Common use of Buyout Option Clause in Contracts

Buyout Option. (a) This Section 9.2 shall apply to any of the following events (each a “Buyout Event”): (i) a Member becomes Bankrupt; (ii) a Member dissolves and commences liquidation or winding up; (iii) there occurs an event that makes it unlawful for the Member to continue to be a Member. (b) In each case, the Member with respect to whom a Buyout Event has occurred is referred to herein as the “Affected Member”. (c) If a Buyout Event occurs, then each of the other Members shall have the option to acquire the Membership Interest of the Affected Member (or to cause it to be acquired by a third party designated by the other Members) on an “as is, where is” basis without representations or warranties (other than ownership of the Membership Interests by the Affected Member, that no Encumbrance exists against the Membership Interests of the Affected Member other than those created pursuant to this Agreement and that the sale of such Membership Interests do not require any governmental approvals that have not been obtained or create any conflict with the Affected Member’s organizational documents), expressed or implied (and with the Members exercising such preferential right also being referred to herein as “Purchasing Members”) upon giving the Company and all other Members 60 days’ written notice of an election to exercise its buyout rights pursuant to this Section 9.2 (a “Buyout Exercise Notice”) during such period. (d) The purchase price (the “Buyout Price”) for a Membership Interest being purchased pursuant to this Section 9.2 shall be the Fair Market Value of such Membership Interest as to which a Buyout Event has occurred, as determined under the Appraisal Procedure. (e) If an option to purchase is exercised in accordance with the other provisions of this Section 9.2, the closing of such purchase shall occur on the 60th day after the delivery of the Buyout Exercise Notice (or in any event, if later, the 30th day after the determination of the Fair Market Value pursuant to Section 9.2(d), or the fifth Business Day after the receipt of all applicable regulatory and governmental approvals to the purchase) and shall comply in all material respects with the requirements set forth in Section 9.1(b)(iii). Unless otherwise agreed among the Members, the Buyout Price shall be paid in cash at such closing. (f) Upon the occurrence of a closing under Section 9.2(e), the following provisions shall apply to the Affected Member (at, and following, such time, a “Terminated Member”): (i) The Terminated Member shall cease to be a Member immediately upon the occurrence of the closing. (ii) The Terminated Member shall no longer be entitled to receive any distributions (including liquidating distributions) or allocations from the Company, and it shall not be entitled to exercise any voting or consent rights or to receive any further information (or access to information) from the Company (other than any required tax information). (iii) The Terminated Member must pay to the Company, immediately upon the occurrence of the closing, all amounts owed to the Company by such Terminated Member. (iv) The Terminated Member shall remain obligated for all liabilities it may have under this Agreement or otherwise with respect to the Company that accrue prior to the closing. (v) The Membership Interest, including the Capital Account balance attributable thereto, of the Terminated Member shall be allocated among the Purchasing Members in the proportion of the total Buyout Price paid by each Purchasing Member.

Appears in 4 contracts

Samples: Operating Agreement (Bloom Energy Corp), Equity Capital Contribution Agreement (Bloom Energy Corp), Operating Agreement (Bloom Energy Corp)

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Buyout Option. Erasca will notify Katmai within thirty (30) days after the first achievement of Clinical Proof of Concept for any Indication (the “POC Notice”). Erasca shall have the right, exercisable by written notice to Katmai within [***] ([***]) days after Erasca provides the POC Notice, to submit to Katmai a non-binding offer, including purchase price and other material terms, for (a) This Section 9.2 the purchase of all Licensed Patents, Licensed Know-How and other assets owned by Katmai that are necessary or useful for Exploitation of Licensed Products in the Licensed Field in the Territory or (b) for the purchase of Katmai. Within [***] ([***]) days following receipt of Erasca’s purchase proposal, Katmai may either decline, accept or counter Erasca’s offer with its own proposed purchase terms. If Katmai accepts or counters Erasca’s offer within such [***] ([***]) day period, then for an additional [***] ([***]) days after Erasca’s receipt of such acceptance or counter from Katmai (the “Negotiation Period”), the Parties shall apply negotiate in good faith the terms of an agreement pursuant to any which Erasca may purchase such assets or Katmai. If the Parties do not enter into an agreement governing Erasca’s purchase of such assets or Katmai within the Negotiation Period, then upon mutual agreement of the following events Parties, an independent, third-party investment bank or investment advisory firm (each a “Buyout EventFirm): ) with expertise in the pharmaceutical field shall be engaged by the Parties at the expense of the Party that initiated the discussion regarding the purchase of Katmai or Katmai’s assets within the following[***] ([***]) days to (i) a Member becomes Bankrupt; review each Party’s respective valuations of the relevant assets or Katmai, (ii) a Member dissolves conduct its own independent valuation analysis of such assets or Katmai, and commences liquidation or winding up; (iii) there occurs an event that makes it unlawful for deliver and review with the Member Parties the Firm’s own independent valuation assessment of such assets or Katmai. Neither Katmai or Erasca shall be obligated to accept any proposed terms, whether made by Erasca or Katmai or the Firm. After the Firm provides the assessment described in subsection (iii), the Parties may by mutual agreement continue to be a Member. (b) In each casenegotiate the terms of such purchase of such assets or Katmai in their sole discretion. Unless and until the Parties in their sole discretion enter into an agreement pursuant to which Erasca acquires such assets or Katmai, the Member with respect Katmai’s rights to whom a Buyout Event has occurred is referred receive all milestone, royalty, and other payments payable to herein as the “Affected Member”. (c) If a Buyout Event occurs, then each of the other Members shall have the option to acquire the Membership Interest of the Affected Member (or to cause it to be acquired by a third party designated by the other Members) on an “as is, where is” basis without representations or warranties (other than ownership of the Membership Interests by the Affected Member, that no Encumbrance exists against the Membership Interests of the Affected Member other than those created pursuant to this Agreement shall continue in full force and that the sale of such Membership Interests do not require any governmental approvals that have not been obtained or create any conflict with the Affected Member’s organizational documents), expressed or implied (and with the Members exercising such preferential right also being referred to herein effect as “Purchasing Members”) upon giving the Company and all other Members 60 days’ written notice of an election to exercise its buyout rights pursuant to this Section 9.2 (a “Buyout Exercise Notice”) during such periodprovided herein. (d) The purchase price (the “Buyout Price”) for a Membership Interest being purchased pursuant to this Section 9.2 shall be the Fair Market Value of such Membership Interest as to which a Buyout Event has occurred, as determined under the Appraisal Procedure. (e) If an option to purchase is exercised in accordance with the other provisions of this Section 9.2, the closing of such purchase shall occur on the 60th day after the delivery of the Buyout Exercise Notice (or in any event, if later, the 30th day after the determination of the Fair Market Value pursuant to Section 9.2(d), or the fifth Business Day after the receipt of all applicable regulatory and governmental approvals to the purchase) and shall comply in all material respects with the requirements set forth in Section 9.1(b)(iii). Unless otherwise agreed among the Members, the Buyout Price shall be paid in cash at such closing. (f) Upon the occurrence of a closing under Section 9.2(e), the following provisions shall apply to the Affected Member (at, and following, such time, a “Terminated Member”): (i) The Terminated Member shall cease to be a Member immediately upon the occurrence of the closing. (ii) The Terminated Member shall no longer be entitled to receive any distributions (including liquidating distributions) or allocations from the Company, and it shall not be entitled to exercise any voting or consent rights or to receive any further information (or access to information) from the Company (other than any required tax information). (iii) The Terminated Member must pay to the Company, immediately upon the occurrence of the closing, all amounts owed to the Company by such Terminated Member. (iv) The Terminated Member shall remain obligated for all liabilities it may have under this Agreement or otherwise with respect to the Company that accrue prior to the closing. (v) The Membership Interest, including the Capital Account balance attributable thereto, of the Terminated Member shall be allocated among the Purchasing Members in the proportion of the total Buyout Price paid by each Purchasing Member.

Appears in 4 contracts

Samples: Exclusive License Agreement (Erasca, Inc.), Exclusive License Agreement (Erasca, Inc.), Exclusive License Agreement (Erasca, Inc.)

Buyout Option. (a) This If the Board adopts a resolution pursuant to Section 9.2 16.2 to dissolve the Company, either Party shall apply have the right, within ten (10) Business Days after such resolution, to any of deliver a valuation notice (“Valuation Notice”) to the following events (each a “Buyout Event”): (i) a Member becomes Bankrupt; (ii) a Member dissolves and commences liquidation or winding up; (iii) there occurs an event that makes it unlawful for other Party thereby invoking the Member to continue to be a Membervaluation procedures set forth in Section 17. (b) In each caseAfter the determination of the Final FMV pursuant to Section 17, either Party (whether or not such Party issued the Member with respect to whom a Buyout Event has occurred is referred to herein as Valuation Notice) (the “Affected MemberPurchasing Party. (c) If a Buyout Event occurs, then each of the other Members shall have the option right within thirty (30) Business Days after such date of determination to acquire issue a notice (the Membership “Buyout Notice”) to the other Party (the “Selling Party”) stating that it intends to purchase the entire Equity Interest of the Affected Member Selling Party (or the “Purchased Equity Interest”) at a purchase price equal to cause it to be acquired by a third party designated the Final FMV multiplied by the other Members) on an “as is, where is” basis without representations or warranties (other than ownership percentage of the Membership Interests Company’s total equity interests held by the Affected Member, that no Encumbrance exists against the Membership Interests Selling Party as of the Affected Member other than those created pursuant to this Agreement and that date of the sale of such Membership Interests do not require any governmental approvals that have not been obtained or create any conflict with the Affected Member’s organizational documents), expressed or implied (and with the Members exercising such preferential right also being referred to herein as “Purchasing Members”) upon giving the Company and all other Members 60 days’ written notice of an election to exercise its buyout rights pursuant to this Section 9.2 (a “Buyout Exercise Notice”) during such period. (d) The purchase price Notice (the “Buyout Price”), and the Selling Party shall be obligated to sell the Purchased Equity Interest to the Purchasing at the Buyout Price. (c) In the event that each Party issues a Buyout Notice to the other Party, within ten (10) Business Days from the date on which the second Buyout Notice was delivered, the Parties shall negotiate in good faith the additional amount (the “Premium”) that each Party is willing to pay for the Purchased Equity Interest. In the event the Parties are unable to reach an agreement on the Premium payable for the Purchased Equity Interest within such ten (10) Business Day period, the Parties shall each submit a Membership proposal for the Premium in a sealed envelope to the Independent Auditor on the fifteenth (15th) Business Day after the date on which the second Buyout Notice was delivered. The Party offering the highest Premium shall have the right to purchase the Purchased Equity Interest being purchased at the Buyout Price plus such Premium (the “Final Equity Interest Purchase Price”). (d) Within ten (10) Business Days (i) after the date of delivery of the Buyout Notice pursuant to this Section 9.2 16.3(a), if only one (1) Buyout Notice was delivered or (ii) after the date the Premium is determined as set forth in Section 16.3(e) above if two (2) Buyout Notices were delivered, the Purchasing Party and the Selling Party shall be execute an equity interest transfer contract with respect to the Fair Market Value purchase by the Purchasing Party of such Membership the Purchased Equity Interest as to which a at the Buyout Event has occurredPrice or the Final Equity Interest Purchase Price, as determined under the Appraisal Procedurecase may be. (e) The Parties shall thereafter terminate this Contract and amend the Articles of Association to reflect the change in the equity interests in the Company subsequent to the completion of the relevant equity interest transfer contract and to reflect changes in the composition of the Board. Each Party shall promptly cause the directors on the Board appointed by it to vote in favor of a resolution approving the Transfer. If an option to purchase is exercised any director does not vote in accordance with the other provisions favor of this Section 9.2such resolution, the closing of Party that appointed such purchase director shall occur on promptly remove and replace such director and cause the 60th day after the delivery newly appointed director to vote in favor of the Buyout Exercise Notice resolution approving the Transfer. The Parties shall (or in any event, if later, i) cause the 30th day after Company to apply to the determination relevant governmental authorities for approval of the Fair Market Value pursuant to Section 9.2(d), or transfer and the fifth Business Day after the receipt of all applicable regulatory and governmental approvals amendments to the purchaseArticles of Association, (ii) and shall comply in all material respects with the requirements case of a Transfer by Party B to Party A, cause the Company to apply to be converted from a Chinese-foreign equity joint venture company into a non-foreign invested domestic enterprise, (iii) in the case of a Transfer by Party A to Party B, cause the Company to apply to be converted from a Chinese-foreign equity joint venture into a wholly foreign-owned enterprise, (iv) cause the Company to apply for the issuance of a new Business License reflecting the relevant changes in the particulars of the Company set forth in Section 9.1(b)(iii). Unless otherwise agreed among the Membersamendments to the Articles of Association, and (v) use their respective best efforts to assist the Buyout Price shall be paid in cash at Company to obtain all such closingapprovals and the issuance of such license. (f) Upon In the occurrence of event that neither Party issues a closing under Buyout Notice in accordance with this Section 9.2(e)16.3, the following provisions shall apply to the Affected Member (at, and following, such time, a “Terminated Member”): (i) The Terminated Member shall cease to be a Member immediately upon the occurrence of the closing. (ii) The Terminated Member shall no longer be entitled to receive any distributions (including liquidating distributions) or allocations from the Company, and it shall not be entitled to exercise any voting or consent rights or to receive any further information (or access to information) from the Company (other than any required tax information). (iii) The Terminated Member must pay to the Company, immediately upon the occurrence of the closing, all amounts owed to the Company by such Terminated Member. (iv) The Terminated Member shall remain obligated for all liabilities it may have under this Agreement or otherwise with respect to the Company that accrue prior to the closing. (v) The Membership Interest, including the Capital Account balance attributable thereto, of the Terminated Member shall be allocated among dissolved in accordance with the Purchasing Members in the proportion provisions of the total Buyout Price paid by each Purchasing MemberSection 16.4.

Appears in 2 contracts

Samples: Equity Joint Venture Contract, Equity Joint Venture Contract (1295728 Alberta ULC)

Buyout Option. (a) This Section 9.2 shall apply to any of the following events (each a “Buyout Event”): (i) a Member becomes Bankrupt; (ii) a Member dissolves and commences liquidation or winding up; (iii) there occurs an event that makes it unlawful for the Member to continue to be a Member. (b) In each case, the Member with respect to whom a Buyout Event has occurred is referred to herein as the “Affected Member”. (c) If a Buyout Event occurs, then each of the other Members shall have the option to acquire the Membership Interest of the Affected Member (or to cause it to be acquired by a third party designated by the other Members) on an “as is, where is” basis without representations or warranties (other than ownership of the Membership Interests by the Affected Member, that no Encumbrance exists against the Membership Interests of the Affected Member other than those created pursuant to this Agreement and that the sale of such Membership Interests do not require any governmental approvals that have not been obtained or create any conflict with the Affected Member’s organizational documents), expressed or implied (and with the Members exercising such preferential right also being referred to herein as “Purchasing Members”) upon giving the Company and all other Members 60 [***] days’ written notice of an election to exercise its buyout rights pursuant to this Section 9.2 (a “Buyout Exercise Notice”) during such period.. [***] Confidential Treatment Requested (d) The purchase price (the “Buyout Price”) for a Membership Interest being purchased pursuant to this Section 9.2 shall be the Fair Market Value of such Membership Interest as to which a Buyout Event has occurred, as determined under the Appraisal Procedure. (e) If an option to purchase is exercised in accordance with the other provisions of this Section 9.2, the closing of such purchase shall occur on the 60th [***] day after the delivery of the Buyout Exercise Notice (or in any event, if later, the 30th day after the determination of the Fair Market Value pursuant to Section 9.2(d), or the fifth [***] Business Day after the receipt of all applicable regulatory and governmental approvals to the purchase) and shall comply in all material respects with the requirements set forth in Section 9.1(b)(iii). Unless otherwise agreed among the Members, the Buyout Price shall be paid in cash at such closing. (f) Upon the occurrence of a closing under Section 9.2(e), the following provisions shall apply to the Affected Member (at, and following, such time, a “Terminated Member”): (i) The Terminated Member shall cease to be a Member immediately upon the occurrence of the closing. (ii) The Terminated Member shall no longer be entitled to receive any distributions (including liquidating distributions) or allocations from the Company, and it shall not be entitled to exercise any voting or consent rights or to receive any further information (or access to information) from the Company (other than any required tax information). (iii) The Terminated Member must pay to the Company, immediately upon the occurrence of the closing, all amounts owed to the Company by such Terminated Member. (iv) The Terminated Member shall remain obligated for all liabilities it may have under this Agreement or otherwise with respect to the Company that accrue prior to the closing. (v) The Membership Interest, including the Capital Account balance attributable thereto, of the Terminated Member shall be allocated among the Purchasing Members in the proportion of the total Buyout Price paid by each Purchasing Member.

Appears in 2 contracts

Samples: Equity Capital Contribution Agreement (Bloom Energy Corp), Equity Capital Contribution Agreement (Bloom Energy Corp)

Buyout Option. (a) This Section 9.2 shall apply to any of the following events (each a “Buyout Event”): (i) a Member becomes Bankrupt; (ii) a Member dissolves and commences liquidation or winding up; (iii) there occurs an event that makes it unlawful for the Member to continue to be a Member. (b) In each case, the Member with respect to whom a Buyout Event has occurred is referred to herein as the “Affected Member”. (c) If a Buyout Event occurs, then each of the other Members shall have the option to acquire the Membership Interest of the Affected Member (or to cause it to be acquired by a third party designated by the other Members) on an “as is, where is” basis without representations or warranties (other than ownership of the Membership Interests by the Affected Member, that no Encumbrance exists against the Membership Interests of the Affected Member other than those created pursuant to this Agreement and that the sale of such Membership Interests do not require any governmental approvals that have not been obtained or create any conflict with the Affected Member’s organizational documents), expressed or implied (and with the Members exercising such preferential right also being referred to herein as “Purchasing Members”) upon giving the Company and all other Members 60 days’ written notice of an election to exercise its buyout rights pursuant to this Section 9.2 (a “Buyout Exercise Notice”) during such period. (d) The purchase price (the “Buyout Price”) for a Membership Interest being purchased pursuant to this Section 9.2 shall be the Fair Market Value of such Membership Interest as to which a Buyout Event has occurred, as determined under the Appraisal Procedure. (e) If an option to purchase is exercised in accordance with the other provisions of this Section 9.2, the closing of such purchase shall occur on the 60th day after the delivery of the Buyout Exercise Notice (or in any event, if later, the 30th day after the determination of the Fair Market Value pursuant to Section 9.2(d), or the fifth Business Day after the receipt of all applicable regulatory and governmental approvals to the purchase) and shall comply in all material respects with the requirements set forth in Section 9.1(b)(iii). Unless otherwise agreed among the Members, the Buyout Price shall be paid in cash at such closing.. [***] Confidential Treatment Requested (f) Upon the occurrence of a closing under Section 9.2(e), the following provisions shall apply to the Affected Member (at, and following, such time, a “Terminated Member”): (i) The Terminated Member shall cease to be a Member immediately upon the occurrence of the closing. (ii) The Terminated Member shall no longer be entitled to receive any distributions (including liquidating distributions) or allocations from the Company, and it shall not be entitled to exercise any voting or consent rights or to receive any further information (or access to information) from the Company (other than any required tax information). (iii) The Terminated Member must pay to the Company, immediately upon the occurrence of the closing, all amounts owed to the Company by such Terminated Member. (iv) The Terminated Member shall remain obligated for all liabilities it may have under this Agreement or otherwise with respect to the Company that accrue prior to the closing. (v) The Membership Interest, including the Capital Account balance attributable thereto, of the Terminated Member shall be allocated among the Purchasing Members in the proportion of the total Buyout Price paid by each Purchasing Member.

Appears in 1 contract

Samples: Operating Agreement (Bloom Energy Corp)

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Buyout Option. (a) This Section 9.2 shall apply to any of the following events (each a “Buyout Event”): as long as (i) a Member becomes Bankrupt; Tier 1 Event of Default has occurred and is continuing and (ii) any Term Loan or other Obligation hereunder remains outstanding (other than contingent indemnification obligations), the Administrative Agent, on behalf of the Lenders, will have the right (but not the obligation) to purchase all, but not less than all, of CPS’ interest in the Borrower and the Receivables (the “Buyout Option”) by giving written notice (a Member dissolves and commences liquidation or winding up; (iii“Buyout Notice”) there occurs an event that makes it unlawful for to CPS of its election to exercise the Member to continue to be a MemberBuyout Option. (b) In each case, on the Member with respect to whom a Buyout Event has occurred is referred to herein as the “Affected Member”. (c) If a Buyout Event occurs, then each of the other Members shall have the option to acquire the Membership Interest of the Affected Member (or to cause it to be acquired by a third party Business Day designated by the other Members) on an “as is, where is” basis without representations or warranties (other than ownership of the Membership Interests by the Affected Member, that no Encumbrance exists against the Membership Interests of the Affected Member other than those created pursuant to this Agreement and that the sale of such Membership Interests do not require any governmental approvals that have not been obtained or create any conflict with the Affected Member’s organizational documents), expressed or implied (and with the Members exercising such preferential right also being referred to herein as “Purchasing Members”) upon giving the Company and all other Members 60 days’ written notice of an election to exercise its buyout rights pursuant to this Section 9.2 (a “Buyout Exercise Notice”) during such period. (d) The purchase price Administrative Agent (the “Buyout PriceClosing Date”) for a Membership Interest being purchased pursuant to this Section 9.2 shall in the Buyout Notice (which such Buyout Closing Date may be as soon as the Fair Market Value of such Membership Interest as to which a Buyout Event has occurred, as determined under the Appraisal Procedure. third (e3rd) If an option to purchase is exercised in accordance with the other provisions of this Section 9.2, the closing of such purchase shall occur on the 60th day after Business Day following the delivery of the such Buyout Exercise Notice (or in any event, if later, the 30th day after the determination of the Fair Market Value pursuant to Section 9.2(d), or the fifth Business Day after the receipt of all applicable regulatory and governmental approvals to the purchase) and shall comply in all material respects with the requirements set forth in Section 9.1(b)(iii). Unless otherwise agreed among the Members, the Buyout Price shall be paid in cash at such closing. (f) Upon the occurrence of a closing under Section 9.2(e), the following provisions shall apply to the Affected Member (at, and following, such time, a “Terminated Member”): (i) The Terminated Member shall cease to be a Member immediately upon the occurrence of the closing. (ii) The Terminated Member shall no longer be entitled to receive any distributions (including liquidating distributions) or allocations from the Company, and it shall not be entitled later than the tenth (10th) Business Day following the delivery of such Buyout Notice), upon the payment by the Lenders in immediately available funds to exercise any voting or consent rights or to receive any further information (or access to information) from the Company (other than any required tax information). (iii) The Terminated Member must pay CPS of an amount equal to the Company, immediately upon the occurrence Unreturned Capital Contribution Amount as of the closingBuyout Closing Date plus any accrued and unpaid Preferred Return on such amount, any and all amounts owed to the Company by such Terminated Member. (iv) The Terminated Member shall remain obligated for all liabilities it may have under this Agreement or otherwise of CPS’ rights with respect to the Company that accrue prior Receivables or the Borrower shall terminate and, if requested by the Administrative Agent, all of CPS’ interest in the Borrower shall be transferred to the closingLenders, in each case without further action on the part of CPS. (v) The Membership Interest, including the Capital Account balance attributable thereto, of the Terminated Member shall be allocated among the Purchasing Members in the proportion of the total Buyout Price paid by each Purchasing Member.

Appears in 1 contract

Samples: Credit Agreement (Consumer Portfolio Services Inc)

Buyout Option. (a) This If the Board adopts a resolution pursuant to Section 9.2 16.2 to dissolve the Company, either Party shall apply have the right, within ten (10) Business Days after such resolution, to any of deliver a Valuation Notice to the following events (each a “Buyout Event”): (i) a Member becomes Bankrupt; (ii) a Member dissolves and commences liquidation or winding up; (iii) there occurs an event that makes it unlawful for Other Party thereby invoking the Member to continue to be a Membervaluation procedures set forth in Section 17. (b) In each caseAfter the determination of the Final FMV pursuant to Section 17, either Party (whether or not such Party issued the Member with respect to whom a Buyout Event has occurred is referred to herein as Valuation Notice) (the “Affected MemberPurchasing Party. (c) If a Buyout Event occurs, then each of the other Members shall have the option right within thirty (30) Business Days after such date of determination to acquire issue a notice (the Membership “Buyout Notice”) to the other Party (the “Selling Party”) stating that it intends to purchase the entire Equity Interest of the Affected Member Selling Party (or the “Purchased Equity Interest”) at a purchase price equal to cause it to be acquired by a third party designated the Final FMV multiplied by the other Members) on an “as is, where is” basis without representations or warranties (other than ownership percentage of the Membership Interests Company’s total equity interests held by the Affected Member, that no Encumbrance exists against the Membership Interests Selling Party as of the Affected Member other than those created pursuant to this Agreement and that date of the sale of such Membership Interests do not require any governmental approvals that have not been obtained or create any conflict with the Affected Member’s organizational documents), expressed or implied (and with the Members exercising such preferential right also being referred to herein as “Purchasing Members”) upon giving the Company and all other Members 60 days’ written notice of an election to exercise its buyout rights pursuant to this Section 9.2 (a “Buyout Exercise Notice”) during such period. (d) The purchase price Notice (the “Buyout Price”), and the Selling Party shall be obligated to sell the Purchased Equity Interest to the Purchasing Party at the Buyout Price. (c) In the event that each Party issues a Buyout Notice to the other Party, within ten (10) Business Days from the date on which the second Buyout Notice was delivered, the Parties shall negotiate in good faith the additional amount (the “Premium”) that each Party is willing to pay for the Purchased Equity Interest. In the event the Parties are unable to reach an agreement on the Premium payable for the Purchased Equity Interest within such ten (10) Business Day period, the Parties shall each submit a Membership proposal for the Premium in a sealed envelope to the Independent Auditor on the fifteenth (15) Business Day after the date on which the second Buyout Notice was delivered. The Party offering the highest Premium shall have the right to purchase the Purchased Equity Interest being purchased at the Buyout Price plus such Premium (the “Final Equity Interest Purchase Price”). (d) Within ten (10) Business Days (i) after the date of delivery of the Buyout Notice pursuant to this Section 9.2 16.3(a), if only one Buyout Notice was delivered or (ii) after the date the Premium is determined as set forth in Section 16.3(c) above if two Buyout Notices were delivered, the Purchasing Party and the Selling Party shall be execute an equity interest transfer contract with respect to the Fair Market Value purchase by the Purchasing Party of such Membership the Purchased Equity Interest as to which a at the Buyout Event has occurredPrice or the Final Equity Interest Purchase Price, as determined under the Appraisal Procedurecase may be. (e) The Parties shall thereafter terminate this Contract and amend the Articles of Association to reflect the change in the equity interests in the Company subsequent to the completion of the relevant equity interest transfer contract and to reflect changes in the composition of the Board. Each Party shall promptly cause the directors on the Board appointed by it to vote in favor of a resolution approving the Transfer. If an option to purchase is exercised any director does not vote in accordance with the other provisions favor of this Section 9.2such resolution, the closing of Party that appointed such purchase director shall occur on promptly remove and replace such director and cause the 60th day after the delivery newly appointed director to vote in favor of the Buyout Exercise Notice resolution approving the Transfer. The Parties shall (or in any event, if later, i) cause the 30th day after Company to apply to the determination relevant governmental authorities for approval of the Fair Market Value pursuant to Section 9.2(d), or transfer and the fifth Business Day after the receipt of all applicable regulatory and governmental approvals amendments to the purchaseArticles of Association, (ii) and shall comply in all material respects with the requirements case of a Transfer by Party B to Party A, cause the Company to apply to be converted from a Chinese-foreign equity joint venture company into a non-foreign invested domestic enterprise, (iii) in the case of a Transfer by Party A to Party B, cause the Company to apply to be converted from a Chinese-foreign equity joint venture into a wholly foreign-owned enterprise, (iv) cause the Company to apply for the issuance of a new Business License reflecting the relevant changes in the particulars of the Company set forth in Section 9.1(b)(iii). Unless otherwise agreed among the Membersamendments to the Articles of Association, and (v) use their respective best efforts to assist the Buyout Price shall be paid in cash at Company to obtain all such closingapprovals and the issuance of such license. (f) Upon In the occurrence of event that neither Party issues a closing under Buyout Notice in accordance with this Section 9.2(e)16.3, the following provisions shall apply to the Affected Member (at, and following, such time, a “Terminated Member”): (i) The Terminated Member shall cease to be a Member immediately upon the occurrence of the closing. (ii) The Terminated Member shall no longer be entitled to receive any distributions (including liquidating distributions) or allocations from the Company, and it shall not be entitled to exercise any voting or consent rights or to receive any further information (or access to information) from the Company (other than any required tax information). (iii) The Terminated Member must pay to the Company, immediately upon the occurrence of the closing, all amounts owed to the Company by such Terminated Member. (iv) The Terminated Member shall remain obligated for all liabilities it may have under this Agreement or otherwise with respect to the Company that accrue prior to the closing. (v) The Membership Interest, including the Capital Account balance attributable thereto, of the Terminated Member shall be allocated among dissolved in accordance with the Purchasing Members in the proportion provisions of the total Buyout Price paid by each Purchasing MemberSection 16.4.

Appears in 1 contract

Samples: Equity Joint Venture Contract (Unifi Inc)

Buyout Option. (a) This Section 9.2 Any Pre-Petition Lender or any affiliate thereof as having rights under this paragraph (the "Electing Junior Lender") shall apply have the option at any time upon not less than 10 Business Days' prior written notice to any the DIP Agent to purchase all (but not less than all) of the following events DIP Lender Claims from the DIP Agent and the DIP Lenders. Any such notice from the Electing Junior Lender to the DIP Agent shall be irrevocable. Any such purchase must comply with Section 13.2 of the DIP Credit Agreement; provided however that within five (5) business days of the consummation of such purchase, the Electing Junior Lender shall offer to each other Pre-Petition Lender a “Buyout Event”): pro rata share (ibased on each such Pre-Petition Lender's outstanding Pre-Petition Lender Claims) a Member becomes Bankrupt; (ii) a Member dissolves of the DIP Lender Claims on the same terms and commences liquidation or winding up; (iii) there occurs an event that makes it unlawful for the Member to continue to be a Memberconditions as such purchase. (b) In each caseOn the date specified by the Electing Junior Lender in such notice (which shall not be less than 10 days, nor more than 30 days, after the receipt by the DIP Agent of the notice from the Electing Junior Lender of its election to exercise such option), the Member DIP Agent and the DIP Lenders shall, subject to any required approval of any court or other regulatory or governmental authority then in effect, if any, sell to the Electing Junior Lender, and the Electing Junior Lender shall purchase from the DIP Agent and the DIP Lenders, the DIP Lender Claims, together with respect to whom a Buyout Event has occurred is referred to herein as their interests in the “Affected Member”all assets of the Existing Foreign Subsidiaries securing the DIP Lender Claims (collectively, "Senior Collateral"). (c) If a Buyout Event occurs, then each of Upon the other Members shall have the option to acquire the Membership Interest of the Affected Member (or to cause it to be acquired by a third party designated by the other Members) on an “as is, where is” basis without representations or warranties (other than ownership of the Membership Interests by the Affected Member, that no Encumbrance exists against the Membership Interests of the Affected Member other than those created pursuant to this Agreement and that the sale date of such Membership Interests do not require any governmental approvals that have not been obtained or create any conflict with purchase and sale, the Affected Member’s organizational documentsElecting Junior Lender shall pay to the DIP Agent and the DIP Lenders in cash as the purchase price therefor the full amount of all DIP Lender Claims then outstanding and unpaid (including principal, interest, early termination and other fees and expenses, including reasonable out-of-pocket attorneys' fees and legal expenses), expressed or implied (and with the Members exercising such preferential right also being referred to herein as “Purchasing Members”) upon giving the Company and all other Members 60 days’ written notice of an election to exercise its buyout rights pursuant to this Section 9.2 (a “Buyout Exercise Notice”) during such period. (d) The Such purchase price (the “Buyout Price”) for a Membership Interest being purchased pursuant to this Section 9.2 shall be remitted by wire transfer in Federal funds to such bank accounts of the Fair Market Value of such Membership Interest as to which a Buyout Event has occurredDIP Lenders in New York, New York, as determined under the Appraisal ProcedureDIP Lenders may designate in writing to Pre-Petition Agent and the Electing Junior Lender for such purposes. Interest shall be calculated to but excluding the Business Day on which such purchase and sale shall occur if the amounts so paid by the Electing Junior Lender to the bank accounts designated by the DIP Lenders are received in such bank accounts prior to 11:00 a.m. New York time, and interest shall be calculated to and including such Business Day if the amounts so paid by the Electing Junior Lender to such bank accounts are received in such bank accounts later than 11:00 a.m. New York time. (e) If an option Such purchase shall be expressly made without representation or warranty of any kind by any of the DIP Agent or the DIP Lenders as to purchase is exercised in accordance with the other provisions of this Section 9.2DIP Lender Claims, the closing Senior Collateral or otherwise, and without recourse to any of the DIP Agent and the DIP Lenders, except that each DIP Lender shall represent and warrant: (i) the amount of the DIP Lender Claims being purchased from it (but without representation or warranty as to the collectability, validity or enforceability of such DIP Lender Claims); (ii) that such DIP Lender owns such DIP Lender Claims free and clear of any liens or encumbrances created by it; and (iii) that such DIP Lender has the right to assign such DIP Lender Claims and the assignment is duly authorized by it. Upon the purchase shall occur on by the 60th day after the delivery Electing Junior Lender of the Buyout Exercise Notice DIP Lender Claims, the Electing Junior Lender agrees to indemnify and hold harmless the DIP Agent and the DIP Lenders from and against all loss, cost, damage or expense (including attorneys' fees and legal expenses) suffered or incurred by the DIP Agent or the DIP Lenders arising from or in any event, if later, way related to the 30th day act or omissions of such Pre-Petition Lender after the determination of the Fair Market Value pursuant to Section 9.2(d), or the fifth Business Day after the receipt of all applicable regulatory and governmental approvals to the purchase) and shall comply in all material respects with the requirements set forth in Section 9.1(b)(iii). Unless otherwise agreed among the Members, the Buyout Price shall be paid in cash at such closing. (f) Upon the occurrence of a closing under Section 9.2(e), the following provisions shall apply to the Affected Member (at, and following, such time, a “Terminated Member”): (i) The Terminated Member shall cease to be a Member immediately upon the occurrence of the closing. (ii) The Terminated Member shall no longer be entitled to receive any distributions (including liquidating distributions) or allocations from the Company, and it shall not be entitled to exercise any voting or consent rights or to receive any further information (or access to information) from the Company (other than any required tax information). (iii) The Terminated Member must pay to the Company, immediately upon the occurrence of the closing, all amounts owed to the Company by such Terminated Member. (iv) The Terminated Member shall remain obligated for all liabilities it may have under this Agreement or otherwise with respect to the Company that accrue prior to the closing. (v) The Membership Interest, including the Capital Account balance attributable thereto, of the Terminated Member shall be allocated among the Purchasing Members in the proportion of the total Buyout Price paid by each Purchasing Member.

Appears in 1 contract

Samples: Intercreditor and Subordination Agreement (Exide Corp)

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