Business Plan Deadlock Clause Samples
Business Plan Deadlock. If the Board fails to approve the Business Plan in any two successive years, beginning with the fiscal year which commences January 1, 2007, then the following process shall be followed, to be commenced by the Members no later than the date (the “Initiation Date”) which is the first day of the fiscal year immediately following the second fiscal year of deadlock:
(a) The Members shall first negotiate in good faith to resolve the issue and agree upon the Business Plan or to agree on a voluntary sale or dissolution of the Company or the interests of any Member therein. If no resolution is reached by representatives of the Members, the dispute will be referred for resolution to the chief executive (or equivalent) officers of each of the Members.
(b) If no agreement is reached among the Members within 120 days following the Initiation Date, then the following blind auction process shall be initiated:
(i) A majority of the Members shall jointly designate an independent third party (the “Bid Holder”) to whom any Member wishing to do so may submit a sealed offer for the purchase of the Company as a going concern and as an entirety. All offers must be for an all cash purchase, payable at closing, and be accompanied by evidence of the availability of the full cash purchase price and/or a firm commitment for financing of the full cash purchase price from a reputable financial institution. Any such bid must be submitted no later than 240 days following the Initiation Date.
(ii) The Member submitting the highest offer must purchase the Membership Interests of all other Members. If more than one Member submits the same highest offer, they may resubmit bids, which may be higher, lower or the same as before. If, after resubmission, there remains more than one offer at the same highest amount, the buyer will be selected by a random process agreed to by the Members having submitted those offers or, failing agreement, specified by the Bid Holder.
(A) The price paid to each selling Member which submitted an offer pursuant to clause (b)(i) shall be based upon the offer submitted by that Member. The price paid to each selling Member which did not submit an offer pursuant to clause (b)(i) and to the holders of Class D Membership Interests shall be based upon the offer submitted by the purchasing Member.
(B) The purchase of Membership Interests contemplated by this Section 12.1(b)(ii) shall be treated as a Sale for purposes of Annex B hereto.
(C) Each selling Member, including ho...
Business Plan Deadlock. (a) In the event of a Deadlock as to approval of the Business Plan for any Fiscal Year (a “Business Plan Deadlock”), which Deadlock is not resolved using the procedure set forth in Sections 8.4(a) and 8.4(b), then, except as otherwise set forth in Section 8.3(c), the Company shall operate on the basis of the budget and operating plan of the Business Plan for the prior Fiscal Year with the following adjustments:
(i) The approved budgeted selling and operating expenses for the Company for any period during the current Fiscal Year shall be equal to the budgeted selling and operating expenses of the Company for the Fiscal Year just ended increased by a percentage equal to the percentage increase in the Consumer Price Index during the Fiscal Year just ended. For purposes hereof, “Consumer Price Index” means the United States Department of Labor’s Bureau of Statistics’ Consumer Price Index for All Urban Consumers (CPI-U) for the U.S. City Average for All Items.