Common use of Member Acquisition Clause in Contracts

Member Acquisition. Notwithstanding anything to the contrary in this Agreement, if a Member or any of its 5% Affiliates desires to acquire a business or operation of any Person that competes with the Business, whether through the purchase of stock or other voting securities, merger, consolidation, or other similar corporate transformation, or through the purchase of assets (a “Member Acquisition”), and the operation of the business acquired by reason of the Member Acquisition is not otherwise permitted by the provisions of this Agreement, such Member may make the Member Acquisition so long as, no later than the consummation of the Member Acquisition, such Member sends the Company a written offer to sell to the Company that portion of the business acquired through the Member Acquisition that competes with the Business (the “Competing Operations”). For purposes of this Section 15.5, all decisions of the Company shall be made by the other Member’s Representatives (acting and deciding on behalf of the Company). If the Company desires to pursue such offer, the Company must so notify such Member in writing no later than twenty (20) calendar days after receiving such written offer. If the Company submits such written notice to such Member in accordance with the immediately preceding sentence, the Company and such Member shall attempt in good faith to agree upon, no later than twenty (20) calendar days after the Company submits such written notice to such Member, (a) those particular assets, liabilities and operations of the business acquired through the Member Acquisition that constitute the Competing Operations, and (b) a purchase price for the Competing Operations. If the Company and such Member agree in writing upon the items referenced in the immediately preceding sentence within such twenty (20) calendar day period, the Company shall be deemed to have accepted such offer on the date such agreement is reached. If the Company and such Member fail to so agree upon such items within such twenty (20) calendar day period, the Company and such Member shall seek to agree upon and retain an Independent Valuation Firm pursuant to the selection procedures set forth in Section 23.16 to (i) identify those particular assets, liabilities and operations of the business acquired through the Member Acquisition that constitute the Competing Operations, and (ii) determine a purchase price that is equal to the Fair Market Value of the Competing Operations taking into account, among other factors that are relevant to the Independent Valuation Firm’s determination of such Fair Market Value, the purchase price of the Member Acquisition. The decision of the Independent Valuation Firm shall be final and binding on, and nonappealable by, the Company and such Member. The Independent Valuation Firm shall act as an expert and not as an arbitrator. The fees and expenses of the Independent Valuation Firm shall be paid one half by each Member (and not, for the avoidance of doubt, one half by the Company and such Member). No later than thirty (30) calendar days after the Company and such Member receive written notice from the Independent Valuation Firm setting forth its determination of the items referenced in clauses (i) and (ii) above, the Company must send a written notice to such Member indicating if the Company desires to accept such offer at the purchase price stipulated by the Independent Valuation Firm. If the Company decides to accept such offer, either at the purchase price that is agreed upon by the Company and such Member or at the purchase price determined by the Independent Valuation Firm, the sale of the Competing Operations by such Member to the Company shall be consummated no later than forty-five (45) calendar days after the date on which the Company is deemed to have accepted such offer; provided, that the closing shall in no event occur earlier than three (3) Business Days after receipt of all approvals required from, and expiration of all waiting periods (including waiting periods under the Xxxx-Xxxxx-Xxxxxx Act) imposed by, any governmental authorities in connection with the purchase and sale. If the Company decides not to accept such offer, then (A) if the Competing Operations did not generate greater than $300,000,000 in revenues during the calendar year preceding the year in which the Member Acquisition was consummated, then such Member shall be permitted to retain, own, and operate the Competing Operations (provided, that the Competing Operations shall not be permitted to use, and shall not be provided access to, any Intellectual Property of the Company), and (B) if the Competing Operations generated greater than $300,000,000 in revenues during the calendar year preceding the year in which the Member Acquisition was consummated, then such Member shall divest the Competing Operations no later than six (6) months after the date on which such Member receives notice that the Company decided to not accept such offer. If such Member retains the Competing Operations in accordance with clause (A) of the immediately preceding sentence and continues to own and operate such Competing Operations on the third (3rd) anniversary of the consummation of the Member Acquisition, the Company shall have the option (but not the obligation) to purchase the Competing Operations from such Member. If the Company desires to pursue such option, the Company must so notify such Member in writing no later than twenty (20) calendar days after the third (3rd) anniversary of the consummation of the Member Acquisition. The terms of such option shall be the same as the terms of the first option set forth above in this Section 15.5.

Member Acquisition. Notwithstanding anything to the contrary in this Agreement, if a Member or any of its 5% Affiliates desires to acquire a business or operation of any Person that competes with the Business, whether through the purchase of stock or other voting securities, merger, consolidation, or other similar corporate transformation, or through the purchase of assets (a “Member Acquisition”), and the operation of the business acquired by reason of the Member Acquisition is not otherwise permitted by the provisions of this Agreement, such Member may make the Member Acquisition so long as, no later than the consummation of the Member Acquisition, such Member sends the Company a written offer to sell to the Company that portion of the business acquired through the Member Acquisition that competes with the Business (the “Competing Operations”). For purposes of this Section 15.5, all decisions of the Company shall be made by the other Member’s Representatives (acting and deciding on behalf of the Company). If the Company desires to pursue such offer, the Company must so notify such Member in writing no later than twenty (20) calendar days after receiving such written offer. If the Company submits such written notice to such Member in accordance with the immediately preceding sentence, the Company and such Member shall attempt in good faith to agree upon, no later than twenty (20) calendar days after the Company submits such written notice to such Member, (a) those particular assets, liabilities and operations of the business acquired through the Member Acquisition that constitute the Competing Operations, and (b) a purchase price for the Competing Operations. If the Company and such Member agree in writing upon the items referenced in the immediately preceding sentence within such twenty (20) calendar day period, the Company shall be deemed to have accepted such offer on the date such agreement is reached. If the Company and such Member fail to so agree upon such items within such twenty (20) calendar day period, the Company and such Member shall seek to agree upon and retain an Independent Valuation Firm pursuant to the selection procedures set forth in Section 23.16 to (i) identify those particular assets, liabilities and operations of the business acquired through the Member Acquisition that constitute the Competing Operations, and (ii) determine a purchase price that is equal to the Fair Market Value of the Competing Operations taking into account, among other factors that are relevant to the Independent Valuation Firm’s determination of such Fair Market Value, the purchase price of the Member Acquisition. The decision of the Independent Valuation Firm shall be final and binding on, and nonappealable by, the Company and such Member. The Independent Valuation Firm shall act as an expert and not as an arbitrator. The fees and expenses of the Independent Valuation Firm shall be paid one half by each Member (and not, for the avoidance of doubt, one half by the Company and such Member). No later than thirty (30) calendar days after the Company and such Member receive written notice from the Independent Valuation Firm setting forth its determination of the items referenced in clauses (i) and (ii) above, the Company must send a written notice to such Member indicating if the Company desires to accept such offer at the purchase price stipulated by the Independent Valuation Firm. If the Company decides to accept such offer, either at the purchase price that is agreed upon by the Company and such Member or at the purchase price determined by the Independent Valuation Firm, the sale of the Competing Operations by such Member to the Company shall be consummated no later than forty-five (45) calendar days after the date on which the Company is deemed to have accepted such offer; provided, that the closing shall in no event occur earlier than three (3) Business Days after receipt of all approvals required from, and expiration of all waiting periods (including waiting periods under the XxxxHxxx-Xxxxx-Xxxxxx Act) imposed by, any governmental authorities in connection with the purchase and sale. If the Company decides not to accept such offer, then (A) if the Competing Operations did not generate greater than $300,000,000 in revenues during the calendar year preceding the year in which the Member Acquisition was consummated, then such Member shall be permitted to retain, own, and operate the Competing Operations (provided, that the Competing Operations shall not be permitted to use, and shall not be provided access to, any Intellectual Property of the Company), and (B) if the Competing Operations generated greater than $300,000,000 in revenues during the calendar year preceding the year in which the Member Acquisition was consummated, then such Member shall divest the Competing Operations no later than six (6) months after the date on which such Member receives notice that the Company decided to not accept such offer. If such Member retains the Competing Operations in accordance with clause (A) of the immediately preceding sentence and continues to own and operate such Competing Operations on the third (3rd) anniversary of the consummation of the Member Acquisition, the Company shall have the option (but not the obligation) to purchase the Competing Operations from such Member. If the Company desires to pursue such option, the Company must so notify such Member in writing no later than twenty (20) calendar days after the third (3rd) anniversary of the consummation of the Member Acquisition. The terms of such option shall be the same as the terms of the first option set forth above in this Section 15.5.

Member Acquisition. Notwithstanding anything to the contrary in this Agreement, if a Member or any of its 5% Affiliates desires to acquire a business or operation of any Person that competes with the Business, whether through the purchase of stock or other voting securities, merger, consolidation, or other similar corporate transformation, or through the purchase of assets (a “Member Acquisition”), and the operation of the business acquired by reason of the Member Acquisition is not otherwise permitted by the provisions of this Agreement, such Member may make the Member Acquisition so long as, no later than the consummation of the Member Acquisition, such Member sends the Company a written offer to sell to the Company that portion of the business acquired through the Member Acquisition that competes with the Business (the “Competing Operations”). For purposes of this Section 15.5, all decisions of the Company shall be made by the other Member’s Representatives (acting and deciding on behalf of the Company). If the Company desires to pursue such offer, the Company must so notify such Member in writing no later than twenty (20) calendar days after receiving such written offer. If the Company submits such written notice to such Member in accordance with the immediately preceding sentence, the Company and such Member shall attempt in good faith to agree upon, no later than twenty (20) calendar days after the Company submits such written notice to such Member, (a) those particular assets, liabilities and operations of the business acquired through the Member Acquisition that constitute the Competing Operations, and (b) a purchase price for the Competing Operations. If the Company and such Member agree in writing upon the items referenced in the immediately preceding sentence within such twenty (20) calendar day period, the Company shall be deemed to have accepted such offer on the date such agreement is reached. If the Company and such Member fail to so agree upon such items within such twenty (20) calendar day period, the Company and such Member shall seek to agree upon and retain an Independent Valuation Firm pursuant to the selection procedures set forth in Section 23.16 to (i) identify those particular assets, liabilities and operations of the business acquired through the Member Acquisition that constitute the Competing Operations, and (ii) determine a purchase price that is equal to the Fair Market Value of the Competing Operations taking into account, among other factors that are relevant to the Independent Valuation Firm’s determination of such Fair Market Value, the purchase price of the Member Acquisition. The decision of the Independent Valuation Firm shall be final and binding on, and nonappealable by, the Company and such Member. The Independent Valuation Firm shall act as an expert and not as an arbitrator. The fees and expenses of the Independent Valuation Firm shall be paid one half by each Member (and not, for the avoidance of doubt, one half by the Company and such Member). No later than thirty (30) calendar days after the Company and such Member receive written notice from the Independent Valuation Firm setting forth its determination of the items referenced in clauses (i) and (ii) above, the Company must send a written notice to such Member indicating if the Company desires to accept such offer at the purchase price stipulated by the Independent Valuation Firm. If the Company decides to accept such offer, either at the purchase price that is agreed upon by the Company and such Member or at the purchase price determined by the Independent Valuation Firm, the sale of the Competing Operations by such Member to the Company shall be consummated no later than forty-five (45) calendar days after the date on which the Company is deemed to have accepted such offer; provided, that the closing shall in no event occur earlier than three (3) Business Days after receipt of all approvals required from, and expiration of all waiting periods (including waiting periods under the XxxxHaxx-Xxxxx-Xxxxxx ActXct) imposed by, any governmental authorities in connection with the purchase and sale. If the Company decides not to accept such offer, then (A) if the Competing Operations did not generate greater than $300,000,000 in revenues during the calendar year preceding the year in which the Member Acquisition was consummated, then such Member shall be permitted to retain, own, and operate the Competing Operations (provided, that the Competing Operations shall not be permitted to use, and shall not be provided access to, any Intellectual Property of the Company), and (B) if the Competing Operations generated greater than $300,000,000 in revenues during the calendar year preceding the year in which the Member Acquisition was consummated, then such Member shall divest the Competing Operations no later than six (6) months after the date on which such Member receives notice that the Company decided to not accept such offer. If such Member retains the Competing Operations in accordance with clause (A) of the immediately preceding sentence and continues to own and operate such Competing Operations on the third (3rd) anniversary of the consummation of the Member Acquisition, the Company shall have the option (but not the obligation) to purchase the Competing Operations from such Member. If the Company desires to pursue such option, the Company must so notify such Member in writing no later than twenty (20) calendar days after the third (3rd) anniversary of the consummation of the Member Acquisition. The terms of such option shall be the same as the terms of the first option set forth above in this Section 15.5.