Certificate of Selling Stockholders A certificate, dated such Date of Delivery, of an Attorney-in-Fact on behalf of each Selling Stockholder confirming that the certificate delivered at Closing Time pursuant to Section 5(f) remains true and correct as of such Date of Delivery.
No Short Selling The Investor represents and warrants to the Company that at no time prior to the date of this Agreement has any of the Investor, its agents, representatives or affiliates engaged in or effected, in any manner whatsoever, directly or indirectly, any (i) “short sale” (as such term is defined in Rule 200 of Regulation SHO of the Exchange Act) of the Common Stock or (ii) hedging transaction, which establishes a net short position with respect to the Common Stock.
Buy-Sell (a) Either MCG, on the one hand, or the Manager and the Keystone Investor (acting together), on the other hand, shall have the right and the option to implement the buy/sell procedure as set forth in this Section 10.4 if permitted to do so under Section 9.1(e). For the purposes of this Section 10.4, the Manager and Keystone Investor shall be considered one Member. (b) Any Member which intends to exercise its buy/sell option hereunder (the “Notifying Member”) shall first give notice of its intent to the other Member (the “Buy/Sell Notice”) which Buy/Sell Notice shall (1) contain a statement of irrevocable intent to utilize this Section 10.4, (2) contain a statement of the aggregate dollar amount which the Notifying Member is willing to pay in cash for all of the assets of the Company, free and clear of all liabilities and obligations relating thereto (the “Specified Valuation Amount”) as of the date of the Buy/Sell Notice, (3) disclose all material liabilities and potential material liabilities of the Company actually known to the Notifying Member and (4) disclose the terms and details of any discussion, offer, contract, similar agreement or documents that the Notifying Member has negotiated or discussed during the 180 days preceding the delivery of the Buy/Sell Notice with any potential purchaser or equity provider (but not debt financier) of or with respect to the Project (or any portion thereof). The other Member, after receiving the Buy/Sell Notice (“Receiving Member”), shall have the option to either: (A) sell its entire Membership Interest to the Notifying Member for an amount equal to the amount the Receiving Member would be entitled to receive if the Company sold all of its assets for the Specified Valuation Amount on the date of the Buy/Sell Notice and immediately thereafter the Company paid all liabilities and obligations of the Company (whether or not such liabilities and/or obligations were listed in the Buy/Sell Notice), and deducted customary closing costs (excluding brokerage fees and commissions) that would be associated with a third party sale, and, subject to Section 10.6, distributed the net proceeds and any other Company assets to each Member in liquidation of the Company pursuant to Section 11 (any disputes regarding such amounts shall be resolved by the Approved Accountants); (B) purchase the entire Membership Interest of the Notifying Member for an amount equal to the amount the Notifying Member would be entitled to receive if the Company sold all of its assets for the Specified Valuation Amount on the date of the Buy/Sell Notice and immediately thereafter the Company paid all liabilities and obligations of the Company (whether or not such liabilities and/or obligations were listed in the Buy/Sell Notice), and deducted customary closing costs that would be associated with a third party sale, and, subject to Section 10.6, distributed the net proceeds and any other Company assets to each Member in liquidation of the Company pursuant to Section 11 (any disputes regarding such amounts shall be resolved by the Approved Accountants); or (C) implement the listing procedures described in Section 10.5, in which case the additional buy/sell procedures described in the remaining provisions of this Section 10.4 shall no longer apply unless and until the buy/sell procedures are re-initiated in accordance with Sections 10.4 and 10.5. If the Receiving Member disputes the Notifying Member’s statement of the amount payable to each Member based on the Specified Valuation Amount (there shall be no right to challenge the Specified Valuation Amount itself), it shall promptly provide notice of such dispute to the Notifying Member and to the Approved Accountants, which dispute the Approved Accountants shall resolve within thirty (30) days of the Buy/Sell Notice (which resolution shall include a written report delivered to all Members specifying the calculations and assumptions underlying such resolution, and shall be binding). Any such dispute shall stay the time periods set forth in this Section 10.4(b) from the date on which notice of such dispute is given to the Notifying Member through and including the date on which the Approved Accountants provide a written report of the resolution of such dispute. (c) The Receiving Member shall give written notice (the “Election Notice”) to the Notifying Member of its election under Section 10.4(b) within thirty (30) days after receiving such Buy/Sell Notice (the “30 Day Period”). If the Receiving Member does not send its Election Notice within such 30 Day Period, such Receiving Member(s) shall be deemed conclusively to have elected to sell its entire Membership Interest. The Member obligated to purchase under this Section 10.4(c) shall fix a closing date not later than sixty (60) days following the earlier of the date of the delivery of the Election Notice and the expiration of such 30 Day Period (which period may be extended if lender approval, if required, has not been obtained by such date) and shall deposit five percent (5%) of the purchase price (the “Deposit”) in the escrow established for the closing of the sale. At such closing, the selling Member shall Transfer to the buying Member (or the buying Member’s nominee(s)) its entire Membership Interest free and clear of all liens and competing claims and shall deliver to the buying Member (or the buying Member’s nominee(s)) such instruments of transfer and such evidence of due authorization, execution, and delivery, and of the absence of any such liens or competing claims, as the buying Member (or the buying Member’s nominee(s)) shall reasonably request. If the Membership Interest of any Member is purchased pursuant to this Section 10.4(c), then, effective as of the closing for such purchase, the selling Member shall withdraw as a Member and, if applicable, Manager, of the Company. In connection with any such withdrawal of the selling Member, the buying Member may cause any nominee designated in the sole and absolute discretion of the buying Member to be admitted as a substituted Member of the Company. In addition, it shall be a condition of such sale that the purchasing Member either (i) cause the selling Member to be released from any guarantees or indemnities entered into by the selling Member in connection with the Project or other Company business pursuant to releases reasonably acceptable to the selling Member or (ii) cause a creditworthy affiliate of the purchasing Member (in the selling Member’s reasonable judgment) to indemnify and hold harmless the selling Member from and against any and all liabilities under such guarantees and indemnities occurring on or after the date of the sale pursuant to an indemnification agreement reasonably acceptable to the selling Member. Each Member shall pay its own legal, accounting and other consultant fees and expenses in connection with consummating a transaction under this Section 10.4(c), and all other closing costs shall be allocated equally between the Members. Each Member shall pay its own legal, accounting and other consultant fees and expenses in connection with consummating a transaction under this Section 10.4(c), and all other closing costs shall be allocated 50% to the selling Member and 50% to the purchasing Member. (d) The selling Member hereby irrevocably constitutes and appoints the purchasing Member as its attorney-in-fact to execute, acknowledge and deliver such instruments as may be necessary or appropriate to carry out and enforce the provisions of this Section 10.4 following the failure of the selling Member to execute, acknowledge and deliver such instruments as and when required herein, after written request to do so. If the purchasing Member defaults in the performance of its obligations under this Section 10.4, the selling Member may, as its exclusive remedy (except for the purchasing Member’s loss of rights described below), either (i) retain the Deposit as liquidated damages or (ii) acquire the purchasing Member’s Membership Interest at a ten percent (10%) discount to the price that would otherwise have been applicable to an acquisition of such Member’s Membership Interest under this Section 10.4 and with an extra sixty (60) days (from the time of default) to make such decision, and an extra sixty (60) days (from the time of such election) to close, but otherwise on the terms described in this Section 10.4. If the selling Member defaults, the purchasing Member may enforce its rights by specific performance (and damages incidental to a specific performance action which are allowed as part of such action as well as a dollar amount equal to the Deposit), as its exclusive remedy. (e) Notwithstanding anything to the contrary in this Section 10.4, the amount to be paid for the selling Member’s Membership Interest in the Company shall be adjusted as follows: There shall be determined, as of the date of the closing: (i) the aggregate amount of all Capital Contributions made by the selling Member between the date of the Buy/Sell Notice and the date of the Closing, and (ii) the aggregate amount of all distributions of capital made to the selling Member during such period pursuant to Section 7. If (A) the amount determined under (i) exceeds the amount determined under (ii), then the amount to be received by the selling Member shall be increased by the amount of such excess, and (B) if the amount determined under (ii) exceeds the amount determined under (i), then the amount to be received by the selling Member shall be decreased by the amount of such excess.
Certificate of Selling Shareholders At Closing Time, the Representatives shall have received a certificate of an Attorney-in-Fact on behalf of each Selling Shareholder, dated as of Closing Time, to the effect that (i) the representations and warranties of each Selling Shareholder contained in Section 1(b) hereof are true and correct in all respects with the same force and effect as though expressly made at and as of Closing Time and (ii) each Selling Shareholder has complied in all material respects with all agreements and all conditions on its part to be performed under this Agreement at or prior to Closing Time.
Short Selling Such Purchaser has not engaged in any Short Sales involving Common Shares owned by it between the time it first began discussions with the Company about the transaction contemplated by this Agreement and the date of execution of this Agreement.
By Selling Holders To the extent permitted by law, each selling Holder will indemnify and hold harmless the Company, each of its directors, each of its officers who have signed the registration statement, each person, if any, who controls the Company within the meaning of the Securities Act, any underwriter and any other Holder selling securities under such registration statement or any of such other Holder’s partners, directors or officers or any person who controls such Holder within the meaning of the Securities Act or the 1934 Act, against any losses, claims, damages or liabilities (joint or several) to which the Company or any such director, officer, controlling person, underwriter or other such Holder, partner or director, officer or controlling person of such other Holder may become subject under the Securities Act, the 1934 Act or other federal or state law, insofar as such losses, claims, damages or liabilities (or actions in respect thereto) arise out of or are based upon any Violation, in each case to the extent (and only to the extent) that such Violation occurs in reliance upon and in conformity with written information furnished by such Holder expressly for use in connection with such registration; and each such Holder will reimburse any legal or other expenses reasonably incurred by the Company or any such director, officer, controlling person, underwriter or other Holder, partner, officer, director or controlling person of such other Holder in connection with investigating or defending any such loss, claim, damage, liability or action: provided, however, that the indemnity agreement contained in this Section 1.6(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or action if such settlement is effected without the consent of the Holder, which consent shall not be unreasonably withheld; and provided, further, that the total amounts payable in indemnity by a Holder under this Section 1.6(b) in respect of any Violation shall not exceed the net proceeds received by such Holder in the registered offering out of which such Violation arises.
Acquisition for Investment The Purchaser is a “non-US person” as defined in Regulation S, acquiring the Shares solely for the its own account for the purpose of investment and not with a view to or for sale in connection with a distribution to anyone. 投资目的。购买人是符合规则S下定义的“非美国主体”，购买此合同下的股票仅出于其个人的投资目的，不是为了向其他人分销。
Expenses of the Selling Shareholders The Selling Shareholders, jointly and severally, will pay all expenses incident to the performance of their respective obligations under, and the consummation of the transactions contemplated by, this Agreement, including (i) any stamp and other duties and stock and other transfer taxes, if any, payable upon the sale of the Securities to the Underwriters and their transfer between the Underwriters pursuant to an agreement between such Underwriters, and (ii) the fees and disbursements of their respective counsel and other advisors.
SALE AND PURCHASE OF THE SALE SHARES 2.1 Subject to and upon the terms and conditions of this Agreement, the Vendors shall sell and the Purchaser shall purchase the Sale Shares with effect from Completion free from all Encumbrances together with all rights now or hereafter attaching thereto including but not limited to all dividends paid, declared or made in respect thereof on or after the date of Completion. 2.2 The Purchaser shall not be obliged to purchase any of the Sale Shares unless the purchase of all the Sale Shares is completed simultaneously.
Expenses of the Selling Stockholders The Selling Stockholders, jointly and severally, will pay all expenses incident to the performance of their respective obligations under, and the consummation of the transactions contemplated by, this Agreement, including (i) any stamp and other duties and stock and other transfer taxes, if any, payable upon the sale of the Securities to the Underwriters and their transfer between the Underwriters pursuant to an agreement between such Underwriters, and (ii) the fees and disbursements of their respective counsel and other advisors.
