (ii) waive any dissenter’s rights engage a financial advisor experienced in the industry and other the sale of similar rightsassets to assist in the sale of the Company by drafting an offering memorandum or similar document and soliciting indications of interest from qualified buyers, and (iii) assist such financial advisor in conducting a sale process designed to achieve the highest price possible by actively pursuing such interested and qualified buyers. The Members and the Board of Managers shall cause the Company to provide reasonable access to Company management and facilities and the Company’s books and records and outside auditors for the purpose of (x) providing requested information to the Triggering Member and any financial advisor engaged to assist with the Company Sale, (y) attending meetings with prospective buyers and their financing sources, and (z) providing reasonable access to customary due diligence materials requested by prospective buyers. The Triggering Member shall secure customary confidentiality agreements from any prospective buyer and shall be in breach of its own confidentiality obligations to the Company and the other Member if it fails to do so. The Members and the Company shall require the financial adviser engaged to conduct such sale process to deliver within 90 days (or such other reasonable time period as advised by the financial adviser) of its engagement a report (the “Approved Sale Report”) to the Board of Managers setting forth in detail any indications of interest, and the valuations and any restrictions related thereto, from any such qualified buyer.
(d) Within 60 days after delivery of the Approved Sale is structured Report, the Non-Triggering Member shall have the right, pursuant to a written notice (the “Approved Sale Report Notice”) to the Company and the Triggering Member delivered within such 60-day period, to offer to purchase all, but not less than all, of the outstanding Units and Equity Securities and any Company Loans and Member Loans held by the Triggering Member at a price and on terms and conditions based on the indications of interest and the related valuations of the Company in the Approved Sale Report. If the Triggering Member accepts the Non-Triggering Member’s offer as a sale set forth in the Approved Sale Report Notice, then the Approved Sale Report Notice shall constitute the legally binding obligation of securities, agree each Member to sell Grantee’s Shares complete the proposed purchase of such Units and Equity Securities and any Company Loans and Member Loans held by the Triggering Member on the terms and conditions set forth therein. The Members shall fix a closing date, which must be a Business Day not later than 120 days following the date of delivery of the Approved Sale which Report Notice. If the closing date is not so fixed, then such date shall automatically be 120 days following the date of delivery of the Approved Sale Report Notice; provided, however, that if such date is not a Business Day, then such date shall be the next Business Day; provided, further, that if the consummation of such sale requires the approval of any Governmental Entity, then the closing date may be extended to the first Business Day following the receipt of such approval.
(e) If the Non-Triggering Member fails to deliver, or waives its right to deliver, the Approved Sale Report Notice as set forth in Section 11.1(d) or the Triggering Member rejects the Non-Triggering Member’s offer as set forth in the Approved Sale Report Notice, then the Members may mutually agree in writing to pursue a Company Sale and the Company and each Member shall use its commercially reasonable efforts to effect such Company Sale to a third party as promptly as practicable based on the indications of interest and the related valuations of the Company set forth in the Approved Sale Report and upon the terms and conditions shall treat all stockholders of negotiated by the Company equally (on a pro rata basis)and such third party, except that shares having a liquidation preference may, if so provided in the documents governing such shares, receive an amount of consideration equal which shall be reasonably acceptable to such liquidation preference in addition each Member and no less favorable to the consideration being paid to Triggering Member than the holders of Shares not having a liquidation preference. Grantee shall take all necessary and desirable lawful actions Non-Triggering Member’s offer as directed by the Board and the stockholders of the Company approving set forth in the Approved Sale Report Notice, if any. The Members and the Company shall fix an outside closing date, which must be a Business Day not later than 120 days (or such other time period agreed to in connection with writing by the Members) following the date of delivery of the Approved Sale Report. If the closing date is not so fixed, then such date shall automatically be 120 days following the date of delivery of the Approved Sale Report; provided, however, that if such date is not a Business Day, then such date shall be the next Business Day; provided, further, that if the consummation of such Company Sale requires the approval of any Governmental Entity, then the closing date may be extended to the first Business Day following the receipt of such approval. The Non-Triggering Member may, at any time, withdraw from the pursuit of a Company Sale pursuant to this Section 11.1(e) and the Triggering Member shall then be entitled to pursue such Company Sale pursuant to Section 11.1(f).
(f) Subject to the Non-Triggering Member’s rights set forth in Section 11.2, if following delivery of an Approved Sale, including without limitationSale Notice, the execution Darling Member and the Valero Member do not consummate an Approved Sale or sale of all of the outstanding Units and Equity Securities and any Company Loans held by the Triggering Member pursuant to and in accordance with any of Section 11.1(b), (d) or (e), as applicable, then the Triggering Member shall have the right to require the Non-Triggering Member and the Company to effect a Company Sale to a third party; provided, however, that such agreements Company Sale must be based on the indications of interest by bidders with demonstrable access to funds and such instruments and other actions reasonably necessary at a cash purchase price equal to (A) provide or higher than the representations, warranties, indemnities, covenants, conditions, non-compete agreements, escrow agreements and other provisions and agreements median of the valuations relating to such indications of interest and on customary terms and conditions reasonably acceptable to each Member, but no less favorable to the Triggering Member than the Non-Triggering Member’s offer as set forth in the Approved Sale andResponse Notice or the Approved Sale Report Notice, if any. Such third party buyer must have demonstrable access to funds allowing it to effect such purchase in cash and must otherwise be qualified to consummate such transaction within the timeframe specified.
(Bg) effectuate If an Approved Sale to a third party is not consummated within one year from the allocation and distribution date of delivery of an Approved Sale Notice, the Company shall terminate the sale process for a period of at least six months before the Triggering Member may again exercise its rights under Section 11.1(a); provided, further, that the foregoing termination of the aggregate consideration upon the Approved Sale, provided, that this Section 8 sale process shall not require Grantee affect or apply to indemnify the purchaser in any binding agreement to consummate an Approved Sale for breaches to a third party entered into prior to the one-year anniversary of the representations, warranties or covenants date of the Company or any other stockholder, except to the extent (x) Grantee is not required to incur more than its pro rata share delivery of such indemnity obligation (based on the total consideration to be received by all stockholders that are similarly situated and hold the same class or series of capital stock) and (y) such indemnity obligation is provided for and limited to a post-closing escrow or holdback arrangement of cash or stock paid in connection with the an Approved SaleSale Notice.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Darling Ingredients Inc.)
Approved Sale. If the Board of Directors of the Company (the “"Board”") shall deliver a notice to Grantee (a “Sale Event Notice”"SALE EVENT NOTICE") stating that the Board has approved a sale of all or a portion of the Company through a sale of assets, securities, or otherwise (an “Approved Sale”"APPROVED SALE") and specifying the name and address of the proposed parties to such transaction and the consideration payable in connection therewith, Grantee shall (i) consent to and raise no objections against the Approved Sale or the process pursuant to which the Approved Sale was arranged, (ii) waive any dissenter’s 's rights and other similar rights, and (iii) if the Approved Sale is structured as a sale of securities, agree to sell Grantee’s 's Shares on the terms and conditions of the Approved Sale which terms and conditions shall treat all stockholders of the Company equally (on a pro rata basis), except that shares having a liquidation preference may, if so provided in the documents governing such shares, receive an amount of consideration equal to such liquidation preference in addition to the consideration being paid to the holders of Shares not having a liquidation preference. Grantee shall take all necessary and desirable lawful actions as directed by the Board and the stockholders of the Company approving the Approved Sale in connection with the consummation of any Approved Sale, including without limitation, the execution of such agreements and such instruments and other actions reasonably necessary to (A) provide the representations, warranties, indemnities, covenants, conditions, non-compete agreements, escrow agreements and other provisions and agreements relating to such Approved Sale and, (B) effectuate the allocation and distribution of the aggregate consideration upon the Approved Sale, providedPROVIDED, that this Section 8 7 shall not require Grantee to indemnify the purchaser in any Approved Sale for breaches of the representations, warranties or covenants of the Company or any other stockholder, except to the extent (x) Grantee is not required to incur more than its pro rata share of such indemnity obligation (based on the total consideration to be received by all stockholders that are similarly situated and hold the same class or series of capital stock) and (y) such indemnity obligation is provided for and limited to a post-closing escrow or holdback arrangement of cash or stock paid in connection with the Approved Sale.
Appears in 1 contract
Samples: Restricted Stock Grant Agreement (Envision Solar International, Inc.)