Common use of Company Sale Clause in Contracts

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 applicable to the shares of Capital Stock which Xxxxx and its Affiliates in the Company Sale. Such terms and conditions shall include, without limitation, (i) the sale consideration (which shall be reduced by the fees and expenses incurred by Xxxxx and the Company in connection with the Company Sale) and (ii) the provision of information, representations, warranties, covenants and requisite indemnifications, provided, however, that (x) any representations and warranties relating specifically to any Stockholder shall only be made by that Stockholder; (y) any indemnification provided by the Stockholders shall be based on the number of shares of Capital Stock being sold by each Stockholder in the Company Sale either on a several, not joint, basis or solely with recourse to an escrow established for the benefit of the proposed purchaser and (z) the form of consideration to be received by Xxxxx or any of its Affiliates in connection with the Company Sale may be different from that received by the Non-Xxxxx Stockholders so long as the per share value of the consideration to be received by Xxxxx or any of its Affiliates is the same or less than that to be received by the Non-Xxxxx Stockholders (as reasonably determined by the Board in good faith). No Non-Xxxxx Stockholders shall exercise any dissenter’s rights with respect to the consummation of any such Company Sale pursuant to this Section 4. (d) Each Non-Xxxxx Stockholder agrees that he or she will execute such other agreements as Xxxxx (or any Affiliate of Xxxxx) may reasonably request in connection with the consummation of a Company Sale and the transactions contemplated thereby, including, without limitation, any purchase, merger or recapitalization agreement, escrow agreement or other ancillary agreements, proxies, written consents in lieu of meetings or waivers of appraisal rights.

Company Sale. 7.1 If, on the fifth (a5th) If a Company Sale has not occurred between the Closing Date and the seventh anniversary of the Closing Date, Xxxxx may, at date hereof or any time following such seventh succeeding anniversary of the Closing date hereof (the “Anniversary 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 if ten percent (10%) 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 Average Daily Trading Volume 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 Common 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 applicable to the shares of Capital Stock which Xxxxx and its Affiliates in the Company Sale. Such terms and conditions shall include, without limitation, is less than (i) the sale consideration (which shall be reduced by the fees and expenses incurred by Xxxxx and the Company in connection with the Company Sale) and (ii) the provision of information, representations, warranties, covenants and requisite indemnifications, provided, however, that (x) any representations and warranties relating specifically to any Stockholder shall only be made by that Stockholder; (y) any indemnification provided by the Stockholders shall be based on the number of shares of Capital Common Stock being sold Beneficially Owned by each Stockholder in Purchaser divided by (ii) 240, then Purchaser may elect to deliver to the Company a notice stating that Purchaser desires that the Company be sold (a “Notice of Sale”); provided that, the Notice of Sale either on must be given by the seventieth (70th) day following the applicable Anniversary Date. 7.2 Upon receipt of a severalNotice of Sale, not joint, basis or solely with recourse the Company shall actively take steps to an escrow established for engage a qualified investment bank reasonably acceptable to Purchaser to effect the benefit sale of the proposed purchaser Company and/or its assets (the “Sale”) and if the Company shall fail to engage such an investment bank within sixty (z60) days of the form receipt of consideration the Notice of Sale, then Purchaser may engage an independent, unaffiliated investment bank on behalf of the Company to be received by Xxxxx or any of its Affiliates in connection advise the Company and assist it to effect a Sale. The Company shall proceed with reasonable diligence to effect the Sale with the investment bank so engaged. 7.3 Subject to the terms of the Support Agreement, each Existing Shareholder shall vote to approve the Sale (including, if applicable, through the execution of one or more written consents if stockholders of the Company Sale are requested to vote through the execution of an action by written consent in lieu of any such meeting of stockholders of the Company) that may be different from required so that received by the Non-Xxxxx Stockholders so long as the per share value of the consideration to be received by Xxxxx or any of its Affiliates is the same or less than that to be received by the Non-Xxxxx Stockholders (as reasonably determined by the Board in good faith). No Non-Xxxxx Stockholders shall exercise any dissenter’s rights with respect to a stockholder vote to approve a Sale, all Voting Securities held by such Existing Shareholder are voted to approve the consummation Sale. Each Existing Stockholder further agrees not to take any other actions as a stockholder of the Company that is intended to, or is reasonably likely to, directly or indirectly, circumvent, avoid or nullify the voting arrangements required by this Section 7.3. 7.4 Subject to the terms of the Support Agreement, if any such Company Sale shall be consummated pursuant to this Section 4a tender offer for issued and outstanding shares of Common Stock of the Company, each Existing Shareholder agrees to tender its shares of Common Stock Beneficially Owned, or cause such shares to be tendered, into the tender offer. Each Existing Shareholder shall not withdraw any shares of Common Stock Beneficially Owned so tendered, or cause such shares to be withdrawn, from the tender offer at any time. (d) Each Non-Xxxxx Stockholder agrees that he or she will execute such other agreements as Xxxxx (or any Affiliate of Xxxxx) may reasonably request in connection with the consummation of a Company Sale and the transactions contemplated thereby, including, without limitation, any purchase, merger or recapitalization agreement, escrow agreement or other ancillary agreements, proxies, written consents in lieu of meetings or waivers of appraisal rights.