Common use of Change of Control Call Option Clause in Contracts

Change of Control Call Option. A “Change of Control Transaction” shall be deemed to be occasioned by, or to include each of the following (i) the merger, acquisition or consolidation of a Member by means of any transaction or series of related transactions, provided that the applicable transaction shall not be deemed a Change of Control Transaction if the Member’s stockholders constituted immediately prior to such transaction hold more than fifty percent (50%) of the voting power of the surviving or acquiring entity (or its parent) immediately following such transaction; (ii) any transaction or series of related transactions to which the Member is a party in which more than fifty percent (50%) of the Member’s voting power is transferred (taking into account only voting power resulting from stock held by such stockholders prior to such transaction) and (iii) a sale, transfer or other disposition, in a single transaction or series of related transactions, of all or substantially all of the assets of the Member and its subsidiaries taken as a whole (including, without limitation, the sale or disposition (by merger or otherwise) of one or more subsidiaries of the Member if substantially all of the assets of the Member and its subsidiaries taken as a whole are held by such subsidiary or subsidiaries, except where such sale, transfer or other disposition is to a wholly-owned subsidiary of the Member); provided that a Change of Control Transaction shall not include (x) a merger or consolidation with a wholly-owned subsidiary of the Member (y) a merger effected exclusively for the purpose of changing the domicile of the Member or (z) any transaction or series of related transactions principally for bona fide equity financing purposes of the Member in which the Member is the surviving entity. The treatment of any particular transaction or series of related transactions as a Change of Control Transaction may be waived by the vote or written consent of the holders of a Supermajority in interest of the Members. If a Member consummates a Change of Control Transaction, then such Member shall, within ten (10) Business Days following the completion of such Change of Control Transaction, offer all (and not less than all) of such Member’s Units for sale to the Members (excluding the offering Member) in accordance with the following process: (a) The offering Member shall within ten (10) Business Days following the completion of the Change of Control Transaction provide written notice to the other Members of such Change of Control Transaction. (b) The offering Member and the other Members shall calculate the fair market value of the Company, based on the amount which the Members would receive upon a sale of the entire Company in an all-cash sale on an arm’s-length basis with an unaffiliated third party, consummated on the day immediately preceding the date on which the event occurred which necessitated the determination of the Company fair market value (the “Company Valuation”) provided, however, that if such parties are unable to agree on the calculation of the Company Valuation within fifteen (15) days, the offering Member or its representative and the other Members or their representative(s) shall collectively select an independent internationally recognized accounting firm or other independent valuator, who possesses a level of expertise reasonably acceptable to the Members, to calculate the Company Valuation, which calculation shall be final and binding absent manifest error. The fees of the independent business valuator shall be shared, fifty percent (50%) to be borne by the offering Member and fifty percent (50%) to be borne by the other Members (collectively). (c) The other Members shall have until the later of (i) expiration of sixty (60) days from the effective date of the offering Member’s notice pursuant to Section 11.5(a) and (ii) fifteen (15) days after receipt of the final calculation from the independent business valuator, to diner (A) exercise their right to purchase all of the Units owned by the offering Member (the “Change of Control Units”), or (B) deliver to the offering Member a waiver of such rights. In the event there is more than one Member that wishes to purchase such Change of Control Units, the portion each purchasing Member shall be entitled to purchase shall be based on the pro rata Percentage Interest of such purchasing Member to the aggregate Percentage Interests of all purchasing Members (excluding the Change of Control Transaction Member’s Percentage Interest for purposes of this calculation). Failure of the other Members to timely exercise such rights or affirmative waiver of such rights shall be deemed to constitute a waiver of their right to purchase the Units of the offering Member in connection with the Change of Control Transaction; provided. however, that the offering Member shall cease to be a Member, and shall only be a Unit Holder with respect to such Units, unless a Supermajority in Interest of the other Members (other than the offering Member) consent in writing to the offering Member’s continued inclusion as a Member. (d) lf the other Members exercise their right to purchase the Change of Control Units, the closing of the Transfer of the Change of Control Units shall be held within a reasonable time, on a mutually acceptable date. On such closing date, the offering Member shall execute and deliver any documents necessary or proper to evidence and effectuate the transfer of the Change of Control Units to the purchasing Member(s), and the purchasing Member(s) shall pay to the offering Member the purchase price determined pursuant to the provisions of Section 11.5(b) in either of the following manners, at the option of the purchasing Member(s) (i) in all cash at closing, or (ii) *** of the purchase price in cash or other immediately available funds, and *** by delivery of a promissory note, secured by the Units, providing for payment of principal in *** equal, annual installments (with the first such installment due on the first anniversary of the date of the promissory note) plus accrued interest at a rate equal to the prime rate of interest as reported by The Wall Street Journal on the last Business Day immediately preceding the date of the promissory note plus ***. (e) If and to the extent that any offering Member fails to comply on a timely basis with the foregoing provisions of this Section 11.5 regarding the execution and delivery of documents and instruments for the Transfer of such Units to the applicable purchasing Members, or fails to comply with the provisions of Section 11.1, such offering Member hereby irrevocably appoints each Manager of the Company as attorney and agent for, and in the name and on behalf of the offering Member, with full power of substitution in the name of such offering Member or otherwise, to execute and deliver all documents and instruments required to be executed and delivered by such offering Member for the Transfer of such Units pursuant to the provisions of this Section 11.5. The foregoing power of attorney is coupled with an interest and may not be revoked in any manner or for any reason. Any out-of-pocket costs incurred by any Manager in taking any such authorized actions in its/his capacity as attorney and agent for the offering Member (including, without limitation legal and otter professional fees and amounts paid to creditors holding liens or encumbrances on or security interests in the Transferred Units) shall be for the sole account of the offering Member, and shall be deducted from the purchase price payable to the offering Member for the Transferred Unite first, from the cash portion of the purchase price payable at closing and second (if such out-of-pocket costs exceed the cash portion of the purchase price), from the principal of the *** promissory note comprising the balance of the purchase price. *** Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

Change of Control Call Option. A “Change of Control Transaction” shall be deemed to be occasioned by, or to include each of the following (i) the merger, acquisition or consolidation of a Member by means of any transaction or series of related transactions, provided that the applicable transaction shall not be deemed a Change of Control Transaction if the Member’s stockholders constituted immediately prior to such transaction hold more than fifty percent (50%) of the voting power of the surviving or acquiring entity (or its parent) immediately following such transaction; (ii) any transaction or series of related transactions to which the Member is a party in which more than fifty percent (50%) of the Member’s voting power is transferred (taking into account only voting power resulting from stock held by such stockholders prior to such transaction) and (iii) a sale, transfer or other disposition, in a single transaction or series of related transactions, of all or substantially all of the assets of the Member and its subsidiaries taken as a whole (including, without limitation, the sale or disposition (by merger or otherwise) of one or more ormore subsidiaries of the Member if substantially all of the assets of the Member and its subsidiaries taken as a whole are held by such subsidiary or subsidiaries, except where such sale, transfer or other disposition is to a wholly-owned subsidiary of the Member); provided that a Change of Control Transaction shall not include (x) a merger or consolidation with a wholly-owned subsidiary of the Member (y) a merger effected exclusively for the purpose of changing the domicile of the Member or (z) any transaction or series of related transactions principally for bona fide equity financing purposes of the Member in which the Member is the surviving entity. The treatment of any particular transaction or series orseries of related transactions as a Change of Control Transaction may be waived by the vote or written consent of the holders of a Supermajority in interest of the Members. If a Member consummates a Change of Control Transaction, then such Member shall, within ten (10) Business Days following the completion of such Change of Control Transaction, offer all (and not less than all) of such Member’s Units for sale to the Members (excluding the offering Member) in accordance with the following process: (a) The offering Member shall within ten (10) Business Days following the completion of the Change of Control Transaction provide written notice to the other Members of such Change of Control Transaction. (b) The offering Member and the other Members shall calculate the fair market value of the Company, based on the amount which the Members would receive upon a sale of the entire Company in an all-cash sale on an arm’s-length basis with an unaffiliated third party, consummated on the day immediately preceding the date on which the event occurred which necessitated the determination of the Company fair market value (the “Company Valuation”) provided, however, that if such parties are unable to agree on the calculation of the Company Valuation within fifteen (15) days, the offering Member or its representative and the other Members or their representative(s) shall collectively select an independent internationally recognized accounting firm or other independent valuator, who possesses a level of expertise reasonably acceptable to the Members, to calculate the Company Valuation, which calculation shall be final and binding absent manifest error. The fees of the independent business valuator shall be shared, fifty percent (50%) to be borne by the offering Member and fifty percent (50%) to be borne by the other Members (collectively). (c) The other Members shall have until the later of (i) expiration of sixty (60) days from the effective date of the offering Member’s notice pursuant to Section 11.5(a) and (ii) fifteen (15) days after receipt of the final calculation from the independent business valuator, to diner (Adiner(A) exercise their right to purchase all of the Units owned by the offering Member (the “Change of Control Units”), or (B) deliver to the offering Member a waiver of such rights. In the event there is more than one Member that wishes to purchase such Change of Control Units, the portion each purchasing Member shall be entitled to purchase shall be based on the pro rata Percentage Interest of such purchasing Member to the aggregate Percentage Interests of all purchasing Members (excluding the Change of Control Transaction Member’s Percentage Interest for purposes of this calculation). Failure of the other Members to timely exercise such rights or affirmative waiver of such rights shall be deemed to constitute a waiver of their right to purchase the Units of the offering Member in connection with the Change of Control Transaction; provided. however, that the offering Member shall cease to be a Member, and shall only be a Unit Holder with respect to such Units, unless a Supermajority in Interest of the other Members (other than the offering Member) consent in writing to the offering Member’s continued inclusion as a Member. (d) lf the other Members exercise their right to purchase the Change of Control Units, the closing of the Transfer of the Change of Control Units shall be held within a reasonable time, on a mutually acceptable date. On such closing date, the offering Member shall execute and deliver any documents necessary or proper to evidence and effectuate the transfer of the Change of Control Units to the purchasing Member(s), and the purchasing Member(s) shall pay to the offering Member the purchase price determined pursuant to the provisions of Section 11.5(b) in either of the following manners, at the option of the purchasing Member(s) (i) in all cash at closing, or (ii) *** of the purchase price in cash or other immediately available funds, and *** by delivery of a promissory note, secured by the Units, providing for payment of principal in *** equal, annual installments (with the first such installment due on the first anniversary of the date of the promissory note) plus accrued interest at a rate equal to the prime rate of interest as reported by The Wall Street Journal on the last Business Day immediately preceding the date of the promissory note plus ***. (e) If and to the extent that any offering Member fails to comply on a timely basis with the foregoing provisions of this Section 11.5 regarding the execution and delivery of documents and instruments for the Transfer of such Units to the applicable purchasing Members, or fails to comply with the provisions of Section 11.1, such offering Member hereby irrevocably appoints each Manager of the Company as attorney and agent for, and in the name and on behalf of the offering Member, with full power of substitution in the name of such offering Member or otherwise, to execute and deliver all documents and instruments required to be executed and delivered by such offering Member for the Transfer of such Units pursuant to the provisions of this Section 11.5. The foregoing power of attorney is coupled with an interest and may not be revoked in any manner or for any reason. Any out-of-pocket costs incurred by any Manager in taking any such authorized actions in its/his capacity as attorney and agent for the offering Member (including, without limitation legal and otter professional fees and amounts paid to creditors holding liens or encumbrances on or security interests in the Transferred Units) shall be for the sole account of the offering Member, and shall be deducted from the purchase price payable to the offering Member for the Transferred Unite first, from the cash portion of the purchase price payable at closing and second (if such out-of-pocket costs exceed the cash portion of the purchase price), from the principal of the *** promissory note comprising the balance of the purchase price. *** Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.