Change of Control of NEP. (a) If, at any time, there is an announcement of a proposed Change of Control of NEP (or the entry into any agreement providing therefor), then each Class B Member shall have the right (but not the obligation) to deliver to NEP Member at least five (5) Business Days prior to the date on which the Change of Control of NEP is to be consummated (such date, the “Change of Control Closing Date”) a notice executed by such Class B Member (the “Change of Control Notice”) of such Class B Member’s exercise of its right under this Section 7.03 to require NEP Member to acquire all or any portion of the Class B Units held by such Class B Member at a purchase price for each Class B Unit for which such election is made that results in a return to such Class B Member of at least an Internal Rate of Return on each such Class B Unit purchased pursuant to this Section 7.03, measured from the applicable Acquisition Date to the Change of Control Closing Date, of [six and sixty-one hundredths percent (6.61%)] (the “Change of Control Purchase Price”), upon the terms and conditions set forth in this Section 7.03 (the “NEP Change of Control Option”). (b) To exercise its rights pursuant to Section 7.03(a), a Class B Member shall deliver to NEP Member a Change of Control Notice containing the anticipated Change of Control Closing Date, the number of Class B Units to be purchased, and the Change of Control Purchase Price per Class B Unit. NEP Member may pay the Change of Control Purchase Price, at its option, in either cash, Non-Voting NEP Common Units (or NEP Common Units if the holder of Class B Units to be purchased requests in writing, not less than two (2) Business Days prior to the applicable Change of Control Closing Date, the issuance of NEP Common Units), or a combination of cash and Non-Voting NEP Common Units (or NEP Common Units if the holder of Class B Units to be purchased requests in writing, not less than two (2) Business Days prior to the applicable Change of Control Closing Date, the issuance of NEP Common Units); provided, however, that the Change of Control Purchase Price may be paid in the form of a security that is substantially equivalent to the NEP Common Units in terms of rights, preferences and privileges, including with respect to economics, governance, transferability and liquidity, if, as a result of the Change of Control of NEP, NEP will cease to exist or the NEP Common Units will cease to be listed on a National Securities Exchange; provided, further, that, if no substantially equivalent security exists on the applicable Change of Control Closing Date, the Change of Control Purchase Price must be paid entirely in cash. If some or all of the Change of Control Purchase 896060.18-WILSR01A - MSW
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Nextera Energy Partners, Lp)
Change of Control of NEP. (a) If, at any time, there is an announcement of a proposed Change of Control of NEP (or the entry into any agreement providing therefor), then then, commencing on the date of such announcement of a proposed Change of Control of NEP or such entry into such agreement and ending on the date that is ninety (90) calendar days after the consummation of such Change of Control of NEP, each Class B Member shall have the right (right, but not the obligation) to deliver to NEP Member at least five (5) Business Days prior to the date on which the Change of Control of NEP is to be consummated (such date, the “Change of Control Closing Date”) a notice executed by such Class B Member (the “Change of Control Notice”) of such Class B Member’s exercise of its right under this Section 7.03 to require NEP Member to acquire all or any portion of the Class B Units held by such Class B Member at a purchase price for each Class B Unit for which such election is made that is the greater of (i) a purchase price that results in a return to such Class B Member of at least an Internal Rate of Return on each such Class B Unit purchased pursuant to this Section 7.03, measured from the applicable Acquisition Effective Date to the Change of Control Closing Date, of [six nine and sixtythirty-one two hundredths of a percent (6.619.32%)] ) or (ii) an amount that, together with the aggregate amount of distributions received by such Member in respect of such Class B Units, provides a return of 140% of such Class B Member’s aggregate Capital Contributions in respect of such Class B Units, measured from the date on which any applicable Capital Contribution is made to the Company to the Change of Control Closing Date (collectively, the “Change of Control Purchase Price”), upon the terms and conditions set forth in this Section 7.03 (the “NEP Change of Control Option”). NEP Member may not assign its obligation to purchase such Class B Units pursuant to this Section 7.03 to any Person other than NEP or a subsidiary thereof.
(b) To exercise its rights pursuant to Section 7.03(a), a Class B Member shall deliver to NEP Member a written notice executed by such Class B Member of such exercise (the “Change of Control Notice”) containing (i) the date on which the acquisition of the Class B Units identified in the Change of Control Notice containing (the anticipated “Change of Control Closing”) is to be consummated (such date, the “Change of Control Closing Date”), and (ii) the number of Class B Units to be purchased, purchased and the Change of Control Purchase Price per Class B Unit. NEP Member may pay the Change of Control Purchase Price, at its option, in either cash, Non-Voting NEP Common Units (or NEP Common Units if the holder of Class B Units to be purchased requests in writing, not less than two three (23) Business Days prior to the applicable Change of Control Closing Date, the issuance of NEP Common Units), or a combination of cash and Non-Voting NEP Common Units (or NEP Common Units if the holder of Class B Units to be purchased requests in writing, not less than two three (23) Business Days prior to the applicable Change of Control Closing Date, the issuance of NEP Common Units); provided, however, that the Change of Control Purchase Price NEP may be paid in the form of issue a security that is substantially equivalent to the NEP Common Units in terms of rights, preferences and privileges, including with respect to economics, governance, transferability and liquidity, if, as a result of the Change of Control of NEP, NEP will cease to exist or the NEP Common Units will cease to be listed on a National Securities Exchange; provided, further, that, if no substantially equivalent security exists on the applicable Change of Control Closing Date, the Change of Control Purchase Price must be paid entirely in cash. If some or all of the Change of Control Purchase 896060.18Price consists of NEP Common Units or Non-WILSR01A - MSWVoting NEP Common Units, the Issuance Price for each such NEP Common Unit or Non-Voting NEP Common Unit will be specified as the 10-day VWAP of the NEP Common Units on the date of the announcement of the proposed Change of Control of NEP. The Change of Control Notice shall be delivered to NEP Member at least seven (7) Business Days and no more than ten (10) Business Days in advance of the Change of Control Closing Date.
(c) On the Change of Control Closing Date, (i) each Class B Member exercising the NEP Change of Control Option will convey the Class B Units identified in the applicable Change of Control Notice, free of all Encumbrances (other than those created by this Agreement or securities Laws), to NEP Member or its nominee; (ii) NEP Member or its nominee (or, if the foregoing do not pay, NEP) will pay the cash portion, if any, of the Change of Control Purchase Price to such Class B Member (or its nominee(s)) by wire transfer of immediately available funds; and (iii) NEP shall satisfy the remaining portion, if any, of the Change of Control Purchase Price by issuing NEP Common Units, Non-Voting NEP Common Units, or a substantially equivalent security, as determined pursuant to Section 7.03(b), to such Class B Member no later than three (3) Business Days after the Change of Control Closing Date, and, in connection therewith, NEP shall instruct, and shall use its commercially reasonable efforts to cause, its Transfer Agent to record the issuance of such NEP Common Units or Non-Voting NEP Common Units, as the case may be, to such Class B Member (or the Margin Loan Borrower as their nominee or such other nominee(s)). No fractional NEP Common Units or Non-Voting NEP Common Units, as the case may be, will be issued. The Members agree that the Change of Control Closing shall be subject to the receipt of all applicable Required Governmental Authorizations. In the event any such Required Governmental Authorizations shall not have been obtained by the date that is otherwise scheduled to be the Change of Control Closing Date, then such Change of Control Closing Date shall automatically be delayed until such date as all such Required Governmental Authorizations have been obtained and, for the avoidance of doubt, the Change of Control Purchase Price set forth in the Change of Control Notice shall be calculated from the Effective Date until such date of the actual Change of Control Closing.
(d) Investor hereby agrees that, in connection with the Change of Control Closing, Investor (or its Affiliates) shall use any cash portion of the Change of Control Purchase Price and all cash on hand and all Cash Equivalents of Investor to repay all of Investor’s then outstanding Indebtedness under the Credit Agreement (including any breakage costs, termination fees, or other payments that would be due or payable thereunder) and all other Indebtedness required to be repaid as a result of the exercise of such NEP Change of Control Option, in each case, pursuant to which the Class B Units being acquired pursuant to the exercise of such NEP Change of Control Option are Encumbered (other than Indebtedness incurred pursuant to the Margin Loan Agreement (which, for the avoidance of doubt, shall not be secured by Encumbrances on any Class B Units)). To the extent it is determined that the cash portion (if any) of the Change of Control Purchase Price (net of any deductions or withholdings required under applicable Law), and all cash on hand and all Cash Equivalents of Investor are insufficient to repay in full all Indebtedness of Investor and any other Indebtedness pursuant to which such Class B Units are Encumbered required to be repaid as a result of the exercise of such NEP Change of Control Option, plus the amounts required to be paid by Investor constituting amounts owed by Investor as termination payments and unpaid amounts under any swap, cap, forward, future, or other derivative transaction entered into in connection with the hedging of interest rates under the Credit Agreement, and minus amounts required to be paid to Investor constituting amounts owed by the counterparty under any such swap, cap, forward, future, or other derivative transaction as termination payments and unpaid amounts under any such swap, cap, forward, future, or other derivative transaction (such deficiency, a “Change of Control Cash Shortfall”), then Investor shall use reasonable best efforts to obtain Qualifying Financing in an amount required to remedy the Change of Control Cash Shortfall. The Members agree that, until the Credit Agreement Payment In Full, each Change of Control Closing shall be subject to there being no Change of Control Cash Shortfall. If there is a Change of Control Cash Shortfall and Investor is unable, using reasonable best efforts, to secure Qualifying Financing by the Change of Control Closing Date, then the applicable Change of Control Closing shall automatically be delayed for a period of at least five (5) Business Days until such date as Investor obtains such additional or replacement financing to remedy the Change of Control Cash Shortfall or there otherwise would no longer be a Change of Control Cash Shortfall associated with the exercise of such NEP Change of Control Option. If the Change of Control Closing is delayed for more than ten (10) Business Days in connection with the preceding sentence, then NEP Member and Investor shall work in good faith to remedy the applicable Change of Control Cash Shortfall (provided that the foregoing shall not require Investor to take any actions to remedy such Change of Control Cash Shortfall other than seeking additional or replacement financing in accordance with this Section 7.03(d)). If the NEP Member and Investor are unable to remedy the applicable Change of Control Cash Shortfall within twenty (20) Business Days thereafter, then the applicable Change of Control Notice shall be deemed revoked; provided, however, that, if Investor notifies NEP Member in writing that it is continuing to using reasonable best efforts to obtain Qualifying Financing to remedy the applicable Change of Control Cash Shortfall, the applicable Change of Control Closing shall automatically be delayed for an additional period of ninety (90) days, and the applicable Change of Control Notice shall be deemed revoked if such Call Option Closing shall not have occurred prior to the expiration of such period of ninety (90) days (or sooner if the Class B Member shall send a written notice of revocation to the NEP Member). If Investor is able to obtain Qualifying Financing in an amount equal to or greater than the Change of Control Cash Shortfall, then (1) Investor shall promptly deliver written notice thereof to NEP Member, (2) the Call Option Closing shall occur as promptly thereafter as practicable, (3) the Change of Control Purchase Price shall be calculated from the Effective Date to the date on which such Change of Control Closing actually occurs, and (4) the Issuance Price of the NEP Common Units and Non-Voting NEP Common Units, if any, to be issued as payment (or partial payment) of the applicable Change of Control Purchase Price shall be the price set forth in the original Change of Control Notice.
(e) Following consummation of the transactions contemplated by this Section 7.03, to the extent a Class B Member has Disposed of all of its Class B Units, the Managing Member will amend this Agreement to reflect the withdrawal of such Class B Member and the transfer of such Class B Units effective as of the Change of Control Closing.
(f) Each Member agrees to cooperate fully with the Company, the Managing Member, and NEP to effect the Change of Control Closing as reasonably requested, including using its reasonable best efforts to obtain all applicable Governmental Authorizations, terminating and releasing all Encumbrances on the Class B Units (other than those created by this Agreement or securities Laws), and entering into any agreements and instruments and executing any certificates or other documents the Managing Member reasonably deems necessary or appropriate to consummate the Disposition of the Class B Units (provided that the foregoing shall not require Investor to take any actions to remedy any Change of Control Cash Shortfall other than using all cash on hand of Investor seeking additional or replacement financing in accordance with Section 7.03(d)). Investor agrees that it shall use reasonable best efforts to (i) cause the Change of Control Closing to occur as promptly as practicable, (ii) keep NEP Member reasonably informed of developments in Investor’s efforts to obtain Qualifying Financing, and (iii) set a Change of Control Closing Date mutually agreed upon by NEP Member. The Class B Members and NEP agree to use commercially reasonable efforts to coordinate with the Transfer Agent to record the issuance of NEP Common Units and Non-Voting NEP Common Units, as the case may be, to such Class B Members (or the Margin Loan Borrower as their nominee or such other nominee(s)).
Appears in 1 contract
Samples: Limited Liability Company Agreement (NextEra Energy Partners, LP)
Change of Control of NEP. (a) If, at At any time, there is an time following the announcement of a proposed Change of Control of NEP (or the entry into any agreement providing therefor), then each the Class B Member Members shall have the right (right, but not the obligation) to deliver to NEP Member at least five (5) Business Days prior to the date on which the Change of Control of NEP is to be consummated (such date, the “Change of Control Closing Date”) a notice executed by such Class B Member (the “Change of Control Notice”) of such Class B Member’s exercise of its right under this Section 7.03 to require NEP Member to acquire all or any portion all, but not less than all, of the outstanding Class B Units held by such Class B Member at a purchase price for each Class B Unit for which such election is made that results in a return to such Class B Member of at least implies an Internal Rate of Return on each such to the Class B Unit purchased pursuant to this Section 7.03Members, measured from the applicable Acquisition Effective Date to the Change of Control Closing DateDate and with the assumption that GEPIF shall have remained a Class B Member throughout the entirety of such period, of [six and sixty-one hundredths ten percent (6.6110.0%)] ) (the “Change of Control Purchase Price”), upon the terms and conditions set forth in this Section 7.03 (the “NEP Change of Control Option”). NEP Member may not assign its obligation to purchase such Class B Units pursuant to this Section 7.03 to any Person other than NEP or a subsidiary thereof.
(b) To exercise its the rights of the Class B Members pursuant to Section 7.03(a), a the Class B Member shall Members shall, at least ten (10) days and no more than fifteen (15) days in advance of such exercise, deliver to NEP Member a written notice executed by all such Class B Members of such exercise (the “Change of Control Notice Notice”) containing (i) the anticipated date (the “Change of Control Closing Date, ”) on which the number acquisition of the outstanding Class B Units is to be purchasedconsummated (the “Change of Control Closing”), and (ii) the Change of Control Purchase Price per Class B UnitPrice. NEP Member may pay the Change of Control Purchase Price, at its option, in either cash, Non-Voting NEP Common Units (or NEP Common Units if the holder of Class B Units to be purchased requests in writing, not less than two (2) Business Days prior to the applicable Change of Control Closing Date, the issuance of NEP Common Units), or a combination of cash and Non-Voting NEP Common Units (or NEP Common Units if the holder of Class B Units to be purchased requests in writing, not less than two (2) Business Days prior to the applicable Change of Control Closing Date, the issuance of NEP Common Units); provided, however, that (y) the Change of Control Purchase Price may be paid NEP LPA Amendment (as that term is used in the form of a security that is substantially equivalent Purchase Agreement) shall be in full force and effect, without any modification thereto, and (z) the Registration Rights Agreement shall be in effect with respect to the NEP Common Units in terms of rights, preferences and privileges, including with respect to economics, governance, transferability and liquidity, if, as a result of into which the Change of Control of NEP, NEP will cease to exist or the Non-Voting NEP Common Units will cease are convertible, subject to be listed on a National Securities Exchange; provided, further, that, if no substantially equivalent security exists on and in accordance with the applicable Change terms of Control Closing Date, the Change of Control Purchase Price must be paid entirely in cashNEP Partnership Agreement. If some or all of the Change of Control Purchase 896060.18Price consists of Non-WILSR01A - MSWVoting NEP Common Units, the issuance price for each such Non-Voting NEP Common Unit will be specified as the 15-day VWAP of the NEP Common Units on the date that is the earlier of the announcement of a proposed Change of Control of NEP or the entry into a definitive agreement providing for a transaction that if consummated would constitute a Change of Control of NEP.
(c) On the Change of Control Closing Date, (i) the Class B Members will convey all of the Class B Units, free of all Encumbrances (other than those created by this Agreement or securities Laws), to NEP Member or its nominee; (ii) NEP Member or its nominee (or, if the foregoing do not pay, NEP) will pay the cash portion, if any, of the Change of Control Purchase Price to the Class B Members (or their nominee(s)) by wire transfer of immediately available funds; and (iii) NEP shall satisfy the remaining portion, if any, of the Change of Control Purchase Price by issuing Non-Voting NEP Common Units no later than three (3) Business Days after the Change of Control Closing Date, and, in connection therewith, NEP shall instruct, and shall use its commercially reasonable efforts to cause, its Transfer Agent to record the issuance of such Non-Voting NEP Common Units to such Class B Members (or their nominee(s)). No fractional Non-Voting NEP Common Units will be issued. The Members agree that the Change of Control Closing shall be subject to the receipt of all applicable Required Governmental Authorizations. In the event any such Required Governmental Authorizations shall not have been obtained by the date that is otherwise scheduled to be the Change of Control Closing Date, then such Change of Control Closing date shall automatically be delayed until such date as all such Required Governmental Authorizations have been obtained and, for the avoidance of doubt, the Change of Control Purchase Price set forth in the Change of Control Notice shall be calculated from the Effective Date until such date as all such Required Governmental Authorizations have been obtained. Each Class B Member hereby agrees that, in connection with the Change of Control Closing, such Class B Member (or its Affiliates) shall borrow under such Margin Loan Agreement the maximum amount available thereunder, to the extent necessary to repay, and shall use such borrowings, together with any cash received as part of the Change of Control Purchase Price, to repay, subject to the immediately succeeding sentence, all of such Class B Member’s then outstanding indebtedness and all other indebtedness pursuant to which the Class B Units are Encumbered (other than indebtedness incurred pursuant to the Margin Loan Agreement). To the extent that the proceeds from the Margin Loan Agreement, together with any cash paid as a portion of the Change of Control Purchase Price and all cash on hand of the Class B Member, are insufficient to repay in full all indebtedness of the Class B Member (and any other indebtedness pursuant to which the Class B Units are Encumbered), then the Class B Members shall use their reasonable best efforts to obtain additional or substitute financing in such amount as is sufficient to repay in full the amount of all indebtedness of the Class B Members or pursuant to which the Class B Units are Encumbered, such that all Encumbrances on the Class B Units shall be released on or prior to the Change of Control Closing. Following consummation of the transactions contemplated by this Section 7.03, the Managing Member will amend this Agreement to reflect the withdrawal of the Class B Members and the transfer of the Class B Units effective as of the Change of Control Closing.
(d) Each Member agrees to cooperate fully with the Company, the Managing Member, and NEP to effect the Change of Control Closing, including using its reasonable best efforts to obtain all applicable Governmental Authorizations, terminating and releasing all Encumbrances on the Class B Units (other than those created by this Agreement or securities Laws), and entering into any agreements and instruments and executing any certificates or other documents the Managing Member reasonably deems necessary or appropriate to consummate the Disposition of the Class B Units. The Class B Members and NEP agree to use commercially reasonable efforts to coordinate with the Transfer Agent to record the issuance of Non-Voting NEP Common Units to such Class B Members (or their nominee(s)).
(e) Notwithstanding anything to the contrary in Section 7.03(a), with respect to any and all Class B Units held by GEPIF, so long as (i) Global Energy & Power Infrastructure II Advisors, L.L.C. or any of its Affiliates Controls the Blocker Parent, (ii) the Blocker has engaged in no business activities other than its organizational activities, acquiring, accepting, owning, and holding the equity interests of GEPIF, which equity interests constitute all of the issued and outstanding equity interests of GEPIF, and activities incidental thereto, and has no material liabilities, and (iii) GEPIF has engaged in no business activities other than its organizational activities, acquiring, financing, accepting, owning, and holding the Class B Units and activities incidental thereto, and has no material liabilities, then, unless GEPIF provides written notice to NEP Member within five (5) days of receipt of the Change of Control Notice that it does not wish for NEP Member (or its permitted assignee) to purchase all of the Blocker Interests pursuant to the NEP Change of Control Option, NEP Member (or its permitted assignee) shall purchase all of the Blocker Interests rather than the outstanding Class B Units held by GEPIF, on the same terms and subject to the same conditions as set forth herein for the purchase of Class B Units pursuant to the NEP Change of Control Option, and Blocker Parent will convey all right, title, and interest in and to the Blocker Interests (and indirectly the equity interests of GEPIF, together with the Class B Units held by GEPIF), free and clear of all Encumbrances (other than restrictions on transfer created by this Agreement or applicable securities Laws), to NEP Member or its permitted assignee. Unless the Class B Member exercises the option not to have the Blocker Interests purchased as set forth in this Section 7.03(e), references elsewhere in this Section 7.03 to Class B Units or to a Class B Member selling Class B Units shall be to the Blocker Interests and Blocker Parent, respectively, and the other terms of this Section 7.03 shall apply mutatis mutandis, and the parties hereto will take all actions necessary to effect the Change of Control Closing as the purchase of the Blocker Interests rather than the purchase of the Class B Units.
Appears in 1 contract
Samples: Limited Liability Company Agreement (NextEra Energy Partners, LP)
Change of Control of NEP. (a) If, at any time, there is an announcement of a proposed Change of Control of NEP (or the entry into any agreement providing therefor), then then, commencing on the date of such announcement of a proposed Change of Control of NEP or such entry into such agreement and ending on the date that is ninety (90) calendar days after the consummation of such Change of Control of NEP, each Class B Member shall have the right (right, but not the obligation) to deliver to NEP Member at least five (5) Business Days prior to the date on which the Change of Control of NEP is to be consummated (such date, the “Change of Control Closing Date”) a notice executed by such Class B Member (the “Change of Control Notice”) of such Class B Member’s exercise of its right under this Section 7.03 to require NEP Member to acquire all or any portion of the Class B Units held by such Class B Member at a purchase price for each Class B Unit for which such election is made that results in a return to such Class B Member of at least an Internal Rate of Return on each such per Class B Unit purchased pursuant to this Section 7.03, measured from the applicable Acquisition Effective Date to the Change of Control Closing Date, of [six eight and sixtyseventy-one seven hundredths of a percent (6.618.77%)] ) (the “Change of Control Purchase Price”), upon the terms and conditions set forth in this Section 7.03 (the “NEP Change of Control Option”). NEP Member may not assign its obligation to purchase such Class B Units pursuant to this Section 7.03 to any Person other than NEP or a Subsidiary thereof.
(b) To exercise its rights pursuant to Section 7.03(a), a Class B Member shall deliver to NEP Member a written notice executed by such Class B Member of such exercise (the “Change of Control Notice”) containing (i) the date on which the acquisition of the Class B Units identified in the Change of Control Notice containing (the anticipated “Change of Control Closing”) is to be consummated (such date, the “Change of Control Closing Date”), and (ii) the number of Class B Units to be purchased, purchased and the Change of Control Purchase Price per Class B Unit. NEP Member may pay the Change of Control Purchase Price, at its option, in either cash, Non-Voting NEP Common Units (or NEP Common Units if the holder of Class B Units to be purchased requests in writing, not less than two (2) Business Days prior to the applicable Change of Control Closing Date, the issuance of NEP Common Units), or a combination of cash and Non-Voting NEP Common Units (or NEP Common Units if the holder of Class B Units to be purchased requests in writing, not less than two (2) Business Days prior to the applicable Change of Control Closing Date, the issuance of NEP Common Units); provided, however, that the Change of Control Purchase Price NEP may be paid in the form of issue a security that is substantially equivalent to the NEP Common Units in terms of rights, preferences and privileges, including with respect to economics, governance, transferability and liquidity, if, as a result of the Change of Control of NEP, NEP will cease to exist or the NEP Common Units will cease to be listed on a National Securities Exchange; provided, further, that, if no substantially equivalent security exists on the applicable Change of Control Closing Date, the Change of Control Purchase Price must be paid entirely in cash. If some or all of the Change of Control Purchase 896060.18Price consists of NEP Common Units, the Issuance Price for each such NEP Common Unit will be specified as the lesser of (i) 10-WILSR01A - MSWday VWAP of the NEP Common Units on the date of the announcement of the proposed Change of Control of NEP and (ii) the listed price of a NEP Common Unit as of the end of trading on the Trading Day that immediately precedes the Change of Control Closing Date (or, if the NEP Common Units are not then listed on a National Securities Exchange, the fair market value of a NEP Common Unit on such date, as determined in good faith by the board of directors of NEP in a commercially reasonable manner). The Change of Control Notice shall be delivered to NEP Member seven (7) Business Days in advance of the Change of Control Closing Date. If any portion of the Change of Control Purchase Price is to be paid in cash, then (i) the number of NEP Common Units to be issued at the Change of Control Closing shall be reduced (but not below zero) by a number of NEP Common Units equal to the quotient (rounded down to the nearest whole number) obtained by dividing (A) the applicable Clawback Value by (B) the Issuance Price used in the calculation of the Change of Control Purchase Price; and (ii) to the extent there is any Remaining Clawback Value, then the portion of the Change of Control Purchase Price to be paid in cash shall be reduced by an amount equal to the Remaining Clawback Value; provided, that notwithstanding anything herein to the contrary, in no event shall (x) the aggregate number of NEP Common Units so reduced at the Change Of Control Closing pursuant to the foregoing clause (i) multiplied by the applicable Issuance Price of such NEP Common Units, plus (y) the aggregate amount of cash so reduced from the portion of the Change of Control Purchase Price at the Change of Control Closing pursuant to the foregoing clause (ii), plus (z) the Aggregate Call Option Clawback Amount exceed the Clawback Cap.
(c) On the Change of Control Closing Date, (i) each Class B Member exercising the NEP Change of Control Option will convey the Class B Units identified in the applicable Change of Control Notice, free of all Encumbrances (other than those created by this Agreement or securities Laws), to NEP Member or its nominee; (ii) NEP Member or its nominee (or, if the foregoing do not pay, NEP) will pay the cash portion (subject to reduction pursuant to Section 7.03(b), as applicable), if any, of the Change of Control Purchase Price to such Class B Member (or its nominee(s)) by wire transfer of immediately available funds; and (iii) NEP shall satisfy the remaining portion, if any, of the Change of Control Purchase Price by issuing NEP Common Units, or a substantially equivalent security as determined pursuant to Section 7.03(b), to such Class B Member (subject to reduction pursuant to Section 7.03(b), as applicable) no later than three (3) Business Days after the Change of Control Closing Date, and, in connection therewith, NEP shall instruct, and shall use its commercially reasonable efforts to cause, its Transfer Agent to record the issuance of such NEP Common Units to such Class B Member (or their nominee(s)). No fractional NEP Common Units will be issued. The Members agree that the Change of Control Closing shall be subject to the receipt of all applicable Required Governmental Authorizations. In the event any such Required Governmental Authorizations shall not have been obtained by the date that is otherwise scheduled to be the Change of Control Closing Date, then such Change of Control Closing Date shall automatically be delayed until such date as all such Required Governmental Authorizations have been obtained and, for the avoidance of doubt, the Change of Control Purchase Price set forth in the Change of Control Notice shall be calculated from the Effective Date until such date of the actual Change of Control Closing.
(d) Investor hereby agrees that, in connection with the Change of Control Closing, Investor (or its Affiliates) shall use any cash portion of the Change of Control Purchase Price and all cash on hand and all Cash Equivalents of Investor to repay all of Investor’s then outstanding Indebtedness under the Credit Agreement (including any breakage costs, termination fees, or other payments that would be due or payable thereunder) and all other Indebtedness required to be repaid as a result of the exercise of such NEP Change of Control Option, in each case, pursuant to which the Class B Units being acquired pursuant to the exercise of such NEP Change of Control Option are Encumbered (other than Indebtedness incurred pursuant to a Qualifying Financing (which, for the avoidance of doubt, shall not be secured by Encumbrances on any Class B Units)). To the extent it is determined that the cash portion (if any) of the Change of Control Purchase Price (net of any deductions or withholdings required under applicable Law), and all cash on hand and all Cash Equivalents of Investor are insufficient to repay in full all Indebtedness of Investor and any other Indebtedness pursuant to which such Class B Units are Encumbered required to be repaid as a result of the exercise of such NEP Change of Control Option, plus the amounts required to be paid by Investor constituting amounts owed by Investor as termination payments and unpaid amounts under any swap, cap, forward, future, or other derivative transaction entered into in connection with the hedging of interest rates under the Credit Agreement, and minus amounts required to be paid to Investor constituting amounts owed by the counterparty under any such swap, cap, forward, future, or other derivative transaction as termination payments and unpaid amounts under any such swap, cap, forward, future, or other derivative transaction (such deficiency, a “Change of Control Cash Shortfall”), then Investor shall use reasonable best efforts to obtain Qualifying Financing in an amount required to remedy the Change of Control Cash Shortfall. The Members agree that, until the Credit Agreement Payment in Full, each Change of Control Closing shall be subject to there being no Change of Control Cash Shortfall. If it is determined that a Change of Control Cash Shortfall exists in advance of a Change of Control Closing Date, then NEP Member and Investor shall work in good faith to remedy the applicable Change of Control Cash Shortfall prior to the scheduled Change of Control Closing Date (provided that the foregoing shall not require Investor to take any actions to remedy such Change of Control Cash Shortfall other than seeking Qualifying Financing in accordance with this Section 7.03(d)). If there is a Change of Control Cash Shortfall and Investor is unable, using reasonable best efforts, to secure Qualifying Financing or otherwise remedy the Change of Control Cash Shortfall by the Change of Control Closing Date set forth in the Change of Control Notice, then the applicable Change of Control Notice shall be deemed revoked; provided, however, that, if Investor notifies NEP Member in writing that it is continuing to using reasonable best efforts to obtain Qualifying Financing to remedy the applicable Change of Control Cash Shortfall, the applicable Change of Control Closing shall automatically be delayed for an additional period of ninety (90) days; provided that (i) Investor may revoke the applicable Change of Control Notice at any time during such 90-day period prior to the consummation of the applicable Change of Control Closing and (ii) the applicable Change of Control Notice shall be deemed revoked if such Change of Control Closing shall not have occurred prior to the expiration of such period of ninety (90) days (or sooner if the Class B Member shall send a written notice of revocation to the NEP Member). If Investor is able to obtain Qualifying Financing in an amount equal to or greater than the Change of Control Cash Shortfall, then (1) Investor shall promptly deliver written notice thereof to NEP Member, (2) the Change of Control Closing shall occur as promptly thereafter as practicable, (3) the Change of Control Purchase Price shall be calculated from the Effective Date to the date on which such Change of Control Closing actually occurs, and (4) the Issuance Price of the NEP Common Units, if any, to be issued as payment (or partial payment) of the applicable Change of Control Purchase Price shall be the price set forth in the original Change of Control Notice.
(e) Following consummation of the transactions contemplated by this Section 7.03, to the extent a Class B Member has Disposed of all of its Class B Units, the Managing Member will amend this Agreement to reflect the withdrawal of such Class B Member and the transfer of such Class B Units effective as of the Change of Control Closing.
(f) Each Member agrees to cooperate fully with the Company, the Managing Member, and NEP to effect the Change of Control Closing as reasonably requested, including using its reasonable best efforts to obtain all applicable Governmental Authorizations, terminating and releasing all Encumbrances on the Class B Units (other than those created by this Agreement or securities Laws), and entering into any agreements and instruments and executing any certificates or other documents the Managing Member reasonably deems necessary or appropriate to consummate the Disposition of the Class B Units (provided that the foregoing shall not require Investor to take any actions to remedy any Change of Control Cash Shortfall other than using all cash on hand of Investor seeking additional or replacement financing in accordance with Section 7.03(d)). Investor agrees that it shall use reasonable best efforts to (i) cause the Change of Control Closing to occur as promptly as practicable, and (ii) keep NEP Member reasonably informed of developments in Investor’s efforts to obtain Qualifying Financing in connection with any Change of Control Cash Shortfall. The Class B Members and NEP agree to use commercially reasonable efforts to coordinate with the Transfer Agent to record the issuance of NEP Common Units to such Class B Members (or their nominee(s)).
Appears in 1 contract
Samples: Limited Liability Company Agreement (NextEra Energy Partners, LP)
Change of Control of NEP. (a) If, at any time, there is an announcement of a proposed Change of Control of NEP (or the entry into any agreement providing therefor), then then, commencing on the date of such announcement of a proposed Change of Control of NEP or such entry into such agreement and ending on the date that is ninety (90) calendar days after the consummation of such Change of Control of NEP, each Class B Member shall have the right (right, but not the obligation) to deliver to NEP Member at least five (5) Business Days prior to the date on which the Change of Control of NEP is to be consummated (such date, the “Change of Control Closing Date”) a notice executed by such Class B Member (the “Change of Control Notice”) of such Class B Member’s exercise of its right under this Section 7.03 to require NEP Member to acquire all or any portion of the Class B Units held by such Class B Member at a purchase price for each Class B Unit for which such election is made that is the greater of (i) a purchase price that results in a return to such Class B Member of at least an Internal Rate of Return on each such Class B Unit purchased pursuant to this Section 7.03, measured from the applicable Acquisition Effective Date to the Change of Control Closing Date, of [six nine and sixtythirty-one two hundredths of a percent (6.619.32%)] ) or (ii) an amount that, together with the aggregate amount of distributions received by such Member in respect of such Class B Units, provides a return of 140% of such Class B Member’s aggregate Capital Contributions in respect of such Class B Units, measured from the date on which any applicable Capital Contribution is made to the Company to the Change of Control Closing Date (collectively, the “Change of Control Purchase Price”), upon the terms and conditions set forth in this Section 7.03 (the “NEP Change of Control Option”). NEP Member may not assign its obligation to purchase such Class B Units pursuant to this Section 7.03 to any Person other than NEP or a subsidiary thereof.
(b) To exercise its rights pursuant to Section 7.03(a), a Class B Member shall deliver to NEP Member a written notice executed by such Class B Member of such exercise (the “Change of Control Notice”) containing (i) the date on which the acquisition of the Class B Units identified in the Change of Control Notice containing (the anticipated “Change of Control Closing”) is to be consummated (such date, the “Change of Control Closing Date”), and (ii) the number of Class B Units to be purchased, purchased and the Change of Control Purchase Price per Class B Unit. NEP Member may pay the Change of Control Purchase Price, at its option, in either cash, Non-Voting NEP Common Units (or NEP Common Units if the holder of Class B Units to be purchased requests in writing, not less than two three (23) Business Days prior to the applicable Change of Control Closing Date, the issuance of NEP Common Units), or a combination of cash and Non-Voting NEP Common Units (or NEP Common Units if the holder of Class B Units to be purchased requests in writing, not less than two three (23) Business Days prior to the applicable Change of Control Closing Date, the issuance of NEP Common Units); provided, however, that the Change of Control Purchase Price NEP may be paid in the form of issue a security that is substantially equivalent to the NEP Common Units in terms of rights, preferences and privileges, including with respect to economics, governance, transferability and liquidity, if, as a result of the Change of Control of NEP, NEP will cease to exist or the NEP Common Units will cease to be listed on a National Securities Exchange; provided, further, that, if no substantially equivalent security exists on the applicable Change of Control Closing Date, the Change of Control Purchase Price must be paid entirely in cash. If some or all of the Change of Control Purchase 896060.18Price consists of NEP Common Units or Non-WILSR01A - MSWVoting NEP Common Units, the Issuance Price for each such NEP Common Unit or Non-Voting NEP Common Unit will be specified as the 10-day VWAP of the NEP Common Units on the date of the announcement of the proposed Change of Control of NEP. The Change of Control Notice shall be delivered to NEP Member at least seven (7) Business Days and no more than ten (10) Business Days in advance of the Change of Control Closing Date.
(c) On the Change of Control Closing Date, (i) each Class B Member exercising the NEP Change of Control Option will convey the Class B Units identified in the applicable Change of Control Notice, free of all Encumbrances (other than those created by this Agreement or securities Laws), to NEP Member or its nominee; (ii) NEP Member or its nominee (or, if the foregoing do not pay, NEP) will pay the cash portion, if any, of the Change of Control Purchase Price to such Class B Member (or its nominee(s)) by wire transfer of immediately available funds; and (iii) NEP shall satisfy the remaining portion, if any, of the Change of Control Purchase Price by issuing NEP Common Units, Non-Voting NEP Common Units, or a substantially equivalent security, as determined pursuant to Section 7.03(b), to such Class B Member no later than three (3) Business Days after the Change of Control Closing Date, and, in connection therewith, NEP shall instruct, and shall use its commercially reasonable efforts to cause, its Transfer Agent to record the issuance of such NEP Common Units or Non-Voting NEP Common Units, as the case may be, to such Class B Member (or the Margin Loan Borrower as their nominee or such other nominee(s)). No fractional NEP Common Units or Non-Voting NEP Common Units, as the case may be, will be issued. The Members agree that the Change of Control Closing shall be subject to the receipt of all applicable Required Governmental Authorizations. In the event any such Required Governmental Authorizations shall not have been obtained by the date that is otherwise scheduled to be the Change of Control Closing Date, then such Change of Control Closing date shall automatically be delayed until such date as all such Required Governmental Authorizations have been obtained and, for the avoidance of doubt, the Change of Control Purchase Price set forth in the Change of Control Notice shall be calculated from the Effective Date until such date of the actual Change of Control Closing.
(d) Investor hereby agrees that, in connection with the Change of Control Closing, Investor (or its Affiliates) shall use any cash portion of the Change of Control Purchase Price and all cash on hand and all Cash Equivalents of Investor to repay all of Investor’s then outstanding Indebtedness under the Credit Agreement (including any breakage costs, termination fees, or other payments that would be due or payable thereunder) and all other Indebtedness required to be repaid as a result of the exercise of such NEP Change of Control Option, in each case, pursuant to which the Class B Units being acquired pursuant to the exercise of such NEP Change of Control are Encumbered (other than Indebtedness incurred pursuant to the Margin Loan Agreement (which, for the avoidance of doubt, shall not be secured by Encumbrances on any Class B Units)). To the extent it is determined that the cash portion (if any) of the Change of Control Purchase Price (net of any deductions or withholdings required under applicable Law), and all cash on hand and all Cash Equivalents of Investor are insufficient to repay in full all Indebtedness of Investor and any other Indebtedness pursuant to which such Class B Units are Encumbered required to be repaid as a result of the exercise of such NEP Change of Control Option, plus the amounts required to be paid by Investor constituting amounts owed by Investor as termination payments and unpaid amounts under any swap, cap, forward, future, or other derivative transaction entered into in connection with the hedging of interest rates under the Credit Agreement, and minus amounts required to be paid to Investor constituting amounts owed by the counterparty under any such swap, cap, forward, future, or other derivative transaction as termination payments and unpaid amounts under any such swap, cap, forward, future, or other derivative transaction (such deficiency, a “Change of Control Cash Shortfall”), then Investor shall use reasonable best efforts to obtain Qualifying Financing in an amount required to remedy the Change of Control Cash Shortfall. The Members agree that, until the Credit Agreement Payment In Full, each Change of Control Closing shall be subject to there being no Change of Control Cash Shortfall. If there is a Change of Control Cash Shortfall and Investor is unable, using reasonable best efforts, to secure Qualifying Financing by the Change of Control Closing Date, then the applicable Change of Control Closing shall automatically be delayed for a period of at least five (5) Business Days until such date as Investor obtains such additional or replacement financing to remedy the Change of Control Cash Shortfall or there otherwise would no longer be a Change of Control Cash Shortfall associated with the exercise of such NEP Change of Control Option. If the Change of Control Closing is delayed for more than ten (10) Business Days in connection with the preceding sentence, then NEP Member and Investor shall work in good faith to remedy the applicable Change of Control Cash Shortfall (provided that the foregoing shall not require Investor to take any actions to remedy such Change of Control Cash Shortfall other than seeking additional or replacement financing in accordance with this Section 7.03(d)). If the NEP Member and Investor are unable to remedy the applicable Change of Control Cash Shortfall within twenty (20) Business Days thereafter, then the applicable Change of Control Notice shall be deemed revoked; provided, however, that, if Investor notifies NEP Member in writing that it is continuing to using reasonable best efforts to obtain Qualifying Financing to remedy the applicable Change of Control Cash Shortfall, the applicable Change of Control Closing shall automatically be delayed for an additional period of ninety (90) days, and the applicable Change of Control Notice shall be deemed revoked if such Call Option Closing shall not have occurred prior to the expiration of such period of ninety (90) days (or sooner if the Class B Member shall send a written notice of revocation to the NEP Member). If Investor is able to obtain Qualifying Financing in an amount equal to or greater than the Change of Control Cash Shortfall, then (1) Investor shall promptly deliver written notice thereof to NEP Member, (2) the Call Option Closing shall occur as promptly thereafter as practicable, (3) the Change of Control Purchase Price shall be calculated from the Effective Date to the date on which such Change of Control Closing actually occurs, and (4) the Issuance Price of the NEP Common Units and Non-Voting NEP Common Units, if any, to be issued as payment (or partial payment) of the applicable Change of Control Purchase Price shall be the price set forth in the original Change of Control Notice.
(e) Following consummation of the transactions contemplated by this Section 7.03, to the extent a Class B Member has Disposed of all of its Class B Units, the Managing Member will amend this Agreement to reflect the withdrawal of such Class B Member and the transfer of such Class B Units effective as of the Change of Control Closing.
(f) Each Member agrees to cooperate fully with the Company, the Managing Member, and NEP to effect the Change of Control Closing as reasonably requested, including using its reasonable best efforts to obtain all applicable Governmental Authorizations, terminating and releasing all Encumbrances on the Class B Units (other than those created by this Agreement or securities Laws), and entering into any agreements and instruments and executing any certificates or other documents the Managing Member reasonably deems necessary or appropriate to consummate the Disposition of the Class B Units (provided that the foregoing shall not require Investor to take any actions to remedy any Change of Control Cash Shortfall other than using all cash on hand of Investor seeking additional or replacement financing in accordance with Section 7.03(d)). Investor agrees that it shall use reasonable best efforts to (i) cause the Change of Control Closing to occur as promptly as practicable, (ii) keep NEP Member reasonably informed of developments in Investor’s efforts to obtain Qualifying Financing, and (iii) set a Change of Control Closing Date mutually agreed upon by NEP Member. The Class B Members and NEP agree to use commercially reasonable efforts to coordinate with the Transfer Agent to record the issuance of NEP Common Units and Non-Voting NEP Common Units, as the case may be, to such Class B Members (or the Margin Loan Borrower as their nominee or such other nominee(s)).
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (NextEra Energy Partners, LP)
Change of Control of NEP. (a) If, at any time, there is an announcement of a proposed Change of Control of NEP (or the entry into any agreement providing therefor), then then, commencing on the date of such announcement of a proposed Change of Control of NEP or such entry into such agreement and ending on the date that is ninety (90) calendar days after the consummation of such Change of Control of NEP, each Class B Member shall have the right (right, but not the obligation) to deliver to NEP Member at least five (5) Business Days prior to the date on which the Change of Control of NEP is to be consummated (such date, the “Change of Control Closing Date”) a notice executed by such Class B Member (the “Change of Control Notice”) of such Class B Member’s exercise of its right under this Section 7.03 to require NEP Member to acquire all or any portion of the Class B Units held by such Class B Member at a purchase price for each Class B Unit for which such election is made that is the greater of (i) a purchase price that results in a return to such Class B Member of at least an Internal Rate of Return on each such Class B Unit purchased pursuant to this Section 7.03, measured from the applicable Acquisition Effective Date to the Change of Control Closing Date, of [six and sixty-one hundredths eleven percent (6.6111%)] ) or (ii) an amount that, together with the aggregate amount of distributions received by such Member in respect of such Class B Units, provides a return of 140% of such Class B Member’s aggregate Capital Contributions in respect of such Class B Units, measured from the date on which any applicable Capital Contribution is made to the Company to the Change of Control Closing Date (collectively, the “Change of Control Purchase Price”), upon the terms and conditions set forth in this Section 7.03 (the “NEP Change of Control Option”). NEP Member may not assign its obligation to purchase such Class B Units pursuant to this Section 7.03 to any Person other than NEP or a subsidiary thereof.
(bi) To exercise its rights pursuant to Section 7.03(a)NEP Change of Control Option, a Class B Member shall deliver to NEP Member a written notice executed by such Class B Member of such exercise (the “Change of Control Notice”) containing (i) the date on which the acquisition of the Class B Units identified in the Change of Control Notice containing (the anticipated “Change of Control 853984.15A-WILSR01A - MSW Closing”) is to be consummated (such date, the “Change of Control Closing Date”), and (ii) the number of Class B Units to be purchased, purchased and the Change of Control Purchase Price per Class B Unit. NEP Member may pay the Change of Control Purchase Price, at its option, in either cash, Non-Voting NEP Common Units (or NEP Common Units if the holder of Class B Units to be purchased requests in writing, not less than two (2) Business Days prior to the applicable Change of Control Closing Date, the issuance of NEP Common Units), or a combination of cash and Non-Voting NEP Common Units (or NEP Common Units if the holder of Class B Units to be purchased requests in writing, not less than two (2) Business Days prior to the applicable Change of Control Closing Date, the issuance of NEP Common Units); provided, however, that the Change of Control Purchase Price NEP may be paid in the form of issue a security that is substantially equivalent to the NEP Common Units in terms of rights, preferences preferences, and privileges, including with respect to economics, governance, transferability and liquidity, if, as a result of the Change of Control of NEP, NEP will cease to exist or the NEP Common Units will cease to be listed on a National Securities Exchange; provided, further, that, if no substantially equivalent security exists on the applicable Change of Control Closing Date, the Change of Control Purchase Price must be paid entirely in cash. If some or all of the Change of Control Purchase 896060.18Price consists of Non-WILSR01A - MSWVoting NEP Common Units, the Issuance Price for each such Non-Voting NEP Common Unit will be specified as the lesser of (A) the 10-day VWAP of the NEP Common Units on the date of the announcement of, or entry into an agreement with respect to, the proposed Change of Control of NEP and (B) the listed price of a NEP Common Unit as of the end of trading on the Trading Day that immediately precedes the Change of Control Closing Date (or, if the NEP Common Units are not then listed on a National Securities Exchange, the fair market value of a NEP Common Unit on such date, as determined in good faith by the board of directors of NEP in a commercially reasonable manner).
(ii) The Change of Control Notice shall be delivered to NEP Member ten (10) Business Days in advance of the Change of Control Closing Date. If the NEP Member elects to pay the Change of Control Purchase Price in Non-Voting NEP Common Units, NEP Member shall, within three (3) Business Days of the date of any such Change of Control Notice, notify the Class B Member Representative of such election. The Class B Member Representative shall, at least five (5) Business Days prior to the Change of Control Closing Date, deliver a notice to the Company and NEP Member (a “Change of Control Election Notice”) notifying the NEP Member as to whether any of the Class B Members elects to sell all or any portion of the Non-Voting NEP Common Units to be issued as payment of the Change of Control Purchase Price (“Change of Control NEP Units”) to a Third-Party Buyer within three (3) Business Days following the Change of Control Closing Date (or, in the event that NEP Common Units are no longer listed on Nasdaq or the New York Stock Exchange, within 180 days following the Change of Control Closing Date) (if applicable, the “Change of Control Units Sale Date”) and specifying the number of Change of Control NEP Units (if any) to be sold by each Class B Member (a “
Appears in 1 contract
Samples: Limited Liability Company Agreement (NextEra Energy Partners, LP)
Change of Control of NEP. (a) If, at any time, there is an announcement of a proposed Change of Control of NEP (or the entry into any agreement providing therefor), then then, commencing on the date of such announcement of a proposed transaction that would result in a Change of Control of NEP (or such entry into any agreement providing therefor) and ending on the later of (i) the date that is thirty (30) calendar days after the public announcement of such Change of Control of NEP and (ii) the date that is ten (10) Business Days prior to the publicly announced date upon which such Change of Control is expected to close, each Class B Member shall have the right (but not the obligation) to deliver to NEP Member at least five (5) Business Days prior to the date on which the Change of Control of NEP is to be consummated (such date, the “Change of Control Closing Date”) a notice executed by such Class B Member (the “Change of Control Notice”) of such Class B Member’s exercise of its right under this Section 7.03 to require NEP Member to acquire all or any portion of the Class B Units held by such Class B Member (subject to and conditioned upon the consummation of such Change of Control of NEP) at a purchase price for each Class B Unit for which such election is made that results in a return to such Class B Member of at least an Internal Rate of Return on each such Class B Unit purchased pursuant to this Section 7.03, measured from the applicable Acquisition Date to the date on which the Change of Control of NEP is consummated (such date, the “Change of Control Closing Date”), of [six seven and sixtynine hundred thirty-one hundredths thousandths percent (6.617.931%)] ) (the “Change of Control Purchase Price”), upon the terms and conditions set forth in this Section 7.03 (the “NEP Change of Control Option”).
(b) To exercise its rights pursuant to Section 7.03(a), a Class B Member shall deliver to NEP Member a Change of Control Notice containing the anticipated Change of Control Closing Date, the number of Class B Units to be purchased, and the Change of Control Purchase Price per Class B Unit. NEP Member may pay not assign its obligation to purchase the Change of Control Purchase Price, at its option, in either cash, Non-Voting NEP Common Units (or NEP Common Units if the holder of applicable Class B Units pursuant to be purchased requests this Section 7.03 to any Person other than NEP or the acquiring Person in writing, not less than two (2) Business Days prior to the applicable Change of Control Closing Date, the issuance of NEP Common Units), or a combination of cash and Non-Voting NEP Common Units (or NEP Common Units if the holder of Class B Units to be purchased requests in writing, not less than two (2) Business Days prior to the applicable Change of Control Closing Date, the issuance of NEP Common Units); provided, however, that the Change of Control Purchase Price may be paid in the form of a security that is substantially equivalent to the NEP Common Units in terms of rights, preferences and privileges, including with respect to economics, governance, transferability and liquidity, if, as a result of the Change of Control of NEP, NEP will cease to exist or the NEP Common Units will cease to be listed on a National Securities Exchange; provided, further, that, if no substantially equivalent security exists on the applicable Change any of Control Closing Date, the Change of Control Purchase Price must be paid entirely in cash. If some or all of the Change of Control Purchase 896060.18-WILSR01A - MSWtheir respective Affiliates.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Nextera Energy Partners, Lp)
Change of Control of NEP. (a) If, at any time, there is an announcement of a proposed Change of Control of NEP (or the entry into any agreement providing therefor), then then, commencing on the date of such announcement of a proposed Change of Control of NEP or such entry into such agreement and ending on the date that is ninety (90) calendar days after the consummation of such Change of Control of NEP, each Class B Member shall have the right (right, but not the obligation) to deliver to NEP Member at least five (5) Business Days prior to the date on which the Change of Control of NEP is to be consummated (such date, the “Change of Control Closing Date”) a notice executed by such Class B Member (the “Change of Control Notice”) of such Class B Member’s exercise of its right under this Section 7.03 to require NEP Member to acquire all or any portion of the Class B Units held by such Class B Member at a purchase price for each Class B Unit for which such election is made that is the greater of (i) a purchase price that results in a return to such Class B Member of at least an Internal Rate of Return on each such Class B Unit purchased pursuant to this Section 7.03, measured from the applicable Acquisition Effective Date to the Change of Control Closing Date, of [six and sixty-one hundredths eleven percent (6.6111%)] ) or (ii) an amount that, together with the aggregate amount of distributions received by such Member in respect of such Class B Units, provides a return of 140% of such Class B Member’s aggregate Capital Contributions in respect of such Class B Units, measured from the date on which any applicable Capital Contribution is made to the Company to the Change of Control Closing Date (collectively, the “Change of Control Purchase Price”), upon the terms and conditions set forth in this Section 7.03 (the “NEP Change of Control Option”). NEP Member may not assign its obligation to purchase such Class B Units pursuant to this Section 7.03 to any Person other than NEP or a subsidiary thereof.
(bi) To exercise its rights pursuant to Section 7.03(a)NEP Change of Control Option, a Class B Member shall deliver to NEP Member a written notice executed by such Class B Member of such exercise (the “Change of Control Notice”) containing (i) the date on which the acquisition of the Class B Units identified in the Change of Control Notice containing (the anticipated “Change of Control Closing”) is to be consummated (such date, the “Change of Control Closing Date”), and (ii) the number of Class B Units to be purchased, purchased and the Change of Control 853984.14-WILSR01A - MSW Purchase Price per Class B Unit. NEP Member may pay the Change of Control Purchase Price, at its option, in either cash, Non-Voting NEP Common Units (or NEP Common Units if the holder of Class B Units to be purchased requests in writing, not less than two (2) Business Days prior to the applicable Change of Control Closing Date, the issuance of NEP Common Units), or a combination of cash and Non-Voting NEP Common Units (or NEP Common Units if the holder of Class B Units to be purchased requests in writing, not less than two (2) Business Days prior to the applicable Change of Control Closing Date, the issuance of NEP Common Units); provided, however, that the Change of Control Purchase Price NEP may be paid in the form of issue a security that is substantially equivalent to the NEP Common Units in terms of rights, preferences preferences, and privileges, including with respect to economics, governance, transferability and liquidity, if, as a result of the Change of Control of NEP, NEP will cease to exist or the NEP Common Units will cease to be listed on a National Securities Exchange; provided, further, that, if no substantially equivalent security exists on the applicable Change of Control Closing Date, the Change of Control Purchase Price must be paid entirely in cash. If some or all of the Change of Control Purchase 896060.18Price consists of Non-WILSR01A - MSWVoting NEP Common Units, the Issuance Price for each such Non-Voting NEP Common Unit will be specified as the lesser of (A) the 10-day VWAP of the NEP Common Units on the date of the announcement of, or entry into an agreement with respect to, the proposed Change of Control of NEP and (B) the listed price of a NEP Common Unit as of the end of trading on the Trading Day that immediately precedes the Change of Control Closing Date (or, if the NEP Common Units are not then listed on a National Securities Exchange, the fair market value of a NEP Common Unit on such date, as determined in good faith by the board of directors of NEP in a commercially reasonable manner).
(ii) The Change of Control Notice shall be delivered to NEP Member ten (10) Business Days in advance of the Change of Control Closing Date. If the NEP Member elects to pay the Change of Control Purchase Price in Non-Voting NEP Common Units, NEP Member shall, within three (3) Business Days of the date of any such Change of Control Notice, notify the Class B Member Representative of such election. The Class B Member Representative shall, at least five (5) Business Days prior to the Change of Control Closing Date, deliver a notice to the Company and NEP Member (a “Change of Control Election Notice”) notifying the NEP Member as to whether any of the Class B Members elects to sell all or any portion of the Non-Voting NEP Common Units to be issued as payment of the Change of Control Purchase Price (“Change of Control NEP Units”) to a Third-Party Buyer within three (3) Business Days following the Change of Control Closing Date (or, in the event that NEP Common Units are no longer listed on Nasdaq or the New York Stock Exchange, within 180 days following the Change of Control Closing Date) (if applicable, the “Change of Control Units Sale Date”) and specifying the number of Change of Control NEP Units (if any) to be sold by each Class B Member (a “
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Samples: Membership Interest Purchase Agreement (NextEra Energy Partners, LP)
