Company Sale. 5.1 If a Company Sale (as defined below) occurs before the Vesting Date, Recipient shall be entitled to receive an award payout no later than the earlier of fifteen (15) days following such event or the last day on which the Performance Shares could be issued so that Recipient may participate as a shareholder in receiving proceeds from the Company Sale. The amount of the award payout under this Section 5.1 shall be the greater of (a) the sum of the TSR Target Share Amount and the ROCE Target Share Amount, or (b) the amount determined using a TSR Payout Factor and a ROCE Payout Factor each calculated as if the Performance Period ended on the last day of the Company’s most recently completed fiscal quarter prior to the date of the Company Sale. For this purpose, the TSR for the Company and each Peer Group Company for any partial fiscal year shall be determined based on the closing market prices of its stock for the twenty trading day period ending on the last day of the most recently completed fiscal quarter prior to the date of the Company Sale, before determining the Company’s TSR Percentile Rank for that partial fiscal year, and the Average TSR Percentile Rank shall be determined by averaging however many full and partial fiscal years for which a TSR Percentile Rank shall have been determined. For this purpose, the Adjusted Net Income for any partial fiscal year shall be annualized (e.g., multiplied by 4/3 if the partial period is three quarters) and the Average Adjusted Capital shall be determined based on the average of Adjusted Capital as of the last day of only those quarters that have been completed, before determining the ROCE for that partial fiscal year, and the Average ROCE shall be determined by averaging however many full and partial fiscal years for which a ROCE shall have been determined.
5.2 For purposes of this Agreement, a “Company Sale” shall mean the occurrence of any of the following events:
5.2.1 any consolidation, merger or plan of share exchange involving the Company (a “Merger”) in which the Company is not the continuing or surviving corporation or pursuant to which outstanding shares of Class A Common Stock would be converted into cash, other securities or other property; or
5.2.2 any sale, lease, exchange or other transfer (in one transaction or a series of related transactions) of all, or substantially all, the assets of the Company.
Company Sale. No Company Sale shall be consummated unless, prior to any distribution or payment being made to holders of any Junior Securities, each holder of Preference Shares shall be entitled to receive an amount per Preference Share equal to the greater of (i) the sum of (x) the Accreted Value of such Preference Share plus (y) any unpaid dividends on such Preference Share that have accrued since the last Dividend Payment Date through the date of such Company Sale or (ii) the aggregate amount of consideration payable in such Company Sale with respect to the number of Ordinary Shares into which such Preference Share is convertible immediately prior to such Company Sale (assuming the conversion of all such Preference Shares in accordance with clause 13) (the greater of subclause (i) or subclause (ii), the “Sale Payment”). The Sale Payment shall be paid in the same form of consideration and proportion (i.e., in cash and/or other consideration) paid in such Company Sale on the closing date of such Company Sale; provided, however, if such Company Sale is entered into prior to the three year anniversary of the Closing, then the consideration payable to each holder of Preference Shares shall be payable either (i) solely in cash or Liquid Securities, or (ii) solely to the extent holders of Ordinary Shares are receiving securities, other than Liquid Securities in such Company Sale, then each holder of Preference Shares shall have the option of receiving non-Liquid Securities of either the same class received by holders of Ordinary Shares or in the form of Acceptable Securities. The value of any non-cash consideration to be delivered to the holders of Preference Shares in a Company Sale shall be the fair market value of such non-cash consideration (as determined by an independent appraiser selected in good faith by the Board of Directors). Upon receipt of the full amounts provided for in this clause 12(b), the Preference Shares shall be automatically cancelled and the holders of Preference Shares shall not be entitled to any other amounts. If the assets of the Company or proceeds thereof are not sufficient to pay in full the aggregate Sale Payment payable on the Preference Shares, then such assets, or the proceeds thereof, shall be paid pro rata in accordance with the full respective amounts which would be payable on the Preference Shares if all amounts payable thereon were paid in full.
Company Sale. (a) Following the fifth (5th) anniversary of the closing under the Stock Purchase Agreement, either Initial Member (or any transferee of an Initial Member's entire fifty percent (50%) Percentage Interest in the Company) (such Person, the "Proposed Seller"), shall have the right to elect to cause the auction and sale of all, but not less than all, of the Company or its assets or outstanding Membership Units, and, if applicable, all other outstanding equity securities, options, warrants or other rights to exercise, purchase or otherwise acquire the Beneficial Ownership of, any Membership Units, of the Company in an arm's-length third party transaction for consideration consisting solely of Permitted Consideration (a "Company Sale") in accordance with the terms and conditions set forth in this Section 8.3. The Proposed Seller shall have the right to exercise its right to effectuate a Company Sale hereunder by providing written notice of such Proposed Seller's intention to effectuate such Company Sale (the "Company Sale Notice") to the Company and each other Member.
(b) The Proposed Seller shall be free for a period of one hundred eighty (180) days from the date of delivery of the Company Sale Notice to enter into a definitive purchase agreement with respect to a proposed Company Sale. The Company Sale shall be conducted pursuant to an auction process by an independent nationally recognized investment banking firm selected by the Proposed Seller (and approved by the DSC Member or AIL Member, as the case may be, which approval shall not be unreasonably withheld) in such manner and on such terms as the Proposed Seller determines, provided that all Members are entitled to receive the same price per Membership Unit, and participate in the transaction on the same terms. No Member shall have the right to participate as a bidder in the auction. The Company and all other Members shall cooperate with the investment banking firm in any Company Sale. The Board shall be kept fully informed and be given the opportunity to participate in the negotiations and discussion concerning the Company Sale process. All Members agree, and will cause their representatives on the Board, to vote in favor of any Company Sale in accordance with this Section 8.
Company Sale. For purposes of this Agreement, a “Company Sale” shall mean the sale of the Company, whether in a single transaction or in a series of related transactions that are consummated contemporaneously (or consummated pursuant to contemporaneous agreements), to one or more unaffiliated third parties on an arm’s-length basis, pursuant to which such unaffiliated third party or parties acquires (i) (whether by merger, consolidation, sale or transfer of capital stock, recapitalization, or otherwise) more than fifty percent (50%) of the Company's common stock or (ii) all or substantially all of the assets of the Company determined on a consolidated basis. [Remainder of page intentionally left blank.]
Company Sale. In the event that the Company consummates a Company Sale (as defined below) prior to the Second Tranche Closing, Intrexon shall be entitled to receive, upon the Second Tranche Closing and as the Second Tranche Shares, the securities, cash or other property that it would have received upon conversion or exchange of the Second Tranche Shares if immediately prior to the consummation of the Company Sale the Company had calculated and issued the Second Tranche Shares to Intrexon under Sections 1.1(b) and 2.2(b).
Company Sale. Unless AQM has previously elected to pay an Accelerated Bonus to the Executive in accordance with Section 6 hereof, in the event of the consummation of a sale or transfer to a third party purchaser not affiliated in any manner with AQM or its existing stockholders (the "Buyer") of either all of the outstanding Common Stock of AQM or a sale of all or substantially all of the assets of AQM whether for cash or securities of the Buyer (regardless of the form of transaction, a "Company Sale"), and only in such event, the Executive shall, subject to the conditions hereinafter set forth (including, without limitation, those set forth in Section 10), be eligible to receive a "Sale Bonus" (as hereinafter defined), with such Sale Bonus to be paid by AQM in full or in installments at such time or times and to the same extent as the Stockholders actually receive payment of the consideration with respect to their Common Stock, whether that consideration is provided directly by the Buyer to the Stockholders (in the event of a stock sale or transfer) or by the Buyer to AQM and then, by way of distribution, from AQM to the Stockholders (in the event of an asset sale or transfer).
Company Sale. If a Company Sale (as defined in this Section 4) occurs before the Vesting Date, Recipient shall be entitled to receive an award payout no later than the earlier of thirty (30) days following such event or the last day on which the Performance Shares could be issued so that Recipient may participate as a shareholder in receiving proceeds from the Company Sale. The amount of the award under this Section 4 shall be the amount determined using a Payout Factor equal to the greater of (a) 100%, or (b) the Payout Factor calculated as if the Performance Period ended on the last day of the Company’s most recently completed fiscal quarter prior to the date of the Company Sale. For this purpose, the Cash Flow and Revenue Growth target amounts and the related Cash Flow and Revenue Growth Payout Factors in the tables in Section 2.2 and 2.3 shall be adjusted by the Board of Directors, in its discretion to appropriately reflect the shorter performance period. For purposes of this Agreement, a “Company Sale” shall mean the occurrence of any of the following events:
(a) any consolidation, merger or plan of share exchange involving the Company (a “Merger”) in which the Company is not the continuing or surviving corporation or pursuant to which outstanding shares of Class A Common Stock would be converted into cash, other securities or other property; or
(b) any sale, lease, exchange or other transfer (in one transaction or a series of related transactions) of all, or substantially all, the assets of the Company.
Company Sale. (a) If a Company Sale has not occurred between the Closing Date and the seventh anniversary of the Closing Date, Xxxxx may, at any time following such seventh anniversary of the Closing Date, notify the Company in writing that they wish the Company to initiate a Company Sale Process (such notice, a “Company Sale Notice”), and the Company shall mail a copy of such notice to the other Stockholders notice to the Outside Stockholders. After receipt of a Company Sale Notice, the Board and the Company shall initiate a Company Sale Process as soon as practicable. The Board and the Company shall, consult regularly and in good faith with Xxxxx regarding the status of the Company Sale Process The Company shall use its best efforts to consummate a Company Sale by a date that is eight months subsequent to the date on which a Company Sale Notice was delivered to the Company (such subsequent date, the “Company Sale Date”).
(b) Each Company Stockholder and Outside Stockholder agrees to vote all of its shares of Capital Stock over which such Company Stockholder has voting control and shall take all other necessary or desirable actions within such Company Stockholder’s or Outside Stockholder’s control (whether in such Company Stockholder’s or Outside Stockholder’s capacity as a stockholder, director, member of a board committee or officer of the Company or otherwise, and including, without limitation, attendance at meetings in person or by proxy for purposes of obtaining a quorum, execution of written consents in lieu of meetings and approval of amendments and/or restatements of the Company’s certificate of incorporation or by-laws), and the Company shall take all necessary and desirable actions within its control (including, without limitation, calling special board, stockholder meetings and approval of amendments and/or restatements of the Company’s certificate of incorporation or by-laws) to approve a Company Sale initiated pursuant to this Section 4. Xxxxx may waive, delay or extend the obligations set forth in this Section 4 in writing or it may, by notice to the Company permit the Company to abandon a proposed Company Sale, in which case no Stockholder shall be obligated to take further action with respect to any such abandoned Company Sale.
(c) Shares of Capital Stock subject to a Company Sale will be included in the Company Sale pursuant hereto and to any agreement with the proposed purchaser relating thereto, on the same terms and subject to the same conditions ap...
Company Sale. In the event that the Company consummates a Company Sale (as defined below) prior to any one of the Subsequent Closings (as defined below), and the Channel Agreement is transferred or assigned to the buyer or assigned to the buyer in connection with such Company Sale, the Company and Intrexon agree that payments under Sections 1.2 and 1.3 of this Agreement shall be payable only in cash following the Company Sale.
Company Sale. If a Company Sale (as defined in this Section 4) occurs before the Vesting Date, Recipient shall be entitled to receive an award payout no later than the earlier of thirty (30) days following such event or the last day on which the Performance Shares could be issued so that Recipient may participate as a shareholder in receiving proceeds from the Company Sale. The amount of the award under this Section 4 shall be the amount determined using a Payout Factor equal to the greater of (a) 100%, or (b) the Payout Factor calculated as if the Performance Period ended on the last day of the Company’s most recently completed fiscal quarter prior to the date of the Company Sale. For this purpose, the Average ROIC and Revenue Growth target amounts and the related Average ROIC and Revenue Growth Payout Factors in the tables in Section 2.2 and 2.3 shall be adjusted by the Board of Directors, to appropriately reflect the shorter performance period. For purposes of this Agreement, a “Company Sale” shall mean the occurrence of any of the following events:
(a) any consolidation, merger or plan of share exchange involving the Company (a “Merger”) as a result of which the holders of outstanding Voting Securities immediately prior to the Merger do not continue to hold at least 50% of the combined voting power of the outstanding Voting Securities of the surviving corporation or a parent corporation of the surviving corporation immediately after the Merger, disregarding any Voting Securities issued to or retained by such holders in respect of securities of any other party to the Merger; or
(b) any sale, lease, exchange or other transfer (in one transaction or a series of related transactions) of all, or substantially all, the assets of the Company.
