Common use of Buyer’s Right of First Refusal Clause in Contracts

Buyer’s Right of First Refusal. (a) For a period of ten (10) years after the Closing, if Seller desires to consummate a Seller Designated Transaction with a third party who is not an Affiliate of Seller (a “Bona Fide Offeror”) in response to a bona fide offer from such Bona Fide Offeror, the Seller shall first offer to consummate such Seller Designated Transaction with Buyer on the same terms and conditions as Seller proposes to consummate such Seller Designated Transaction with such Bona Fide Offeror. Buyer shall have ten (10) days from the date of receipt of the offer within which to accept such offer, during which period such Buyer shall have reasonable access to the Seller’s books and records relating to the subject of the Seller Designated Transaction. If the Buyer does not accept such offer within such ten (10) day period, then Seller may, within thirty (30) days following the expiration of such ten (10) day period, consummate such Seller Designated Transaction with such Bona Fide Offeror provided, however, that such Seller Designated Transaction is consummated upon terms and conditions which are identical to or less favorable than those offered to the Buyer. If Seller fails to consummate such Seller Designated Transaction within such thirty (30) day period, then the Seller shall not consummate such Seller Designated Transaction without again complying with the right of first refusal contained herein. (b) If Buyer accepts the Seller's offer within such ten (10) day period, then the parties shall proceed to negotiate, in good faith, substantive documents and agreements pursuant to which such transaction shall be consummated, provided, however, that such transaction shall be consummated within thirty (30) days of the acceptance thereof by Buyer. (c) For the purposes hereof, a "Seller Designated Transaction" shall mean the sale, license or other disposition of all or any material portion of Seller's nickel electrode or nickel hydrogen business, wherever located.

Buyer’s Right of First Refusal. (a) For If at any time a period of ten (10) years after the Closing, if Seller desires to consummate a Seller Designated Transaction with a third party who is not an Affiliate of Seller (a “Bona Fide Offeror”) in response sell all or any Shares pursuant to a bona fide offer from Shelf Registration Statement or otherwise, such Bona Fide Offeror, the Seller shall first submit a written offer (the "Offer") to consummate sell such Seller Designated Transaction with Buyer on Shares (the same terms and conditions as Seller proposes to consummate such Seller Designated Transaction with such Bona Fide Offeror. Buyer shall have ten (10"Offered Shares") days from the date of receipt of the offer within which to accept such offer, during which period such Buyer shall have reasonable access to the Buyer at the Right of Refusal Oxford Trading Price. The Offer shall disclose the number of Shares proposed to be sold and the total number of Shares owned by such Seller’s books and records relating to the subject of the Seller Designated Transaction. If The Offer shall further state that the Buyer does not accept such offer within such ten (10) day periodmay acquire, then Seller mayin accordance with this Section 4(a), within thirty (30) days following each Offered Share for the expiration Right of such ten (10) day period, consummate such Seller Designated Transaction with such Bona Fide Offeror provided, however, that such Seller Designated Transaction is consummated upon terms and conditions which are identical Refusal Oxford Trading Price. Sellers shall only be permitted to or less favorable than those offered make an Offer in respect of Shares proposed to the Buyer. If Seller fails be sold pursuant to consummate such Seller Designated Transaction within such thirty (30) day period, then the Seller shall not consummate such Seller Designated Transaction without again complying with the right of first refusal contained hereina Shelf Registration Statement during a Resale Window. (b) If the Buyer accepts desires to purchase any of the Seller's offer Offered Shares, the Buyer must, within one Business Day (the "Buyer Refusal Period") following receipt of the Offer, give written notice ("Buyer Notice") to such ten (10) day period, then Seller of its election to purchase all or a portion of the parties shall proceed Offered Shares. Failure by the Buyer to negotiate, in good faith, substantive documents and agreements pursuant to which such transaction exercise its right of first refusal within the Buyer Refusal Period shall be consummated, provided, however, deemed a waiver of such right with respect to that such transaction shall be consummated within thirty (30) days of the acceptance thereof by Buyerparticular Offer only. (c) For Sales of the purposes hereofOffered Shares to be sold to the Buyer pursuant to this Section 4 shall be made at the offices of the Buyer on the third Business Day following the date the Offer was made (the "Right of Refusal Sale Date"). Such sales shall be effected by such Seller delivering to the Buyer a certificate or certificates evidencing the Offered Shares to be purchased by the Buyer, a "duly endorsed for transfer to the Buyer, against payment to such Seller Designated Transaction" by the Buyer of the Right of Refusal Oxford Trading Price multiplied by the number of Offered Shares to be purchased by the Buyer. The number of Offered Shares to be purchased by the Buyer and the Right of Refusal Oxford Trading Price shall mean the salebe adjusted as necessary to reflect any forward or reverse stock split, license stock dividend, recapitalization or other disposition similar change with respect to shares of Common Stock that occurs after the Right of Refusal Oxford Trading Price is determined and prior to the applicable Right of Refusal Sale Date. (d) If the Buyer does not purchase all or of the Offered Shares, the Offered Shares not so purchased may be sold by such Seller at any material portion time within ninety (90) days after the date the Offer was made. Any Offered Shares not sold within such 90-day period shall once again be subject to the requirements of Seller's nickel electrode or nickel hydrogen businessa prior offer to the Buyer pursuant to this Section 4. (e) In the event the Buyer has delivered a Buyer Notice in accordance with this Section 4 and subsequently breaches its obligation to purchase the Offered Shares described in such Buyer Notice, wherever locatedthis Section 4 shall cease to be in effect and the Sellers shall not be required to further comply with the provisions of this Section 4.

Buyer’s Right of First Refusal. (a) For a period of ten six (106) years after the Closing, if Seller desires to consummate a Seller Designated Transaction with a third party who is not an Affiliate of Seller (a “Bona Fide Offeror”) in response to a bona fide offer from such Bona Fide Offeror, the Seller shall first offer to consummate such Seller Designated Transaction with Buyer on the same terms and conditions as Seller proposes to consummate such Seller Designated Transaction with such Bona Fide Offeror. Buyer shall have ten (10) days from the date of receipt of the offer within which to accept such offer, during which period such Buyer shall have reasonable access to the Seller’s books and records relating to the subject of the Seller Designated Transaction. If the Buyer does not accept such offer within such ten (10) day period, then Seller may, within thirty (30) days months following the expiration of the option provided in Subsection 10.1 above, Seller hereby grants to Buyer a right of first refusal to purchase the remaining business and assets of the Business. For the duration of such ten (10) day period, consummate such Seller Designated Transaction with such Bona Fide Offeror provided, however, that such Seller Designated Transaction is consummated upon terms and conditions which are identical to or less favorable than those offered to the Buyer. If Seller fails to consummate such Seller Designated Transaction within such thirty (30) day period, then six month period the Seller shall not consummate such Seller Designated Transaction make an offer to or solicit or accept an offer from any person with respect to the sale of the remaining business and assets of the Business, without again complying with first allowing the Buyer to exercise its right of first refusal contained herein. under this Subsection. The Seller shall notify the Buyer in writing (ba “ROFR Notice”) If in the event that it makes a determination to sell such remaining assets of the Business or receives an unsolicited offer to buy such remaining assets of the Business. Any such ROFR Notice shall be irrevocable and shall include a detailed description of the business and assets proposed to be sold and the terms upon which they are proposed to be sold. Upon receipt of a ROFR Notice, Buyer accepts shall have forty-five (45) days to evaluate the proposal and to advise the Seller whether it wishes to exercise its rights of first refusal under this Subsection 10.3. The Seller shall provide the Buyer with such supplementary information in the Seller's ’s possession or reasonably available to the Seller concerning the Business and the proposal, as the Buyer may reasonably request in order to conduct its evaluation. The Seller shall not make an offer within such ten (10) day periodto or solicit or accept an offer from any person with respect to the rights covered by the ROFR Notice during this evaluation period or during the conduct of any negotiations for the sale of the Business. In the event that the Buyer elects to exercise its first refusal rights under this Subsection, the Seller and the Buyer shall negotiate the terms and conditions of the purchase of the Business in good faith in order to conclude an agreement with respect thereto. In the event that the Seller and the Buyer shall fail to reach an agreement with respect to the terms on which the Buyer shall purchase the remaining portion of the Business, then the parties Buyer shall proceed provide the Seller with a written summary of the terms and conditions upon which the Buyer would be willing to negotiateconclude an agreement; the Seller shall not make an offer to or accept an offer from a third party with respect to the purchase of the remaining portion of the Business, which offer is on terms equal to or more favorable to the third party than those stated in good faithBuyer’s summary without first giving Buyer the opportunity days to match such offer. In the event that there is disagreement as to whether any such third party offer is on terms equal to or more favorable to the third party than those stated in Buyer’s summary, substantive documents and agreements pursuant to which such transaction disagreement shall be consummated, provided, however, that such transaction shall be consummated within thirty (30) days of resolved by the acceptance thereof by Buyerappraisal procedures specified in subsection 10.4 below. (c) For the purposes hereof, a "Seller Designated Transaction" shall mean the sale, license or other disposition of all or any material portion of Seller's nickel electrode or nickel hydrogen business, wherever located.

Buyer’s Right of First Refusal. (a) For a period of ten (10) years after the Closing, if Seller desires to consummate a Seller Designated Transaction with a third party who is not an Affiliate of Seller (a “Bona Fide Offeror”) in response to a bona fide offer from such Bona Fide Offeror, the Seller shall first offer to consummate such Seller Designated Transaction with Buyer on the same terms require that each Competing Offeror submit its executed written firm and conditions as Seller proposes to consummate such Seller Designated Transaction with such Bona Fide Offeror. Buyer shall have ten (10) days from the date of receipt of the offer within which to accept such offer, during which period such Buyer shall have reasonable access final term sheet to the Seller’s books board of directors on or before the end of the Solicitation Period. The board of directors of Seller shall review each final term sheet for each Competing Offer and records relating determine, in its business judgment, which of such Competing Offers provides the highest all cash purchase price above and beyond this Agreement (such a Competing Offer, if any, that is determined to be superior to this Agreement, the “Superior Competing Offer”). In the event the board of directors of Seller determines that there is a Superior Competing Offer, Seller shall prepare and send a written notice (the “Competing Offer Notice”) to Buyer no later than 5:00 p.m. Pacific Time on 5:00 p.m. Pacific Time on May 22, 2009 clearly indicating that such a term sheet has been entered into and attaching as an exhibit thereto a complete executed copy of such term sheet. In the event the board of directors of Seller determines that there is not a Superior Competing Offer, Seller and the Seller Representatives shall immediately terminate any Alternate Solicitation Activities or Alternate Discussions, shall not engage, directly or indirectly, in any further Alternate Solicitation Activities or Alternate Discussions, and shall completely cease to pursue any Competing Offers, and Seller and Buyer shall work in good faith to consummate the transactions contemplated by this Agreement. (a) In the event Seller timely delivers to Buyer a Competing Offer Notice, for four Business Days after the delivery of the Competing Offer Notice (the “Option Period”, subject to the subject potential revised definition thereof set forth in Section 7.5(c) below), Buyer shall have the right to deliver to Seller a written notice signed by Buyer indicating Buyer’s agreement to match the terms of the Seller Designated Transaction. If the Superior Competing Offer (a “Buyer does not accept such offer within such ten Acceptance Notice”). (10b) day period, then Seller may, within thirty (30) days following Upon Seller’s receipt of a Buyer Acceptance Notice prior to the expiration of such ten the Option Period, Seller and the Seller Representatives shall immediately terminate any Alternate Solicitation Activities or Alternate Discussions and completely cease to pursue any Superior Competing Offer and Seller and Buyer shall work in good faith to enter into an amendment to this Agreement as to the purchase price to make this Agreement consistent with the Superior Competing Offer to which the Buyer Acceptance Notice Relates (10c) day periodIf Seller does not receive a Buyer Acceptance Notice with respect to the Competing Offer Notice prior to the expiration of the Option Period, consummate such then Buyer shall conclusively be deemed to have waived its rights under this Section 7.5 and Seller Designated Transaction and/or AMG and the Competing Offeror (or any Affiliate of the Competing Offeror contemplated by the term sheet for the Superior Competing Offer) shall be permitted to enter into a definitive agreement for, and consummate, the Superior Competing Offer; subject to Seller’s delivery of a notice pursuant to Section 6.3(a)(iv) hereof and Seller’s payment to Buyer of the amount specified in Section 6.3(c) hereof in accordance with such Bona Fide Offeror the terms thereof; provided, however, that such Seller Designated Transaction if there is consummated upon a material change in the terms and conditions which are identical to or less favorable than those offered of the Superior Competing Offer as set forth in the definitive agreement therefor as compared to the Buyer. If Seller fails to consummate terms set forth in the term sheet for such Seller Designated Transaction within such thirty (30) day periodSuperior Competing Offer, then the Seller shall not consummate such Seller Designated Transaction without again complying with the right of first refusal contained herein. (b) If Buyer accepts the Seller's offer within such ten (10) day period, then the parties shall proceed to negotiate, in good faith, substantive documents and agreements pursuant to which such transaction shall be consummated, provided, however, that such transaction shall be consummated within thirty (30) days modified terms of the acceptance thereof by BuyerSuperior Competing Offer as set forth in the definitive agreement therefor shall again be subject to the terms of this Section 7.5. (c) For the purposes hereof, a "Seller Designated Transaction" shall mean the sale, license or other disposition of all or any material portion of Seller's nickel electrode or nickel hydrogen business, wherever located.

Buyer’s Right of First Refusal. (a) For a period of ten (10) years after the Closing, if If at any time post Closing Seller desires to consummate distribute or otherwise transfer in a market transaction or otherwise (with the exception of any such distribution or transfer covered under Section 7.4(a)) all or any number of the shares of Buyer Common Stock comprising the Purchase Price, then Seller Designated Transaction with a third party who is not must first serve notice (hereinafter an Affiliate of Seller (a “Bona Fide OfferorOffer to Sell”) in response to a bona fide offer from such Bona Fide Offerorthat effect upon the Buyer stating the number of shares of Buyer Common Stock desired to be distributed or otherwise transferred and offering to sell those shares to the Buyer at the five-day average trading price of the Buyer’s common stock on the Trading Market through which it is then listed, by giving notice of acceptance (and specifying the number of shares to be purchased by the Buyer) to the Seller shall first offer to consummate such Seller Designated Transaction with Buyer on within two business days after the same terms and conditions as Seller proposes to consummate such Seller Designated Transaction with such Bona Fide Offeror. Buyer shall have ten (10) days from the date of Buyer’s receipt of the offer within which Offer to accept such offer, during which period such Buyer shall have reasonable access to Sell (hereinafter the Seller’s books and records relating to the subject of the Seller Designated Transaction“Two Business Day Option Period”). If the Buyer does not accept such offer within such ten (10) day periodfails or refuses to purchase all of the shares offered for sale by the Seller in the Offer to Sell, then Seller may, within thirty (30) days following the expiration of such ten (10the applicable Two Business Day Option Period, the Seller is free to distribute or otherwise transfer either any share(s) day periodoffered in the Offer to Sell and not accepted for purchase by the Buyer pursuant to foregoing procedures; or, consummate such Seller Designated Transaction with such Bona Fide Offeror at the Seller’s option, all shares offered pursuant to the Offer to Sell, to any Person in any manner and upon any terms and conditions; provided, however, that any such Seller Designated Transaction is consummated upon terms and conditions distribution or transfer must take place within ninety days following expiration of the Two Business Day Option Period, failing which are identical to or less favorable than those offered to the Buyer. If Seller fails to consummate such Seller Designated Transaction within such thirty (30) day period, then the Seller shall not consummate such Seller Designated Transaction without must again complying comply with all of the right of first refusal contained hereinprovisions and procedures specified in this Section. (b) If Buyer accepts the Seller's offer within such ten (10) day period, then the parties shall proceed at any time post Closing Seller desires to negotiate, in good faith, substantive documents and agreements pursuant distribute or otherwise transfer to which such transaction shall be consummated, provided, however, that such transaction shall be consummated within thirty (30) days of the acceptance thereof by Buyer. (c) For the purposes hereof, a "Seller Designated Transaction" shall mean the sale, license or other disposition of ’s security holders all or any material portion number of Seller's nickel electrode or nickel hydrogen businessthe shares of Buyer Common Stock comprising the Purchase Price, wherever locatedthen, as a condition to the closing of any such transaction, Xxx Xxxxxxxxxx, Xxxxx Xxxxxxx, and Xxxx Xxxxxxxxx must enter into agreements with Buyer providing Buyer with a right of first refusal to purchase any such shares to be distributed to said parties upon terms and conditions substantially similar to those set forth in Section 7.4(a) above, which terms and conditions must be approved by Buyer in Buyer’s reasonable discretion.