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Common use of Call Rights Clause in Contracts

Call Rights. (a) Subject to the terms and conditions of this Section 4, the Company shall have the following call rights with respect to the Warrant: (i) immediately upon receipt of any Exercise Notice from the Holder and prior to any pending Exercise Date (as determined pursuant to Section 2(b)), the Company shall have the right to purchase that portion of the Warrant proposed to be exercised by the Holder pursuant to such Exercise Notice, and if the Company exercises such right, the Holder shall be required to sell such portion of the Warrant to the Company at a purchase price (the "Call Price") determined in accordance with Section 4(b); (ii) at any time within thirty (30) days following (a) the date of the Company's delivery to the Holder of the appraisal performed by an independent appraiser at the Company's request in connection with the ESOP that sets forth the per share value of the Common Stock as of September 30, 2009 (the "September 2009 Appraisal"), if the ESOP is still in existence on September 30, 2009 and none of clauses (a), (b) and (c) of the definition of "Current Market Price" in Section 3(c)(ii) below are applicable, or (b) the seventh (7th) anniversary of the Effective Date, if the conditions of clause (b) above are not met (in either case, the "First Put/Call Date"), the Company shall have the right to purchase up to fifty percent (50%) of the Warrant from the Holder, and if the Company exercises such right, the Holder shall be required to sell up to fifty percent (50%) of the Warrant to the Company at the Call Price determined in accordance with Section 4(b) below; and (iii) at any time within thirty (30) days prior to the Expiration Date, the Company shall have the right to purchase up to one hundred percent (100%) of the Warrant from the Holder, and if the Company exercises such right, the Holder shall be required to sell the Warrant or any portion thereof, as the case may be, to the Company at the Call Price determined in accordance with Section 4(b) below.

Appears in 9 contracts

Samples: Seller Warrant Agreement (Alion Science & Technology Corp), Warrant Agreement (Alion Science & Technology Corp), Seller Warrant Agreement (Alion Science & Technology Corp)

Call Rights. (a) Subject In the event all or any portion of the value of the Account is distributed to the terms and conditions of this Section 4, the Company shall have the following call rights with respect to the Warrant: (i) immediately upon receipt of any Exercise Notice from the Holder and prior to any pending Exercise Date (as determined Executive pursuant to Section 2(b)), the Company shall have the right to purchase that portion of the Warrant proposed to be exercised by the Holder pursuant to such Exercise Notice, and if the Company exercises such right, the Holder shall be required to sell such portion of the Warrant 5 prior to the Company at a purchase price Company's Initial Public Offering in shares of capital stock or other equity interests of any entity that are not Marketable Securities (the "Call Price") determined in accordance with Section 4(b); (ii) at any time within thirty (30) days following (a) the date of the Company's delivery to the Holder of the appraisal performed by an independent appraiser at the Company's request in connection with the ESOP that sets forth the per share value of the Common Stock as of September 30, 2009 (the "September 2009 Appraisal"), if the ESOP is still in existence on September 30, 2009 and none of clauses (a), (b) and (c) of the definition of "Current Market Price" in Section 3(c)(ii) below are applicable, or (b) the seventh (7th) anniversary of the Effective Date, if the conditions of clause (b) above are not met (in either case, the "First Put/Call DateIlliquid Distributed Shares"), the Company shall have the right (the "Call"), exercisable at any time prior to the Company's Initial Public Offering (the "Call Exercise Period") by giving written notice to the Executive pursuant hereto, to purchase up to fifty percent (50%) any or all of the Warrant from Illiquid Distributed Shares in exchange for an amount in cash equal to the Holder, and if the Company exercises Fair Market Value of such right, the Holder shall be required to sell up to fifty percent (50%) Illiquid Distributed Shares as of the Warrant date on which such notice is provided (the "Call Price"); PROVIDED, that if Executive is exercising "tag-along" rights pursuant to Section 2.5 of the Company at Stockholders Agreement, then until completion of such tag-along offer, the Call Price determined in accordance with Section 4(b) below; andshall not be less than the price per share attainable by Executive under such tag-along offer. (iiib) at any time within thirty (30) days prior The closing with respect to the Expiration Dateexercise of the Call shall take place at the Company's executive offices within 30 days following the date the Company provides Executive written notice of its intention to exercise the Call or, if later, within five business days after the final determination of the Fair Market Value of the Illiquid Distributed Shares pursuant to Section 4. (c) Notwithstanding any other provision hereof, the Company shall have may assign, without the right to purchase up to one hundred percent (100%) consent of the Warrant from the HolderExecutive, and if its rights under this Section 6; PROVIDED, that no such assignment shall release the Company exercises such right, from its obligations hereunder. (d) Notwithstanding anything herein or in the Holder shall be required to sell the Warrant or any portion thereof, as the case may be, Stockholders Agreement to the Company at contrary, during the Call Price determined in accordance with Section 4(bExercise Period the Call shall continue to apply to the Illiquid Distributed Shares following any transfer thereof by the Executive under any circumstances, including pursuant to any arrangement, proceeding, decree, judgment, order or application of law relating to the division of property for domestic relations purposes. (e) belowThe Call shall terminate upon the closing of the Company's Initial Public Offering. For purposes of this Agreement, "Initial Public Offering" shall mean the closing of a public offering pursuant to an effective registration statement under the Securities Act covering shares of the Company's Common Stock, which shares are approved for listing or quotation on the New York Stock Exchange, American Stock Exchange or Nasdaq National Market.

Appears in 4 contracts

Samples: Deferred Compensation Agreement (Harveys Casino Resorts), Deferred Compensation Agreement (Harveys Casino Resorts), Deferred Compensation Agreement (Harveys Casino Resorts)

Call Rights. (a) Subject to the terms and conditions of this Section 4, the Company shall have the following call rights with respect to the Warrant: (i) immediately upon receipt of at any Exercise Notice from the Holder time on and prior to any pending Exercise Date (as determined pursuant to Section 2(b))after August 6, 2013 until and including September 5, 2013, the Company shall have the right to purchase that portion call all or any part of the Warrant proposed to be exercised by the Holder pursuant to such Exercise Notice, and if the Company exercises such right, the Holder shall be required to sell such portion of the Warrant to the Company at a purchase price (the "Call Price") determined in accordance with Section 4(b); (ii) at any time within thirty (30) days following (a) the date of the Company's delivery to the Holder of the appraisal performed by an independent appraiser at the Company's request in connection with the ESOP that sets forth the per share value of the Common Stock as of September 30, 2009 (the "September 2009 Appraisal"), if the ESOP is still in existence on September 30, 2009 and none of clauses (a), (b) and (c) of the definition of "Current Market Price" in Section 3(c)(ii) below are applicable, or (b) the seventh (7th) anniversary of the Effective Date, if the conditions of clause (b) above are not met (in either case, the "First Put/Call Date"), the Company shall have the right to purchase up to fifty percent (50%) of the Warrant from the Holder, and if the Company exercises such right, the Holder shall be required to sell up to fifty percent (50%) of the Warrant to the Company at the Call Price determined in accordance with Section 4(b) below; and (iii) at any time within thirty (30) days prior to the Expiration Date, the Company shall have the right to purchase up to one hundred percent (100%) of the Warrant from the HolderWarrant, and if the Company exercises such right, the Holder shall be required to sell the amount called to the Company at a purchase price (the “Call Price”) determined in accordance with Section 4(b). The Company may exercise this right multiple times until no portion of the Warrant remains outstanding. (b) The “Call Price” is equal to the product of (i) the number of shares of Common Stock underlying the Warrant or the portion thereof being purchased pursuant to this Section 4, and (ii) the difference between the Call Fair Value (as defined below) on the date of the Call Notice (as defined below) and the current Exercise Price on the date of the Call Notice; provided that notwithstanding the foregoing, in no event shall the Call Price be less than zero (0). So long as the ESOP is still in existence, the “Call Fair Value” shall equal the per share value of the Common Stock as set forth in the then most recent appraisal performed by an independent appraiser at the Company’s request in connection with the ESOP. As of any such date on which the call right is exercised by the Company that the ESOP is no longer in existence, the “Call Fair Value” shall equal the Fair Value of the Common Stock. Notwithstanding the foregoing, whether or not the ESOP is in existence, if clauses (a), (b) or (c) of the definition of Current Market Price are applicable to the Common Stock but no Qualified Public Offering (as defined below) has occurred, then the Call Fair Value shall be the Current Market Price of the Common Stock on the date of the Call Notice. (c) Prior to exercising its call rights under this Section 4, the Company must deliver written notice to the Holder (the “Call Notice”), in accordance with Section 15, of its intent to purchase the Warrant or the portion thereofthereof being purchased, as the case may be, . The Call Notice shall be deemed to be given and served on the date that the Company sends the Call Notice to the Company at Holder (the “Call Election Date”) and shall be irrevocable. (d) Payment of the Call Price determined shall be made in cash in immediately available funds within thirty (30) days after the date of the Call Election Date, but not later than the Exercise Date. (e) If the Company has received an Exercise Notice from the Holder prior to the Company’s delivery of a Call Notice to the Holder, then such Call Notice shall take priority over such Exercise Notice until the expiration of the dates set forth in Section 4(d). If the Company does not purchase the portion of the Warrant subject to the Call Notice on or prior to the appropriate date set forth in Section 4(d), the Holder shall be entitled to immediately exercise the portion of the Warrant it originally intended to exercise, without the delivery of any additional Exercise Notice, subject to the expiration of the ninety-day period following delivery of the Exercise Notice. (f) If the Holder has received a Tag-Along Notice from the Trust in accordance with Section 4(b7(a) belowherein prior to delivery by the Company to the Holder of a Call Notice and the Holder has responded to such Tag-Along Notice with a Participation Notice and an Exercise Notice in accordance with Section 7(b) herein, then the Company shall not be entitled to exercise its call right pursuant to Section 4(a)(i), Section 4(a)(ii) or Section 4(a)(iii) herein with respect to such portion of the Warrant to be exercised by the Holder in connection with such Participation Notice, unless (i) the Call Fair Value as of the date of delivery by the Company of a Call Notice is greater than or equal to the per share sale price in connection with the transaction that is the subject of the Tag-Along Notice or the transaction that is subject of the Tag-Along Notice has been terminated. (g) The rights of the Company under this Section 4 shall expire on the consummation by the Company of a Qualified Public Offering. For purposes of this Agreement, “Qualified Public Offering” means the consummation of one or more underwritten public offerings of the Company’s Common Stock which results in aggregate gross proceeds to the sellers in such offerings of not less than U.S. $30,000,000 (excluding proceeds received in such offerings from “affiliates” of the Company (other than any Holder that is an affiliate of the Company), within the meaning of Rule 12b-2 of the Securities and Exchange Commission under the Securities Act of 1934, as amended (the “Exchange Act”) or the ESOP) and pursuant to which the Company obtains a listing for its shares on a United States national securities exchange, the Nasdaq National Market System, or an automated quotation system of nationally recognized standing.

Appears in 2 contracts

Samples: Seller Warrant Agreement (Alion Science & Technology Corp), Warrant Agreement (Alion Science & Technology Corp)

Call Rights. (a) Subject to Upon the terms occurrence of a MC Change of Control Event and conditions of this Section 4, for a period 180 days thereafter (the Company shall have the following call rights with respect to the Warrant: (i) immediately upon receipt of any Exercise Notice from the Holder and prior to any pending Exercise Date (as determined pursuant to Section 2(b)“Call Period”), the Company NKFFM shall have the right (the “Call Right”) to purchase that portion the entire Membership Interests and Economic Interests of the Warrant proposed Xxxx-Xxxx Member and its Affiliates (the “Called Interest”) to be exercised by the Holder pursuant Xxxx-Xxxx Member, for a purchase price in cash (the “Call Price”) equal to such Exercise Noticethe greater of: (i) the product of (A) five (5) times the Trailing Company EBITDA, and if (B) the Company exercises such rightaggregate Sharing Ratio represented by Called Interest, or (ii) the Holder shall be required to sell such portion aggregate unreturned Capital Contributions of the Warrant Exercising Member and its Affiliates. NKFFM shall exercise the Call Right by delivery of a notice, in writing (the “Call Notice”) to the Xxxx-Xxxx Member, prior to the expiration of the Call Period. (b) By no later than twenty (20) days following its receipt of the Call Notice the Xxxx-Xxxx Member may request, in a writing sent to the Company at and NKFFM, that the Trailing Company EBITDA be determined by the Company’s Accountants, in which case the Company shall engage the Company’s Accountants to prepare and certify such determination and issue a purchase price letter (similar to the "Call Price"Certified Letter) determined in accordance with Section 4(b); (ii) at any time within thirty (30) by no later than 45 days following (a) the date of the Company's delivery to the Holder of the appraisal performed by an independent appraiser at the Company's such request in connection with the ESOP that sets forth the per share value of the Common Stock same manner as of September 30, 2009 (the "September 2009 Appraisal"provided in Section 11.4(b), if the ESOP is still in existence on September 30, 2009 and none of clauses (a), (b) and . (c) The closing of the definition of "Current Market Price" in Section 3(c)(ii) below are applicable, or (b) the seventh (7th) anniversary purchase and sale of the Effective Date, if Called Interest shall occur at the conditions offices of clause (b) above are not met (in either case, the "First Put/Call Date"), counsel for the Company shall have and on a Business Day that is mutually and reasonably agreeable to both NKFFM and the right to purchase up to fifty percent (50%) of Xxxx-Xxxx Member, but in no event later than the Warrant from the Holder, and if the Company exercises such right, the Holder next following June or December. The selling parties shall be required to sell up to fifty percent paid, in cash (50%free and clear of any and all liens, claims and encumbrances) 10% of the Warrant to the Company at the Call Price determined and unpaid Xxxx-Xxxx Loan principal (together with all accrued but unpaid interest thereon), at the closing, with the balance to be paid in accordance cash (free and clear of any and all liens, claims and encumbrances) over the immediately succeeding 24 months in equal monthly installments together with Section 4(b) below; and (iii) interest at any time within thirty (30) days prior to the Expiration Date, the Company shall have the right to purchase up to one hundred percent (100%) rate of 8% per annum. The assignment of the Warrant from the Holder, and if the Company exercises such right, the Holder Called Interest shall be required free and clear of any and all liens, claims and encumbrances (other than this Agreement) and shall be evidenced by an assignment reasonably acceptable to sell NKFFM and the Warrant or any portion thereofXxxx-Xxxx Member and which shall be executed by each of them (and the sellers of the Called Interest), as together with such other and additional documents and agreements reasonably requested by NKFFM and the case may be, to the Company at the Call Price determined in accordance with Section 4(b) belowXxxx-Xxxx Member.

Appears in 2 contracts

Samples: Operating Agreement (Mack Cali Realty Corp), Operating Agreement (Mack Cali Realty L P)

Call Rights. (a) Subject If the Board of the Company submits and recommends to the terms and conditions shareholders of this Section 4, the Company shall have adoption of resolutions approving the following call rights with respect issuance and purchase of the Common Stock by the Purchaser as specified herein and the shareholders affirmatively fail to adopt such resolutions, then, at any time during the Warrant: (i) immediately upon receipt of any Exercise Notice 30 day period beginning on the 190th day after the Closing Date, Twin may elect to purchase from the Holder and prior to any pending Exercise Date Purchaser by notifying the Purchaser in writing (as determined pursuant to Section 2(b)the "Call Notice"), and upon such election the Company shall have the right to purchase that portion of the Warrant proposed to be exercised by the Holder pursuant to such Exercise Notice, and if the Company exercises such right, the Holder shall Purchaser will be required to sell such portion of the Warrant to the Company at a purchase price Twin (the "Call PriceRight") determined in accordance all (but not less than all) of the Shares for a cash price per share equal to the greater of (i) the Average Market Price of the Common Stock, calculated with Section 4(b); the date of determination being the day immediately following the tenth Trading Day after Twin delivers the Call Notice to the Purchaser, and (ii) at $16 (as adjusted for stock splits, stock dividends and recapitalization); provided that, the full cumulative dividends shall have been paid or declared and set apart for payment upon all Shares for all past dividend periods. Twin shall make any time such redemption payment by wire transfer to an account specified by Purchaser on the first Business Day following the expiration of the 30th day after the Purchaser receives the Call Notice; provided, that if subsequent to receiving such payment Purchaser shall become entitled to additional consideration pursuant to the proviso to the first sentence of this Section 2.4, then the Company shall promptly (but in any event within thirty five business days) make payment of such additional consideration to Purchaser. The Company's Call Right under this Section 2.4 shall terminate on the Shareholder Approval Date. (30b) days following (a) If Twin exercises its Call Right pursuant to Section 2.4(a), the date Purchaser or any other member of the First Reserve Group may purchase common stock of the Company in the open market, any equity offering of the Company's delivery , or otherwise up to the Holder same number of shares purchased pursuant to the execution of the appraisal performed by an independent appraiser at the Company's request in connection with the ESOP that sets forth the per share value of the Common Stock as of September 30, 2009 (the "September 2009 Appraisal"), if the ESOP is still in existence on September 30, 2009 and none of clauses (a), (b) and (c) of the definition of "Current Market Price" in Section 3(c)(ii) below are applicable, or (b) the seventh (7th) anniversary of the Effective Date, if the conditions of clause (b) above are not met (in either case, the "First Put/Call Date"), the Company shall have the right to purchase up to fifty percent (50%) of the Warrant from the Holder, and if the Company exercises such right, the Holder shall be required to sell up to fifty percent (50%) of the Warrant to the Company at the Call Price determined in accordance with Section 4(b) below; and (iii) at any time within thirty (30) days prior to the Expiration Date, the Company shall have the right to purchase up to one hundred percent (100%) of the Warrant from the Holder, and if the Company exercises such right, the Holder shall be required to sell the Warrant or any portion thereof, as the case may be, to the Company at the Call Price determined in accordance with Section 4(b) belowRight.

Appears in 2 contracts

Samples: Securities Purchase Agreement (Pride International Inc), Securities Purchase Agreement (First Reserve Corp /Ct/ /Adv)

Call Rights. (a) Subject At such time, if any, as any Transpacific Founder ceases to have an employment relationship with the terms Company and conditions its direct or indirect subsidiaries by reason of this Section 4the voluntary termination of his employment, the Company shall have the immediate right (except as otherwise provided in Section 5.2), for up to sixty (60) days following call rights the date of such voluntary termination, but not the obligation, to buy, and the Transpacific Founder shall have the obligation to sell all (and only all) of such Transpacific Founder's Metron Securities as of the date of the Triggering Event at the prices determined in accordance with respect the provisions of Article 6 hereof upon the exercise by the Company of the Company Call Right through the delivery of a Notice of Exercise of a Right during such sixty (60)-day period. (b) If the Company does not exercise the Company Call Right within such sixty (60)-day period, then each of the Transferees, either together (in which case they shall each participate on a pro rata basis in that proportion which the total number of shares of the Company's share capital owned by each such Transferee bears to the Warrant:total number of shares of the Company's share capital owned by both Transferees (the "Transferee's Pro Rata Interest") as of the Notice Date of the Company's Notice of Exercise of a Right) or, individually, shall have the right to purchase, and the Transpacific Founder shall have an obligation to sell, all (but not less than all) of the Metron Securities that were subject to the Company Call Right on the same terms and conditions as provided in Section 4.1 (a) upon the exercise of the Transferee Call Right by either or both of the Transferees through the delivery of a Notice of Exercise of a Right to the Transpacific Founder (or his permitted assign or successor) within ten (10) business days following the expiration of the sixty (60)-day period referenced in Section 4.1(a). Each Transpacific Founder agrees to promptly inform the Transferees if he has voluntarily terminated his employment with the Company and all of its direct and indirect subsidiaries. The Company agrees to promptly inform the Transferees whether it has exercised the Company Call Right. (ic) immediately upon receipt At such time, if any, as Jaensch or Xxxxxx-Prinsep, ceases to have an employment relationship with the Company and its direct or indirect subsidiaries by reason of any Exercise Notice from the Holder voluntary termination of his employment or his death, and prior such termination is the first occurrence of a Triggering Event as to any pending Exercise Date (as determined pursuant to Section 2(b))Jaensch or Xxxxxx-Prinsep, respectively, the Company shall have the immediate right to purchase that portion (except as otherwise provided in Section 5.2) commencing as of the Warrant proposed to be exercised by the Holder pursuant to such Exercise Notice, and if the Company exercises such right, the Holder shall be required to sell such portion third anniversary of the Warrant to the Company at a purchase price (the "Call Price") determined in accordance with Section 4(b); (ii) at any time within thirty (30) days following (a) the date of the Company's delivery to the Holder such voluntary termination of the appraisal performed by an independent appraiser at the Company's request in connection with the ESOP that sets forth the per share value employment or death of the Common Stock as of September 30, 2009 (the "September 2009 Appraisal"), if the ESOP is still in existence on September 30, 2009 and none of clauses (a), (b) and (c) of the definition of "Current Market Price" in Section 3(c)(ii) below are applicable, Jaensch or (b) the seventh (7th) anniversary of the Effective Date, if the conditions of clause (b) above are not met (in either case, the "First Put/Call Date"), the Company shall have the right to purchase up to fifty percent (50%) of the Warrant from the Holder, and if the Company exercises such right, the Holder shall be required to sell up to fifty percent (50%) of the Warrant to the Company at the Call Price determined in accordance with Section 4(b) below; and (iii) at any time within thirty (30) days prior to the Expiration Date, the Company shall have the right to purchase up to one hundred percent (100%) of the Warrant from the Holder, and if the Company exercises such right, the Holder shall be required to sell the Warrant or any portion thereofXxxxxx-Prinsep, as the case may be, for up to sixty (60) days following the Company date of such third anniversary, but not the obligation, to buy all (and only all), and Jaensch or Xxxxxx-Prinsep (or his estate or heirs in the event of his death), as the case may be, shall have the obligation to sell all (and only all) of such individual's Metron Securities as of the date of the Triggering Event at the Call Price prices determined in accordance with the provisions of Article 6 hereof upon the exercise, by the Company of the Company Call Right through the delivery of a Notice of Exercise of a Right during the sixty (60)-day period following the third anniversary of the termination of employment or death of Jaensch or Xxxxxx-Prinsep, as the case may be. (d) If the Company does not exercise the Company Call Right within the sixty (60)-day period referred to in Section 4(b4.1 (c), the Transferees, either together (in which case they shall each participate in accordance with each Transferee's Pro Rata Interest as of the third anniversary of the applicable Triggering Event) belowor each individually shall have the right to purchase, and Jaensch or Xxxxxx-Prinsep, as the case may be, shall have the obligation to sell, all (but not less than all) of the Metron Securities that were subject to the Company Call Right on the same terms as provided in Section 4.1 (c) by exercise of the Transferee Call Right through the delivery of a Notice of Exercise of a Right to Jaensch or Xxxxxx-Prinsep (or his permitted assigns or successors) within ten (10) business days following the expiration of the sixty (60)-day period referred to in Section 4.1(c). Jaensch and Xxxxxx-Prinsep each agrees to promptly inform the Transferees if he has voluntarily terminated his employment with the Company and all of its direct and indirect subsidiaries. The Company agrees to promptly inform the Transferees whether it has exercised the Company Call Right.

Appears in 1 contract

Samples: Buy and Sell Agreement (Metron Technology N V)

Call Rights. (a) Subject Within the later of (i) 90 days following the occurrence of a Call Event with respect to a Management Stockholder, and (ii) 30 days following the final determination, pursuant to Section 4.13(e), of Fair Market Value with respect to the shares of Common Stock held by such Management Stockholder, Xxxxx shall have the right and option to purchase (a “Call Right”) all and not less than all of the shares of Common Stock owned by such Management Stockholder and each Affiliate of such Management Stockholder (or his personal representative, as the case may be) (collectively, the “Selling Stockholder”, and all of such Selling Stockholder’s shares of Common Stock, the “Call Shares”) in the manner, for the price and on the terms and conditions contained in this Section 4.13; provided, however, that if the other Management Stockholder elects to purchase the Stockholder Pro Rata Call Shares from such Selling Stockholder pursuant to Section 4.13(b), then Xxxxx’x Call Right shall be with respect to a number of Call Shares equal to the aggregate number of Call Shares minus the aggregate number of Stockholder Pro Rata Call Shares purchased by the Purchasing Stockholder. Xxxxx shall exercise such option by giving written notice of such exercise (the “Call Option Notice”) to the Selling Stockholder and the other Management Stockholder. (b) Following the delivery of the Call Option Notice, the non-selling Management Stockholder (or his personal representative, as the case may be) (the “Purchasing Stockholder”) shall have a Call Right (exercisable within 10 days of receipt of the Call Option Notice by giving written notice to such Selling Stockholder and Xxxxx) to purchase, in the manner, for the price and on the terms and conditions contained in this Section 4.13, such number of Call Shares equal to, but not less than, (i) the aggregate number of shares of Common Stock being purchased under this Section 4.13 at the time of such purchase transaction, multiplied by (ii) a fraction, (A) the numerator of which is the aggregate number of shares of Common Stock owned by such Purchasing Stockholder at the time of such repurchase transaction and (B) the denominator of which is the aggregate number of shares Common Stock owned by Xxxxx and his Affiliates and the Purchasing Stockholder (or each of their respective personal representatives, as the case may be) at the time of such repurchase transaction (such number of shares of Common Stock, the “Stockholder Pro Rata Call Shares”). (c) If Xxxxx exercises his Call Right, then he shall purchase a number of shares of Common Stock equal to the number of Call Shares minus, in the event the Purchasing Stockholder has exercised its Call Right, the Stockholder Pro Rata Call Shares, and if the Purchasing Stockholder shall have exercised its Call Right, he shall purchase all of Stockholder Pro Rata Call Shares. (d) The purchase price (“Purchase Price”) of any shares of Common Stock pursuant to the exercise of a Call Right shall be, subject to adjustment as provided in Section 4.13(f), the Fair Market Value of such shares. (e) For purposes of this Section 44.13, the Company shall have “Fair Market Value” of a share of Common Stock subject to a Call Right means the following call rights fair market value in U.S. dollars of a share of Common Stock as of the Valuation Date with respect to such Call Event which would reasonably be expected to be realized in an open market sale on arm’s length terms to a Person who is not an Affiliate of the Warrantseller or the buyer, having regard to all relevant factors, but without regard to (x) the availability or lack of availability of a market for such shares of Common Stock or (y) any minority discount that would otherwise be applicable to such shares of Common Stock, such “Fair Market Value” to be determined as follows: (i) immediately During the ten-day period following the date on which a Call Event occurs, upon receipt the request of any Exercise Notice Xxxxx, the Selling Stockholder (or his personal representative) and Xxxxx shall each submit to the other such party’s respective proposal as to the Fair Market Value. If the higher proposal is not more than 10% higher than the lower proposal, then the Fair Market Value shall be equal to the average of such proposals. (ii) In the event that one of the proposals contemplated under clause (i) above is more than 10% higher than the other proposal, then within ten Business Days after the submission of such proposals, Xxxxx and the Selling Stockholder shall jointly select and retain a managing director in an independent nationally recognized investment bank (the “Appraiser”). In the event that such parties fail to jointly select the Appraiser within such time period, then at the request of Xxxxx or the Selling Stockholder the American Arbitration Association shall provide them with a list of at least five Appraiser candidates and each of Xxxxx and the Selling Stockholder shall be allowed to strike a number of names from the Holder list and prior rank the remaining Appraiser candidates in order of acceptance. The highest ranking Appraiser candidate who remains on the list shall serve as the Appraiser. The Appraiser shall be requested to any pending Exercise Date (as determined make its determination within a period of 30 days after the deadline for submissions to be made by Xxxxx and the Selling Stockholder pursuant to Section 2(b4.13(e)(iii), or as soon as practicable thereafter. (iii) Within five Business Days of the appointment of the Appraiser, each of Xxxxx and the Selling Stockholder shall submit to the Appraiser (A) its proposed determination of the Fair Market Value provided to the other party pursuant to Section 4.13(e)(i), (B) a list of factors that it believes to be relevant in the determination of the Fair Market Value, and (C) the reasons for that proposed value. In addition, each of Xxxxx and the Selling Stockholder shall at the same time deliver to the other a copy of any submission or information supplied by Xxxxx and the Selling Stockholder to the Appraiser. (iv) The Appraiser shall then make its own determination (having requested such further information from Xxxxx, the Selling Stockholder and/or the Company as it shall require) of the Fair Market Value. (v) The Appraiser shall certify to each of Xxxxx, the Selling Stockholder and the Company (A) that, having considered the respective submissions of Xxxxx and the Selling Stockholder, it has made its own determination of the Fair Market Value according to the principles of this Agreement and (B) the proposed value of which of Xxxxx and the Selling Stockholder it determines to be closer to the Fair Market Value. The value proposed by Xxxxx or the Selling Stockholder so certified by the Appraiser pursuant to clause (B) above shall thereupon be deemed to be the Fair Market Value. (vi) The fees and expenses of the Appraiser shall be paid equally by the Selling Stockholder and Xxxxx, and, if applicable, the Purchasing Stockholder shall reimburse Xxxxx for the Purchasing Stockholder’s proportionate share of such fees and expenses paid by Xxxxx. The Appraiser shall act as an expert and not as an arbitrator and its determination shall be final and binding upon the Selling Stockholder, Xxxxx and, if applicable, the Purchasing Stockholder in the absence of manifest error. The Appraiser shall have no liability to any of the Selling Stockholder, Xxxxx, the Company or, if applicable, the Purchasing Stockholder in respect of its determination. (f) The Purchase Price with respect to any shares of Common Stock purchased by Xxxxx and, if applicable, the Purchasing Stockholder pursuant to his respective Call Right shall be paid by wire transfer of immediately available funds to an account designated by the Selling Stockholder (or, in the event that the Selling Stockholder shall fail to timely designate an account to receive such wire transfer, to an escrow account established pursuant to Section 4.13(h)) promptly upon delivery of the certificates representing the Selling Stockholder’s shares of Common Stock and such other documents reasonably required for the Closing under Section 4.13(g). Notwithstanding anything in this Agreement to the contrary, in the event a Management Stockholder is indebted to the Company under a Promissory Note evidencing a portion of the subscription price or option exercise price of his shares of Common Stock (a “Purchase Money Note”), the aggregate principal balance, and all accrued interest, outstanding under said Purchase Money Note as of the Call Closing Date (the sum of such aggregate principal plus such accrued interest, the “Purchase Money Note Offset Amount”) shall be offset against the Purchase Price payable by Xxxxx, and at the Call Closing Xxxxx shall pay to the Company the Purchase Money Note Offset Amount by wire transfer of immediately available funds to an account designated by the Company. The Selling Stockholder shall receive the Purchase Price net of (i) the Purchase Money Note Offset Amount and (ii) any amount required to be withheld by law. (g) Any purchase of shares of Common Stock pursuant to this Section 4.13 shall be consummated (the “Call Closing”) at the Company’s principal office at 10:00 a.m., prevailing business time, on the date (the “Call Closing Date”) which is the later of (i) the 90th day after the date of occurrence of the event giving rise to the Call Right and (ii) the 45th day after Xxxxx exercises his Call Right; provided, however, that if any regulatory approval or waiting period is required in connection with any such purchase, then such 45-day period shall be extended by the number of days necessary to satisfy such regulatory requirement, but in no event shall such period be extended by more than 60 days. If such date is not a Business Day, the Call Closing shall occur at the same time and place on, and the Call Closing Date shall be, the next succeeding Business Day. At the Call Closing, the Selling Stockholder shall deliver the certificates representing his shares of Common Stock duly endorsed, or accompanied by written instruments of transfer, in form and substance reasonably satisfactory to Xxxxx, free and clear of any liens, and shall furnish such other evidence, including applicable inheritance and estate tax waivers and releases, as may reasonably be necessary to effect the transfers of such shares. (h) In the event Xxxxx and, if applicable, a Purchasing Stockholder, exercises their respective Call Right pursuant to this Section 4.13 and in the event a Selling Stockholder fails to designate an account to receive a wire transfer or fails to deliver such shares, in proper form for transfer, on the Call Closing Date, Xxxxx and/or the Purchasing Stockholder may elect to deposit the cash representing the Purchase Price (minus any escrow fees) with an escrow agent. From and after the deposit of such adjusted Purchase Price, such shares shall be deemed for all purposes (including the right to vote, receive payment of dividends and exercise rights under this Agreement) to have been transferred to the purchaser(s) thereof, the Company shall issue new certificates representing such shares to the purchaser(s) thereof, and the certificates registered in the name of such Selling Stockholder shall be deemed to have been canceled and to represent solely a right to receive payment of the Purchase Price (minus any escrow fees), without interest, from the escrow account. If the proceeds of sale have not been claimed by such Selling Stockholder (by delivery of the share certificates, in proper form for transfer) prior to the third anniversary of the Call Closing Date, the escrow deposits, and all interest earned thereon, shall be returned to the respective depositors, and such Selling Stockholder shall look solely to the purchaser(s) for payment of the Purchase Price. The escrow agent shall not be liable for any action or inaction taken by him in good faith. (i) In the event the Purchasing Stockholder exercises his Call Right under this Section 4.13 and should fail to deliver his portion of the Purchase Price and/or any other documents reasonably required to be delivered to consummate such repurchase transaction, Xxxxx shall have the right to purchase that portion all of the Warrant proposed Call Shares, including the Stockholder Pro Rata Call Shares, and the Purchasing Stockholder shall be deemed to be exercised by the Holder pursuant have revoked his notice provided under Section 4.13(b) and to have irrevocably waived his rights under this Section 4.13 with respect to such Exercise repurchase transaction; provided, however, that the foregoing shall not preclude Xxxxx from seeking money damages and equitable relief to which he may be entitled as a result of the Purchasing Stockholder’s failure to participate in the Call Closing. (j) Upon the delivery of the Call Option Notice, the Selling Stockholder’s respective rights under Sections 3.1 and 5.5 shall terminate; provided, however, that if the Company exercises Call Closing shall not have occurred on or before the applicable Call Closing Date (other than due to a failure of the Selling Stockholder to comply with its obligations under this Section 4.13), then such right, the Holder Selling Stockholder’s respective rights under Sections 3.1 and 5.5 shall be required to sell such portion of the Warrant to the Company at a purchase price (the "Call Price") determined in accordance with Section 4(b); (ii) at any time within thirty (30) days following (a) the date of the Company's delivery to the Holder of the appraisal performed by an independent appraiser at the Company's request in connection with the ESOP that sets forth the per share value of the Common Stock as of September 30, 2009 (the "September 2009 Appraisal"), if the ESOP is still in existence on September 30, 2009 and none of clauses (a), (b) and (c) of the definition of "Current Market Price" in Section 3(c)(ii) below are applicable, or (b) the seventh (7th) anniversary of the Effective Date, if the conditions of clause (b) above are not met (in either case, the "First Put/Call Date"), the Company shall have the right to purchase up to fifty percent (50%) of the Warrant from the Holder, and if the Company exercises such right, the Holder shall be required to sell up to fifty percent (50%) of the Warrant to the Company at the Call Price determined in accordance with Section 4(b) below; and (iii) at any time within thirty (30) days prior to the Expiration Date, the Company shall have the right to purchase up to one hundred percent (100%) of the Warrant from the Holder, and if the Company exercises such right, the Holder shall be required to sell the Warrant or any portion thereof, as the case may be, to the Company at the Call Price determined in accordance with Section 4(b) belowreinstated.

Appears in 1 contract

Samples: Stockholders’ Agreement (Plains Resources Inc)

Call Rights. (a) Subject to On and after the terms and conditions fourth anniversary of the date of this Section 4Agreement, the Company shall have the following call rights with respect to the Warrant: (i) immediately upon receipt of any Exercise Notice from the Holder and prior to any pending Exercise Date (as determined pursuant to Section 2(b))during each Call Valuation Request Period, the Company SEM shall have the right to purchase that portion of the Warrant proposed to be exercised by the Holder pursuant to such Exercise Notice, and if the Company exercises such right, the Holder shall be required to sell such portion of the Warrant send a written notice to the Company at (with a purchase price (copy to Dignity and WCAS) requesting that the "Company engage an Investment Bank to determine the Company Enterprise Value and Call Price") determined Price Per Interest in accordance with Section 4(b9.3(e) (each, a “Call Valuation Request”); (ii) at any time within thirty (30) days following (a) the date . Following delivery of the Company's delivery to the Holder of the appraisal performed by an independent appraiser at the Company's request in connection with the ESOP that sets forth the per share value of the Common Stock as of September 30, 2009 (the "September 2009 Appraisal"), if the ESOP is still in existence on September 30, 2009 and none of clauses (a), (b) and (c) of the definition of "Current Market Price" in Section 3(c)(ii) below are applicable, or (b) the seventh (7th) anniversary of the Effective Date, if the conditions of clause (b) above are not met (in either case, the "First Put/a Call Date")Valuation Request, the Company shall have instruct the right Investment Bank selected pursuant to purchase up Section 9.3(e) to fifty percent (50%) of the Warrant from the Holder, and if calculate the Company exercises such right, the Holder shall be required to sell up to fifty percent (50%) of the Warrant to the Company at the Enterprise Value and Call Price determined Per Interest in accordance with Section 4(b9.3(e). During the ten (10) below; and (iii) at any time within thirty (30) days prior to day period following SEM’s, Dignity’s and WCAS’s receipt of a written notice from the Expiration Date, applicable Investment Bank that sets forth such Investment Bank’s determination of the Company shall have the right to purchase up to one hundred percent (100%) of the Warrant from the Holder, Enterprise Value and if the Company exercises such right, the Holder shall be required to sell the Warrant or any portion thereof, as the case may be, to the Company at the Call Price determined Per Interest in accordance with Section 4(b9.3(e), SEM may elect, in its sole and absolute discretion, to purchase from the Class A Members, Class B Members and Class C Members all or less than all of such Members’ Company Interests at a price per interest equal to the Call Price Per Interest (each, a “Call Exercise”); provided that if SEM shall purchase less than all of the Company Interests in connection with any Call Exercise, SEM shall purchase the same relative proportion of each such Member’s Company Interests. Any Call Exercise shall be made by delivery during such ten (10) belowday period of a written notice by SEM to the Class A Members, Class B Members and Class C Members (each, a “Call Exercise Notice”), which Call Exercise Notice shall indicate the number of Company Interests that SEM wishes to purchase from such Members. In connection with each Call Exercise, (x) SEM shall purchase, and the applicable Members shall sell, the applicable Company Interests no later than forty five (45) days following delivery of the applicable Call Exercise Notice and (y) SEM shall pay the applicable purchase price at the closing by one of the following methods determined in SEM’s sole and absolute discretion: (A) wire transfer of immediately available funds, (B) the issuance of shares of SEM Common Stock (valued at the 21 trading day volume-weighted average sales price of such shares for the period beginning ten (10) trading days immediately preceding the first public announcement of the Call Exercise and ending on the tenth (10th) trading day immediately following such announcement) or (C) a combination thereof; provided that each Class A Member, Class B Member and Class C Member shall be paid in the same relative mix of cash and SEM Common Stock. Each Member hereby acknowledges that the issuance of any shares of SEM Common Stock that are paid to such Member pursuant to the immediately preceding sentence will not be registered under applicable securities laws (other than as required by Section 9.3(d)).

Appears in 1 contract

Samples: Limited Liability Company Agreement (Select Medical Corp)

Call Rights. (a) Subject to At any time after the terms sixth anniversary of the date hereof, and conditions so long as no Event of this Section 4, Default under and as defined in the Company shall have the following call rights with respect to the Warrant: (i) immediately upon receipt of any Exercise Notice from the Holder Note Purchase Agreement has occurred and prior to any pending Exercise Date (as determined pursuant to Section 2(b))is continuing, the Company shall have the right in its sole discretion to purchase that portion "call" (force the sale by the Holders of) all, but not less than all, of the Warrant proposed to be exercised by the Holder pursuant to such Exercise Notice, and if the Company exercises such right, the Holder shall be required to sell such portion of the Warrant to the Company at a purchase price (the "Acquired Securities for their Put/Call Price") determined in accordance with Section 4(b);Value. (ii) at any time within thirty (30) days following (a) the date of the Company's delivery to the Holder of the appraisal performed by an independent appraiser at the Company's request in connection with the ESOP that sets forth the per share value of the Common Stock as of September 30, 2009 (the "September 2009 Appraisal"), if the ESOP is still in existence on September 30, 2009 and none of clauses (a), (b) If the Company desires to exercise its call rights hereunder, it shall give notice to the Holders to such effect, whereupon the Company and the Holders shall promptly determine the Put/Call Value. The Company shall purchase the Acquired Securities for cash within 30 days after the Put/Call Value is determined. (c) of Notwithstanding anything in this Section to the definition of "Current Market Price" in Section 3(c)(ii) below are applicable, or (b) the seventh (7th) anniversary of the Effective Datecontrary, if a Recapture Event (defined below) shall (i) occur within 12 months after the conditions of clause closing described in subsection (b) above are not met or (in either caseii) be approved by the Company's Board of Directors within 12 months after such closing and occur within 24 months after such closing then, within 10 days after the "First occurrence of such Recapture Event (or, if a redetermination of the Put/Call Date"Value is made pursuant to subsection (d) below, within 10 days after such redetermination), the Company shall have the right pay to purchase up to fifty percent (50%) of the Warrant from the Holder, and if the Company exercises such right, the each Holder shall be required to sell up to fifty percent (50%) of the Warrant an amount equal to the Company at product of (A) the difference, if any, between the value of one share of common stock immediately after such Recapture Event and the Put/Call Price Value assigned to one Warrant Share as determined in accordance connection with Section 4(bsuch call multiplied by (B) below; and (iii) at any time within thirty (30) days prior the number of such Warrant Holder's Warrant Shares and/or the number of Warrant Shares issuable upon the exercise of such Warrant Holder's Warrants which were subject to the Expiration Date, the Company shall have the right to purchase up to one hundred percent (100%) of the Warrant from the Holder, and if the Company exercises such right, the Holder shall be required to sell the Warrant or any portion thereof, as the case may be, to the Company at the Call Price determined in accordance with Section 4(b) belowcall.

Appears in 1 contract

Samples: Warrant Purchase Agreement (Tweeter Home Entertainment Group Inc)

Call Rights. (a) Subject In the event all or any portion of the value of the Account is distributed to the terms and conditions of this Section 4, the Company shall have the following call rights with respect to the Warrant: (i) immediately upon receipt of any Exercise Notice from the Holder and prior to any pending Exercise Date (as determined Executive pursuant to Section 2(b)), the Company shall have the right to purchase that portion of the Warrant proposed to be exercised by the Holder pursuant to such Exercise Notice, and if the Company exercises such right, the Holder shall be required to sell such portion of the Warrant 5 prior to the Company at a purchase price Company's Initial Public Offering in shares of capital stock or other equity interests of any entity that are not Marketable Securities (the "Call Price") determined in accordance with Section 4(b); (ii) at any time within thirty (30) days following (a) the date of the Company's delivery to the Holder of the appraisal performed by an independent appraiser at the Company's request in connection with the ESOP that sets forth the per share value of the Common Stock as of September 30, 2009 (the "September 2009 Appraisal"), if the ESOP is still in existence on September 30, 2009 and none of clauses (a), (b) and (c) of the definition of "Current Market Price" in Section 3(c)(ii) below are applicable, or (b) the seventh (7th) anniversary of the Effective Date, if the conditions of clause (b) above are not met (in either case, the "First Put/Call DateIlliquid Distributed Shares"), the Company shall have the right (the "Call"), exercisable at any time prior to the Company's Initial Public Offering (the "Call Exercise Period") by giving written notice to the Executive pursuant hereto, to purchase up to fifty percent (50%) any or all of the Warrant from Illiquid Distributed Shares in exchange for an amount in cash equal to the Holder, and if the Company exercises Fair Market Value of such right, the Holder shall be required to sell up to fifty percent (50%) Illiquid Distributed Shares as of the Warrant date on which such notice is provided (the "Call Price"); PROVIDED that if Executive is exercising "tag-along" rights pursuant to Section 2.5 of the Company at Stockholders Agreement, then until completion of such tag-along offer, the Call Price determined in accordance with Section 4(b) below; andshall not be less than the price per share attainable by Executive under such tag-along offer. (iiib) at any time within thirty (30) days prior The closing with respect to the Expiration Dateexercise of the Call shall take place at the Company's executive offices within 30 days following the date the Company provides Executive written notice of its intention to exercise the Call or, if later, within five business days after the final determination of the Fair Market Value of the Illiquid Distributed Shares pursuant to Section 4. (c) Notwithstanding any other provision hereof, the Company shall have may assign, without the right to purchase up to one hundred percent (100%) consent of the Warrant from the HolderExecutive, and if its rights under this Section 6; PROVIDED, that no such assignment shall release the Company exercises such right, from its obligations hereunder. (d) Notwithstanding anything herein or in the Holder shall be required to sell the Warrant or any portion thereof, as the case may be, Stockholders Agreement to the Company at contrary, during the Call Price determined in accordance with Section 4(bExercise Period the Call shall continue to apply to the Illiquid Distributed Shares following any transfer thereof by the Executive under any circumstances, including pursuant to any arrangement, proceeding, decree, judgment, order or application of law relating to the division of property for domestic relations purposes. (e) below.The Call shall terminate upon the closing of the Company's Initial

Appears in 1 contract

Samples: Deferred Compensation Agreement (Harveys Casino Resorts)

Call Rights. (a) Subject Within the later of (i) 90 days following the occurrence of a Call Event with respect to a Management Stockholder, and (ii) 30 days following the final determination, pursuant to Section 4.13(e), of Fair Market Value with respect to the shares of Common Stock held by such Management Stockholder, Xxxxx shall have the right and option to purchase (a “Call Right”) all and not less than all of the shares of Common Stock owned by such Management Stockholder and each Affiliate of such Management Stockholder (or his personal representative, as the case may be) (collectively, the “Selling Stockholder”, and all of such Selling Stockholder’s shares of Common Stock, the “Call Shares”) in the manner, for the price and on the terms and conditions contained in this Section 4.13; provided, however, that if the other Management Stockholder elects to purchase the Stockholder Pro Rata Call Shares from such Selling Stockholder pursuant to Section 4.13(b), then Xxxxx’x Call Right shall be with respect to a number of Call Shares equal to the aggregate number of Call Shares minus the aggregate number of Stockholder Pro Rata Call Shares purchased by the Purchasing Stockholder. Xxxxx shall exercise such option by giving written notice of such exercise (the “Call Option Notice”) to the Selling Stockholder and the other Management Stockholder. (b) Following the delivery of the Call Option Notice, the non-selling Management Stockholder (or his personal representative, as the case may be) (the “Purchasing Stockholder”) shall have a Call Right (exercisable within 10 days of receipt of the Call Option Notice by giving written notice to such Selling Stockholder and Xxxxx) to purchase, in the manner, for the price and on the terms and conditions contained in this Section 4.13, such number of Call Shares equal to, but not less than, (i) the aggregate number of shares of Common Stock being purchased under this Section 4.13 at the time of such purchase transaction, multiplied by (ii) a fraction, (A) the numerator of which is the aggregate number of shares of Common Stock owned by such Purchasing Stockholder at the time of such repurchase transaction and (B) the denominator of which is the aggregate number of shares Common Stock owned by Xxxxx and his Affiliates and the Purchasing Stockholder (or each of their respective personal representatives, as the case may be) at the time of such repurchase transaction (such number of shares of Common Stock, the “Stockholder Pro Rata Call Shares”). (c) If Xxxxx exercises his Call Right, then he shall purchase a number of shares of Common Stock equal to the number of Call Shares minus, in the event the Purchasing Stockholder has exercised its Call Right, the Stockholder Pro Rata Call Shares, and if the Purchasing Stockholder shall have exercised its Call Right, he shall purchase all of Stockholder Pro Rata Call Shares. (d) The purchase price (“Purchase Price”) of any shares of Common Stock pursuant to the exercise of a Call Right shall be, subject to adjustment as provided in Section 4.13(f), the Fair Market Value of such shares. (e) For purposes of this Section 44.13, the Company shall have “Fair Market Value” of a share of Common Stock subject to a Call Right means the following call rights with respect fair market value in U.S. dollars of a share of Common Stock as of the date of the Call Event giving rise to the Warrantdetermination of “Fair Market Value” which would reasonably be expected to be realized in an open market sale on arm’s length terms to a Person who is not an Affiliate of the seller or the buyer, having regard to all relevant factors, but without regard to (x) the availability or lack of availability of a market for such shares of Common Stock or (y) any minority discount that would otherwise be applicable to such shares of Common Stock, such “Fair Market Value” to be determined as follows: (i) immediately During the ten-day period following the date on which a Call Event occurs, upon receipt the request of any Exercise Notice Xxxxx, the Selling Stockholder (or his personal representative) and Xxxxx shall each submit to the other such party’s respective proposal as to the Fair Market Value. If the higher proposal is not more than 10% higher than the lower proposal, then the Fair Market Value shall be equal to the average of such proposals. (ii) In the event that one of the proposals contemplated under clause (i) above is more than 10% higher than the other proposal, then within ten Business Days after the submission of such proposals, Xxxxx and the Selling Stockholder shall jointly select and retain a managing director in an independent nationally recognized investment bank (the “Appraiser”). In the event that such parties fail to jointly select the Appraiser within such time period, then at the request of Xxxxx or the Selling Stockholder the American Arbitration Association shall provide them with a list of at least five Appraiser candidates and each of Xxxxx and the Selling Stockholder shall be allowed to strike a number of names from the Holder list and prior rank the remaining Appraiser candidates in order of acceptance. The highest ranking Appraiser candidate who remains on the list shall serve as the Appraiser. The Appraiser shall be requested to any pending Exercise Date (as determined make its determination within a period of 30 days after the deadline for submissions to be made by Xxxxx and the Selling Stockholder pursuant to Section 2(b4.13(e)(iii), or as soon as practicable thereafter. (iii) Within five Business Days of the appointment of the Appraiser, each of Xxxxx and the Selling Stockholder shall submit to the Appraiser (A) its proposed determination of the Fair Market Value provided to the other party pursuant to Section 4.13(e)(i), (B) a list of factors that it believes to be relevant in the determination of the Fair Market Value, and (C) the reasons for that proposed value. In addition, each of Xxxxx and the Selling Stockholder shall at the same time deliver to the other a copy of any submission or information supplied by Xxxxx and the Selling Stockholder to the Appraiser. (iv) The Appraiser shall then make its own determination (having requested such further information from Xxxxx, the Selling Stockholder and/or the Company as it shall require) of the Fair Market Value. (v) The Appraiser shall certify to each of Xxxxx, the Selling Stockholder and the Company (A) that, having considered the respective submissions of Xxxxx and the Selling Stockholder, it has made its own determination of the Fair Market Value according to the principles of this Agreement and (B) the proposed value of which of Xxxxx and the Selling Stockholder it determines to be closer to the Fair Market Value. The value proposed by Xxxxx or the Selling Stockholder so certified by the Appraiser pursuant to clause (B) above shall thereupon be deemed to be the Fair Market Value. (vi) The fees and expenses of the Appraiser shall be paid equally by the Selling Stockholder and Xxxxx, and, if applicable, the Purchasing Stockholder shall reimburse Xxxxx for the Purchasing Stockholder’s proportionate share of such fees and expenses paid by Xxxxx. The Appraiser shall act as an expert and not as an arbitrator and its determination shall be final and binding upon the Selling Stockholder, Xxxxx and, if applicable, the Purchasing Stockholder in the absence of manifest error. The Appraiser shall have no liability to any of the Selling Stockholder, Xxxxx, the Company or, if applicable, the Purchasing Stockholder in respect of its determination. (f) The Purchase Price with respect to any shares of Common Stock purchased by Xxxxx and, if applicable, the Purchasing Stockholder pursuant to his respective Call Right shall be paid by wire transfer of immediately available funds to an account designated by the Selling Stockholder (or, in the event that the Selling Stockholder shall fail to timely designate an account to receive such wire transfer, to an escrow account established pursuant to Section 4.13(h)) promptly upon delivery of the certificates representing the Selling Stockholder’s shares of Common Stock and such other documents reasonably required for the Closing under Section 4.13(g). Notwithstanding anything in this Agreement to the contrary, in the event a Management Stockholder is indebted to the Company under a Promissory Note evidencing a portion of the subscription price or option exercise price of his shares of Common Stock (a “Purchase Money Note”), the aggregate principal bAllence, and all accrued interest, outstanding under said Purchase Money Note as of the Call Closing Date (the sum of such aggregate principal plus such accrued interest, the “Purchase Money Note Offset Amount”) shall be offset against the Purchase Price payable by Xxxxx, and at the Call Closing Xxxxx shall pay to the Company the Purchase Money Note Offset Amount by wire transfer of immediately available funds to an account designated by the Company. The Selling Stockholder shall receive the Purchase Price net of (i) the Purchase Money Note Offset Amount and (ii) any amount required to be withheld by law. (g) Any purchase of shares of Common Stock pursuant to this Section 4.13 shall be consummated (the “Call Closing”) at the Company’s principal office at 10:00 a.m., prevailing business time, on the date (the “Call Closing Date”) which is the later of (i) the 90th day after the date of occurrence of the event giving rise to the Call Right and (ii) the 45th day after Xxxxx exercises his Call Right; provided, however, that if any regulatory approval or waiting period is required in connection with any such purchase, then such 45-day period shall be extended by the number of days necessary to satisfy such regulatory requirement, but in no event shall such period be extended by more than 60 days. If such date is not a Business Day, the Call Closing shall occur at the same time and place on, and the Call Closing Date shall be, the next succeeding Business Day. At the Call Closing, the Selling Stockholder shall deliver the certificates representing his shares of Common Stock duly endorsed, or accompanied by written instruments of transfer, in form and substance reasonably satisfactory to Xxxxx, free and clear of any liens, and shall furnish such other evidence, including applicable inheritance and estate tax waivers and releases, as may reasonably be necessary to effect the transfers of such shares. (h) In the event Xxxxx and, if applicable, a Purchasing Stockholder, exercises their respective Call Right pursuant to this Section 4.13 and in the event a Selling Stockholder fails to designate an account to receive a wire transfer or fails to deliver such shares, in proper form for transfer, on the Call Closing Date, Xxxxx and/or the Purchasing Stockholder may elect to deposit the cash representing the Purchase Price (minus any escrow fees) with an escrow agent. From and after the deposit of such adjusted Purchase Price, such shares shall be deemed for all purposes (including the right to vote, receive payment of dividends and exercise rights under this Agreement) to have been transferred to the purchaser(s) thereof, the Company shall issue new certificates representing such shares to the purchaser(s) thereof, and the certificates registered in the name of such Selling Stockholder shall be deemed to have been canceled and to represent solely a right to receive payment of the Purchase Price (minus any escrow fees), without interest, from the escrow account. If the proceeds of sale have not been claimed by such Selling Stockholder (by delivery of the share certificates, in proper form for transfer) prior to the third anniversary of the Call Closing Date, the escrow deposits, and all interest earned thereon, shall be returned to the respective depositors, and such Selling Stockholder shall look solely to the purchaser(s) for payment of the Purchase Price. The escrow agent shall not be liable for any action or inaction taken by him in good faith. (i) In the event the Purchasing Stockholder exercises his Call Right under this Section 4.13 and should fail to deliver his portion of the Purchase Price and/or any other documents reasonably required to be delivered to consummate such repurchase transaction, Xxxxx shall have the right to purchase that portion all of the Warrant proposed Call Shares, including the Stockholder Pro Rata Call Shares, and the Purchasing Stockholder shall be deemed to be exercised by the Holder pursuant have revoked his notice provided under Section 4.13(b) and to have irrevocably waived his rights under this Section 4.13 with respect to such Exercise repurchase transaction; provided, however, that the foregoing shall not preclude Xxxxx from seeking money damages and equitable relief to which he may be entitled as a result of the Purchasing Stockholder’s failure to participate in the Call Closing. (j) Upon the delivery of the Call Option Notice, the Selling Stockholder’s respective rights under Sections 3.1 and 5.5 shall terminate; provided, however, that if the Company exercises Call Closing shall not have occurred on or before the applicable Call Closing Date (other than due to a failure of the Selling Stockholder to comply with its obligations under this Section 4.13), then such right, the Holder Selling Stockholder’s respective rights under Sections 3.1 and 5.5 shall be required to sell such portion of the Warrant to the Company at a purchase price (the "Call Price") determined in accordance with Section 4(b); (ii) at any time within thirty (30) days following (a) the date of the Company's delivery to the Holder of the appraisal performed by an independent appraiser at the Company's request in connection with the ESOP that sets forth the per share value of the Common Stock as of September 30, 2009 (the "September 2009 Appraisal"), if the ESOP is still in existence on September 30, 2009 and none of clauses (a), (b) and (c) of the definition of "Current Market Price" in Section 3(c)(ii) below are applicable, or (b) the seventh (7th) anniversary of the Effective Date, if the conditions of clause (b) above are not met (in either case, the "First Put/Call Date"), the Company shall have the right to purchase up to fifty percent (50%) of the Warrant from the Holder, and if the Company exercises such right, the Holder shall be required to sell up to fifty percent (50%) of the Warrant to the Company at the Call Price determined in accordance with Section 4(b) below; and (iii) at any time within thirty (30) days prior to the Expiration Date, the Company shall have the right to purchase up to one hundred percent (100%) of the Warrant from the Holder, and if the Company exercises such right, the Holder shall be required to sell the Warrant or any portion thereof, as the case may be, to the Company at the Call Price determined in accordance with Section 4(b) belowreinstated.

Appears in 1 contract

Samples: Stockholders' Agreement (Plains Resources Inc)

Call Rights. In the event of (aI) Subject to the terms and conditions of this Section 4, the Company shall have the following call rights with respect to the Warrant: (i) immediately upon receipt of any Exercise Notice from the Holder and prior to any pending Exercise Date (as determined pursuant to Section 2(b)), the Company shall have the right to purchase that portion termination of the Warrant proposed to be exercised by the Holder pursuant to such Exercise Notice, and if the Company exercises such right, the Holder shall be required to sell such portion of the Warrant to Executive's employment with the Company at any time, under any circumstances and for any or no reason, (II) a purchase price Change in Control or (III) any transfer of any Restricted Shares by the Executive under any circumstances (other than to a trust controlled by Executive for estate planning purposes, the trustee of which agrees in writing to be subject in all events and for all purposes to the Company's Call as set forth herein), including pursuant to any arrangement, proceeding, decree, judgement, order or application of law relating to the division of property for domestic relations purposes, for a period commencing on the date of such event and expiring upon the Company's Initial Public Offering (the "Call Price") determined in accordance with Section 4(b); (ii) at any time within thirty (30) days following (a) the date of the Company's delivery to the Holder of the appraisal performed by an independent appraiser at the Company's request in connection with the ESOP that sets forth the per share value of the Common Stock as of September 30, 2009 (the "September 2009 Appraisal"), if the ESOP is still in existence on September 30, 2009 and none of clauses (a), (b) and (c) of the definition of "Current Market Price" in Section 3(c)(ii) below are applicable, or (b) the seventh (7th) anniversary of the Effective Date, if the conditions of clause (b) above are not met (in either case, the "First Put/Call DateExercise Period"), the Company shall have the right to purchase up from the Executive, by giving written notice to fifty percent the Executive pursuant hereto and in accordance with the terms and conditions of Section 8(a) below (50%the "Call") any or all Restricted Shares as of the Warrant from end of business on the Holder, Call Exercise Date as to which the Transfer Restrictions shall have lapsed pursuant to Section 1(c) and if which shall not theretofore have been forfeited by Executive pursuant to Section 6(b). (a) The following terms and conditions shall apply to the Company exercises such right, the Holder shall be required to sell up to fifty percent (50%) exercise of the Warrant Call: i) The Company shall pay the Executive an amount equal to the Company at product of (A) the Call Price determined in accordance with Section 4(band (B) below; andthe number of Restricted Shares, being purchased pursuant thereto. (iiib) at any time within thirty (30) days prior The closing with respect to the Expiration exercise of the Call shall take place at the Company's executive offices within 30 days following the Call Exercise Date (the "Scheduled Closing Date"). (c) Notwithstanding any other provision hereof, the Company shall have may assign, without the right to purchase up to one hundred percent (100%) consent of the Warrant from the HolderExecutive, and if its rights under this Section 8; PROVIDED, that no such assignment shall release the Company exercises such right, from its obligations hereunder. (d) The Call shall terminate upon the Holder shall be required to sell closing of the Warrant or any portion thereof, as the case may be, to the Company at the Call Price determined in accordance with Section 4(b) belowCompany's Initial Public Offering.

Appears in 1 contract

Samples: Restricted Stock Agreement (Harveys Casino Resorts)

Call Rights. (a) Subject Concurrently with the Company entering into an underwriting agreement relating to the terms and conditions sale of this Section 4, shares of its Common Stock pursuant to a registration statement that has become effective under the 1933 Act (an "IPO") the Company shall have the following call rights with respect to the Warrant: (i) immediately upon receipt of any Exercise Notice from the Holder and prior to any pending Exercise Date (as determined pursuant to Section 2(b)), the Company or its designee shall have the right (which right may be exercised on one (1) occasion only) to purchase that repurchase all or any portion of the Warrant proposed to be exercised Warrants or any of the Shares issued as a result of the exercise of this Warrant. The Company may exercise the call by providing the Holder pursuant to such Exercise Notice, and if the Company exercises such right, the Holder shall be required to sell such portion holder of the Warrant or the Shares with notice of the exercise thereof (such notice being referred to the Company at as a purchase price (the "Call PriceNotice") determined in accordance with Section 4(b); (ii) at any time within . The Company shall, no later than thirty (30) days following (a) after the date of the Company's delivery such Call Notice, pay to the Holder holder (i) of the appraisal performed by Warrant an independent appraiser at amount in cash for each Share which could have been purchased pursuant, to the Company's request Warrant equal to the Warrant Purchase Price (as defined in connection with the ESOP that sets forth the per share value of the Common Stock as of September 30, 2009 (the "September 2009 Appraisal"), if the ESOP is still in existence on September 30, 2009 and none of clauses (a), Subsection (b) and hereof) and/or (ii) of the Shares issued upon the exercise of the Warrant an amount in cash for each such Share equal to the Share Repurchase Price (as defined in Subsection (c) of hereof). If the definition of "Current Market Price" in Section 3(c)(ii) below are applicable, or (b) the seventh (7th) anniversary of the Effective Date, if the conditions of clause (b) above are IPO is not met (in either case, the "First Put/Call Date"), consummated once the Company shall exercises its right of repurchase such repurchase will be deemed canceled and thereafter the Company will once again have the right to purchase up to fifty percent (50%) of repurchase this Warrant and the Warrant from Shares issuable upon the Holder, and if the Company exercises such right, the Holder shall be required to sell up to fifty percent (50%) of the Warrant to the Company at the Call Price determined in accordance with Section 4(b) below; and (iii) at any time within thirty (30) days prior to the Expiration Date, the Company shall have the exercise hereof. The Company's right to purchase up to one hundred percent (100%) of repurchase this Warrant and/or the Warrant from Shares issuable upon the Holderexercise hereof may only be exercised and will only be in effect until June 30, and if the Company exercises 1999, or such right, the Holder shall be required to sell the Warrant or any portion thereof, later date as the case parties may be, to the Company at the Call Price determined in accordance with Section 4(b) belowmutually agree.

Appears in 1 contract

Samples: Warrant Agreement (Worldgate Communications Inc)

Call Rights. (a) Subject Notwithstanding any other provisions of this Agreement, beginning on August 6, 2018, the TPC Member shall have a continuing and perpetual option and right, but not the obligation, subject in all cases to the terms and conditions of this Section 49.7, to deliver an irrevocable written notice of election to the BR Member and the BR Equityholders (to the extent such BR Equityholder owns directly any portion of the Retained Equity) and/or their respective Permitted Transferees (such notice, a “Call Notice” and the transaction resulting from any Call Notice, a “Call Option”) to initiate the 44 purchase by (at the TPC Member’s sole election) the TPC Member, the Company or any of their respective Affiliates (the “Call Purchaser”) from the BR Member and the BR Equityholders (to the extent such BR Equityholder own directly any portion of the Retained Equity) and/or their respective Permitted Transferees (collectively, the “Call Sellers”) all, but not less than all, of the Units owned by the Call Sellers (the “Call Units”) for an amount equal to the Put and Call Price; provided that the Call Purchaser may exercise the Call Option once (and only once) to purchase less than all of the Units owned by the Call Sellers so long as such exercise is for ten percent (10%) of the Units that are issued and outstanding as of such date (for the avoidance of doubt, the Call Purchaser may thereafter exercise the Call Option for all, but not less than all, the remaining Units owned by the Call Sellers). The Put and Call Price may be paid, at the election of the Call Purchaser, in the form of readily available funds or shares of Issuer Common Stock or a combination of both. Under no circumstances shall have the following call rights aggregate amount of the Put and Call Price for the Call Units exceed $98,000,000 with respect to the Warrant: any Call Notice delivered prior to February 6, 2021. The Call Notice shall (i) immediately upon receipt specify the identity of any Exercise Notice from the Holder Call Purchaser, (ii) include a calculation of the EBITDA attributable to the Put and prior Call Price, (iii) include a calculation of the Put and Call Price to any pending Exercise Date be paid by the Call Purchaser to the Call Sellers for the Call Units and (as determined pursuant to Section 2(b)), the Company shall have the right to purchase that iv) specify what portion of the Warrant proposed to Put and Call Price will be exercised by the Holder pursuant to such Exercise Notice, paid in cash and if the Company exercises such right, the Holder shall be required to sell such what portion of the Warrant Put and Call Price will be paid in shares of Issuer Common Stock subject to the Company at a purchase price (closing of the "Call Price") determined in accordance with Section 4(b); (ii) at any time Option within thirty (30) days following (a) the date of the Company's delivery of the Call Notice. Following the delivery of the Call Notice, the TPC Member shall provide and cause the Company to provide to the Holder BR Member (on behalf of the appraisal performed by an independent appraiser at the Company's request in connection Call Sellers) with the ESOP that sets forth the per share value of the Common Stock as of September 30reasonable access, 2009 (the "September 2009 Appraisal"), if the ESOP is still in existence on September 30, 2009 during normal business hours and none of clauses (a), (b) and (c) of the definition of "Current Market Price" in Section 3(c)(ii) below are applicable, or (b) the seventh (7th) anniversary of the Effective Date, if the conditions of clause (b) above are not met (in either case, the "First Put/Call Date"), the Company shall have the right to purchase up to fifty percent (50%) of the Warrant from the Holder, and if the Company exercises such right, the Holder shall be required to sell up to fifty percent (50%) of the Warrant to the Company at the Call Price determined in accordance with Section 4(b) below; and (iii) at any time within thirty (30) days prior to the Expiration Date, the Company shall have the right to purchase up to one hundred percent (100%) of the Warrant from the Holder, and if the Company exercises such right, the Holder shall be required to sell the Warrant or any portion thereof, as the case may beupon reasonable advance notice, to the personnel, properties, books and records of the Company at to the extent reasonably necessary for the BR Member to review the calculations set forth in the Call Price determined in accordance with Section 4(b) belowNotice.

Appears in 1 contract

Samples: Limited Liability Company Agreement