First Refusal. (a) If prior to October 10, 2001, either Tracinda or Seven (as appropriate in this Article IV, the "Transferring Party"), desires to sell, ------------------ transfer, assign, pledge or otherwise dispose of (a "Transfer"), directly or -------- indirectly, in whole or part, all or any portion of the shares of capital stock of the Company beneficially owned by it, the Transferring Party shall provide the other party (the "Non-Transferring Party") with a written notice (the "First ---------------------- ----- Refusal Notice") (which First Refusal Notice may be sent concurrently with the -------------- Tag-Along Notice which may be required to be sent with respect to such transaction pursuant to Section 3.2 of the Shareholders Agreement) setting forth: (i) the number and class of shares of capital stock of the Company proposed to be Transferred; (ii) that the Transferring Party has received a bona fide written offer from a prospective purchaser of said shares of capital stock of the Company; (iii) the name and address of the prospective purchaser; (iv) the material terms and conditions of such proposed transaction; and (v) that the Transferring Party is offering to Transfer such shares of capital stock of the Company to the Non-Transferring Party on the same terms and conditions as contained in the bona fide offer. The Non-Transferring Party shall have 20 calendar days following the receipt of the First Refusal Notice to respond as to whether it desires to purchase the shares of capital stock of the Company specified in the First Refusal Notice. Such 20 calendar day period shall be referred to as the "Response Period." --------------- Within the Response Period, the Non-Transferring Party shall, by notice in writing to the Transferring Party, have the opportunity and right to purchase (on the terms and conditions specified in the First Refusal Notice) the shares of capital stock of the Company specified in the First Refusal Notice. If the Non-Transferring Party shall not respond within the Response Period, then such party shall be deemed to have waived its right to purchase the shares of capital stock of the Company specified in the First Refusal Notice. If the Non- Transferring Party fails to exercise or waives its right to purchase the shares of capital stock of the Company referred to in the First Refusal Notice, then the Transferring Party shall be free, for a six-month period, to enter into a definitive agreement to Transfer such shares of capital stock of the Company to such third party on terms equivalent to or better than the terms specified in the First Refusal Notice without restriction under this Agreement; it being understood, however, that if the Transferring Party does not enter into such definitive agreement within such six-month period, or such definitive agreement is subsequently terminated, the Transferring Party shall once again be subject to all the provisions of this Section 4.1. (b) Each acceptance made hereunder shall constitute a separate and binding contract obligating the Transferring Party to sell, and the Non- Transferring Party to purchase, the shares of capital stock of the Company accepted at the price and upon the terms and conditions as set forth in the First Refusal Notice. The parties agree to negotiate in good faith to consummate the transaction as soon as possible, but in no event later than the date 30 calendar days after the appropriate Response Period has elapsed (as such period may be extended up to a maximum period of two months (unless further extension is agreed to by the Transferring Party) by any applicable waiting period required under the HSR Act or any other applicable law). At the closing, the Transferring Party shall deliver the certificate or certificates representing the shares of capital stock of the Company to be sold, duly endorsed for transfer or accompanied by duly executed stock powers, against receipt from the Non-Transferring Party of the purchase price for such shares of capital stock of the Company, in cash by wire transfer of immediately available funds or certified check, at the option of the Transferring Party, all in accordance with the terms and conditions set forth in the First Refusal Notice. Notwithstanding any provision of this Agreement to the contrary, in the event of failure by the Non-Transferring Party to close said transaction within the required time periods, the Transferring Party shall be entitled, in addition to all other available remedies, to treat such failure as a waiver under Section 4.1(a) of this Agreement by the Non-Transferring Party, entitling the Transferring Party to take the action specified in Section 4.1(a) of this Agreement pursuant to such waiver. (c) If the purchase price specified in the First Refusal Notice includes any property other than cash, the First Refusal Notice shall state how the non-cash property was valued, unless the Transferring Party and the proposed transferee expressly agree otherwise as stated in the First Refusal Notice and, the Non-Transferring Party may pay cash in an amount equal to the fair market value of any non-cash property determined in the following manner: (i) The fair market value of securities which are publicly traded shall be deemed to be the average of the daily closing prices (or, if no closing price is available, the average of the last bid and ask prices) of such securities for the five consecutive trading days immediately prior to the date of the First Refusal Notice; and (ii) The fair market value of any other property shall be determined by the good faith agreement of the parties or, if the parties are unable to agree, by an appropriate expert mutually selected by the parties. (d) The provisions of this Section 4.1 shall terminate, with respect to such capital stock of the Company, upon the transfer, in compliance with this Section 4.1, by Tracinda or Seven of such capital stock to any Person other than Tracinda or Seven or their respective Affiliates. (e) Nothing contained in the provisions of this Section 4.1 shall affect the tag-along rights of any party pursuant to Section 3.2 of the Shareholders Agreement. (f) The provisions of this Section 4.1 shall not apply to any bona fide pledge to a bank or other institutional financial lender. (g) Notwithstanding anything contained herein to the contrary, the provisions of this Section 4.1 shall not apply to, in the case of each of Tracinda and Seven, (i) the transfer of, or the grant of options for the acquisition of, up to 7,500 shares of Common Stock (such number to be appropriately adjusted in the event that the Company should effect any stock dividend, stock split, reverse stock split, or any similar transaction after the date hereof) beneficially owned by it to officers, directors, employees, consultants and affiliates so long as such transferee shall agree in writing to be bound by all the terms of this Agreement applicable to its transferor as if the transferee originally had been a party to this Agreement and (ii) the transfer and assignment of all or any portion of the capital stock of the Company beneficially owned by it to any direct or indirect wholly owned subsidiary of such entity so long as (y) such transferee shall agree in writing to be bound by all the terms of this Agreement applicable to its transferor as if the transferee originally had been a party to this Agreement and (z) the transferor agrees to cause such direct or indirect wholly owned subsidiary to continue to be a direct or indirect wholly owned subsidiary of the transferor for so long as such direct or indirect wholly owned subsidiary beneficially owns any such capital stock of the Company.
Appears in 2 contracts
Samples: Shareholder Agreement (Metro-Goldwyn-Mayer Inc), Shareholder Agreement (Metro-Goldwyn-Mayer Inc)
First Refusal. (a) If prior to October 10, 2001, either Tracinda or Seven (as appropriate in this Article IV, the "Transferring Party"), desires Grantee shall desire to sell, ------------------ transfer, assign, pledge transfer or otherwise dispose of (a "Transfer"), directly or -------- indirectly, in whole or part, all or any portion of the shares of capital stock Company Common Stock or other Option Securities acquired by it pursuant to the Option, it will give the Company written notice of the Company beneficially owned by it, the Transferring Party shall provide the other party proposed transaction (the an "Non-Transferring Party") with a written notice (the "First ---------------------- ----- Refusal Offeror's Notice") (which First Refusal ), identifying the proposed transferee, accompanied by a copy of a binding to purchase such shares of Company Common Stock, Options or other Option Securities signed by such transferee and setting forth the terms of the proposed transaction. An Offeror's Notice may will be sent concurrently with deemed an offer by the -------------- Tag-Along Notice Grantee to the Company, which may be required to be sent with respect to such transaction pursuant to Section 3.2 accepted, in whole but not in part, within ten (10) Business Days of the Shareholders Agreement) setting forth:
(i) the number and class of shares of capital stock of the Company proposed to be Transferred;
(ii) that the Transferring Party has received a bona fide written offer from a prospective purchaser of said shares of capital stock of the Company;
(iii) the name and address of the prospective purchaser;
(iv) the material terms and conditions receipt of such proposed transaction; and
(v) that the Transferring Party is offering to Transfer such shares of capital stock of the Company to the Non-Transferring Party Offeror's Notice, on the same terms and conditions as and at the same price at which the Grantee is proposing to transfer such shares of Company Common Stock, Options or other Option Securities to such transferee. The purchase of any such shares of Company Common Stock, Options or other Option Securities by the Company will be settled within ten (10) Business Days of the date of the acceptance of the offer and the purchase price will be paid to the Grantee in immediately available funds. In the event of the failure or refusal of the Company to purchase all the shares of Company Common Stock, Options or other Option Securities covered by an Offeror's Notice, the Grantee may, within sixty (60) days from the date of the Offeror's Notice, sell all, but not less than all, of such shares of Company Common Stock, Options or other Option Securities to the proposed transferee at no less than the price specified and on terms no more favorable than those set forth in the Offeror's Notice; provided, however, that the provisions of this sentence will not limit the rights the Grantee may otherwise have if the Company has accepted the offer contained in the bona fide offer. The Non-Transferring Party shall have 20 calendar days following the receipt of the First Refusal Offeror's Notice to respond as to whether it desires and wrongfully refuses to purchase the shares of capital stock of the Company specified in the First Refusal NoticeCommon Stock, Options or other Option Securities subject thereto. Such 20 calendar day period shall be referred to as the "Response Period." --------------- Within the Response Period, the Non-Transferring Party shall, by notice in writing to the Transferring Party, have the opportunity and right to purchase (on the terms and conditions specified in the First Refusal Notice) the shares of capital stock of the Company specified in the First Refusal Notice. If the Non-Transferring Party shall not respond within the Response Period, then such party shall be deemed to have waived its right to purchase the shares of capital stock of the Company specified in the First Refusal Notice. If the Non- Transferring Party fails to exercise or waives its right to purchase the shares of capital stock of the Company referred to in the First Refusal Notice, then the Transferring Party shall be free, for a six-month period, to enter into a definitive agreement to Transfer such shares of capital stock of the Company to such third party on terms equivalent to or better than the terms specified in the First Refusal Notice without restriction under this Agreement; it being understood, however, that if the Transferring Party does not enter into such definitive agreement within such six-month period, or such definitive agreement is subsequently terminated, the Transferring Party shall once again be subject to all the provisions The requirements of this Section 4.1.
24 will not apply to (ba) Each acceptance made hereunder shall constitute any disposition as a separate and binding contract obligating result of which the Transferring Party to sell, and the Non- Transferring Party to purchase, the shares of capital stock proposed transferee would own beneficially not more than 2% of the Company accepted at the price and upon the terms and conditions as set forth in the First Refusal Notice. The parties agree to negotiate in good faith to consummate the transaction as soon as possible, but in no event later than the date 30 calendar days after the appropriate Response Period has elapsed (as such period may be extended up to a maximum period of two months (unless further extension is agreed to by the Transferring Party) by any applicable waiting period required under the HSR Act or any other applicable law). At the closing, the Transferring Party shall deliver the certificate or certificates representing the shares of capital stock of the Company to be sold, duly endorsed for transfer or accompanied by duly executed stock powers, against receipt from the Non-Transferring Party of the purchase price for such shares of capital stock outstanding voting power of the Company, in cash (b) any disposition of Company Common Stock or other Option Securities by wire transfer of immediately available funds or certified check, at a Person to whom the option of Grantee has assigned its rights under the Transferring Party, all in accordance Option with the terms and conditions set forth in the First Refusal Notice. Notwithstanding any provision of this Agreement to the contrary, in the event of failure by the Non-Transferring Party to close said transaction within the required time periods, the Transferring Party shall be entitled, in addition to all other available remedies, to treat such failure as a waiver under Section 4.1(a) of this Agreement by the Non-Transferring Party, entitling the Transferring Party to take the action specified in Section 4.1(a) of this Agreement pursuant to such waiver.
(c) If the purchase price specified in the First Refusal Notice includes any property other than cash, the First Refusal Notice shall state how the non-cash property was valued, unless the Transferring Party and the proposed transferee expressly agree otherwise as stated in the First Refusal Notice and, the Non-Transferring Party may pay cash in an amount equal to the fair market value of any non-cash property determined in the following manner:
(i) The fair market value of securities which are publicly traded shall be deemed to be the average of the daily closing prices (or, if no closing price is available, the average of the last bid and ask prices) of such securities for the five consecutive trading days immediately prior to the date of the First Refusal Notice; and
(ii) The fair market value of any other property shall be determined by the good faith agreement of the parties or, if the parties are unable to agree, by an appropriate expert mutually selected by the parties.
(d) The provisions of this Section 4.1 shall terminate, with respect to such capital stock consent of the Company, upon (c) any sale by means of a public offering registered under the transfer, in compliance with this Section 4.1, by Tracinda Securities Act or Seven of such capital stock (d) any transfer to any Person other than Tracinda or Seven or their respective Affiliates.
(e) Nothing contained in the provisions of this Section 4.1 shall affect the taga wholly-along rights of any party pursuant to Section 3.2 owned Subsidiary of the Shareholders Agreement.
(f) The provisions of this Section 4.1 shall not apply to any bona fide pledge to a bank or other institutional financial lender.
(g) Notwithstanding anything contained herein to the contrary, the provisions of this Section 4.1 shall not apply to, in the case of each of Tracinda and Seven, (i) the transfer of, or the grant of options for the acquisition of, up to 7,500 shares of Common Stock (such number to be appropriately adjusted in the event that the Company should effect any stock dividend, stock split, reverse stock split, or any similar transaction after the date hereof) beneficially owned by it to officers, directors, employees, consultants and affiliates so long as such transferee shall agree Grantee which agrees in writing to be bound by all the terms of this Agreement applicable to its transferor as if the transferee originally had been a party to this Agreement and (ii) the transfer and assignment of all or any portion of the capital stock of the Company beneficially owned by it to any direct or indirect wholly owned subsidiary of such entity so long as (y) such transferee shall agree in writing to be bound by all the terms of this Agreement applicable to its transferor as if the transferee originally had been a party to this Agreement and (z) the transferor agrees to cause such direct or indirect wholly owned subsidiary to continue to be a direct or indirect wholly owned subsidiary of the transferor for so long as such direct or indirect wholly owned subsidiary beneficially owns any such capital stock of the Companyhereof.
Appears in 2 contracts
Samples: Merger Agreement (Unitrode Corp), Stock Option Agreement (Unitrode Corp)
First Refusal. (a) If prior to October 10If, 2001following the Transfer Waiver Date, either Tracinda LCE (on behalf of itself and its Permitted Transferees) or Seven Mediaplex (on behalf of itself and its Permitted Transferees) (as appropriate in this Article IVappropriate, the "Transferring PartyShareholder"), ) desires to sellTransfer, ------------------ transfer, assign, pledge or otherwise dispose of (a "Transfer"), 8 <PAGE> directly or -------- indirectly, in whole or part, all or any portion of the shares of capital stock of the Company beneficially Shares owned by itit (other than to a Permitted Transferee), the Transferring Party Shareholder shall provide the other party Shareholder (the "Non-Transferring PartyShareholder") with a written notice (the "First ---------------------- ----- Refusal Notice") (which First Refusal Notice may be sent concurrently ), with a copy to the -------------- Tag-Along Notice which may be required to be sent with respect to such transaction pursuant to Section 3.2 of the Shareholders Agreement) Company, setting forth:
: (i) the number and class of shares of capital stock of the Company proposed Shares to be Transferred;
offered; (ii) that the terms and conditions of the proposed Transfer, including the price (the "Offering Price") at which the Transferring Party has received a bona fide written offer from a prospective purchaser of said shares of capital stock of the Company;
Shareholder proposes to Transfer such Shares; and (iii) the name and address of the prospective purchaser;
(iv) the material terms proposed transferee and conditions of such proposed transaction; and
(v) a statement specifying whether that the Transferring Party transferee is offering to Transfer such shares of capital stock of the Company to the Non-Transferring Party on the same terms and conditions as contained in the bona fide offera Competitor or not. The Non-Transferring Party shall have 20 calendar days Within 30 Business Days following the receipt delivery of the First Refusal Notice to respond as to whether it desires to purchase the shares of capital stock of the Company specified in the First Refusal Notice. Such 20 calendar day period shall be referred to as the "Response Period." --------------- Within the Response Period, the Non-Transferring Party Shareholder shall, by notice in writing to the Transferring PartyShareholder (copied to the Company), have the opportunity and right to purchase 100% (but not less than 100%) of the Shares referred to in the First Refusal Notice (on the terms and conditions specified in the First Refusal Notice) Notice or on any other terms as are agreed by the shares of capital stock of the Company specified in the First Refusal Noticeparties). If the Non-Transferring Party shall not respond within the Response Period, then such party shall be deemed Shareholder fails to have waived exercise or waive its right to purchase the shares of capital stock 100% of the Company specified in the First Refusal Notice. If the Non- Transferring Party fails to exercise or waives its right to purchase the shares of capital stock of the Company Shares referred to in the First Refusal Notice, then the Transferring Party Shareholder shall be free, for a sixthree-month period, period commencing at the end of such 30-day period to enter into a definitive agreement to Transfer such shares of capital stock of the Company offered Shares to such any third party party, on terms equivalent (including, without limitation, all terms affecting price) no more favorable to or better the proposed purchaser than the terms specified in the First Refusal Notice without restriction under this Agreement; Notice, it being understood, however, that if the Transferring Party Shareholder does not enter into complete the Transfer of the Shares within one month following the end of such definitive agreement within such six-three month period, or such if the definitive agreement is subsequently terminated, the Transferring Party Shareholder shall once again be subject to all the provisions of this Section 4.17.3.
(b) Each acceptance made hereunder shall constitute a separate and separate, binding contract obligating the Transferring Party Shareholder to sell, and the Non- Non-Transferring Party Shareholder to purchase, the shares of capital stock of the Company Shares accepted at the price and upon on the terms and conditions as set forth specified in the First Refusal Noticerelevant notice (or on any other terms as the parties shall have agreed). The parties agree to negotiate in good faith to consummate the transaction as soon as possible, but in no event later than the date 30 calendar 120 days after the appropriate Response Period has elapsed (as such period may be extended up to a maximum period of two months (unless further extension is agreed to by the Transferring Party) by any applicable waiting period required under the HSR Act or any other applicable law). At the closing, the Transferring Party shall deliver the certificate or certificates representing the shares of capital stock of the Company to be sold, duly endorsed for transfer or accompanied by duly executed stock powers, against receipt from the Non-Transferring Party of the purchase price for such shares of capital stock of the Company, in cash by wire transfer of immediately available funds or certified check, at the option of the Transferring Party, all in accordance with the terms and conditions set forth in date the First Refusal NoticeNotice was given. Notwithstanding any provision of this Agreement to the contrary, in the event of failure by the Non-Transferring Party Shareholder to close said the transaction within the required such 120-day time periodsperiods referred to above, the Transferring Party Shareholder shall be entitled, in addition to all other available remedies, to treat such that failure as a waiver under Section 4.1(a7.3(a) of this Agreement by the Non-Transferring PartyShareholder of its purchase rights, entitling the Transferring Party Shareholder to take the action specified in Section 4.1(a7.3(a) of this Agreement pursuant to such that waiver.
(c) If the purchase price Offering Price specified in the First Refusal Notice includes any property other than cash, the First Refusal Notice shall state how the non-cash property was valued, unless the Transferring Party and the proposed transferee expressly agree otherwise as stated in the First Refusal Notice and, the Non-Transferring Party may pay cash in an amount equal to the fair market value of any non-cash property shall be determined in the following manner:: 9 <PAGE>
(i) The fair market value of securities which are publicly traded shall be deemed to be the average of the daily closing prices (or, if no closing price is available, the average of the last bid and ask prices) of such those securities for the five consecutive trading days immediately prior to the date of the First Refusal Notice; and
Notice (ii) The fair market value or the date of any other property shall be determined the last written proposal made by the good faith agreement of the parties or, if the parties are unable to agree, by an appropriate expert mutually selected by the parties.
(d) The provisions of this Section 4.1 shall terminate, with respect to such capital stock of the Company, upon the transfer, in compliance with this Section 4.1, by Tracinda or Seven of such capital stock to any Person other than Tracinda or Seven or their respective Affiliates.
(e) Nothing contained in the provisions of this Section 4.1 shall affect the tag-along rights of any party pursuant to Section 3.2 of the Shareholders Agreement.
(f) The provisions of this Section 4.1 shall not apply to any bona fide pledge to a bank or other institutional financial lender.
(g) Notwithstanding anything contained herein to the contrary, the provisions of this Section 4.1 shall not apply to, in the case of each of Tracinda and Seven, (i) the transfer of, or the grant of options for the acquisition of, up to 7,500 shares of Common Stock (such number to be appropriately adjusted in the event that the Company should effect any stock dividend, stock split, reverse stock split, or any similar transaction after the date hereof) beneficially owned by it to officers, directors, employees, consultants and affiliates so long as such transferee shall agree in writing to be bound by all the terms of this Agreement applicable to its transferor as if the transferee originally had been a party to this Agreement Transferring Shareholder); and (ii) the transfer and assignment of all or any portion of the capital stock of the Company beneficially owned by it to any direct or indirect wholly owned subsidiary of such entity so long as (y) such transferee shall agree in writing to be bound by all the terms of this Agreement applicable to its transferor as if the transferee originally had been a party to this Agreement and (z) the transferor agrees to cause such direct or indirect wholly owned subsidiary to continue to be a direct or indirect wholly owned subsidiary of the transferor for so long as such direct or indirect wholly owned subsidiary beneficially owns any such capital stock of the Company.
Appears in 1 contract
Samples: Joint Venture Agreement
First Refusal. (a) If prior to October 10If, 2001following the Transfer Waiver Date, either Tracinda LCE (on behalf of itself and its Permitted Transferees) or Seven Mediaplex (on behalf of itself and its Permitted Transferees) (as appropriate in this Article IVappropriate, the "Transferring PartyShareholder"), ) desires to sell, ------------------ transfer, assign, pledge or otherwise dispose of (a "Transfer"), directly or -------- indirectly, in whole or part, all or any portion of the shares of capital stock of the Company beneficially Shares owned by itit (other than to a Permitted Transferee), the Transferring Party Shareholder shall provide the other party Shareholder (the "Non-Transferring PartyShareholder") with a written notice (the "First ---------------------- ----- Refusal Notice") (which First Refusal Notice may be sent concurrently ), with a copy to the -------------- Tag-Along Notice which may be required to be sent with respect to such transaction pursuant to Section 3.2 of the Shareholders Agreement) Company, setting forth:
(i) the number and class of shares of capital stock of the Company proposed Shares to be Transferredoffered;
(ii) that the terms and conditions of the proposed Transfer, including the price (the "Offering Price") at which the Transferring Party has received a bona fide written offer from a prospective purchaser of said shares of capital stock of the Company;Shareholder proposes to Transfer such Shares; and
(iii) the name and address of the prospective purchaser;
(iv) the material terms proposed transferee and conditions of such proposed transaction; and
(v) a statement specifying whether that the Transferring Party transferee is offering to Transfer such shares of capital stock of the Company to the Non-Transferring Party on the same terms and conditions as contained in the bona fide offera Competitor or not. The Non-Transferring Party shall have 20 calendar days Within 30 Business Days following the receipt delivery of the First Refusal Notice to respond as to whether it desires to purchase the shares of capital stock of the Company specified in the First Refusal Notice. Such 20 calendar day period shall be referred to as the "Response Period." --------------- Within the Response Period, the Non-Transferring Party Shareholder shall, by notice in writing to the Transferring PartyShareholder (copied to the Company), have the opportunity and right to purchase 100% (but not less than 100%) of the Shares referred to in the First Refusal Notice (on the terms and conditions specified in the First Refusal Notice) Notice or on any other terms as are agreed by the shares of capital stock of the Company specified in the First Refusal Noticeparties). If the Non-Transferring Party shall not respond within the Response Period, then such party shall be deemed Shareholder fails to have waived exercise or waive its right to purchase the shares of capital stock 100% of the Company specified in the First Refusal Notice. If the Non- Transferring Party fails to exercise or waives its right to purchase the shares of capital stock of the Company Shares referred to in the First Refusal Notice, then the Transferring Party Shareholder shall be free, for a sixthree-month period, period commencing at the end of such 30-day period to enter into a definitive agreement to Transfer such shares of capital stock of the Company offered Shares to such any third party party, on terms equivalent (including, without limitation, all terms affecting price) no more favorable to or better the proposed purchaser than the terms specified in the First Refusal Notice without restriction under this Agreement; Notice, it being understood, however, that if the Transferring Party Shareholder does not enter into complete the Transfer of the Shares within one month following the end of such definitive agreement within such six-three month period, or such if the definitive agreement is subsequently terminated, the Transferring Party Shareholder shall once again be subject to all the provisions of this Section 4.17.3.
(b) Each acceptance made hereunder shall constitute a separate and separate, binding contract obligating the Transferring Party Shareholder to sell, and the Non- Non-Transferring Party Shareholder to purchase, the shares of capital stock of the Company Shares accepted at the price and upon on the terms and conditions as set forth specified in the First Refusal Noticerelevant notice (or on any other terms as the parties shall have agreed). The parties agree to negotiate in good faith to consummate the transaction as soon as possible, but in no event later than the date 30 calendar 120 days after the appropriate Response Period has elapsed (as such period may be extended up to a maximum period of two months (unless further extension is agreed to by the Transferring Party) by any applicable waiting period required under the HSR Act or any other applicable law). At the closing, the Transferring Party shall deliver the certificate or certificates representing the shares of capital stock of the Company to be sold, duly endorsed for transfer or accompanied by duly executed stock powers, against receipt from the Non-Transferring Party of the purchase price for such shares of capital stock of the Company, in cash by wire transfer of immediately available funds or certified check, at the option of the Transferring Party, all in accordance with the terms and conditions set forth in date the First Refusal NoticeNotice was given. Notwithstanding any provision of this Agreement to the contrary, in the event of failure by the Non-Transferring Party Shareholder to close said the transaction within the required such 120-day time periodsperiods referred to above, the Transferring Party Shareholder shall be entitled, in addition to all other available remedies, to treat such that failure as a waiver under Section 4.1(a7.3(a) of this Agreement by the Non-Transferring PartyShareholder of its purchase rights, entitling the Transferring Party Shareholder to take the action specified in Section 4.1(a7.3(a) of this Agreement pursuant to such that waiver.
(c) If the purchase price Offering Price specified in the First Refusal Notice includes any property other than cash, the First Refusal Notice shall state how the non-cash property was valued, unless the Transferring Party and the proposed transferee expressly agree otherwise as stated in the First Refusal Notice and, the Non-Transferring Party may pay cash in an amount equal to the fair market value of any non-cash property shall be determined in the following manner:
(i) The fair market value of securities which are publicly traded shall be deemed to be the average of the daily closing prices (or, if no closing price is available, the average of the last bid and ask prices) of such those securities for the five consecutive trading days immediately prior to the date of the First Refusal NoticeNotice (or the date of the last written proposal made by the Transferring Shareholder); and
(ii) The fair market value of any other property shall be determined by the good faith agreement of the parties Transferring Shareholder and the accepting Non-Transferring Shareholder or, if the such parties are unable to agree, by an appropriate expert mutually selected by such parties. If the parties.
(d) parties cannot mutually agree on an expert, each party shall select an expert, and those experts shall select an independent expert to resolve the dispute. The provisions costs and expenses of the appraisal shall be borne by the Transferring Shareholder. Notwithstanding anything to the contrary in this Section 4.1 shall terminate7.3, each Non-Transferring Shareholder may pay the Offering Price in cash, with respect to such capital stock of the Company, upon the transfer, in compliance with this Section 4.1, by Tracinda or Seven of such capital stock to any Person other than Tracinda or Seven or their respective Affiliatesnon-cash property valued as provided above.
(e) Nothing contained in the provisions of this Section 4.1 shall affect the tag-along rights of any party pursuant to Section 3.2 of the Shareholders Agreement.
(f) The provisions of this Section 4.1 shall not apply to any bona fide pledge to a bank or other institutional financial lender.
(g) Notwithstanding anything contained herein to the contrary, the provisions of this Section 4.1 shall not apply to, in the case of each of Tracinda and Seven, (i) the transfer of, or the grant of options for the acquisition of, up to 7,500 shares of Common Stock (such number to be appropriately adjusted in the event that the Company should effect any stock dividend, stock split, reverse stock split, or any similar transaction after the date hereof) beneficially owned by it to officers, directors, employees, consultants and affiliates so long as such transferee shall agree in writing to be bound by all the terms of this Agreement applicable to its transferor as if the transferee originally had been a party to this Agreement and (ii) the transfer and assignment of all or any portion of the capital stock of the Company beneficially owned by it to any direct or indirect wholly owned subsidiary of such entity so long as (y) such transferee shall agree in writing to be bound by all the terms of this Agreement applicable to its transferor as if the transferee originally had been a party to this Agreement and (z) the transferor agrees to cause such direct or indirect wholly owned subsidiary to continue to be a direct or indirect wholly owned subsidiary of the transferor for so long as such direct or indirect wholly owned subsidiary beneficially owns any such capital stock of the Company.
Appears in 1 contract
Samples: Joint Venture Agreement (Loews Cineplex Entertainment Corp)
First Refusal. (a) If prior to October 10, 2001, either Tracinda or Seven (as appropriate in this Article IV, the "Transferring Party"), desires to sell, ------------------ transfer, assign, pledge or otherwise dispose of (a "Transfer"), directly or -------- indirectly, in whole or part, all or any portion of the shares of capital stock of the Company beneficially owned by it, the Transferring Party shall provide the other party (the "Non-Transferring Party") with a written notice (the "First ---------------------- ----- Refusal Notice") (which First Refusal Notice may be sent concurrently with the -------------- Tag-Along Notice which may be required to be sent with respect to such transaction pursuant to Section 3.2 of the Shareholders Agreement) setting forth:
(i) the number and class of shares of capital stock of the Company theCompany proposed to be Transferred;
(ii) that the Transferring Party has received a bona fide written offer from a prospective purchaser of said shares of capital stock of the Company;
(iii) the name and address of the prospective purchaser;
(iv) the material terms and conditions of such proposed transaction; and
(v) that the Transferring Party is offering to Transfer such shares of capital stock of the Company to the Non-Transferring Party on the same terms and conditions as contained in the bona fide offer. The Non-Transferring Party shall have 20 calendar days following the receipt of the First Refusal Notice to respond as to whether it desires to purchase the shares of capital stock of the Company specified in the First Refusal Notice. Such 20 calendar day period shall be referred to as the "Response Period." --------------- Within the Response Period, the Non-Transferring Party shall, by notice in writing to the Transferring Party, have the opportunity and right to purchase (on the terms and conditions specified in the First Refusal Notice) the shares of capital stock of the Company specified in the First Refusal Notice. If the Non-Transferring Party shall not respond within the Response Period, then such party shall be deemed to have waived its right to purchase the shares of capital stock of the Company specified in the First Refusal Notice. If the Non- Transferring Party fails to exercise or waives its right to purchase the shares of capital stock of the Company referred to in the First Refusal Notice, then the Transferring Party shall be free, for a six-month period, to enter into a definitive agreement to Transfer such shares of capital stock of the Company to such third party on terms equivalent to or better than the terms specified in the First Refusal Notice without restriction under this Agreement; it being understood, however, that if the Transferring Party does not enter into such definitive agreement within such six-month period, or such definitive agreement is subsequently terminated, the Transferring Party shall once again be subject to all the provisions of this Section 4.1.
(b) Each acceptance made hereunder shall constitute a separate and binding contract obligating the Transferring Party to sell, and the Non- Transferring Party to purchase, the shares of capital stock of the Company accepted at the price and upon the terms and conditions as set forth in the First Refusal Notice. The parties agree to negotiate in good faith to consummate the transaction as soon as possible, but in no event later than the date 30 calendar days after the appropriate Response Period has elapsed (as such period may be extended up to a maximum period of two months (unless further extension is agreed to by the Transferring Party) by any applicable waiting period required under the HSR Act or any other applicable law). At the closing, the Transferring Party shall deliver the certificate or certificates representing the shares of capital stock of the Company to be sold, duly endorsed for transfer or accompanied by duly executed stock powers, against receipt from the Non-Transferring Party of the purchase price for such shares of capital stock of the Company, in cash by wire transfer of immediately available funds or certified check, at the option of the Transferring Party, all in accordance with the terms and conditions set forth in the First Refusal Notice. Notwithstanding any provision of this Agreement to the contrary, in the event of failure by the Non-Transferring Party to close said transaction within the required time periods, the Transferring Party shall be entitled, in addition to all other available remedies, to treat such failure as a waiver under Section 4.1(a) of this Agreement by the Non-Transferring Party, entitling the Transferring Party to take the action specified in Section 4.1(a) of this Agreement pursuant to such waiver.
(c) If the purchase price specified in the First Refusal Notice includes any property other than cash, the First Refusal Notice shall state how the non-cash property was valued, unless the Transferring Party and the proposed transferee expressly agree otherwise as stated in the First Refusal Notice and, the Non-Transferring Party may pay cash in an amount equal to the fair market value of any non-cash property determined in the following manner:
(i) The fair market value of securities which are publicly traded shall be deemed to be the average of the daily closing prices (or, if no closing price is available, the average of the last bid and ask prices) of such securities for the five consecutive trading days immediately prior to the date of the First Refusal Notice; and
(ii) The fair market value of any other property shall be determined by the good faith agreement of the parties or, if the parties are unable to agree, by an appropriate expert mutually selected by the parties.
(d) The provisions of this Section 4.1 shall terminate, with respect to such capital stock of the Company, upon the transfer, in compliance with this Section 4.1, by Tracinda or Seven of such capital stock to any Person other than Tracinda or Seven or their respective Affiliates.
(e) Nothing contained in the provisions of this Section 4.1 shall affect the tag-along rights of any party pursuant to Section 3.2 of the Shareholders Agreement.
(f) The provisions of this Section 4.1 shall not apply to any bona fide pledge to a bank or other institutional financial lender.
(g) Notwithstanding anything contained herein to the contrary, the provisions of this Section 4.1 shall not apply to, in the case of each of Tracinda and Seven, (i) the transfer of, or the grant of options for the acquisition of, up to 7,500 shares of Common Stock (such number to be appropriately adjusted in the event that the Company should effect any stock dividend, stock split, reverse stock split, or any similar transaction after the date hereof) beneficially owned by it to officers, directors, employees, consultants and affiliates so long as such transferee shall agree in writing to be bound by all the terms of this Agreement applicable to its transferor as if the transferee originally had been a party to this Agreement and (ii) the transfer and assignment of all or any portion of the capital stock of the Company beneficially owned by it to any direct or indirect wholly owned subsidiary of such entity so long as (y) such transferee shall agree in writing to be bound by all the terms of this Agreement applicable to its transferor as if the transferee originally had been a party to this Agreement and (z) the transferor agrees to cause such direct or indirect wholly owned subsidiary to continue to be a direct or indirect wholly owned subsidiary of the transferor for so long as such direct or indirect wholly owned subsidiary beneficially owns any such capital stock of the Company.
Appears in 1 contract
First Refusal. (a) If prior to October 10If, 2001following the Transfer Waiver Date, either Tracinda LTM (on behalf of itself and its Permitted Transferees) or Seven RE (for himself and on behalf of his Permitted Transferees) (as appropriate in this Article IVappropriate, the "“Transferring Party"), Member”) desires to sell, ------------------ transfer, assign, pledge or otherwise dispose of (a "Transfer"), directly or -------- indirectly, in whole or part, all or any portion of the shares of capital stock of the Company beneficially Membership Interests owned by itit (other than to a Permitted Transferee), the Transferring Party Member shall provide the other party Member (the "“Non-Transferring Party"Member”) with a written notice (the "“First ---------------------- ----- Refusal Notice") (which First Refusal Notice may be sent concurrently ”), with a copy to the -------------- Tag-Along Notice which may be required to be sent with respect to such transaction pursuant to Section 3.2 of the Shareholders Agreement) Company, setting forth:
(i) the number and class of shares of capital stock of the Company proposed Membership Interests to be Transferredoffered;
(ii) that the terms and conditions of the proposed Transfer including the price (the “Offering Price”) at which the Transferring Party has received a bona fide written offer from a prospective purchaser of said shares of capital stock of the Company;Member proposes to Transfer such Membership Interests; and
(iii) the name and address of the prospective purchaser;
(iv) the material terms proposed transferee and conditions of such proposed transaction; and
(v) a statement specifying whether that the Transferring Party transferee is offering to Transfer such shares of capital stock of the Company to the Non-Transferring Party on the same terms and conditions as contained in the bona fide offera Competitor or not. The Non-Transferring Party shall have 20 calendar Within 30 business days following the receipt delivery of the First Refusal Notice to respond as to whether it desires to purchase the shares of capital stock of the Company specified in the First Refusal Notice. Such 20 calendar day period shall be referred to as the "Response Period." --------------- Within the Response Period, the Non-Transferring Party Member shall, by notice in writing to the Transferring PartyMember (copied to the Company), have the opportunity and right to purchase 100% of the Membership Interests referred to in the First Refusal Notice (on the terms and conditions specified in the First Refusal Notice) Notice or on any other terms as are agreed by the shares of capital stock of the Company specified in the First Refusal Noticeparties). If the Non-Transferring Party shall not respond within the Response Period, then such party shall be deemed Member fails to have waived exercise or waive its right to purchase the shares of capital stock 100% of the Company specified in the First Refusal Notice. If the Non- Transferring Party fails to exercise or waives its right to purchase the shares of capital stock of the Company Membership Interests referred to in the First Refusal Notice, then the Transferring Party Member shall be free, for a sixthree-month period, period commencing at the end of such 30-day period to enter into a definitive agreement to Transfer such shares of capital stock of the Company offered Membership Interests to such any third party other than a Competitor (which shall be the subject of Section 8.3(b)), on terms equivalent (including, without limitation, all terms affecting price) no more favorable to or better the proposed purchaser than the terms specified in the First Refusal Notice without restriction under this Agreement; Notice, it being understood, however, that if the Transferring Party Member does not enter into complete the Transfer of the Membership Interests within one month following the end of such definitive agreement within such six-three month period, or such if the definitive agreement is subsequently terminated, the Transferring Party Member shall once again be subject to all the provisions of this Section 4.18.3.
(b) In the event that a proposed transferee is a Competitor, the Transferring Member shall provide the Non-Transferring Member with a written notice (a “Competitor Notice”), copied to the Company, which shall include the information required in a First Refusal Notice and shall also include an indication of whether the Competitor is prepared to purchase 100% of the outstanding equity of the Company. Within 30 business days following the delivery of the Competitor Notice, the Non-Transferring Member shall, by notice in writing to the Transferring Member (copied to the Company), have the opportunity and right (i) to purchase 100% of the Membership Interests referred to in the Competitor Notice (at 90% of the Offering Price specified in that notice) or (ii) to notify the Transferring Member that it wishes to sell to the Competitor all of the Membership Interests owned by it on terms specified in the Competitor Notice in which case, the Transferring Member shall only be entitled to sell its Membership Interests to the Competitor specified in the Competitor Notice if the Non Transferring Member’s Membership Interests are also purchased by that Competitor. If the Non-Transferring Member fails to exercise or waives its right to purchase the Membership Interests referred to in that notice or fails to exercise or waives its right to sell its membership interests to the Competitor specified in the Competitor Notice, then the Transferring Member shall be free, for a three-month period commencing at the end of such 30-day period to enter into a definitive agreement to Transfer the offered Membership Interests to the Competitor specified in the Competitor Notice on terms (including, without limitation, all terms affecting price) no more favorable to the buyer than the terms specified in that notice, it being understood, however, that if the Transferring Member does not complete the Transfer of the Membership Interests within one month following the end of such three-month period, or if the definitive agreement is subsequently terminated, the Transferring Members shall once again be subject to all the provisions of this Section 8.3.
(c) Each acceptance made hereunder shall constitute a separate and separate, binding contract obligating the Transferring Party Member to sell, and the Non- Non-Transferring Party Member to purchase, the shares of capital stock of the Company Membership Interests accepted at the price and upon on the terms and conditions as set forth specified in the First Refusal Noticerelevant notice (or on any other terms as the parties shall have agreed). The parties agree to negotiate in good faith to consummate the transaction as soon as possible, but in no event later than the date 30 calendar 120 days after the appropriate Response Period has elapsed (as such period may be extended up to a maximum period of two months (unless further extension is agreed to by the Transferring Party) by any applicable waiting period required under the HSR Act or any other applicable law). At the closing, the Transferring Party shall deliver the certificate or certificates representing the shares of capital stock of the Company to be sold, duly endorsed for transfer or accompanied by duly executed stock powers, against receipt from the Non-Transferring Party of the purchase price for such shares of capital stock of the Company, in cash by wire transfer of immediately available funds or certified check, at the option of the Transferring Party, all in accordance with the terms and conditions set forth in date the First Refusal NoticeNotice or Competitor Notice (as the case may be) was given. Notwithstanding any provision of this Agreement to the contrary, in the event of failure by the Non-Transferring Party Member to close said the transaction within the required 120-day time periodsperiods referred to above, as extended if applicable, the Transferring Party Member shall be entitled, in addition to all other available remedies, to treat such that failure as a waiver under Section 4.1(a8.3(a) of this Agreement or 8.3(b), as the case may be, by the Non-Transferring PartyMember, entitling the Transferring Party Member to take the action specified in Section 4.1(aSections 8.3(a) of this Agreement or 8.3(b), as the case may be, pursuant to such that waiver.
(cd) If the purchase price Offering Price, specified in the First Refusal Notice or the Competitor Notice as the case may be, includes any property other than cash, the First Refusal Notice shall state how the non-cash property was valued, unless the Transferring Party and the proposed transferee expressly agree otherwise as stated in the First Refusal Notice and, the Non-Transferring Party may pay cash in an amount equal to the fair market value of any non-cash property shall be determined in the following manner:
(i) The fair market value of securities which are publicly traded shall be deemed to be the average of the daily closing prices (or, if no closing price is available, the average of the last bid and ask prices) of such those securities for the five consecutive trading days immediately prior to the date of the First Refusal Notice or the Competitor Notice, as the case may be (or the date of the last written proposal made by the Transferring Member); and
(ii) The fair market value of any other property shall be determined by the good faith agreement of the parties Transferring Member and the accepting Non-Transferring Member or, if the such parties are unable to agree, by an appropriate expert mutually selected by such parties. If the parties.
(d) parties cannot mutually agree on an expert, each party shall select an expert and those experts shall select an independent expert to resolve the dispute. The provisions costs and expenses of the appraisal shall be borne by the Transferring Member. Notwithstanding anything to the contrary in this Section 4.1 shall terminate8.3, each Non-Transferring Member may pay the Offering Price in cash, with respect to such capital stock of the Company, upon the transfer, in compliance with this Section 4.1, by Tracinda or Seven of such capital stock to any Person other than Tracinda or Seven or their respective Affiliatesnon-cash property valued as provided above.
(e) Nothing contained in the provisions of this Section 4.1 shall affect the tag-along rights of any party pursuant to Section 3.2 of the Shareholders Agreement.
(f) The provisions of this Section 4.1 shall not apply to any bona fide pledge to a bank or other institutional financial lender.
(g) Notwithstanding anything contained herein to the contrary, the provisions of this Section 4.1 shall not apply to, in the case of each of Tracinda and Seven, (i) the transfer of, or the grant of options for the acquisition of, up to 7,500 shares of Common Stock (such number to be appropriately adjusted in the event that the Company should effect any stock dividend, stock split, reverse stock split, or any similar transaction after the date hereof) beneficially owned by it to officers, directors, employees, consultants and affiliates so long as such transferee shall agree in writing to be bound by all the terms of this Agreement applicable to its transferor as if the transferee originally had been a party to this Agreement and (ii) the transfer and assignment of all or any portion of the capital stock of the Company beneficially owned by it to any direct or indirect wholly owned subsidiary of such entity so long as (y) such transferee shall agree in writing to be bound by all the terms of this Agreement applicable to its transferor as if the transferee originally had been a party to this Agreement and (z) the transferor agrees to cause such direct or indirect wholly owned subsidiary to continue to be a direct or indirect wholly owned subsidiary of the transferor for so long as such direct or indirect wholly owned subsidiary beneficially owns any such capital stock of the Company.
Appears in 1 contract
First Refusal. (a) If If, at any time prior to October 10, 2001the consummation of a Qualifying Offering, either Tracinda of the undersigned or Seven any of the undersigned's affiliates or associates (as appropriate in this Article IVcollectively, the "Transferring PartySection 2 Seller")) receives from a third party, desires and wishes to sellaccept, ------------------ transfer, assign, pledge or otherwise dispose of (a "Transfer"), directly or -------- indirectly, in whole or part, all or any portion of the bona fide offer to purchase shares of capital common stock of the Company the Section 2 Seller beneficially owned by it, owns (but excluding shares acquired in open-market purchases after the Transferring Party shall provide the other party date of this letter agreement) (the "Non-Transferring PartyOffered Shares") with a written ), the Section 2 Seller shall give notice to each of you (the "First ---------------------- ----- Refusal Notice") (which First Refusal Notice may be sent concurrently with the -------------- Tag-Along Notice which may be required to be sent with respect to such transaction pursuant to Section 3.2 of the Shareholders Agreement) setting forth:
(i) stating the number and class of shares of capital stock of the Company proposed to be Transferred;
(ii) that the Transferring Party has received a bona fide written offer from a prospective purchaser of said shares of capital stock of the Company;
(iii) Offered Shares, the name and address of the prospective purchaser;
(iv) offeror and the material terms and conditions of the offer) and you shall have the option to purchase, on the same terms as those offered by the third party, all (but not fewer than all) the Offered Shares (in such proposed transaction; and
(v) proportions among you as you shall agree, or, absent an agreement, in the proportions in which each of you that wishes to purchase the Transferring Party is offering to Transfer such Offered Shares acquires beneficial ownership of shares of capital common stock of the Company under the Investment Agreement referred to above). This option shall be exercisable by notice given to the Non-Transferring Party on Section 2 Seller within 10 days after the same terms and conditions as contained in the bona fide offer. The Non-Transferring Party shall have 20 calendar days following the date of receipt of the First Refusal Notice notice to respond as to whether it desires each of you. If you do not exercise the option to purchase all the shares of capital stock Offered Shares, at any time within 60 days after the expiration of the Company specified in the First Refusal Notice. Such 20 calendar day period shall be referred to as the "Response Period." --------------- Within the Response Periodoption, the Non-Transferring Party shall, by notice in writing Section 2 Seller may transfer all (but not fewer than all) the Offered Shares to the Transferring Party, have third party offeror at the opportunity price and right to purchase (on the terms and conditions specified stated in the First Refusal Notice) offer (but, if the shares of capital stock of transfer to the Company specified in the First Refusal Notice. If the Nonthird party is not made within that 60-Transferring Party shall not respond within the Response Period, then such party shall be deemed to have waived its right to purchase the shares of capital stock of the Company specified in the First Refusal Notice. If the Non- Transferring Party fails to exercise or waives its right to purchase the shares of capital stock of the Company referred to in the First Refusal Notice, then the Transferring Party shall be free, for a six-month day period, to enter into a definitive agreement to Transfer such those shares of capital stock of the Company to such third party on terms equivalent to or better than the terms specified in the First Refusal Notice without restriction under this Agreement; it being understood, however, that if the Transferring Party does not enter into such definitive agreement within such six-month period, or such definitive agreement is subsequently terminated, the Transferring Party shall once again be subject to all the provisions of this Section 4.1.
(b) Each acceptance made hereunder section 2). Your rights under this section 2 shall constitute a separate and binding contract obligating the Transferring Party to sellbe in addition to, and the Non- Transferring Party to purchase, the shares of capital stock of the Company accepted at the price and upon the terms and conditions as set forth in the First Refusal Notice. The parties agree to negotiate in good faith to consummate the transaction as soon as possible, but in no event later than the date 30 calendar days after the appropriate Response Period has elapsed (as such period may be extended up to a maximum period of two months (unless further extension is agreed to by the Transferring Party) by any applicable waiting period required under the HSR Act or any other applicable law). At the closing, the Transferring Party shall deliver the certificate or certificates representing the shares of capital stock of the Company to be sold, duly endorsed for transfer or accompanied by duly executed stock powers, against receipt from the Non-Transferring Party of the purchase price for such shares of capital stock of the Company, in cash by wire transfer of immediately available funds or certified check, at the option of the Transferring Party, all in accordance with the terms and conditions set forth in the First Refusal Notice. Notwithstanding any provision of this Agreement to the contrary, in the event of failure by the Non-Transferring Party to close said transaction within the required time periods, the Transferring Party shall be entitled, in addition to all other available remedies, to treat such failure as a waiver under Section 4.1(a) of this Agreement by the Non-Transferring Party, entitling the Transferring Party to take the action specified in Section 4.1(a) of this Agreement pursuant to such waiver.
(c) If the purchase price specified in the First Refusal Notice includes any property other than cash, the First Refusal Notice shall state how the non-cash property was valued, unless the Transferring Party and the proposed transferee expressly agree otherwise as stated in the First Refusal Notice and, the Non-Transferring Party may pay cash in an amount equal to the fair market value of any non-cash property determined in the following manner:
(i) The fair market value of securities which are publicly traded shall be deemed to be the average of the daily closing prices (or, if no closing price is available, the average of the last bid and ask prices) of such securities for the five consecutive trading days immediately prior to the date of the First Refusal Notice; and
(ii) The fair market value of any other property shall be determined by the good faith agreement of the parties or, if the parties are unable to agree, by an appropriate expert mutually selected by the parties.
(d) The provisions of this Section 4.1 shall terminate, with respect to such capital stock of the Company, upon the transfer, in compliance with this Section 4.1, by Tracinda or Seven of such capital stock to any Person other than Tracinda or Seven or their respective Affiliates.
(e) Nothing contained in the provisions of this Section 4.1 shall affect the tag-along rights of any party pursuant to Section 3.2 of the Shareholders Agreement.
(f) The provisions of this Section 4.1 shall not apply to any bona fide pledge to a bank or other institutional financial lenderlimit, your rights under section 1.
(g) Notwithstanding anything contained herein to the contrary, the provisions of this Section 4.1 shall not apply to, in the case of each of Tracinda and Seven, (i) the transfer of, or the grant of options for the acquisition of, up to 7,500 shares of Common Stock (such number to be appropriately adjusted in the event that the Company should effect any stock dividend, stock split, reverse stock split, or any similar transaction after the date hereof) beneficially owned by it to officers, directors, employees, consultants and affiliates so long as such transferee shall agree in writing to be bound by all the terms of this Agreement applicable to its transferor as if the transferee originally had been a party to this Agreement and (ii) the transfer and assignment of all or any portion of the capital stock of the Company beneficially owned by it to any direct or indirect wholly owned subsidiary of such entity so long as (y) such transferee shall agree in writing to be bound by all the terms of this Agreement applicable to its transferor as if the transferee originally had been a party to this Agreement and (z) the transferor agrees to cause such direct or indirect wholly owned subsidiary to continue to be a direct or indirect wholly owned subsidiary of the transferor for so long as such direct or indirect wholly owned subsidiary beneficially owns any such capital stock of the Company.
Appears in 1 contract
Samples: Investment Agreement (Huff Alternative Income Fund Lp)
First Refusal. (a) If prior to October 10, 2001, either Tracinda or Seven (as appropriate in this Article IV, the "Transferring Party"), desires to sell, ------------------ transfer, assign, pledge or otherwise dispose of (a "Transfer"), directly or -------- indirectly, in whole or part, all or any portion of the shares of capital stock of the Company beneficially owned by it, the Transferring Party shall provide the other party (the "Non-Transferring Party") with a written notice (the "First ---------------------- ----- Refusal Notice") (which First Refusal Notice may be sent concurrently with the -------------- Tag-Along Notice which may be required to be sent with respect to such transaction pursuant to Section 3.2 of the Shareholders Agreement) setting forth:
(i) the number and class of shares of capital stock of the The Company proposed to be Transferred;
(ii) that shall notify the Transferring Party has received a bona fide written offer from a prospective purchaser of said shares of capital stock of the Company;
(iii) the name Stockholder and address of the prospective purchaser;
(iv) the material terms and conditions of such proposed transaction; and
(v) that the Transferring Party is offering to Transfer such shares of capital stock of the Company to the Non-Transferring Party on the same terms and conditions as contained each other Stockholder in the bona fide offer. The Non-Transferring Party shall have writing, within 20 calendar days following the after its receipt of the First Refusal Notice to respond as to Sale Notice, whether it desires to purchase any of the shares of capital stock of offered for sale in the Sale Notice (the "Offered Shares") and, if so, how many Offered -------------- Shares it desires to purchase (the "Company Notice"). Subject to -------------- subparagraph 4(b)(vii) below, the Company specified in the First Refusal Notice. Such 20 calendar day period shall be referred to as the "Response Period." --------------- Within the Response Period, the Non-Transferring Party shall, by notice in writing to the Transferring Party, have the opportunity and right to purchase (all the Offered Shares which it elects to purchase in the Company Notice, at the price and on the other terms and conditions specified (subject to subparagraph 4(b)(iii) below) set forth in the First Refusal Notice) the shares of capital stock of the Company specified in the First Refusal Sale Notice. If the Non-Transferring Party Company elects to purchase all of the Offered Shares, the Company Notice shall also set forth the time and place of the closing of such purchase (the "Closing"), which shall occur ------- not respond within more than 90 days after the Response Period, then such party Company's receipt of the Sale Notice.
(ii) Each Stockholder shall be deemed to have waived its the right to purchase its pro rata portion (based upon the number of shares of capital stock Investor Stock held by each Stockholder electing to purchase any of the Company specified in the First Refusal Notice. If the Non- Transferring Party fails to exercise or waives its right to purchase the shares of capital stock Offered Shares) of the Company referred to in the First Refusal Notice, then the Transferring Party shall be free, for a six-month period, to enter into a definitive agreement to Transfer such shares of capital stock of Offered Shares not purchased by the Company to such third party on terms equivalent to under subparagraph 4(b)(i) above or better than the terms specified in the First Refusal Notice without restriction by other Stockholders under this Agreement; it being understoodsubparagraph 4(b)(ii), however, that if the Transferring Party does not enter into such definitive agreement within such six-month period, or such definitive agreement is subsequently terminated, the Transferring Party shall once again be subject to all the provisions of this Section 4.1.
(b) Each acceptance made hereunder shall constitute a separate and binding contract obligating the Transferring Party to sell, and the Non- Transferring Party to purchase, the shares of capital stock of the Company accepted at the price and upon on the other terms and conditions as (subject to subparagraph 4(b)(iii) below) set forth in the First Refusal Sale Notice. The parties agree to negotiate , by so notifying the Company in good faith to consummate the transaction as soon as possible, but in no event later than the date 30 calendar writing 10 days after the appropriate Response Period has elapsed (as such period may be extended up to a maximum period of two months (unless further extension is agreed to by the Transferring Party) by any applicable waiting period required under the HSR Act or any other applicable law). At the closing, the Transferring Party shall deliver the certificate or certificates representing the shares of capital stock receipt of the Company Notice (each, a "Stockholder Notice"). Each ------------------ Stockholder Notice shall specify the maximum number of shares which the Stockholder sending such Stockholder Notice desires to be sold, duly endorsed for transfer or accompanied by duly executed stock powers, against receipt from the Non-Transferring Party of the purchase price for such shares of capital stock of the Company, in cash by wire transfer of immediately available funds or certified check, at the option of the Transferring Party, all in accordance with the terms and conditions set forth in the First Refusal Notice. Notwithstanding any provision of this Agreement to the contrary, in the event of failure by the Non-Transferring Party to close said transaction within the required time periods, the Transferring Party shall be entitled, in addition to all other available remedies, to treat such failure as a waiver under Section 4.1(a) of this Agreement by the Non-Transferring Party, entitling the Transferring Party to take the action specified in Section 4.1(a) of this Agreement pursuant to such waiverpurchase.
(ciii) If the purchase price specified in the First Refusal Notice includes any property other than cash, the First Refusal Notice shall state how the non-cash property was valued, unless the Transferring Party and the proposed transferee expressly agree otherwise as stated in the First Refusal Notice and, the Non-Transferring Party may pay cash in an amount equal to the fair market value of any non-cash property determined in the following manner:
(i) The fair market value of securities which are publicly traded shall be deemed to be the average of the daily closing prices (or, if no closing price is available, the average of the last bid and ask prices) of such securities for the five consecutive trading days immediately prior to the date of the First Refusal Notice; and
(ii) The fair market value of Notwithstanding any other property shall be determined by the good faith agreement of the parties orprovision hereof, if the parties are unable to agree, by an appropriate expert mutually selected by the parties.
(d) The provisions of this Section 4.1 shall terminate, with respect to such capital stock of the Company, upon the transfer, in compliance with this Section 4.1, by Tracinda or Seven of such capital stock to any Person other than Tracinda or Seven or their respective Affiliates.
(e) Nothing contained in the provisions of this Section 4.1 shall affect the tag-along rights of any party pursuant to Section 3.2 of the Shareholders Agreement.
(f) The provisions of this Section 4.1 shall not apply to any bona fide pledge to a bank or other institutional financial lender.
(g) Notwithstanding anything contained herein to the contrary, the provisions of this Section 4.1 shall not apply to, in the case of each of Tracinda and Seven, (i) the transfer of, or the grant of options for the acquisition of, up to 7,500 shares of Common Stock (such number to be appropriately adjusted in the event that the Company should effect any stock dividend, stock split, reverse stock splitsale price, or any similar transaction portion thereof, for the Offered Shares described in the Sale Notice is not payable in the form of cash or simple promissory notes issued by the prospective purchaser described therein, the Company and any Stockholders electing to purchase Offered Shares pursuant to subparagraphs 4(b)(i) or (ii) above shall be required to pay only such portion, if any, of the sale price described in the Sale Notice as consists of cash and simple promissory notes (the latter to be issued by the Company or the Stockholder purchasing such shares, as applicable), and delivery of such consideration to the Transferring Stockholder shall be payment in full for the Offered Shares.
(iv) If the Company does not elect to purchase all of the Offered Shares, it shall notify all Stockholders in writing within 35 days after the date hereofCompany's receipt of the Sale Notice whether the Company and the Stockholders have elected, in the aggregate, to purchase all of the Offered Shares (the "Second Company Notice"). ---------------------
(v) beneficially owned by it If the Company and the other Stockholders have elected pursuant to officerssubparagraph 4(b)(i) or (ii) above, directorsin the aggregate, employeesto purchase all Offered Shares, consultants and affiliates so long as such transferee the Second Company Notice shall agree in writing set forth the number of Offered Shares to be bound purchased by all the terms Company and by each Stockholder that elected to purchase Offered Shares and the time and place of this Agreement applicable the Closing, which shall occur not less than 60 nor more than 90 days after the Company's receipt of the Sale Notice.
(vi) At the Closing, the Company (if it elected to its transferor as purchase any Offered Shares) and each Stockholder electing to purchase Offered Shares (if the transferee originally had been a party Company did not elect to this Agreement purchase all Offered Shares) shall deliver to the Transferring Stockholder the cash and, if applicable, the promissory notes constituting the purchase price for the Offered Shares to be purchased by such purchaser, and the Transferring Stockholder shall deliver to the Company and/or each purchasing Stockholder the certificate(s) representing the Offered Shares being purchased by such purchaser.
(vii) If the Company and all Stockholders do not elect, in the aggregate, to purchase all Offered Shares pursuant to subparagraphs 4(b)(i) and (ii) above, all elections pursuant to subparagraphs 4(b)(i) or (ii) to purchase Offered Shares shall be null and void (which fact shall be stated in the transfer Second Company Notice), and assignment of all or any portion the Transferring Stockholder shall have the right, subject to paragraph 4(c) below, to Transfer the Offered Shares to the transferee described in the Sale Notice at the price and on the other terms described therein, within 90 days after the date of the capital stock of Sale Notice. If after such 90-day period, the Company beneficially owned by it Offered Shares which the Transferring Shareholder is entitled to any direct or indirect wholly owned subsidiary of such entity so long as (y) such transferee shall agree in writing to be bound by all the terms of this Agreement applicable to its transferor as if the transferee originally had been a party transfer pursuant to this Agreement and subparagraph (zvii) the transferor agrees have not been so transferred, they shall thereafter again be subject to cause such direct or indirect wholly owned subsidiary to continue to be a direct or indirect wholly owned subsidiary of the transferor for so long as such direct or indirect wholly owned subsidiary beneficially owns any such capital stock of the Companythis paragraph 4(b).
Appears in 1 contract
First Refusal. (a) If prior to October 10, 2001, either Tracinda or Seven (as appropriate in this Article IV, the "Transferring Party"), desires Grantee shall desire to sell, ------------------ transfer, assign, pledge transfer or otherwise dispose of (a "Transfer"), directly or -------- indirectly, in whole or part, all or any portion of the shares of capital stock Company Common Stock or other Option Securities acquired by it pursuant to the Option, it will give the Company written notice of the Company beneficially owned by it, the Transferring Party shall provide the other party proposed transaction (the an "Non-Transferring Party") with a written notice (the "First ---------------------- ----- Refusal Offeror's Notice") (which First Refusal ), identifying the proposed transferee, accompanied by a copy of a binding offer to purchase such shares of Company Common Stock, Options or other Option Securities signed by such transferee and setting forth the terms of the proposed transaction. An Offeror's Notice may will be sent concurrently with deemed an offer by the -------------- Tag-Along Notice Grantee to the Company, which may be required to be sent with respect to such transaction pursuant to Section 3.2 accepted, in whole but not in part, within ten (10) Business Days of the Shareholders Agreement) setting forth:
(i) the number and class of shares of capital stock of the Company proposed to be Transferred;
(ii) that the Transferring Party has received a bona fide written offer from a prospective purchaser of said shares of capital stock of the Company;
(iii) the name and address of the prospective purchaser;
(iv) the material terms and conditions receipt of such proposed transaction; and
(v) that the Transferring Party is offering to Transfer such shares of capital stock of the Company to the Non-Transferring Party Offeror's Notice, on the same terms and conditions as and at the same price at which the Grantee is proposing to transfer such shares of Company Common Stock, Options or other Option Securities to such transferee. The purchase of any such shares of Company Common Stock, Options or other Option Securities by the Company will be settled within ten (10) Business Days of the date of the acceptance of the offer and the purchase price will be paid to the Grantee in immediately available funds. In the event of the failure or refusal of the Company to purchase all the shares of Company Common Stock, Options or other Option Securities covered by an Offeror's Notice, the Grantee may, within sixty (60) days from the date of the Offeror's Notice, sell all, but not less than all, of such shares of Company Common Stock, Options or other Option Securities to the proposed transferee at no less than the price specified and on terms no more favorable than those set forth in the Offeror's Notice; provided, however, that the provisions of this sentence will not limit the rights the Grantee may otherwise have if the Company has accepted the offer contained in the bona fide offer. The Non-Transferring Party shall have 20 calendar days following the receipt of the First Refusal Offeror's Notice to respond as to whether it desires and wrongfully refuses to purchase the shares of capital stock of the Company specified in the First Refusal NoticeCommon Stock, Options or other Option Securities subject thereto. Such 20 calendar day period shall be referred to as the "Response Period." --------------- Within the Response Period, the Non-Transferring Party shall, by notice in writing to the Transferring Party, have the opportunity and right to purchase (on the terms and conditions specified in the First Refusal Notice) the shares of capital stock of the Company specified in the First Refusal Notice. If the Non-Transferring Party shall not respond within the Response Period, then such party shall be deemed to have waived its right to purchase the shares of capital stock of the Company specified in the First Refusal Notice. If the Non- Transferring Party fails to exercise or waives its right to purchase the shares of capital stock of the Company referred to in the First Refusal Notice, then the Transferring Party shall be free, for a six-month period, to enter into a definitive agreement to Transfer such shares of capital stock of the Company to such third party on terms equivalent to or better than the terms specified in the First Refusal Notice without restriction under this Agreement; it being understood, however, that if the Transferring Party does not enter into such definitive agreement within such six-month period, or such definitive agreement is subsequently terminated, the Transferring Party shall once again be subject to all the provisions The requirements of this Section 4.1.
24 will not apply to (ba) Each acceptance made hereunder shall constitute any disposition as a separate and binding contract obligating result of which the Transferring Party to sell, and the Non- Transferring Party to purchase, the shares of capital stock proposed transferee would own beneficially not more than 2% of the Company accepted at the price and upon the terms and conditions as set forth in the First Refusal Notice. The parties agree to negotiate in good faith to consummate the transaction as soon as possible, but in no event later than the date 30 calendar days after the appropriate Response Period has elapsed (as such period may be extended up to a maximum period of two months (unless further extension is agreed to by the Transferring Party) by any applicable waiting period required under the HSR Act or any other applicable law). At the closing, the Transferring Party shall deliver the certificate or certificates representing the shares of capital stock of the Company to be sold, duly endorsed for transfer or accompanied by duly executed stock powers, against receipt from the Non-Transferring Party of the purchase price for such shares of capital stock outstanding voting power of the Company, in cash (b) any disposition of Company Common Stock or other Option Securities by wire transfer of immediately available funds or certified check, at a Person to whom the option Grantee has assigned its rights under the Option with the consent of the Transferring Party, all in accordance with the terms and conditions set forth in the First Refusal Notice. Notwithstanding any provision of this Agreement to the contrary, in the event of failure by the Non-Transferring Party to close said transaction within the required time periods, the Transferring Party shall be entitled, in addition to all other available remedies, to treat such failure as a waiver under Section 4.1(a) of this Agreement by the Non-Transferring Party, entitling the Transferring Party to take the action specified in Section 4.1(a) of this Agreement pursuant to such waiver.
Company or (c) If the purchase price specified in the First Refusal Notice includes any property other than cash, the First Refusal Notice shall state how the non-cash property was valued, unless the Transferring Party and the proposed transferee expressly agree otherwise as stated in the First Refusal Notice and, the Non-Transferring Party may pay cash in an amount equal transfer to the fair market value of any non-cash property determined in the following manner:
(i) The fair market value of securities which are publicly traded shall be deemed to be the average a wholly owned Subsidiary of the daily closing prices (or, if no closing price is available, the average of the last bid and ask prices) of such securities for the five consecutive trading days immediately prior to the date of the First Refusal Notice; and
(ii) The fair market value of any other property shall be determined by the good faith agreement of the parties or, if the parties are unable to agree, by an appropriate expert mutually selected by the parties.
(d) The provisions of this Section 4.1 shall terminate, with respect to such capital stock of the Company, upon the transfer, in compliance with this Section 4.1, by Tracinda or Seven of such capital stock to any Person other than Tracinda or Seven or their respective Affiliates.
(e) Nothing contained in the provisions of this Section 4.1 shall affect the tag-along rights of any party pursuant to Section 3.2 of the Shareholders Agreement.
(f) The provisions of this Section 4.1 shall not apply to any bona fide pledge to a bank or other institutional financial lender.
(g) Notwithstanding anything contained herein to the contrary, the provisions of this Section 4.1 shall not apply to, in the case of each of Tracinda and Seven, (i) the transfer of, or the grant of options for the acquisition of, up to 7,500 shares of Common Stock (such number to be appropriately adjusted in the event that the Company should effect any stock dividend, stock split, reverse stock split, or any similar transaction after the date hereof) beneficially owned by it to officers, directors, employees, consultants and affiliates so long as such transferee shall agree Grantee which agrees in writing to be bound by all the terms of this Agreement applicable to its transferor as if the transferee originally had been a party to this Agreement and (ii) the transfer and assignment of all or any portion of the capital stock of the Company beneficially owned by it to any direct or indirect wholly owned subsidiary of such entity so long as (y) such transferee shall agree in writing to be bound by all the terms of this Agreement applicable to its transferor as if the transferee originally had been a party to this Agreement and (z) the transferor agrees to cause such direct or indirect wholly owned subsidiary to continue to be a direct or indirect wholly owned subsidiary of the transferor for so long as such direct or indirect wholly owned subsidiary beneficially owns any such capital stock of the Companyhereof.
Appears in 1 contract
First Refusal. (a) If At any time prior to October 10, 2001, either Tracinda or Seven (as appropriate in this Article IV, the "Transferring Party"), desires to sell, ------------------ transfer, assign, pledge or otherwise dispose closing of (a "Transfer"), directly or -------- indirectly, in whole or part, all or any portion of the shares of capital stock of the Company beneficially owned by it, the Transferring Party shall provide the other party (the "Non-Transferring Party") with a written notice (the "First ---------------------- ----- Refusal Notice") (which First Refusal Notice may be sent concurrently with the -------------- Tag-Along Notice which may be required to be sent with respect to such transaction pursuant to Section 3.2 of the Shareholders Agreement) setting forth:
(i) the number and class of shares of capital stock of the Company proposed to be Transferred;
(ii) that the Transferring Party has received a bona fide written offer from a prospective purchaser of said shares of capital stock an initial public offering of the Company;
(iii) the name and address of the prospective purchaser;
(iv) the material terms and conditions of such proposed transaction; and
(v) that the Transferring Party is offering to Transfer such shares of capital stock of the Company to the Non-Transferring Party on the same terms and conditions as contained in the bona fide offer. The Non-Transferring Party shall have 20 calendar days following the receipt of the First Refusal Notice to respond as to whether it desires to purchase the shares of capital stock of the Company specified in the First Refusal Notice. Such 20 calendar day period shall be referred to as the "Response Period." --------------- Within the Response Period's Common Stock, the Non-Transferring Party shallParticipant may sell any Unrestricted Shares, by notice other than in writing to the Transferring Partyconnection with a Sale Event, have the opportunity and right to purchase (on the terms and conditions specified in the First Refusal Notice) the shares of capital stock of the Company specified in the First Refusal Notice. If the Non-Transferring Party shall not respond within the Response Period, then such party shall be deemed to have waived its right to purchase the shares of capital stock of the Company specified in the First Refusal Notice. If the Non- Transferring Party fails to exercise or waives its right to purchase the shares of capital stock of the Company referred to in the First Refusal Notice, then the Transferring Party shall be free, for a six-month period, to enter into a definitive agreement to Transfer such shares of capital stock of the Company to such third party on terms equivalent to or better than the terms specified in the First Refusal Notice without restriction under this Agreement; it being understood, however, that if the Transferring Party does not enter into such definitive agreement within such six-month period, or such definitive agreement is subsequently terminated, the Transferring Party shall once again be subject to all only after complying with the provisions of this Section 4.15. (If a Termination Event occurs, the provisions of Section 6 shall first govern the disposition of Unrestricted Shares, and the provisions of this Article 5 are applicable to such Option Shares only if the Company fails to exercise its option under Section 6 and the time for such exercise has lapsed.) If the Participant desires to sell any Unrestricted Shares, the Participant must first obtain a bona fide all-cash, written offer from a third party to purchase such Unrestricted Shares. The Participant shall thereafter deliver to the Company a written offer to sell to the Company all of the Unrestricted Shares for which the Participant received the third party offer (the "Offered Securities") at the purchase price offered by such third party (the "Third Party Price") and upon the terms set forth in Section 7 hereof, and copies of all correspondence and of the written third party offer shall be attached to the Participant's offer to the Company.
(b) Each acceptance For a period of thirty (30) days (the "Option Period") after the Company's receipt of the Participant's offer (the "Offer") made hereunder in accordance with Section 5(a) above, the Company (or any party or parties designated by the Company) shall constitute a separate and binding contract obligating have an option to purchase all (but not less than all) of the Transferring Offered Securities for the Third Party Price by giving written notice thereof to sellthe Participant.
(c) If the Company fails to exercise its option to purchase the Offered Securities during the Option Period, as provided herein, the entire Offer shall be considered to have been rejected and the Non- Transferring Party to purchase, Participant shall have the shares of capital stock of the Company accepted at the price and upon the terms and conditions as set forth in the First Refusal Notice. The parties agree to negotiate in good faith right to consummate the transaction as soon as possiblesale of all, but in not less than all, of the Offered Securities, during the thirty (30) day period (the "Subsequent Period") following the expiration of the Option Period to the third party from whom the Participant received the referenced third-party offer at an all cash price no event later lower than the date 30 calendar days after the appropriate Response Period has elapsed (as such period may be extended up to a maximum period of two months (unless further extension is agreed to by the Transferring Party) by any applicable waiting period required under the HSR Act or any other applicable law). At the closing, the Transferring Third Party shall deliver the certificate or certificates representing the shares of capital stock of the Company to be sold, duly endorsed for transfer or accompanied by duly executed stock powers, against receipt from the Non-Transferring Party of the purchase price for such shares of capital stock of the Company, in cash by wire transfer of immediately available funds or certified check, at the option of the Transferring Party, all in accordance with Price and on the terms and conditions set forth in the First Refusal Notice. Notwithstanding any provision of this Agreement Offer; provided, however, that, if the Company delivers to the contraryParticipant a written notice, signed by the Company's Chairman, stating that, in the event opinion of failure by the Non-Transferring Party to close said transaction within the required time periodsBoard Directors, the Transferring Party shall be entitled, in addition to all other available remedies, to treat such failure as a waiver under Section 4.1(a) of this Agreement by the Non-Transferring Party, entitling the Transferring Party to take the action specified in Section 4.1(a) of this Agreement pursuant to such waiver.
(c) If the purchase price specified in the First Refusal Notice includes any property other than cash, the First Refusal Notice shall state how the non-cash property was valued, unless the Transferring Party and the proposed transferee expressly agree otherwise as stated in the First Refusal Notice and, the Non-Transferring Party may pay cash in an amount equal to the fair market value of any non-cash property determined in the following manner:
its sole discretion, (i) The fair market value of securities the party to whom the Participant proposes selling Unrestricted Option Shares has interests which are publicly traded shall be deemed materially adverse to the business interests of the Company or (ii) the Company is at risk to be required to be a reporting company under Section 12(g) the average Securities Exchange Act of 1934, as amended (the daily closing prices (or"Exchange Act"), if no closing price is available, then the average of the last bid and ask prices) of Participant shall not be entitled to sell any Unrestricted Shares to such securities for the five consecutive trading days immediately party. At or prior to the date closing of any such sale to a third party, the transferor and transferee will execute and deliver to the Company such documents as the Company reasonably requests for compliance with state and federal securities laws. If the Subsequent Period expires without the sale of the First Refusal Notice; and
(ii) The fair market value Offered Securities having been consummated, the Offered Securities may not be sold without the Participant again complying with the provisions of any other property shall be determined by the good faith agreement of the parties or, if the parties are unable to agree, by an appropriate expert mutually selected by the partiesthis Section 5.
(d) The If the Participant dies, the Participant's survivor and the Unrestricted Shares shall continue to be subject to the restrictions of this Agreement as if the survivor was the Participant, and the survivor shall not be entitled to transfer, dispose of, hypothecate, pledge or encumber any of the Unrestricted Shares (or any interest therein) except for a sale in compliance with the provisions of this Section 4.1 shall terminate, with respect to such capital stock of the Company, upon the transfer, in compliance with this 5 and Section 4.1, by Tracinda or Seven of such capital stock to any Person other than Tracinda or Seven or their respective Affiliates6 below.
(e) Nothing contained If the Participant transfers any or all of the Unrestricted Shares to a third party (a "Transferee") as allowed under this Section 5, the Transferee and Unrestricted Shares shall continue to be subject to the restrictions on transfer set forth in this Agreement as if the Transferee was the Participant, and the Transferee shall not be entitled to transfer, dispose of, hypothecate, pledge or encumber any of the Unrestricted Shares (or any interest therein) except for a sale in compliance with the provisions of this Section 4.1 shall affect the tag-along rights of any party pursuant to 5 and Section 3.2 of the Shareholders Agreement6 below.
(f) The provisions of Notwithstanding anything to the contrary contained in this Section 4.1 shall not apply to any bona fide pledge 5, the Participant may transfer Issued Shares to a bank or other institutional financial lender.
Permitted Transferee; provided that (ga) Notwithstanding anything contained any Issued Shares so transferred shall remain subject to all restrictions on transfer and rights of repurchase set forth herein to the contraryas though such transfer had not occurred, the provisions of this Section 4.1 shall not apply to, in the case of each of Tracinda and Seven, (ib) the transfer of, or the grant of options for the acquisition of, up to 7,500 shares of Common Stock (such number to be appropriately adjusted in the event that the Company should effect any stock dividend, stock split, reverse stock split, or any similar transaction after the date hereof) beneficially owned by it to officers, directors, employees, consultants and affiliates so long as such transferee shall agree in writing to be bound by all the terms of terms, conditions and restrictions set forth in this Agreement applicable as a condition precedent to its transferor as if the transferee originally had been a party to this Agreement transfer of such Issued Shares, and (iic) the Participant shall have given the Company at least fifteen (15) days prior written notice of the intended transfer and assignment of all or any portion of the capital stock of the Company beneficially owned by it shall not have notified the Participant prior to any direct or indirect wholly owned subsidiary of such entity so long as (y) such transferee shall agree in writing to be bound by all the terms of this Agreement applicable to its transferor as if intended transfer date that the transferee originally had been a party to this Agreement and (z) the transferor agrees to cause such direct or indirect wholly owned subsidiary to continue Company is at risk to be a direct or indirect wholly owned subsidiary reporting company under Section 12(g) of the transferor for so long as such direct or indirect wholly owned subsidiary beneficially owns any such capital stock of the CompanyExchange Act.
Appears in 1 contract
Samples: Non Qualified Stock Option Agreement (Broadbase Software Inc)
First Refusal. (a) If prior to October 10If, 2001following the Transfer Waiver Date, either Tracinda LTM (on behalf of itself and its Permitted Transferees) or Seven RE (for himself and on behalf of his Permitted Transferees) (as appropriate in this Article IVappropriate, the "Transferring PartyMembers"), ) desires to sell, ------------------ transfer, assign, pledge or otherwise dispose of (a "Transfer"), directly or -------- indirectly, in whole or part, all or any portion of the shares of capital stock of the Company beneficially Membership Interests owned by itit (other than to a Permitted Transferee), the Transferring Party Member shall provide the other party Member (the "Non-Transferring PartyMember") with a written notice (the "First ---------------------- ----- Refusal Notice") (which First Refusal Notice may be sent concurrently ), with a copy to the -------------- Tag-Along Notice which may be required to be sent with respect to such transaction pursuant to Section 3.2 of the Shareholders Agreement) Company, setting forth:
(i) the number and class of shares of capital stock of the Company proposed Membership Interests to be Transferredoffered;
(ii) that the terms and conditions of the proposed Transfer including the price (the "Offering Price") at which the Transferring Party has received a bona fide written offer from a prospective purchaser of said shares of capital stock of the Company;Member proposes to Transfer such Membership Interests; and
(iii) the name and address of the prospective purchaser;
(iv) the material terms proposed transferee and conditions of such proposed transaction; and
(v) a statement specifying whether that the Transferring Party transferee is offering to Transfer such shares of capital stock of the Company to the Non-Transferring Party on the same terms and conditions as contained in the bona fide offera Competitor or not. The Non-Transferring Party shall have 20 calendar Within 30 business days following the receipt delivery of the First Refusal Notice to respond as to whether it desires to purchase the shares of capital stock of the Company specified in the First Refusal Notice. Such 20 calendar day period shall be referred to as the "Response Period." --------------- Within the Response Period, the Non-Transferring Party Member shall, by notice in writing to the Transferring PartyMember (copied to the Company), have the opportunity and right to purchase 100% of the Membership Interests referred to in the First Refusal Notice (on the terms and conditions specified in the First Refusal Notice) Notice or on any other terms as are agreed by the shares of capital stock of the Company specified in the First Refusal Noticeparties). If the Non-Transferring Party shall not respond within the Response Period, then such party shall be deemed Member fails to have waived exercise or waive its right to purchase the shares of capital stock 100% of the Company specified in the First Refusal Notice. If the Non- Transferring Party fails to exercise or waives its right to purchase the shares of capital stock of the Company Membership Interests referred to in the First Refusal Notice, then the Transferring Party Member shall be free, for a sixthree-month period, period commencing at the end of such 30-day period to enter into a definitive agreement to Transfer such shares of capital stock of the Company offered Membership Interests to such any third party other than a Competitor (which shall be the subject of Section 8.3(b)), on terms equivalent (including, without limitation, all terms affecting price) no more favorable to or better the proposed purchaser than the terms specified in the First Refusal Notice without restriction under this Agreement; Notice, it being understood, however, that if the Transferring Party Member does not enter into complete the Transfer of the Membership Interests within one month following the end of such definitive agreement within such six-three month period, or such if the definitive agreement is subsequently terminated, the Transferring Party Member shall once again be subject to all the provisions of this Section 4.18.3.
(b) In the event that a proposed transferee is a Competitor, the Transferring Member shall provide the Non-Transferring Member with a written notice (a "Competitor Notice"), copied to the Company, which shall include the information required in a First Refusal Notice and shall also include an indication of whether the Competitor is prepared to purchase 100% of the outstanding equity of the Company. Within 30 business days following the delivery of the Competitor Notice, the Non-Transferring Member shall, by notice in writing to the Transferring Member (copied to the Company), have the opportunity and right (i) to purchase 100% of the Membership Interests referred to in the Competitor Notice (at 90% of the Offering Price specified in that notice) or (ii) to notify the Transferring Member that it wishes to sell to the Competitor all of the Membership Interests owned by it on terms specified in the Competitor Notice in which case, the Transferring Member shall only be entitled to sell its Membership Interests to the Competitor specified in the Competitor Notice if the Non-Transferring Member's Membership Interests are also purchased by that Competitor. If the Non-Transferring Member fails to exercise or waives its right to purchase the Membership Interests referred to in that notice or fails to exercise or waives its right to sell its membership interests to the Competitor specified in the Competitor Notice, then the Transferring Member shall be free, for a three-month period commencing at the end of such 30-day period to enter into a definitive agreement to Transfer the offered Membership Interests to the Competitor specified in the Competitor Notice on terms (including, without limitation, all terms affecting price) no more favorable to the buyer than the terms specified in that notice, it being understood, however, that if the Transferring Member does not complete the Transfer of the Membership Interests within one month following the end of such three-month period, or if the definitive agreement is subsequently terminated, the Transferring Members shall once again be subject to all the provisions of this Section 8.3.
(c) Each acceptance made hereunder shall constitute a separate and separate, binding contract obligating the Transferring Party Member to sell, and the Non- Non-Transferring Party Member to purchase, the shares of capital stock of the Company Membership Interests accepted at the price and upon on the terms and conditions as set forth specified in the First Refusal Noticerelevant notice (or on any other terms as the parties shall have agreed). The parties agree to negotiate in good faith to consummate the transaction as soon as possible, but in no event later than the date 30 calendar 120 days after the appropriate Response Period has elapsed (as such period may be extended up to a maximum period of two months (unless further extension is agreed to by the Transferring Party) by any applicable waiting period required under the HSR Act or any other applicable law). At the closing, the Transferring Party shall deliver the certificate or certificates representing the shares of capital stock of the Company to be sold, duly endorsed for transfer or accompanied by duly executed stock powers, against receipt from the Non-Transferring Party of the purchase price for such shares of capital stock of the Company, in cash by wire transfer of immediately available funds or certified check, at the option of the Transferring Party, all in accordance with the terms and conditions set forth in date the First Refusal NoticeNotice or Competitor Notice (as the case may be) was given. Notwithstanding any provision of this Agreement to the contrary, in the event of failure by the Non-Transferring Party Member to close said the transaction within the required 120-day time periodsperiods referred to above, as extended if applicable, the Transferring Party Member shall be entitled, in addition to all other available remedies, to treat such that failure as a waiver under Section 4.1(a8.3(a) of this Agreement or 8.3(b), as the case may be, by the Non-Transferring PartyMember, entitling the Transferring Party Member to take the action specified in Section 4.1(aSections 8.3(a) of this Agreement or 8.3(b), as the case may be, pursuant to such that waiver.
(cd) If the purchase price Offering Price specified in the First Refusal Notice or the Competitor Notice as the case may be, includes any property other than cash, the First Refusal Notice shall state how the non-cash property was valued, unless the Transferring Party and the proposed transferee expressly agree otherwise as stated in the First Refusal Notice and, the Non-Transferring Party may pay cash in an amount equal to the fair market value of any non-non- cash property shall be determined in the following manner:
(i) The fair market value of securities which are publicly traded shall be deemed to be the average of the daily closing prices (or, if no closing price is available, the average of the last bid and ask prices) of such those securities for the five consecutive trading days immediately prior to the date of the First Refusal Notice or the Competitor Notice, as the case may be (or the date of the last written proposal made by the Transferring Member); and
(ii) The fair market value of any other property shall be determined by the good faith agreement of the parties Transferring Member and the accepting Non-Transferring Member or, if the such parties are unable to agree, by an appropriate expert mutually selected by such parties. If the parties.
(d) parties cannot mutually agree on an expert, each party shall select an expert and those experts shall select an independent expert to resolve the dispute. The provisions costs and expenses of the appraisal shall be borne by the Transferring Member. Notwithstanding anything to the contrary in this Section 4.1 shall terminate8.3, each Non-Transferring Member may pay the Offering Price in cash, with respect to such capital stock of the Company, upon the transfer, in compliance with this Section 4.1, by Tracinda or Seven of such capital stock to any Person other than Tracinda or Seven or their respective Affiliatesnon-cash property valued as provided above.
(e) Nothing contained in the provisions of this Section 4.1 shall affect the tag-along rights of any party pursuant to Section 3.2 of the Shareholders Agreement.
(f) The provisions of this Section 4.1 shall not apply to any bona fide pledge to a bank or other institutional financial lender.
(g) Notwithstanding anything contained herein to the contrary, the provisions of this Section 4.1 shall not apply to, in the case of each of Tracinda and Seven, (i) the transfer of, or the grant of options for the acquisition of, up to 7,500 shares of Common Stock (such number to be appropriately adjusted in the event that the Company should effect any stock dividend, stock split, reverse stock split, or any similar transaction after the date hereof) beneficially owned by it to officers, directors, employees, consultants and affiliates so long as such transferee shall agree in writing to be bound by all the terms of this Agreement applicable to its transferor as if the transferee originally had been a party to this Agreement and (ii) the transfer and assignment of all or any portion of the capital stock of the Company beneficially owned by it to any direct or indirect wholly owned subsidiary of such entity so long as (y) such transferee shall agree in writing to be bound by all the terms of this Agreement applicable to its transferor as if the transferee originally had been a party to this Agreement and (z) the transferor agrees to cause such direct or indirect wholly owned subsidiary to continue to be a direct or indirect wholly owned subsidiary of the transferor for so long as such direct or indirect wholly owned subsidiary beneficially owns any such capital stock of the Company.
Appears in 1 contract
Samples: Joint Venture Agreement (Loews Cineplex Entertainment Corp)
First Refusal. (a) If prior The “Right of First Refusal” set forth in Section 24.4 of the Original Lease, as amended by Section 9.2 of the First Amendment and Section 11.3 of the Third Amendment is hereby deleted in its entirety, and replaced with the following right of first refusal: Subject and subordinate only to October 10, 2001, either Tracinda or Seven any Superior Rights if at any time during the Term (as appropriate in this Article IVmay be extended) Landlord receives a bona fide proposal for any space on any of the third (3rd) floor, seventh (7th) or eighth (8th) floors of the "Transferring Party"Building (whether or not such space has been the subject of an Offer Notice under Tenant’s right of first offer), desires Landlord shall deliver written notice thereof to sell, ------------------ transfer, assign, pledge or otherwise dispose of (Tenant along with a "Transfer"), directly or -------- indirectly, in whole or part, all or any portion copy of the shares applicable proposal, letter of capital stock intent or term sheet setting forth the material terms of such offer, but with the identity of the Company beneficially owned by it, the Transferring Party shall provide the proposed tenant and other party (the "Non-Transferring Party") with a written notice (the "First ---------------------- ----- Refusal Notice") (which First Refusal Notice may be sent concurrently with the -------------- Tag-Along Notice which may be information Landlord deems confidential redacted and not required to be sent with respect disclosed to such transaction pursuant Tenant (the “RFR Notice”). Tenant shall have four (4) business days after receipt of RFR Notice from Landlord to Section 3.2 advise Landlord of Tenant’s election (the Shareholders Agreement“RFR Acceptance”) setting forth:
(i) to lease the number and class of shares of capital stock of the Company proposed to be Transferred;
(ii) that the Transferring Party has received a bona fide written offer from a prospective purchaser of said shares of capital stock of the Company;
(iii) the name and address of the prospective purchaser;
(iv) the material terms and conditions of such proposed transaction; and
(v) that the Transferring Party is offering to Transfer such shares of capital stock of the Company to the Non-Transferring Party subject premises on the same terms and conditions as contained Landlord has specified in its RFR Offer Notice, provided that the bona fide offer. The Nonterm of lease for the subject premises shall be co-Transferring Party shall have 20 calendar days following terminous with the receipt Term of the First Refusal Notice to respond as to whether it desires to purchase Lease. If the shares of capital stock of the Company specified in the First Refusal Notice. Such 20 calendar day period RFR Acceptance is so given, then promptly thereafter, Landlord and Tenant shall be referred to as the "Response Period." --------------- Within the Response Period, the Non-Transferring Party shall, by notice in writing sign an amendment to the Transferring PartyLease, have adding the opportunity subject premises to the Premises and right to purchase (on incorporating all of the terms and conditions specified originally contained in the First Refusal Notice) the shares of capital stock of the Company specified in the First Refusal Landlord’s Offer Notice. If Tenant does not tender the Non-Transferring Party shall not respond RFR Acceptance of the RFR Offer Notice, within the Response Periodtime periods set forth herein, then such Landlord may lease the subject premises to any third party shall be deemed it chooses without liability to have waived its right to purchase the shares of capital stock Tenant on all of the Company specified in the First Refusal Notice. If the Non- Transferring Party fails to exercise or waives its right to purchase the shares of capital stock of the Company referred to in the First Refusal Notice, then the Transferring Party shall be free, for a six-month period, to enter into a definitive agreement to Transfer such shares of capital stock of the Company to such third party on terms equivalent to or better than the terms specified in the First Refusal Notice without restriction under this Agreement; it being understood, however, that if the Transferring Party does not enter into such definitive agreement within such six-month period, or such definitive agreement is subsequently terminated, the Transferring Party shall once again be subject to all the provisions of this Section 4.1.
(b) Each acceptance made hereunder shall constitute a separate and binding contract obligating the Transferring Party to sell, and the Non- Transferring Party to purchase, the shares of capital stock of the Company accepted at the price and upon the same material terms and conditions as set forth those specified in Landlord’s RFR Offer Notice, subject to Tenant’s rights under this Section 9.3. Notwithstanding anything to the contrary in the Lease, the Right of First Refusal Notice. The parties agree to negotiate in good faith to consummate shall be a continuing right and shall not expire or terminate during the transaction as soon as possible, but in no event later than the date 30 calendar days after the appropriate Response Period has elapsed Term (as such period may be extended up to a maximum period extended), and the Right of two months (unless further extension is agreed to First Refusal may be exercised by the Transferring Party) by Tenant or any applicable waiting period required under the HSR Act Affiliate assignee or any other applicable law). At the closing, the Transferring Party shall deliver the certificate or certificates representing the shares of capital stock of the Company to be sold, duly endorsed for transfer or accompanied by duly executed stock powers, against receipt from the Non-Transferring Party of the purchase price for such shares of capital stock of the Company, in cash by wire transfer of immediately available funds or certified check, at the option of the Transferring Party, all in accordance with the terms and conditions set forth in the First Refusal Notice. Notwithstanding any provision of this Agreement to the contrary, in the event of failure by the Non-Transferring Party to close said transaction within the required time periods, the Transferring Party shall be entitled, in addition to all other available remedies, to treat such failure as a waiver under Section 4.1(a) of this Agreement by the Non-Transferring Party, entitling the Transferring Party to take the action specified in Section 4.1(a) of this Agreement pursuant to such waiverpermitted assignee.
(c) If the purchase price specified in the First Refusal Notice includes any property other than cash, the First Refusal Notice shall state how the non-cash property was valued, unless the Transferring Party and the proposed transferee expressly agree otherwise as stated in the First Refusal Notice and, the Non-Transferring Party may pay cash in an amount equal to the fair market value of any non-cash property determined in the following manner:
(i) The fair market value of securities which are publicly traded shall be deemed to be the average of the daily closing prices (or, if no closing price is available, the average of the last bid and ask prices) of such securities for the five consecutive trading days immediately prior to the date of the First Refusal Notice; and
(ii) The fair market value of any other property shall be determined by the good faith agreement of the parties or, if the parties are unable to agree, by an appropriate expert mutually selected by the parties.
(d) The provisions of this Section 4.1 shall terminate, with respect to such capital stock of the Company, upon the transfer, in compliance with this Section 4.1, by Tracinda or Seven of such capital stock to any Person other than Tracinda or Seven or their respective Affiliates.
(e) Nothing contained in the provisions of this Section 4.1 shall affect the tag-along rights of any party pursuant to Section 3.2 of the Shareholders Agreement.
(f) The provisions of this Section 4.1 shall not apply to any bona fide pledge to a bank or other institutional financial lender.
(g) Notwithstanding anything contained herein to the contrary, the provisions of this Section 4.1 shall not apply to, in the case of each of Tracinda and Seven, (i) the transfer of, or the grant of options for the acquisition of, up to 7,500 shares of Common Stock (such number to be appropriately adjusted in the event that the Company should effect any stock dividend, stock split, reverse stock split, or any similar transaction after the date hereof) beneficially owned by it to officers, directors, employees, consultants and affiliates so long as such transferee shall agree in writing to be bound by all the terms of this Agreement applicable to its transferor as if the transferee originally had been a party to this Agreement and (ii) the transfer and assignment of all or any portion of the capital stock of the Company beneficially owned by it to any direct or indirect wholly owned subsidiary of such entity so long as (y) such transferee shall agree in writing to be bound by all the terms of this Agreement applicable to its transferor as if the transferee originally had been a party to this Agreement and (z) the transferor agrees to cause such direct or indirect wholly owned subsidiary to continue to be a direct or indirect wholly owned subsidiary of the transferor for so long as such direct or indirect wholly owned subsidiary beneficially owns any such capital stock of the Company.
Appears in 1 contract
Samples: Office Lease (Blackline, Inc.)
First Refusal. (a) If prior to October 10, 2001, either Tracinda or Seven (as appropriate in this Article IV, the "Transferring Party"), desires to sell, ------------------ transfer, assign, pledge or otherwise dispose of (a "Transfer"), directly or -------- indirectly, in whole or part, all or any portion of the shares of capital stock of the Company beneficially owned by it, the Transferring Party shall provide the other party (the "Non-Transferring Party") with a written notice (the "First ---------------------- ----- Refusal Notice") (which First Refusal Notice may be sent concurrently with the -------------- Tag-Along Notice which may be required to be sent with respect to such transaction pursuant to Section 3.2 of the Shareholders Agreement) setting forth:
(i) The Company shall notify you and the number and class of shares of capital stock of the Company proposed to be Transferred;
(ii) that the Transferring Party has received a bona fide written offer from a prospective purchaser of said shares of capital stock of the Company;
(iii) the name and address of the prospective purchaser;
(iv) the material terms and conditions of such proposed transaction; and
(v) that the Transferring Party is offering to Transfer such shares of capital stock of the Company to the Non-Transferring Party on the same terms and conditions as contained Other Stockholders in the bona fide offer. The Non-Transferring Party shall have writing, within 20 calendar days following the after its receipt of the First Refusal Notice to respond as to Sale Notice, whether it desires to purchase any of the shares of capital stock of offered for sale in the Sale Notice (the "Offered Shares") and, if so, how many Offered Shares it desires to -------------- purchase (the "Company Notice"). Subject to -------------- subparagraph 14(b)(vii) below, the Company specified in the First Refusal Notice. Such 20 calendar day period shall be referred to as the "Response Period." --------------- Within the Response Period, the Non-Transferring Party shall, by notice in writing to the Transferring Party, have the opportunity and right to purchase (all the Offered Shares which it elects to purchase in the Company Notice, at the price and on the other terms and conditions specified (subject to subparagraph 14(b)(iii) below) set forth in the First Refusal Notice) the shares of capital stock of the Company specified in the First Refusal Sale Notice. If the Non-Transferring Party Company elects to purchase all of the Offered Shares, the Company Notice shall also set forth the time and place of the closing of such purchase (the "Closing"), which shall occur ------- not respond within more than 90 days after the Response Period, then such party Company's receipt of the Sale Notice.
(ii) Each Other Stockholder shall be deemed to have waived its the right to purchase its pro rata portion (based upon the number of shares of capital stock Class A Common held by each Other Stockholder electing to purchase any of the Company specified in the First Refusal Notice. If the Non- Transferring Party fails to exercise or waives its right to purchase the shares of capital stock Offered Shares) of the Company referred to in the First Refusal Notice, then the Transferring Party shall be free, for a six-month period, to enter into a definitive agreement to Transfer such shares of capital stock of Offered Shares not purchased by the Company to such third party on terms equivalent to under subparagraph 14(b)(i) above or better than the terms specified in the First Refusal Notice without restriction by Other Stockholders under this Agreement; it being understoodsubparagraph 14(b)(ii), however, that if the Transferring Party does not enter into such definitive agreement within such six-month period, or such definitive agreement is subsequently terminated, the Transferring Party shall once again be subject to all the provisions of this Section 4.1.
(b) Each acceptance made hereunder shall constitute a separate and binding contract obligating the Transferring Party to sell, and the Non- Transferring Party to purchase, the shares of capital stock of the Company accepted at the price and upon on the other terms and conditions as (subject to subparagraph 14(b)(iii) below) set forth in the First Refusal Sale Notice. The parties agree to negotiate , by so notifying the Company in good faith to consummate the transaction as soon as possible, but in no event later than the date 30 calendar writing 10 days after the appropriate Response Period has elapsed (as such period may be extended up to a maximum period of two months (unless further extension is agreed to by the Transferring Party) by any applicable waiting period required under the HSR Act or any other applicable law). At the closing, the Transferring Party shall deliver the certificate or certificates representing the shares of capital stock receipt of the Company Notice (each, a "Stockholder Notice"). Each ------------------ Stockholder Notice shall specify the maximum number of shares which the Other Stockholder sending such Stockholder Notice desires to be sold, duly endorsed for transfer or accompanied by duly executed stock powers, against receipt from the Non-Transferring Party of the purchase price for such shares of capital stock of the Company, in cash by wire transfer of immediately available funds or certified check, at the option of the Transferring Party, all in accordance with the terms and conditions set forth in the First Refusal Notice. Notwithstanding any provision of this Agreement to the contrary, in the event of failure by the Non-Transferring Party to close said transaction within the required time periods, the Transferring Party shall be entitled, in addition to all other available remedies, to treat such failure as a waiver under Section 4.1(a) of this Agreement by the Non-Transferring Party, entitling the Transferring Party to take the action specified in Section 4.1(a) of this Agreement pursuant to such waiverpurchase.
(ciii) If the purchase price specified in the First Refusal Notice includes any property other than cash, the First Refusal Notice shall state how the non-cash property was valued, unless the Transferring Party and the proposed transferee expressly agree otherwise as stated in the First Refusal Notice and, the Non-Transferring Party may pay cash in an amount equal to the fair market value of any non-cash property determined in the following manner:
(i) The fair market value of securities which are publicly traded shall be deemed to be the average of the daily closing prices (or, if no closing price is available, the average of the last bid and ask prices) of such securities for the five consecutive trading days immediately prior to the date of the First Refusal Notice; and
(ii) The fair market value of Notwithstanding any other property shall be determined by the good faith agreement of the parties orprovision hereof, if the parties are unable to agree, by an appropriate expert mutually selected by the parties.
(d) The provisions of this Section 4.1 shall terminate, with respect to such capital stock of the Company, upon the transfer, in compliance with this Section 4.1, by Tracinda or Seven of such capital stock to any Person other than Tracinda or Seven or their respective Affiliates.
(e) Nothing contained in the provisions of this Section 4.1 shall affect the tag-along rights of any party pursuant to Section 3.2 of the Shareholders Agreement.
(f) The provisions of this Section 4.1 shall not apply to any bona fide pledge to a bank or other institutional financial lender.
(g) Notwithstanding anything contained herein to the contrary, the provisions of this Section 4.1 shall not apply to, in the case of each of Tracinda and Seven, (i) the transfer of, or the grant of options for the acquisition of, up to 7,500 shares of Common Stock (such number to be appropriately adjusted in the event that the Company should effect any stock dividend, stock split, reverse stock splitsale price, or any similar transaction portion thereof, for the Offered Shares described in the Sale Notice is not payable in the form of cash or simple promissory notes issued by the prospective purchaser described therein, the Company and any Other Stockholders electing to purchase Offered Shares pursuant to subparagraphs 14(b)(i) or (ii) above shall be required to pay only such portion, if any, of the sale price described in the Sale Notice as consists of cash and simple promissory notes (the latter to be issued by the Company or the Other Stockholder purchasing such shares, as applicable), and delivery of such consideration to you shall be payment in full for the Offered Shares.
(iv) If the Company does not elect to purchase all of the Offered Shares, it shall notify all Other Stockholders in writing within 35 days after the date hereofCompany's receipt of the Sale Notice whether the Company and the Other Stockholders have elected, in the aggregate, to purchase all of the Offered Shares (the "Second Company Notice"). ---------------------
(v) beneficially owned by it If the Company and the other Stockholders have elected pursuant to officerssubparagraph 14(b)(i) or (ii) above, directorsin the aggregate, employeesto purchase all Offered Shares, consultants and affiliates so long as such transferee the Second Company Notice shall agree in writing set forth the number of Offered Shares to be bound purchased by all the terms Company and by each Other Stockholder that elected to purchase Offered Shares and the time and place of this Agreement applicable the Closing, which shall occur not less than 60 nor more than 90 days after the Company's receipt of the Sale Notice.
(vi) At the Closing, the Company (if it elected to its transferor as purchase any Offered Shares) and each Other Stockholder electing to purchase Offered Shares (if the transferee originally had been a party Company did not elect to this Agreement purchase all Offered Shares) shall deliver to you the cash and, if applicable, the promissory notes constituting the purchase price for the Offered Shares to be purchased by such purchaser, and the you will deliver to the Company and/or each purchasing Other Stockholder the certificate(s) representing the Offered Shares being purchased by such purchaser.
(vii) If the Company and all Other Stockholders do not elect, in the aggregate, to purchase all Offered Shares pursuant to subparagraphs 14(b)(i) and (ii) above, all elections pursuant to subparagraphs 14(b)(i) or (ii) to purchase Offered Shares shall be null and void (which fact shall be stated in the transfer Second Company Notice), and assignment of all or any portion you shall have the right, subject to paragraph 14(c) below, to Transfer the Offered Shares to the transferee described in the Sale Notice at the price and on the other terms described therein, within 90 days after the date of the capital stock of Sale Notice. If after such 90-day period, the Company beneficially owned by it Offered Shares which you are entitled to any direct or indirect wholly owned subsidiary of such entity so long as (y) such transferee shall agree in writing to be bound by all the terms of this Agreement applicable to its transferor as if the transferee originally had been a party transfer pursuant to this Agreement and subparagraph (zvii) the transferor agrees have not been so transferred, they shall thereafter again be subject to cause such direct or indirect wholly owned subsidiary to continue to be a direct or indirect wholly owned subsidiary of the transferor for so long as such direct or indirect wholly owned subsidiary beneficially owns any such capital stock of the Companythis paragraph 14(b).
Appears in 1 contract
First Refusal. (a) If prior to October 10If, 2001following the Transfer Waiver Date, either Tracinda LCE (on behalf of itself and its Permitted Transferees) or Seven Mediaplex (on behalf of itself and its Permitted Transferees) (as appropriate in this Article IVappropriate, the "“Transferring Party"), Shareholder”) desires to sell, ------------------ transfer, assign, pledge or otherwise dispose of (a "Transfer"), directly or -------- indirectly, in whole or part, all or any portion of the shares of capital stock of the Company beneficially Shares owned by itit (other than to a Permitted Transferee), the Transferring Party Shareholder shall provide the other party Shareholder (the "“Non-Transferring Party"Shareholder”) with a written notice (the "“First ---------------------- ----- Refusal Notice") (which First Refusal Notice may be sent concurrently ”), with a copy to the -------------- Tag-Along Notice which may be required to be sent with respect to such transaction pursuant to Section 3.2 of the Shareholders Agreement) Company, setting forth:
(i) the number and class of shares of capital stock of the Company proposed Shares to be Transferredoffered;
(ii) that the terms and conditions of the proposed Transfer, including the price (the “Offering Price”) at which the Transferring Party has received a bona fide written offer from a prospective purchaser of said shares of capital stock of the Company;Shareholder proposes to Transfer such Shares; and
(iii) the name and address of the prospective purchaser;
(iv) the material terms proposed transferee and conditions of such proposed transaction; and
(v) a statement specifying whether that the Transferring Party transferee is offering to Transfer such shares of capital stock of the Company to the Non-Transferring Party on the same terms and conditions as contained in the bona fide offera Competitor or not. The Non-Transferring Party shall have 20 calendar days Within 30 Business Days following the receipt delivery of the First Refusal Notice to respond as to whether it desires to purchase the shares of capital stock of the Company specified in the First Refusal Notice. Such 20 calendar day period shall be referred to as the "Response Period." --------------- Within the Response Period, the Non-Transferring Party Shareholder shall, by notice in writing to the Transferring PartyShareholder (copied to the Company), have the opportunity and right to purchase 100% (but not less than 100%) of the Shares referred to in the First Refusal Notice (on the terms and conditions specified in the First Refusal Notice) Notice or on any other terms as are agreed by the shares of capital stock of the Company specified in the First Refusal Noticeparties). If the Non-Transferring Party shall not respond within the Response Period, then such party shall be deemed Shareholder fails to have waived exercise or waive its right to purchase the shares of capital stock 100% of the Company specified in the First Refusal Notice. If the Non- Transferring Party fails to exercise or waives its right to purchase the shares of capital stock of the Company Shares referred to in the First Refusal Notice, then the Transferring Party Shareholder shall be free, for a sixthree-month period, period commencing at the end of such 30-day period to enter into a definitive agreement to Transfer such shares of capital stock of the Company offered Shares to such any third party party, on terms equivalent (including, without limitation, all terms affecting price) no more favorable to or better the proposed purchaser than the terms specified in the First Refusal Notice without restriction under this Agreement; Notice, it being understood, however, that if the Transferring Party Shareholder does not enter into complete the Transfer of the Shares within one month following the end of such definitive agreement within such six-three month period, or such if the definitive agreement is subsequently terminated, the Transferring Party Shareholder shall once again be subject to all the provisions of this Section 4.17.3.
(b) Each acceptance made hereunder shall constitute a separate and separate, binding contract obligating the Transferring Party Shareholder to sell, and the Non- Non-Transferring Party Shareholder to purchase, the shares of capital stock of the Company Shares accepted at the price and upon on the terms and conditions as set forth specified in the First Refusal Noticerelevant notice (or on any other terms as the parties shall have agreed). The parties agree to negotiate in good faith to consummate the transaction as soon as possible, but in no event later than the date 30 calendar 120 days after the appropriate Response Period has elapsed (as such period may be extended up to a maximum period of two months (unless further extension is agreed to by the Transferring Party) by any applicable waiting period required under the HSR Act or any other applicable law). At the closing, the Transferring Party shall deliver the certificate or certificates representing the shares of capital stock of the Company to be sold, duly endorsed for transfer or accompanied by duly executed stock powers, against receipt from the Non-Transferring Party of the purchase price for such shares of capital stock of the Company, in cash by wire transfer of immediately available funds or certified check, at the option of the Transferring Party, all in accordance with the terms and conditions set forth in date the First Refusal NoticeNotice was given. Notwithstanding any provision of this Agreement to the contrary, in the event of failure by the Non-Transferring Party Shareholder to close said the transaction within the required such 120-day time periodsperiods referred to above, the Transferring Party Shareholder shall be entitled, in addition to all other available remedies, to treat such that failure as a waiver under Section 4.1(a7.3(a) of this Agreement by the Non-Transferring PartyShareholder of its purchase rights, entitling the Transferring Party Shareholder to take the action specified in Section 4.1(a7.3(a) of this Agreement pursuant to such that waiver.
(c) If the purchase price Offering Price specified in the First Refusal Notice includes any property other than cash, the First Refusal Notice shall state how the non-cash property was valued, unless the Transferring Party and the proposed transferee expressly agree otherwise as stated in the First Refusal Notice and, the Non-Transferring Party may pay cash in an amount equal to the fair market value of any non-cash property shall be determined in the following manner:
(i) The fair market value of securities which are publicly traded shall be deemed to be the average of the daily closing prices (or, if no closing price is available, the average of the last bid and ask prices) of such those securities for the five consecutive trading days immediately prior to the date of the First Refusal NoticeNotice (or the date of the last written proposal made by the Transferring Shareholder); and
(ii) The fair market value of any other property shall be determined by the good faith agreement of the parties Transferring Shareholder and the accepting Non-Transferring Shareholder or, if the such parties are unable to agree, by an appropriate expert mutually selected by such parties. If the parties.
(d) parties cannot mutually agree on an expert, each party shall select an expert, and those experts shall select an independent expert to resolve the dispute. The provisions costs and expenses of the appraisal shall be borne by the Transferring Shareholder. Notwithstanding anything to the contrary in this Section 4.1 shall terminate7.3, each Non-Transferring Shareholder may pay the Offering Price in cash, with respect to such capital stock of the Company, upon the transfer, in compliance with this Section 4.1, by Tracinda or Seven of such capital stock to any Person other than Tracinda or Seven or their respective Affiliatesnon-cash property valued as provided above.
(e) Nothing contained in the provisions of this Section 4.1 shall affect the tag-along rights of any party pursuant to Section 3.2 of the Shareholders Agreement.
(f) The provisions of this Section 4.1 shall not apply to any bona fide pledge to a bank or other institutional financial lender.
(g) Notwithstanding anything contained herein to the contrary, the provisions of this Section 4.1 shall not apply to, in the case of each of Tracinda and Seven, (i) the transfer of, or the grant of options for the acquisition of, up to 7,500 shares of Common Stock (such number to be appropriately adjusted in the event that the Company should effect any stock dividend, stock split, reverse stock split, or any similar transaction after the date hereof) beneficially owned by it to officers, directors, employees, consultants and affiliates so long as such transferee shall agree in writing to be bound by all the terms of this Agreement applicable to its transferor as if the transferee originally had been a party to this Agreement and (ii) the transfer and assignment of all or any portion of the capital stock of the Company beneficially owned by it to any direct or indirect wholly owned subsidiary of such entity so long as (y) such transferee shall agree in writing to be bound by all the terms of this Agreement applicable to its transferor as if the transferee originally had been a party to this Agreement and (z) the transferor agrees to cause such direct or indirect wholly owned subsidiary to continue to be a direct or indirect wholly owned subsidiary of the transferor for so long as such direct or indirect wholly owned subsidiary beneficially owns any such capital stock of the Company.
Appears in 1 contract
First Refusal. (a) If prior Each Consenting Shareholder, pro rata in accordance with their respective Shareholdings, shall have a right of first refusal on all shares held by any other Consenting Shareholder. The foregoing rights of first refusal shall not apply to October 10Permitted Transfers, 2001sales in Public Offerings, either Tracinda sales in the public market subsequent to such a Public Offering, or Seven sales pursuant to Article II hereof.
(as appropriate in this Article IV, the "Transferring Party"), desires b) A Consenting Stockholder seeking to sell, ------------------ transfer, assign, pledge or otherwise dispose of transfer (a "Transfer"), directly ) his or -------- indirectly, in whole or part, all or any portion of the its shares of capital stock of the Company beneficially owned by it, the Transferring Party shall provide the other party (the "Non-Transferring PartyTransferor Stockholder") with a shall give written notice (the "First ---------------------- ----- Refusal Sale Notice") to the Company and the other Consenting Stockholders (which First Refusal the "Remaining Stockholders") of his or its intention to transfer the Shares. The Sale Notice may be sent concurrently with shall identify the -------------- Tag-Along Notice which may be required proposed transferees (the "Buyer") and specify the number of Shares to be sent with respect to such transaction transferred (the "Offered Shares"), the price per share, and the terms of payment. A Transfer of shares by a Transferor Stockholder pursuant to Section 3.2 the terms of the Shareholders Agreement) setting forth:a pledge, hypothecation or security agreement shall not be deemed a Transfer for purposes of this Article.
(ic) The Company shall have the number first option to purchase the Offered Shares at the price and class of shares of capital stock of the Company proposed to be Transferred;
(ii) that the Transferring Party has received a bona fide written offer from a prospective purchaser of said shares of capital stock of the Company;
(iii) the name and address of the prospective purchaser;
(iv) the material terms and conditions of such proposed transaction; and
(v) that the Transferring Party is offering to Transfer such shares of capital stock of the Company to the Non-Transferring Party on the same terms and conditions as contained specified in the bona fide offerSale Notice. Within fifteen (15) days after delivery of the Sale Notice to the Company, the Company shall give written notice to the Transferor Stockholder and the Remaining Stockholders regarding the number of Shares to be purchased by the Company (the "Company Notice").
(d) If the Company does not elect to purchase all of the Offered Shares, the Remaining Stockholders shall have the option to purchase all, but not less than all, of the Shares other than those to be purchased by the Company (the "Remaining Offered Shares") at the price and on the same terms and conditions specified in the Sale Notice. Each Remaining Stockholder shall have the right to purchase that number of Remaining Offered Shares equal to the number of such Remaining Offered Shares multiplied by a fraction, the numerator of which shall be the number of Shares then owned by such Remaining Stockholder and the denominator of which shall be the number of Shares then owned by all of the Remaining Stockholders (a "Pro Rata Portion"). The Non-Transferring Party shall have 20 calendar Remaining Stockholders may exercise their rights to purchase Remaining Offered Shares by delivering a written notice to the Transferor Stockholder and each of the other Remaining Stockholders (the "Stockholder Notice") indicating the number of Remaining Offered Shares to be purchased within fifteen (15) days following the of receipt of the First Refusal Company Notice.
(e) The Remaining Stockholders shall also have a right of oversubscription such that, if any Remaining Stockholder fails to elect to purchase its Pro Rata Portion of Remaining Offered Shares, the other Remaining Stockholders shall have the right to purchase up to the balance of the Remaining Offered Shares. The oversubscription right set forth herein may be exercised by a Remaining Stockholder by electing in a Stockholder Notice to respond purchase more than such Remaining Stockholder's Pro Rata Portion. If all such oversubscriptions exceed the number of Remaining Offered Shares available for purchase, the oversubscribing Remaining Stockholders shall be cut back in proportion to their respective Pro Rata Portions or as to whether it desires they may otherwise agree.
(f) If the Company and/or the Remaining Stockholders elect to purchase the shares of capital stock all, and not less than all, of the Shares set forth in the Sale Notice, the Company and/or the Remaining Stockholders, as applicable, shall purchase all such Shares at the price and on the same terms and conditions specified in the First Refusal Sale Notice. Such 20 calendar purchase shall be made at such time and place as shall be agreed with the Transferor Stockholder.
(g) If the Company and/or the Remaining Stockholders do not elect to purchase all of the Offered Shares, the Company shall send written notice thereof to all Remaining Stockholders and Transferor Stockholders (the "No-Sale Notice") immediately following the expiration of the fifteen-day period shall be referred set forth in Subsection 6.01(d) hereof, and, subject to as the "Response Period." --------------- Within the Response PeriodArticle VI hereof, the Non-Transferring Party shall, by notice in writing Offered Shares may be transferred at any time prior to the Transferring Party, have ninetieth (9Oth) day after the opportunity and right date of the Sale Notice to purchase (the transferee identified in the Sale Notice on the terms and conditions specified in the First Refusal Notice) the shares of capital stock of the Company specified in the First Refusal Sale Notice. If the Non-Transferring Party shall not respond within the Response Period, then such party No transfer of Offered Shares shall be deemed to have waived its right to purchase made after the shares end of capital stock of the Company specified in the First Refusal Notice. If the Non- Transferring Party fails to exercise or waives its right to purchase the shares of capital stock of the Company referred to in the First Refusal Notice, then the Transferring Party shall be free, for a six-month such ninety (90) day period, to enter into a definitive agreement to Transfer such shares of capital stock of the Company to such third party on terms equivalent to or better than the terms specified nor shall any change in the First Refusal Notice without restriction under this Agreement; it being understood, however, that if the Transferring Party does not enter into such definitive agreement within such six-month period, or such definitive agreement is subsequently terminated, the Transferring Party shall once again be subject to all the provisions of this Section 4.1.
(b) Each acceptance made hereunder shall constitute a separate and binding contract obligating the Transferring Party to sell, and the Non- Transferring Party to purchase, the shares of capital stock of the Company accepted at the price and upon the terms and conditions as set forth in of transfer be permitted, without the First Refusal Notice. The parties agree Transferor Stockholder first giving to negotiate in good faith to consummate the transaction as soon as possible, but in no event later than the date 30 calendar days after the appropriate Response Period has elapsed (as such period may be extended up to a maximum period of two months (unless further extension is agreed to by the Transferring Party) by any applicable waiting period required under the HSR Act or any other applicable law). At the closing, the Transferring Party shall deliver the certificate or certificates representing the shares of capital stock of the Company to be sold, duly endorsed for transfer or accompanied by duly executed stock powers, against receipt from the Non-Transferring Party of the purchase price for such shares of capital stock of the Company, in cash by wire transfer of immediately available funds or certified check, at the option of the Transferring Party, all in accordance with the terms and conditions set forth in the First Refusal Notice. Notwithstanding any provision of this Agreement to the contrary, in the event of failure by the Non-Transferring Party to close said transaction within the required time periods, the Transferring Party shall be entitled, in addition to all other available remedies, to treat such failure as a waiver under Section 4.1(a) of this Agreement by the Non-Transferring Party, entitling the Transferring Party to take the action specified in Section 4.1(a) of this Agreement pursuant to such waiver.
(c) If the purchase price specified in the First Refusal Notice includes any property other than cash, the First Refusal Notice shall state how the non-cash property was valued, unless the Transferring Party and the proposed transferee expressly agree otherwise as stated in the First Refusal other Stockholders a new Sale Notice and, the Non-Transferring Party may pay cash in an amount equal to the fair market value of any non-cash property determined in the following manner:
(i) The fair market value of securities which are publicly traded shall be deemed to be the average of the daily closing prices (or, if no closing price is available, the average of the last bid and ask prices) of such securities for the five consecutive trading days immediately prior to the date of the First Refusal Notice; and
(ii) The fair market value of any other property shall be determined by the good faith agreement of the parties or, if the parties are unable to agree, by an appropriate expert mutually selected by the parties.
(d) The provisions of this Section 4.1 shall terminate, with respect to such capital stock of the Company, upon the transfer, in compliance with this Section 4.1, by Tracinda or Seven of such capital stock to any Person other than Tracinda or Seven or their respective Affiliates.
(e) Nothing contained in the provisions requirements of this Section 4.1 shall affect the tag-along rights of any party pursuant to Section 3.2 of the Shareholders AgreementArticle VI.
(f) The provisions of this Section 4.1 shall not apply to any bona fide pledge to a bank or other institutional financial lender.
(g) Notwithstanding anything contained herein to the contrary, the provisions of this Section 4.1 shall not apply to, in the case of each of Tracinda and Seven, (i) the transfer of, or the grant of options for the acquisition of, up to 7,500 shares of Common Stock (such number to be appropriately adjusted in the event that the Company should effect any stock dividend, stock split, reverse stock split, or any similar transaction after the date hereof) beneficially owned by it to officers, directors, employees, consultants and affiliates so long as such transferee shall agree in writing to be bound by all the terms of this Agreement applicable to its transferor as if the transferee originally had been a party to this Agreement and (ii) the transfer and assignment of all or any portion of the capital stock of the Company beneficially owned by it to any direct or indirect wholly owned subsidiary of such entity so long as (y) such transferee shall agree in writing to be bound by all the terms of this Agreement applicable to its transferor as if the transferee originally had been a party to this Agreement and (z) the transferor agrees to cause such direct or indirect wholly owned subsidiary to continue to be a direct or indirect wholly owned subsidiary of the transferor for so long as such direct or indirect wholly owned subsidiary beneficially owns any such capital stock of the Company.
Appears in 1 contract
Samples: Stockholders' Agreement (Global Telecommunication Solutions Inc)
