Option. (a) In order to induce Parent and Purchaser to enter into the Merger Agreement, Stockholder hereby grants to Purchaser an irrevocable option (a "SECURITIES OPTION") to purchase the Securities (the "OPTION SECURITIES") at the Offer Price, subject to increase as set forth below (the "PURCHASE PRICE"). The Securities Option may be exercised, in whole but not in part, by written notice to Stockholder (as set forth below), for a period of ten (10) business days (the "10 DAY PERIOD") following termination of the Merger Agreement or termination of the Offer, whichever shall first occur; PROVIDED that, prior to such termination, either (i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option pursuant to this Agreement; provided that if (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) there shall be in effect any such injunction or order, in each case on the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or order. (b) In the event that Purchaser wishes to exercise the Securities Option, Purchaser shall send a written notice (the "NOTICE") to Stockholder identifying the date (not less than two (2) nor more than five (5) business days from the date of the Notice) for the closing of such purchase, which closing shall be held at the executive offices of the Company (or such other place as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designate. (c) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option (the "ACQUIRED SECURITIES") and, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess of the Purchase Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increase. (d) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designate.
Appears in 9 contracts
Samples: Stockholder Option Agreement (Dep Corp), Stockholder Option Agreement (Dep Corp), Stockholder Option Agreement (Dep Corp)
Option. (a) In order Investor shall have an option (the “Option”) to induce acquire, and the Company shall issue and allot and/or cause to be transferred to Investor and/or its Permitted Transferees upon exercise by Investor of the Option, additional Ordinary Shares (the “Option Shares”) which, when aggregated with the Initial Shares, represent up to 30% of the Fully-Diluted Equity (after taking into account any applicable Post-Closing Redemption) immediately after such issuance of the Option Shares (pursuant to one or more exercises of the Option in accordance with the provisions of this Article III); provided, however that, pursuant to any exercise of the Option by Investor, up to 20% of the number of Option Shares to be acquired upon any exercise of the Option by Investor may be in the form of (i) Ordinary Shares (the “Employee Option Shares”) owned by individuals employed by Parent, the Company or their Subsidiaries (the “Option Employees”) or the Permitted Transferees of such individuals, to be sold to Investor in accordance with the provisions set forth in this Article III and/or (ii) Ordinary Shares to be issued and allotted by the Company (the “Redemption Option Shares”); and provided further that up to 80% of the number of Option Shares to be acquired upon any exercise of the Option by Investor may be in the form of Ordinary Shares (the “Parent Option Shares”) owned by Parent. If applicable, Parent and Purchaser the Company shall, pursuant to enter into any exercise of the Merger AgreementOption by Investor, Stockholder hereby grants to Purchaser an irrevocable option (a "SECURITIES OPTION") to purchase procure the Securities (sale of the "OPTION SECURITIES") at Employee Option Shares by the Offer Price, subject to increase as Option Employees in accordance with the provisions set forth below in this Article III.
(b) Notwithstanding anything set forth herein but without prejudice to Section 3.04(b), Investor shall not effect or permit to be effected a Sale of the "PURCHASE PRICE"). The Securities Option may be exercisedOption, in whole or in part, to any Person, other than a transfer, in whole but not in part, by written notice to Stockholder (as set forth below), for a period of ten (10) business days (the "10 DAY PERIOD") following termination of the Merger Agreement or termination of the Offer, whichever shall first occur; PROVIDED that, prior to such termination, either (i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option pursuant to this Agreement; provided that if (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) there shall be in effect any such injunction or order, in each case on the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or orderPermitted Transferee.
(b) In the event that Purchaser wishes to exercise the Securities Option, Purchaser shall send a written notice (the "NOTICE") to Stockholder identifying the date (not less than two (2) nor more than five (5) business days from the date of the Notice) for the closing of such purchase, which closing shall be held at the executive offices of the Company (or such other place as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designate.
(c) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option (the "ACQUIRED SECURITIES") and, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess of the Purchase Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increase.
(d) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designate.
Appears in 5 contracts
Samples: Shareholder Agreement, Shareholder Agreement (Sina Corp), Shareholder Agreement (WEIBO Corp)
Option. (a) In order On the terms and subject to induce Parent and Purchaser to enter into the Merger Agreementconditions set forth herein, Stockholder hereby grants to Purchaser Parent an irrevocable option (a "SECURITIES OPTION"the “Option”) to purchase all of the right, title and interest of Stockholder in and to Stockholder’s Securities (the "OPTION SECURITIES") at with a price per share equal to the Offer Price; provided, subject however, that Stockholder shall have no duty or obligation to increase as set forth below (sell any Securities to Parent if such action would cause Stockholder to incur liability under Section 16(b) of the "PURCHASE PRICE")Exchange Act. The Securities Parent may exercise the Option may be exercisedin whole, in whole but not in part, by if, but only if, (i) Sub has acquired Shares pursuant to the Offer and (ii) Stockholder has failed to tender into the Offer any Shares or shall have withdrawn the tender of any Shares into the Offer in breach of this Agreement. Parent may exercise the Option at any time within the sixty (60) days following the date when such Option first becomes exercisable.
(b) In the event that Parent is entitled to and wishes to exercise the Option, Parent shall send a written notice to Stockholder specifying the place and the date for the closing of such purchase, which date shall be not more than sixty (as set forth below)60) days after the date of such notice; provided that in the event that prior notification to, for a period of ten (10) business days (or approval of, any Governmental Entity is required in connection with the "10 DAY PERIOD") following termination exercise of the Merger Agreement Option or termination of the Offer, whichever shall first occur; PROVIDED that, prior to such termination, either (i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary or final injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option pursuant to this Agreement; provided that if Option, the period of time during which the date of the closing may be fixed shall be extended until the tenth (i10th) day following the last date on which all HSR Act required approvals shall have been obtained, all required waiting periods shall not have expired or been terminated or (ii) there shall be in effect and any such injunction prohibition shall have been vacated, terminated or order, in each case on the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or order.
(b) In the event that Purchaser wishes to exercise the Securities Option, Purchaser shall send a written notice (the "NOTICE") to Stockholder identifying the date (not less than two (2) nor more than five (5) business days from the date of the Notice) for the closing of such purchase, which closing shall be held at the executive offices of the Company (or such other place as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designatewaived.
(c) In At the event closing of the Option purchase of Stockholder’s Securities are acquired by Purchaser pursuant to the exercise of the Option, simultaneously with the payment by Parent of the purchase price for Stockholder’s Securities, such Stockholder shall deliver, or cause to be delivered, to the Sub certificates representing Securities Option (the "ACQUIRED SECURITIES") and, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of duly endorsed to Parent or Purchaser shall acquire Common Stock (accompanied by stock powers or other than from transfer documents duly executed by the Company) at a price Company in excess of the Purchase Priceblank, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increasetogether with any necessary stock transfer stamps properly affixed, Stockholder shall be entitled to receive, free and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increase.
(d) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") clear of all or any portion of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designateEncumbrances.
Appears in 4 contracts
Samples: Merger Agreement (Cubist Pharmaceuticals Inc), Merger Agreement (Adolor Corp), Merger Agreement (Cubist Pharmaceuticals Inc)
Option. (a) In order to induce Parent and the Purchaser to enter into the Merger Agreement, the Stockholder hereby grants to Purchaser an irrevocable option (a "SECURITIES OPTIONSecurities Option") to purchase the Securities (the "OPTION SECURITIESOption Securities") at the Offer Price, subject to increase as set forth below Price (the "PURCHASE PRICEPurchase Price"). The Securities Option may be exercised, in whole but not in part, by written notice to Stockholder (as set forth below), for a period of ten (10) business days (the "10 DAY PERIOD") following termination of the Merger Agreement or termination of the Offer, whichever shall first occur; PROVIDED that, prior to such termination, either If (i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been is terminated by Parent pursuant to in accordance with Section 8.01(b8.01(c), 8.01(d)(ii8.01(e)(ii), 8.01(f) or 8.01(g) thereof, or (ii) the Merger Agreement is terminated in accordance with Section 8.01(b)(ii) thereof and (Cx) the Stockholder shall have breached the agreements set forth in Section 2(a) hereof or (y) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may shall, in any such case, become exercisable, in whole but not be exercised untilin part, upon the first to occur of any such event and remain exercisable in whole but not in part until the date which is 90 days after the date of the occurrence of such event (the "90 Day Period"), so long as: (i) all waiting periods under the XxxxHart-Xxxxx-Xxxxxx Antitrust Xxxitrust Improvements Act of 1976, as amended (the "HSR ACTAct"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option pursuant to this Agreement; provided that if (i) all HSR Act waiting periods shall not have expired or been terminated waived or the conditions under the other Antitrust Laws shall not have been satisfied or (ii) there shall be in effect any such injunction or order, in each case on the expiration of the 10 90 Day Period, the 10 90 Day Period shall be extended until five (5) business days after the later of (A) the later of the date of expiration or termination waiver of all HSR Act waiting periodsperiods or the date on which the applicable conditions under the other Antitrust Laws have been satisfied, and (B) the date of removal or lifting of such injunction or order.
(b) . In the event that the Purchaser wishes to exercise the Securities Option, the Purchaser shall send a written notice (the "NOTICENotice") to the Stockholder identifying the place and date (not less than two (2) nor more than five ten (510) business days from the date of the Notice) for the closing of such purchase, which closing shall be held at the executive offices of the Company (or such other place as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designate.
(c) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option (the "ACQUIRED SECURITIES") and, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess of the Purchase Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increase.
(d) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designate.
Appears in 4 contracts
Samples: Stockholder Agreement (Voith Sulzer Acquisition Corp), Stockholder Agreement (Voith Sulzer Acquisition Corp), Stockholder Agreement (Voith Sulzer Acquisition Corp)
Option. (a) In order On the terms and subject to induce Parent and Purchaser to enter into the Merger Agreementconditions set forth herein, each Stockholder hereby grants to Purchaser an irrevocable Parent a conditional option (a "SECURITIES OPTION"the “Option”) to purchase all of the Securities (the "OPTION SECURITIES") right, title and interest of such Stockholder in and to such Stockholder’s Covered Shares at a price equal to the Offer Price. Parent may exercise an Option in whole, subject to increase as set forth below (the "PURCHASE PRICE"). The Securities Option may be exercised, in whole but not in part, with respect to any Covered Shares not acquired by written notice Merger Sub pursuant to the Offer if, but only if, (i) Merger Sub has acquired shares of Common Stock pursuant to the Offer and (ii) such Stockholder (as set forth below), for a period shall have failed to tender into the Offer such Covered Shares or shall have withdrawn the tender of such Covered Shares into the Offer. Parent may exercise an Option at any time within the ten (10) business days (the "10 DAY PERIOD") following termination of the Merger Agreement or termination of the Offer, whichever shall first occur; PROVIDED that, prior to such termination, either (i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option pursuant to this Agreement; provided that if (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) there shall be in effect any such injunction or order, in each case on the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of when such injunction or orderOption first becomes exercisable.
(b) In the event that Purchaser Parent is entitled to and wishes to exercise the Securities an Option, Purchaser Parent shall send a written notice (to the "NOTICE"relevant Stockholder(s) to Stockholder identifying specifying the place and the date (not less than two (2) nor more than five (5) business days from the date of the Notice) for the closing of such purchase, which closing date shall be held at not more than ten (10) days after the executive offices date of such notice; provided that in the event that prior notification to, or approval of, any Governmental Authority is required in connection with the exercise of an Option or there shall be in effect any preliminary or final injunction or other order issued by any Governmental Authority prohibiting the exercise of an Option, the period of time during which the date of the Company closing may be fixed shall be extended until the tenth (10th) day following the last date on which all required approvals shall have been obtained, all required waiting periods shall have expired or been terminated and any such other place as the parties may agree). At the closingprohibition shall have been vacated, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designateterminated or waived.
(c) In At the event the Option Securities are acquired by Purchaser pursuant to the exercise closing of the Securities Option (the "ACQUIRED SECURITIES") and, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess of the Purchase Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of a Stockholder’s Covered Shares pursuant to exercise of an Option, simultaneously with the Acquired Securities has been completed at payment by the time Parent of the purchase price for a Stockholder’s Covered Shares, such increase, Stockholder shall deliver, or cause to be entitled delivered, to receivethe Merger Sub certificates representing such Covered Shares duly endorsed to the Parent or accompanied by stock powers or other transfer documents duly executed by the Company in blank, together with any necessary stock transfer stamps properly affixed, free and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer clear of same day funds to such account as Stockholder shall designate, the amount of the increaseall Encumbrances.
(d) In Parent, Merger Sub or the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities OptionCompany, Stockholder as applicable, shall be entitled to receivededuct and withhold from the consideration otherwise payable pursuant to this Section 5 to a holder of Covered Shares such amounts as are required to be withheld under the Code, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion applicable provision of state, local or foreign tax law. To the extent that amounts are so withheld, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Acquired Securities within the one-year period following Covered Shares in respect of which such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designatededuction and withholding was made.
Appears in 3 contracts
Samples: Voting and Tender Agreement, Voting and Tender Agreement (Cogent, Inc.), Voting and Tender Agreement (Cogent, Inc.)
Option. (a) In order On the terms and subject to induce Parent the conditions set forth herein, each Shareholder hereby grants to each of Purchaser and Purchaser Merger Sub an irrevocable option to enter into purchase all of the right, title and interest of such Shareholder in and to the Shares owned by such Shareholder, as well as any other Shares of Common Stock of which such Shareholder is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) after the date hereof, if and to the extent that such Shares are not validly tendered in the Offer pursuant to the terms of Section 3 hereof, at a price per share equal to the Offer Price (as defined in the Merger Agreement, Stockholder hereby grants to Purchaser an irrevocable option (a "SECURITIES OPTION") to purchase the Securities (the "OPTION SECURITIES") at the Offer Price, subject to increase as set forth below (the "PURCHASE PRICE"“Option”). The Securities With respect to any Shareholder, the Option may be exercised, in whole but not in part, by written notice to Stockholder exercised after Merger Sub shall purchase and pay for Shares (as set forth below), for a period defined in the Merger Agreement) pursuant to the Offer following satisfaction of ten the Minimum Condition and until the earlier of (10a) business days immediately preceding the Effective Time (as defined in the "10 DAY PERIOD"Merger Agreement) following or (b) the termination of the Merger Agreement or termination of the Offer, whichever shall first occur; PROVIDED that, prior to such termination, either (i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, in accordance with its terms. Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976Sub, as amended (the "HSR ACT")case may be, required for the purchase of the Securities upon such may exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall an Option in whole, but not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option pursuant to this Agreement; provided that if (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) there shall be in effect any such injunction or order, in each case on the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or orderpart.
(b) In the event that Purchaser wishes or Merger Sub desires to exercise the Securities an Option, Purchaser or Merger Sub shall send a written notice (in accordance with Section 13(a) hereof to the "NOTICE") relevant Shareholder prior to Stockholder identifying the termination of this Agreement specifying the place and the date (not less than two (2) nor more than five (5) business days from the date of the Notice) for the closing of such purchase, which closing date may be the date of such notice and shall be held at not more than three business days after the executive offices date of such notice and shall be prior to the termination of this Agreement; provided that in the event that prior notification to, or approval of, any Governmental Authority is required in connection with the exercise of an Option or there shall be in effect any preliminary or final injunction or other order issued by any Governmental Authority prohibiting the exercise of an Option, the period of time during which the date of the Company (closing may be fixed shall be extended until the fifth business day following the last date on which all required approvals shall have been obtained, all required waiting periods shall have expired or been terminated and any such other place as the parties may agree). At the closingprohibition shall have been vacated, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designateterminated or waived.
(c) In At the event closing of any purchase of a Shareholder’s Shares pursuant to exercise of an Option, simultaneously with the Option Securities are acquired payment by Purchaser pursuant to the exercise or Merger Sub of the Securities Option (the "ACQUIRED SECURITIES") andpurchase price for such Shareholder’s Shares, either before such Shareholder shall deliver, or at any time within the one-year period following such acquisitioncause to be delivered, Parent, to Purchaser or Merger Sub certificates representing such Shares duly endorsed to Purchaser or Merger Sub or accompanied by stock powers duly executed by the Shareholder in blank, together with any affiliate necessary stock transfer stamps properly affixed, free and clear of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess of the Purchase Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increaseall liens.
(d) In Notwithstanding the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Optionforegoing, Stockholder shall be entitled to receive, and Purchaser shall promptly (at no time and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion shall the shares of the Acquired Securities within Company’s capital stock subject to this Section 5 exceed the one-year period following such acquisitionMaximum Restricted Amount. In the event that the total number of Shares exceeds the Maximum Restricted Amount, an amount per share then Merger Sub, in cash equal to the excessits sole and absolute discretion, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall determine which Shares shall be made by wire transfer subject to this Section 5. Merger Sub, in its sole and absolute discretion, shall make the determination of same day funds whether Shares subject to such account as Stockholder shall designaterestriction pursuant to this Section 5 have equaled or exceeded the Maximum Restricted Amount.
Appears in 3 contracts
Samples: Shareholders Agreement (Sl Industries Inc), Shareholders Agreement (Ault Inc), Shareholders Agreement (Sl Industries Inc)
Option. (a) In order On the terms and subject to induce Parent and Purchaser to enter into the Merger Agreementconditions set forth herein, Stockholder hereby grants to Purchaser Parent an irrevocable option (a "SECURITIES OPTION"the “Option”) to purchase all of the right, title and interest of Stockholder in and to Stockholder’s Securities (the "OPTION SECURITIES") at with a price per share equal to the Offer Price. Parent may exercise the Option in whole, subject to increase as set forth below (the "PURCHASE PRICE"). The Securities Option may be exercised, in whole but not in part, by if, but only if, (i) Sub has acquired Shares pursuant to the Offer and (ii) Stockholder has failed to tender into the Offer any Shares or shall have withdrawn the tender of any Shares into the Offer in breach of this Agreement. Parent may exercise the Option at any time within the sixty (60) days following the date when such Option first becomes exercisable.
(b) In the event that Parent is entitled to and wishes to exercise the Option, Parent shall send a written notice to Stockholder specifying the place and the date for the closing of such purchase, which date shall be not more than sixty (as set forth below)60) days after the date of such notice; provided that in the event that prior notification to, for a period of ten (10) business days (or approval of, any Governmental Entity is required in connection with the "10 DAY PERIOD") following termination exercise of the Merger Agreement Option or termination of the Offer, whichever shall first occur; PROVIDED that, prior to such termination, either (i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary or final injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option pursuant to this Agreement; provided that if Option, the period of time during which the date of the closing may be fixed shall be extended until the tenth (i10th) day following the last date on which all HSR Act required approvals shall have been obtained, all required waiting periods shall not have expired or been terminated or (ii) there shall be in effect and any such injunction prohibition shall have been vacated, terminated or order, in each case on the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or order.
(b) In the event that Purchaser wishes to exercise the Securities Option, Purchaser shall send a written notice (the "NOTICE") to Stockholder identifying the date (not less than two (2) nor more than five (5) business days from the date of the Notice) for the closing of such purchase, which closing shall be held at the executive offices of the Company (or such other place as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designatewaived.
(c) In At the event closing of the Option purchase of Stockholder’s Securities are acquired by Purchaser pursuant to the exercise of the Option, simultaneously with the payment by Parent of the purchase price for Stockholder’s Securities, such Stockholder shall deliver, or cause to be delivered, to the Sub certificates representing Securities Option (the "ACQUIRED SECURITIES") and, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of duly endorsed to Parent or Purchaser shall acquire Common Stock (accompanied by stock powers or other than from transfer documents duly executed by the Company) at a price Company in excess blank, together with any necessary stock transfer stamps properly affixed, free and clear of the Purchase Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increaseall Encumbrances.
(d) In Parent, Sub or the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities OptionCompany, Stockholder as applicable, shall be entitled to receivededuct and withhold from the consideration otherwise payable pursuant to this Section 1.6 to a holder of Securities such amounts as are required to be withheld under the Code or the Treasury Regulations thereunder or any other Tax Law. To the extent that amounts are so deducted and withheld, and Purchaser such deduction and withholding would have been required were Parent incorporated or organized in the United States or a subdivision thereof, such amounts shall promptly (and in no event more than 48 hours following such Sale) pay be treated for all purposes of this Agreement as having been paid to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion the holder of the Acquired Securities within in respect of which such deduction and withholding was made. To the one-year period following extent any amounts are required to be deducted and withheld under the Tax Law of a jurisdiction outside the United States, and such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share deduction would not have been required were Parent incorporated or organized in the Sale over the Purchase Price. Any such payment United States or a subdivision thereof, additional amounts shall be made by wire transfer of paid as necessary to ensure that the Stockholder receives the same day funds to amount that would otherwise have been received as if no such account as Stockholder shall designatededuction and withholding had been made.
Appears in 3 contracts
Samples: Merger Agreement (Covidien PLC), Merger Agreement (Vnus Medical Technologies Inc), Tender and Voting Agreement (Covidien Group S.a.r.l.)
Option. (a) In order On the terms and subject to induce Parent and Purchaser to enter into the Merger Agreementconditions set forth herein, Stockholder Shareholder hereby grants to Purchaser Parent an irrevocable option (a "SECURITIES OPTION"the “Option”) to purchase all of the right, title and interest of Shareholder in and to Shareholder’s Securities (the "OPTION SECURITIES") at with a price per share equal to the Offer Price; provided however that the Option shall not include Securities issued pursuant to the Plans, subject to increase as set forth below (which are not transferrable. Parent may exercise the "PURCHASE PRICE"). The Securities Option may be exercisedin whole, in whole but not in part, by written notice to Stockholder (as set forth below)if, for a period of ten (10) business days (the "10 DAY PERIOD") following termination of the Merger Agreement or termination of the Offerbut only if, whichever shall first occur; PROVIDED that, prior to such termination, either (i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent Sub has acquired Shares pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied Offer and (ii) Shareholder has failed to tender into the Offer any Shares or shall have withdrawn the tender of any Shares into the Offer in breach of this Agreement. Parent may exercise the Option at any time within the sixty (60) days following the date when such Option first becomes exercisable.
(b) In the event that Parent is entitled to and wishes to exercise the Option, Parent shall send a written notice to Shareholder specifying the place and the date for the closing of such purchase, which date shall be not more than sixty (60) days after the date of such notice; provided that in the event that prior notification to, or approval of, any Governmental Entity is required in connection with the exercise of the Option or there shall not be in effect any preliminary or final injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option pursuant to this Agreement; provided that if Option, the period of time during which the date of the closing may be fixed shall be extended until the tenth (i10th) day following the last date on which all HSR Act required approvals shall have been obtained, all required waiting periods shall not have expired or been terminated or (ii) there shall be in effect and any such injunction prohibition shall have been vacated, terminated or order, in each case on the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or order.
(b) In the event that Purchaser wishes to exercise the Securities Option, Purchaser shall send a written notice (the "NOTICE") to Stockholder identifying the date (not less than two (2) nor more than five (5) business days from the date of the Notice) for the closing of such purchase, which closing shall be held at the executive offices of the Company (or such other place as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designatewaived.
(c) In At the event closing of the Option purchase of Shareholder’s Securities are acquired by Purchaser pursuant to the exercise of the Option, simultaneously with the payment by Parent of the purchase price for Shareholder’s Securities, such Shareholder shall deliver, or cause to be delivered, to the Sub certificates representing such Securities Option (the "ACQUIRED SECURITIES") and, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of duly endorsed to Parent or Purchaser shall acquire Common Stock accompanied by stock powers or other transfer documents duly executed by the Company in blank, together with any necessary stock transfer stamps properly affixed, free and clear of all Liens (other than from the Company) at a price in excess of the Purchase Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increasedefined below).
(d) In Parent, Sub or the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities OptionCompany, Stockholder as applicable, shall be entitled to receivededuct and withhold from the consideration otherwise payable pursuant to this Section 1.6 to a holder of Securities such amounts as are required to be withheld under the Code or the Treasury Regulations thereunder or any other Tax Law. To the extent that amounts are so deducted and withheld, such amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Securities in respect of which such deduction and withholding was made. To the extent any amounts are required to be deducted and withheld under the Tax Law of a jurisdiction outside the United States, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer deduction would not have been required were Parent incorporated or sale to an unaffiliated third party ("SALE") of all or any portion of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share organized in the Sale over the Purchase Price. Any such payment United States or a subdivision thereof, additional amounts shall be made by wire transfer of paid as necessary to ensure that the Shareholder receives the same day funds to amount that would otherwise have been received as if no such account as Stockholder shall designatededuction and withholding had been made.
Appears in 3 contracts
Samples: Merger Agreement (Covidien PLC), Merger Agreement (Somanetics Corp), Tender and Voting Agreement (Somanetics Corp)
Option. (a) In order The Stockholders hereby grant to induce Parent and Purchaser to enter into the Merger AgreementSub (or its designee), Stockholder hereby grants to Purchaser an irrevocable option (a "SECURITIES OPTION") to purchase the Securities Subject Shares, on the terms and subject to the conditions set forth herein (the "OPTION SECURITIES") at the Offer Price, subject to increase as set forth below (the "PURCHASE PRICEOption"). .
(b) The Securities Option may be exercisedexercised by Merger Sub, in as a whole but and not in part, by written notice to Stockholder (as set forth below), for a at any time during the period commencing upon the occurrence of ten (10) business days (the "10 DAY PERIOD") following termination any of the Merger Agreement or termination following events and ending on the date which is the 30th calendar day following the first to occur of the Offer, whichever shall first occur; PROVIDED that, prior to such termination, either events:
(i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b10.1(b) thereof;
(ii) the Merger Agreement shall have been terminated pursuant to Section 10.1(c) thereof (other than a termination by the Company following a failure to consummate the Merger as a result of an actual material breach by Parent or Merger Sub of their respective obligations under the Merger Agreement);
(iii) the Merger Agreement shall have been terminated pursuant to Section 10.1(d) thereof;
(iv) the Merger Agreement shall have been terminated pursuant to Section 10.1(e) thereof; or
(v) the Merger Agreement shall have been terminated for any other reason (other than a termination as a result of an actual material breach by Parent or Merger Sub of their respective obligations under the Merger Agreement).
(c) If Merger Sub wishes to exercise the Option, 8.01(d)(ii)Merger Sub shall send a written notice to the Stockholders of its intention to exercise the Option, 8.01(f) or 8.01(g) and (C) at specifying the place, and, if then known, the time of such termination and the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended date (the "HSR ACTOption Closing Date"), required for the purchase ) of the Securities upon such exercise shall have expired or been waived and any other conditions under closing (the other Antitrust Laws shall have been satisfied and (ii"Option Closing") there shall not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities purchase. The Option pursuant to this Agreement; provided that if Closing Date shall occur on the fifth business day (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) there such later date as shall be in effect any such injunction or order, in each case on no later than five business days following the expiration of first time that the 10 Day Period, the 10 Day Period Option Closing shall be extended until five (5permitted by applicable law or regulation) business days after the later of (Ai) the date of expiration or termination of all HSR Act waiting periodson which such notice is delivered, and (Bii) the date satisfaction of removal or lifting of such injunction or orderthe conditions set forth in Section 4(f).
(bd) In the event that Purchaser wishes to exercise the Securities Option, Purchaser shall send a written notice (the "NOTICE") to Stockholder identifying the date (not less than two (2) nor more than five (5) business days from the date of the Notice) for the closing of such purchase, which closing shall be held at the executive offices of the Company (or such other place as the parties may agree). At the closingOption Closing, Stockholder the Stockholders shall deliver to Purchaser appropriate and effective instruments of transfer Merger Sub (or its designee) all of the Option SecuritiesSubject Shares by delivery of a certificate or certificates evidencing the Subject Shares duly endorsed to Merger Sub or accompanied by powers duly executed in favor of Merger Sub, against payment to Stockholder of the Purchase Price, in same day funds, by wire with all necessary stock transfer to such account as Stockholder shall designatestamps affixed.
(ce) In the event At the Option Securities are acquired by Purchaser Closing, Merger Sub shall, and Parent shall cause Merger Sub to, pay to the Stockholders pursuant to the exercise of the Securities Option, by wire transfer, cash in immediately available funds to the accounts of the Stockholders (such accounts to be specified in writing at least two days prior to the Option Closing), an amount equal to the product of $15.00 and the number of Subject Shares (the "ACQUIRED SECURITIES") and, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess of the Subject Shares Purchase Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increase").
(df) In The Option Closing shall be subject to the event satisfaction of each of the Option Securities are acquired by Purchaser following conditions:
(i) no court, arbitrator or governmental body, agency or official shall have issued any order, decree or ruling and there shall not be any statute, rule or regulation, restraining, enjoining or prohibiting the consummation of the purchase and sale of the Subject Shares pursuant to the exercise of the Securities Option;
(ii) any waiting period applicable to the consummation of the purchase and sale of the Subject Shares pursuant to the exercise of the Option under the HSR Act shall have expired or been terminated; and
(iii) all actions by or in respect of, Stockholder and any filing with, any governmental body, agency, official, or authority required to permit the consummation of the purchase and sale of the Subject Shares pursuant to the exercise of the Option shall have been obtained or made and shall be entitled to receivein full force and effect, except such actions and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal to the excessfilings which, if anynot made or obtained, of the net proceeds received per share would not, individually or in the Sale over the Purchase Price. Any such payment shall aggregate, reasonably be made by wire transfer of same day funds expected to such account as Stockholder shall designatehave a Material Adverse Effect.
Appears in 3 contracts
Samples: Voting Agreement (Ameriserve Food Distribution Inc /De/), Voting Agreement (Prosource Inc), Voting Agreement (Ameriserve Food Distribution Inc /De/)
Option. (a) In order to induce Parent and Purchaser to enter into the Merger Agreement, The Stockholder hereby irrevocably grants to Purchaser an irrevocable option (a "SECURITIES OPTION") to purchase the Securities (the "OPTION SECURITIES") at the Offer Price, subject to increase as set forth below (the "PURCHASE PRICE"). The Securities Option may be exercised, in whole but not in part, by written notice to Stockholder (as set forth below), for a period of ten (10) business days (the "10 DAY PERIOD") following termination of the Merger Agreement or termination of the Offer, whichever shall first occur; PROVIDED that, prior to such termination, either (i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACTOption"), required for exercisable from time to time only upon the events and subject to the conditions set forth herein, to purchase such number (not in excess of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise then applicable Maximum Share Number), of the Securities Option pursuant Shares at a purchase price per share equal to this Agreement; provided that if $23.40 (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) there shall such higher per share price as may be offered by Purchaser in effect any such injunction or order, in each case on the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or orderOffer).
(b) In Subject to the event that conditions set forth in Section 1.03 and the termination provisions of Section 6.07, Purchaser wishes may exercise the Option in whole or in part at any time prior to the date 60 days after the expiration or termination of the Offer (such sixtieth day being herein called the "Option Expiration Date") if (x) the Stockholder fails to comply with any of its obligations under this Agreement or withdraws the tender of the Shares except under the circumstances set forth in the proviso to Section 1.01(b) (but the Option shall not limit any other right or remedy available to the Parent or Purchaser against the Stockholder for breach of this Agreement) or (y) the Offer is not consummated because of the failure to satisfy any of the conditions to the Offer set forth in Annex A to the Merger Agreement (other than as a result of any action or inaction of the Parent or Purchaser which constitutes a breach of the Merger Agreement). Upon the occurrence of any of such circumstances, Purchaser shall be entitled to exercise the Securities Option, Option and (subject to Section 1.03) Purchaser shall send a be entitled to purchase the Shares and the Stockholder shall sell the Shares to Purchaser. Purchaser shall exercise the Option by delivering written notice thereof to the Stockholder (the "NOTICENotice") ), specifying the number of Shares to Stockholder identifying be purchased and the date, time and place for the closing of such purchase which date (shall not be less than two (2) three business days nor more than five (5) business days from the date the Stockholder receives the Notice and in no event shall such date be later than the Option Expiration Date. The closing of the Noticepurchase of Shares pursuant to this Section 1.02 (the "Closing") for shall take place on the closing of such purchasedate, which closing shall be held at the executive offices time and at the place specified in such notice; provided, that if at such date any of the Company conditions specified in Section 1.03 shall not have been satisfied (or waived), Purchaser may postpone the Closing until a date within five business days after such other place as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of conditions are satisfied (but not later than the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designateExpiration Date).
(c) In At the event Closing, the Option Securities are acquired Stockholder will deliver to Purchaser (in accordance with Purchaser's instructions) the certificates representing the Shares owned by Purchaser the Stockholder and being purchased pursuant to Section 1.02(c), duly endorsed or accompanied by stock powers duly executed in blank; provided, that the exercise number of Shares the Securities Option (the "ACQUIRED SECURITIES") and, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess of the Purchase Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled required to receivedeliver from time to time pursuant to a Notice, when taken together with all Shares previously delivered pursuant to all Notices, shall not exceed the aggregate number of shares owned by the Stockholder beneficially and of record, at such time. At such Closing, Purchaser shall promptly (and in no event more than 48 hours following such increase) pay deliver to the Stockholder, by bank wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increase.
(d) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion of the Acquired Securities within the one-year period following such acquisitionimmediately available funds, an amount per share in cash equal to the excess, if any, number of Shares being purchased from the net proceeds received Stockholder as specified in the Notice multiplied by $23.40 (or such higher per share price as being offered by Purchaser in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designateOffer).
Appears in 3 contracts
Samples: Merger Agreement (Foodbrands America Inc), Merger Agreement (Ibp Inc), Tender Agreement (Airlie Group Lp Et Al)
Option. (a) In order Subject to induce Parent the terms and Purchaser to enter into the Merger Agreementconditions set forth herein, each Stockholder hereby grants to Purchaser Parent an irrevocable and continuing option (a the "SECURITIES OPTIONOption") to purchase for cash all, but not less than all, of the Securities Launch Common Stock (including, without limitation, the Shares) beneficially owned or controlled by such Stockholder as of the date hereof, or beneficially owned or controlled by such Stockholder at any time hereafter (including, without limitation, shares acquired by way of exercise of options, warrants or other rights to purchase Launch Common Stock or by way of dividend, distribution, exchange, merger, consolidation, recapitalization, reorganization, stock split, grant of proxy or otherwise) by such Stockholder (as adjusted as set forth herein) (the "OPTION SECURITIESOption Shares") at a purchase price equal to $0.92, or any higher purchase price per share paid or to be paid by Parent or Purchaser pursuant to the Offer Price(as defined in the Merger Agreement) or the Merger, subject but excluding any price paid to increase as set forth below any stockholder who shall exercise dissenters' rights in connection with the Merger (the "PURCHASE PRICEPurchase Price"). .
(b) The Securities Option may be exercisedexercised by Parent, in whole but not or in part, by written notice if after the date hereof (i) any of the events described in Section 8.1(e) of the Merger Agreement that would allow Parent to Stockholder terminate the Merger Agreement (as set forth below), for but without the necessity of Parent having terminated the Merger Agreement) shall have occurred (a period of ten (10) business days (the "10 DAY PERIOD") following termination of the Merger Agreement or termination of the Offerby Parent in such circumstances, whichever shall first occura "Section 8.1(e) Termination"); PROVIDED that, prior to such termination, either (i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate termination of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement by Launch pursuant to Section 8.1(f) thereof shall have been terminated occurred (a termination of the Merger Agreement by Launch in such circumstances, a "Section 8.1(f) Termination"); or (iii) any termination of the Merger Agreement by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f8.1(c) or 8.01(g) and thereof shall have occurred (C) at but only by reason of the time failure of such termination the Minimum Condition shall not have been satisfied. Notwithstanding or the foregoing, the Securities Option may not be exercised until: occurrence of any event set forth at paragraphs (id) all waiting periods under or (f) of Annex I to the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (Merger Agreement) and following the "HSR ACT"), required for the purchase of the Securities upon date hereof and prior to such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws termination an Acquisition Proposal shall have been satisfied and commenced, publicly proposed or communicated to Launch or its stockholders (iia termination of the Merger Agreement by parent in such circumstances, a "Qualifying Section 8.1(c) there shall not Termination"). In addition, the Option may be exercised by Parent, in effect any preliminary injunction whole or other order issued in part, immediately following the consummation of the Offer with respect to the Shares owned by any Governmental Entity prohibiting the exercise of the Securities Option pursuant Stockholder who shall fail to this Agreement; provided that if (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) there shall be tender such Stockholder's Shares in effect any such injunction or order, in each case on the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or order.
(b) In the event that Purchaser wishes to exercise the Securities Option, Purchaser shall send a written notice (the "NOTICE") to Stockholder identifying the date (not less than two (2) nor more than five (5) business days from the date of the Notice) for the closing of such purchase, which closing shall be held at the executive offices of the Company (or such other place as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designateaccordance with Section 3 hereof.
(c) In the event that Parent wishes to exercise the Option, it shall send to the Stockholder a written notice (the date of each such notice being herein referred to as a "Notice Date") setting forth its irrevocable election to that effect, which notice also specifies a date not earlier than three business days nor later than 30 business days from the Notice Date for the closing of such purchase (an "Option Securities are acquired by Purchaser Closing Date"); provided, however, that (i) if the closing of a purchase and sale pursuant to the Option (an "Option Closing") cannot be consummated by reason of any applicable judgment, decree, order, law or regulation, the period of time that otherwise would run pursuant to this sentence shall run instead from the date on which the restriction on consummation has expired or been terminated and (ii) without limiting the foregoing, if prior notification to or approval of any regulatory authority is required in connection with the purchase, Parent and the Stockholder shall promptly file the required notice or application for approval and shall cooperate in the expeditious filing of such notice or application, and the period of time that otherwise would run pursuant to this sentence shall run instead from the date on which, as the case may be, (A) any required notification period has expired or been terminated or (B) any required approval has been obtained, and in either event, any requisite waiting period has expired or been terminated. Each of Parent and the Stockholder agrees to use commercially reasonable efforts to cooperate with and provide information to the other, for the purpose of any required notice or application for approval. Any exercise of the Securities Option (shall be deemed to occur on the "ACQUIRED SECURITIES") and, either before or Notice Date relating thereto. The place of any Option Closing shall be at any time within the one-year period following such acquisition, offices of Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from which address is set forth in the Company) at a price in excess of the Purchase PriceMerger Agreement, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at and the time of such increase, Stockholder the Option Closing shall be entitled to receive, and Purchaser shall promptly 10:00 a.m. (and in no event more than 48 hours following such increaseCalifornia time) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, on the amount of the increaseapplicable Option Closing Date.
(d) At any Option Closing, Parent shall pay to the Stockholder in immediately available funds by check or wire transfer to a bank account designated in writing by the Stockholder an amount equal to the Purchase Price multiplied by the number of Shares being delivered by the Stockholder; provided, that, with respect to any wire transfer, failure or refusal of the Stockholder to designate a bank account shall not preclude Parent from exercising the Option, in whole or in part.
(e) At any Option Closing, simultaneously with the delivery of immediately available funds as provided above, the Stockholder shall deliver to Parent a certificate or certificates representing its Shares to be purchased at such Option Closing, which Shares shall be free and clear of all liens, claims, charges and encumbrances of any kind whatsoever.
(f) In the event of any change in Launch Common Stock by reason of a stock dividend, split-up, merger, recapitalization, combination, exchange of shares or similar transaction, the Option Securities are acquired by Purchaser pursuant type and number of Shares subject to the Option, and the Purchase Price therefor, shall be adjusted appropriately, so that Parent shall receive upon exercise of the Securities Option, Stockholder shall be entitled to receive, Option the number and Purchaser shall promptly (and class of shares or other securities or property that Parent would have received in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion respect of the Acquired Securities within Option Shares if the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds Option had been exercised immediately prior to such account event or the record date therefor, as Stockholder shall designateapplicable.
Appears in 3 contracts
Samples: Stockholders Agreement (Yahoo Inc), Stockholders Agreement (Yahoo Inc), Stockholders Agreement (Launch Media Inc)
Option. (a) In order the event the Purchaser ceases to induce Parent and Purchaser to enter into be an employee, consultant, advisor, officer or director of the Merger Agreement, Stockholder hereby grants to Purchaser an irrevocable option Company (a "SECURITIES OPTION"“Service Provider”) to purchase for any or no reason, including, without limitation, by reason of the Securities Purchaser’s death or disability (as defined in Section 22(e)(3) of the Internal Revenue Code of 1986, as amended (the "OPTION SECURITIES") at “Code”), “Disability”), resignation or involuntary termination, the Offer PriceCompany shall, subject to increase from such time (as set forth below determined by the Company in its discretion), have the right, but not the obligation (the "PURCHASE PRICE"). The Securities Option may be exercised, in whole but not in part, by written notice to Stockholder (as set forth below“Repurchase Option”), for a period of ten (10) business 90 days from the date the Purchaser ceases to be a Service Provider, to repurchase any Shares which have not yet been released from the Repurchase Option (the "10 DAY PERIOD"“Unreleased Shares”) following termination at a price per share equal to the lesser of (x) the fair market value of the Merger Agreement or termination shares at the time the Repurchase Option is exercised, as determined by the Company’s board of directors and (y) the Purchase Price (the “Repurchase Price”). The Repurchase Option shall be exercised by the Company by delivering written notice to the Purchaser or, in the event of the OfferPurchaser’s death, whichever shall first occur; PROVIDED thatthe Purchaser’s executor and, prior to such terminationat the Company’s option, either (i) by delivering to the Purchaser or the Purchaser’s executor a Trigger Event shall have occurred check in the amount of the aggregate Repurchase Price, or (ii) by canceling an amount of the Purchaser’s indebtedness to the Company equal to the aggregate Repurchase Price, or (Aiii) by a combination of (i) and (ii) such that the combined payment and cancellation of indebtedness equals the aggregate Repurchase Price. Upon delivery of such notice and the payment of the aggregate Repurchase Price, the Company shall become the legal and beneficial owner of the Unreleased Shares being repurchased and all rights and interests therein or relating thereto, and the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant right to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) retain and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option pursuant to this Agreement; provided that if (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) there shall be in effect any such injunction or order, in each case on the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or order.
(b) In the event that Purchaser wishes to exercise the Securities Option, Purchaser shall send a written notice (the "NOTICE") to Stockholder identifying the date (not less than two (2) nor more than five (5) business days from the date of the Notice) for the closing of such purchase, which closing shall be held at the executive offices of the Company (or such other place as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designate.
(c) In its own name the event the Option Securities are acquired number of Unreleased Shares being repurchased by Purchaser pursuant to the exercise of the Securities Option (the "ACQUIRED SECURITIES") and, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess of the Purchase Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increase.
(d) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designate.
Appears in 3 contracts
Samples: Restricted Stock Purchase Agreement (Invitae Corp), Restricted Stock Purchase Agreement (Invitae Corp), Restricted Stock Purchase Agreement (Invitae Corp)
Option. (a) In order On the terms and subject to induce Parent and Purchaser to enter into the Merger Agreementconditions set forth herein, Stockholder hereby grants to Purchaser Parent an irrevocable option (a "SECURITIES OPTION"the “Option”) to purchase all of the Securities right, title and interest of Stockholder in and to the Permissible Number of Stockholder’s Shares (the "OPTION SECURITIES"“Optioned Shares”) at with a price per share equal to the Offer Price. Parent may exercise the Option in whole, subject to increase as set forth below (the "PURCHASE PRICE"). The Securities Option may be exercised, in whole but not in part, by if, but only if, (i) the Purchaser has acquired shares of common stock pursuant to the Offer and (ii) Stockholder has failed to tender into the Offer at least the Permissible Number of Shares or shall have withdrawn the tender of a number of Shares equal to or greater than the Permissible Number in breach of this Agreement. The Parent may exercise the Option at any time within the sixty (60) days following the date when such Option first becomes exercisable.
(b) In the event that the Parent is entitled to and wishes to exercise the Option, the Parent shall send a written notice to Stockholder specifying the place and the date for the closing of such purchase, which date shall be not more than sixty (as set forth below)60) days after the date of such notice; provided that in the event that prior notification to, for a period of ten (10) business days (or approval of, any Governmental Entity is required in connection with the "10 DAY PERIOD") following termination exercise of the Merger Agreement Option or termination of the Offer, whichever shall first occur; PROVIDED that, prior to such termination, either (i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary or final injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option pursuant to this Agreement; provided that if Option, the period of time during which the date of the closing may be fixed shall be extended until the tenth (i10th) day following the last date on which all HSR Act required approvals shall have been obtained, all required waiting periods shall not have expired or been terminated or (ii) there shall be in effect and any such injunction prohibition shall have been vacated, terminated or order, in each case on the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or order.
(b) In the event that Purchaser wishes to exercise the Securities Option, Purchaser shall send a written notice (the "NOTICE") to Stockholder identifying the date (not less than two (2) nor more than five (5) business days from the date of the Notice) for the closing of such purchase, which closing shall be held at the executive offices of the Company (or such other place as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designatewaived.
(c) In At the event closing of the Option Securities are acquired by Purchaser purchase of Stockholder’s Optioned Shares pursuant to the exercise of the Securities Option (Option, simultaneously with the "ACQUIRED SECURITIES") andpayment by the Parent of the purchase price for Stockholder’s Optioned Shares, either before such Stockholder shall deliver, or at any time within cause to be delivered, to the one-year period following such acquisition, Parent, Purchaser or any affiliate of certificates representing the Optioned Shares duly endorsed to the Parent or Purchaser shall acquire Common Stock (accompanied by stock powers or other than from transfer documents duly executed by the Company) at a price Company in excess blank, together with any necessary stock transfer stamps properly affixed, free and clear of the Purchase Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increaseall Liens.
(d) In The Parent, the event Purchaser or the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities OptionCompany, Stockholder as applicable, shall be entitled to receive, deduct and Purchaser shall promptly (and in no event more than 48 hours following withhold from the consideration otherwise payable pursuant to this Section 1.6 to Stockholder such Sale) pay amounts as are required to Stockholder, upon any subsequent disposition, transfer be withheld under the Code or sale to an unaffiliated third party ("SALE") of all the Treasury Regulations thereunder or any portion of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designateother Tax Law.
Appears in 3 contracts
Samples: Merger Agreement (COV Delaware Corp), Merger Agreement (Covidien PLC), Merger Agreement (Ev3 Inc.)
Option. (a) In order On the terms and subject to induce Parent and Purchaser to enter into the Merger Agreementconditions set forth herein, Stockholder hereby grants to Purchaser Parent an irrevocable option (a "SECURITIES OPTION"the “Option”) to purchase all of the right, title and interest of Stockholder in and to Stockholder’s Securities (the "OPTION SECURITIES") at with a price per share equal to the Offer Price. Parent may exercise the Option in whole, subject to increase as set forth below (the "PURCHASE PRICE"). The Securities Option may be exercised, in whole but not in part, by if, but only if, (i) Sub has acquired Shares pursuant to the Offer and (ii) Stockholder has failed to tender into the Offer any Shares or shall have withdrawn the tender of any Shares into the Offer in breach of this Agreement. Parent may exercise the Option at any time within the sixty (60) days following the date when such Option first becomes exercisable.
(b) In the event that Parent is entitled to and wishes to exercise the Option, Parent shall send a written notice to Stockholder specifying the place and the date for the closing of such purchase, which date shall be not more than sixty (as set forth below)60) days after the date of such notice; provided that in the event that prior notification to, for a period of ten (10) business days (or approval of, any Governmental Entity is required in connection with the "10 DAY PERIOD") following termination exercise of the Merger Agreement Option or termination of the Offer, whichever shall first occur; PROVIDED that, prior to such termination, either (i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary or final injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option pursuant to this Agreement; provided that if Option, the period of time during which the date of the closing may be fixed shall be extended until the tenth (i10th) day following the last date on which all HSR Act required approvals shall have been obtained, all required waiting periods shall not have expired or been terminated or (ii) there shall be in effect and any such injunction prohibition shall have been vacated, terminated or order, in each case on the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or order.
(b) In the event that Purchaser wishes to exercise the Securities Option, Purchaser shall send a written notice (the "NOTICE") to Stockholder identifying the date (not less than two (2) nor more than five (5) business days from the date of the Notice) for the closing of such purchase, which closing shall be held at the executive offices of the Company (or such other place as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designatewaived.
(c) In At the event closing of the Option purchase of Stockholder’s Securities are acquired by Purchaser pursuant to the exercise of the Option, simultaneously with the payment by Parent of the purchase price for Stockholder’s Securities, such Stockholder shall deliver, or cause to be delivered, to the Sub certificates representing Securities Option (the "ACQUIRED SECURITIES") and, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of duly endorsed to Parent or Purchaser shall acquire Common Stock (accompanied by stock powers or other than from transfer documents duly executed by the Company) at a price Company in excess blank, together with any necessary stock transfer stamps properly affixed, free and clear of the Purchase Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increaseall Encumbrances.
(d) In Parent, Sub or the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities OptionCompany, Stockholder as applicable, shall be entitled to receivededuct and withhold from the consideration otherwise payable pursuant to this Section 1.6 to a holder of Securities such amounts as are required to be withheld under the Code, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion applicable provision of state, local or non-U.S. Tax Law. To the extent that amounts are so withheld, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Acquired Securities within the one-year period following in respect of which such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designatededuction and withholding was made.
Appears in 3 contracts
Samples: Merger Agreement (Covidien PLC), Merger Agreement (Power Medical Interventions, Inc.), Tender and Voting Agreement (Covidien Delaware Corp.)
Option. Unless this Agreement is terminated, except during such time as the Company's Board of Directors has withdrawn its recommendation of the Offer or has modified such recommendation in a manner adverse to Buyer until such recommendation is reinstated:
(a) In order to induce Parent and Purchaser to enter into the Merger Agreement, Stockholder Each Shareholder hereby grants to Purchaser Buyer an irrevocable option (a the "SECURITIES OPTIONOption") to purchase the Securities all such Shareholder's Shares at a purchase price per share (the "OPTION SECURITIESPurchase Price") at equal to the Offer PricePrice in cash or such higher per share consideration paid to other shareholders who have tendered into the Offer, subject to increase as set forth below (the "PURCHASE PRICE")in cash. The Securities Option may be exercisedwill become exercisable, in whole but not in part, by written notice Buyer if, and only if, such Shareholder shall have breached Section 2 and Buyer shall otherwise have accepted shares of Common Stock for purchase pursuant to Stockholder (as set forth below)the Offer. If the Option becomes exercisable, the Option may be exercised at any time during the period commencing with the acceptance by Buyer of shares of Common Stock for a period purchase pursuant to the Offer and ending simultaneously with the final expiration of ten (10) business days the Offer pursuant to the Merger Agreement (the "10 DAY PERIOD") following termination of the Merger Agreement or termination of the Offer, whichever shall first occur; PROVIDED that, prior to such termination, either (i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACTPeriod"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option pursuant to this Agreement; provided that if (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) there shall be in effect any such injunction or order, in each case on the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or order.
(b) In the event that Purchaser If Buyer wishes to exercise the Securities OptionOption with respect to the Shares, Purchaser shall send a it may do so by giving written notice (the date of such notice being herein called the "NOTICENotice Date") to Stockholder identifying the Shareholders (in the manner set forth in Section 11(b)) specifying that all the Shareholders' Shares are to be purchased and specifying the place, time and date (not less earlier than two (2) one business day, nor more later than five (5) 10 business days days, from the date of the NoticeNotice Date) for the closing of such purchase, which closing shall be held at the executive offices purchase of the Company (or Shareholders' Shares by Buyer pursuant to such other place as exercise. Such notice may be given prior to the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer commencement of the Option Securities, against payment to Stockholder of Period if the Purchase Price, Option shall have become exercisable as provided in same day funds, by wire transfer to such account as Stockholder shall designateSection 10(a).
(c) In Buyer represents that the event the Option Securities are acquired Shares purchased by Purchaser Buyer pursuant to the exercise Option will be acquired for investment only and not with a view to any public distribution thereof, and Buyer will not offer to sell or otherwise dispose of any Shares so acquired by it in violation of the registration requirements of the Securities Option (the "ACQUIRED SECURITIES") andAct of 1933, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess of the Purchase Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increaseamended.
(d) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designate.
Appears in 3 contracts
Samples: Tender Agreement (Carrols Corp), Tender Agreement (Harris Larry J Et Al), Tender Agreement (Pollo Tropical Inc)
Option. (a) In order to induce Parent and Purchaser to enter into the Merger Agreement, Stockholder hereby grants to Purchaser an irrevocable option (a "SECURITIES OPTION") to purchase the Securities (the "OPTION SECURITIES") at the Offer Price, subject to increase as set forth below (the "PURCHASE PRICE"). The Securities Option may be exercised, in whole but Upon not in part, by written notice to Stockholder (as set forth below), for a period of ten (10) business days (the "10 DAY PERIOD") following termination of the Merger Agreement or termination of the Offer, whichever shall first occur; PROVIDED that, prior to such termination, either (i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other less than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option pursuant to this Agreement; provided that if (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) there shall be in effect any such injunction or order, in each case on the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after days’ notice to the later Company prior to the consummation of (A) the date Business Combination, at the option of expiration or termination of all HSR Act waiting periodsthe Subscriber, the Company shall issue and sell to the Subscriber, and the Subscriber shall purchase from the Company, on a private placement basis, up to 3,000,000 Private Placement Units (Bthe “Option Units”) at a purchase price of $10.00 per unit (the date “Option”), for an aggregate purchase price of removal or lifting up to $30,000,000 (the “Option Purchase Price”). The Subscriber shall pay the Option Purchase Price in accordance with the Company’s wire instructions by wire transfer of such injunction or orderimmediately available funds at least one (1) business day prior to the closing of the Option purchase, which closing shall occur immediately prior to the consummation of the Business Combination of the Company (“Option Closing Date”).
(b) In the event that Purchaser wishes to exercise the Securities Option, Purchaser shall send a written notice (the "NOTICE") to Stockholder identifying the date (not less than two (2) nor more than five (5) business days from the date of the Notice) for the closing of such purchase, which closing shall be held at the executive offices The obligations of the Company to the Subscriber with respect to the Option are subject to the fulfillment, on or before the Option Closing Date, each of the following conditions: (or such other place i) the representations and warranties of the Subscriber contained in Section 2 as applicable to the parties may agree). At the closing, Stockholder Option Units shall deliver to Purchaser appropriate be true and effective instruments of transfer correct at and as of the Option SecuritiesClosing Date as though then made; (ii) the Subscriber shall have performed and complied with all agreements, against payment obligations and conditions contained in this Agreement that are required to Stockholder be performed or complied with by the Subscriber on or before the Option Closing Date; and (iii) no litigation, statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by or in any court or governmental authority of competent jurisdiction or any self-regulatory organization having authority over the matters contemplated hereby, which prohibits the consummation of any of the Purchase Price, in same day funds, transactions contemplated by wire transfer to such account as Stockholder shall designatethis Agreement.
(c) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option (the "ACQUIRED SECURITIES") and, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess of the Purchase Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increase.
(d) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designate.
Appears in 2 contracts
Samples: Private Placement Securities Subscription Agreement (Lionheart IV Corp), Private Placement Securities Subscription Agreement (Lionheart III Corp)
Option. (a) In order to induce Parent and the Purchaser to enter into the Merger Agreement, Stockholder the Shareholder hereby grants to Purchaser Parent an irrevocable option (a "SECURITIES OPTIONStock Option") to purchase the Securities Shares from the Shareholder (the "OPTION SECURITIESOption Shares") at an amount (the "Purchase Price") equal to the Offer Price, subject to increase as set forth below (the "PURCHASE PRICE"). The Securities Option may be exercised, in whole but not in part, by written notice to Stockholder (as set forth below), for a period of ten (10) business days (the "10 DAY PERIOD") following termination of the Merger Agreement or termination of the Offer, whichever shall first occur; PROVIDED that, prior to such termination, either If (i) a Trigger Event shall have occurred the Offer is terminated, abandoned or withdrawn by Parent or the Purchaser, or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been is terminated by in accordance with its terms, the Stock Option shall, in any such case (but provided neither Parent pursuant to Section 8.01(bnor the Purchaser has materially breached the Merger Agreement), 8.01(d)(iibecome exercisable, in whole or in part, upon the first to occur of any such event and remain exercisable in whole or in part until the date which is 45 days after the date of the occurrence of such event (the "45 Day Period"), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised untilso long as: (i) all waiting periods under the XxxxHart-Xxxxx-Xxxxxx Antitrust Xxxitrust Improvements Act of 1976, as amended (the "HSR ACTAct"), required for the purchase of the Securities Option Shares upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied waived, and (ii) there shall not be in effect any preliminary or final injunction or other order issued by any Governmental Entity court or governmental, administrative or regulatory agency or authority or legislative body or commission prohibiting the exercise of the Securities Stock Option pursuant to this Agreement; provided that if (i) all HSR Act waiting periods shall not have expired or been terminated waived or (ii) there shall be in effect any such injunction or order, in each case on the expiration of the 10 45 Day Period, the 10 45 Day Period shall be extended until five (5) 5 business days after the later of (A) the date of expiration or termination waiver of all HSR Act waiting periods, periods and (B) the date of removal or lifting of such injunction or order.
(b) ; provided further that in no event shall the 45 Day Period be extended beyond June 30, 1997. In the event that Purchaser Parent wishes to exercise the Securities Stock Option, Purchaser Parent shall send a written notice (the "NOTICENotice") to Stockholder the Shareholder identifying the place and date (not less than two (2) nor more than five (5) 10 business days from the date of the Notice) for the closing of such purchase, which closing shall be held at the executive offices of the Company (or such other place as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designate.
(c) In the event that Parent has terminated the Offer due to the occurrence of any event set forth in clauses (a)-(c) of Annex A to the Merger Agreement and Parent exercises the Stock Option and purchases the Option Securities are acquired by Purchaser pursuant Shares, Parent shall, to the exercise extent permitted by law, seek to purchase all of the Securities Option (the "ACQUIRED SECURITIES") and, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate remaining shares of Parent or Purchaser shall acquire Company Common Stock (other than from the Company) outstanding at a price in excess of the Purchase Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increase.
(d) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designatea merger and/or tender offer.
Appears in 2 contracts
Samples: Stock Agreement With Purchase Option (American Studios Inc), Stock Agreement With Purchase Option (Pca International Inc)
Option. (a) In order to induce Parent and Purchaser to enter into the Merger Agreement, The Stockholder hereby irrevocably grants to Purchaser an irrevocable option (a "SECURITIES OPTION") to purchase the Securities (the "OPTION SECURITIES") at the Offer Price, subject to increase as set forth below (the "PURCHASE PRICE"). The Securities Option may be exercised, in whole but not in part, by written notice to Stockholder (as set forth below), for a period of ten (10) business days (the "10 DAY PERIOD") following termination of the Merger Agreement or termination of the Offer, whichever shall first occur; PROVIDED that, prior to such termination, either (i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACTOption"), required for exercisable only upon the events and subject to the conditions set forth herein, to purchase any or all of the Securities upon Shares at a purchase price per share equal to $23.40 (or such exercise shall have expired or been waived and any other conditions under higher per share price as may be offered by Purchaser in the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option pursuant to this Agreement; provided that if (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) there shall be in effect any such injunction or order, in each case on the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or orderOffer).
(b) In Subject to the event that conditions set forth in Section 1.03 and the termination provisions of Section 6.07, Purchaser wishes may exercise the Option in whole or in part at any time prior to the date 60 days after the expiration or termination of the Offer (such sixtieth day being herein called the "Option Expiration Date") if (x) the Stockholder fails to comply with any of its obligations under this Agreement or withdraws the tender of the Shares except under the circumstances set forth in the proviso to Section 1.01(b) (but the Option shall not limit any other right or remedy available to the Parent or Purchaser against the Stockholder for breach of this Agreement) or (y) the Offer is not consummated because of the failure to satisfy any of the conditions to the Offer set forth in Annex A to the Merger Agreement (other than as a result of any action or inaction of the Parent or Purchaser which constitutes a breach of the Merger Agreement). Upon the occurrence of any of such circumstances, Purchaser shall be entitled to exercise the Securities Option, Option and (subject to Section 1.03) Purchaser shall send a be entitled to purchase the Shares and the Stockholder shall sell the Shares to Purchaser. Purchaser shall exercise the Option by delivering written notice thereof to the Stockholder (the "NOTICENotice") ), specifying the number of Shares to Stockholder identifying be purchased and the date, time and place for the closing of such purchase which date (shall not be less than two (2) three business days nor more than five (5) business days from the date the Stockholder receives the Notice and in no event shall such date be later than the Option Expiration Date. The closing of the Noticepurchase of Shares pursuant to this Section 1.02 (the "Closing") for shall take place on the closing of such purchasedate, which closing shall be held at the executive offices time and at the place specified in such notice; provided, that if at such date any of the Company conditions specified in Section 1.03 shall not have been satisfied (or waived), Purchaser may postpone the Closing until a date within five business days after such other place as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of conditions are satisfied (but not later than the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designateExpiration Date).
(c) In At the event Closing, the Option Securities are acquired Stockholder will deliver to Purchaser (in accordance with Purchaser's instructions) the certificates representing the Shares owned by Purchaser the Stockholder and being purchased pursuant to the exercise of the Securities Option (the "ACQUIRED SECURITIES") andSection 1.02(c), either before duly endorsed or at any time within the one-year period following accompanied by stock powers duly executed in blank. At such acquisition, ParentClosing, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from deliver to the Company) at a price in excess of the Purchase Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by bank wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increase.
(d) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion of the Acquired Securities within the one-year period following such acquisitionimmediately available funds, an amount per share in cash equal to the excess, if any, number of Shares being purchased from the net proceeds received Stockholder as specified in the Notice multiplied by $23.40 (or such higher per share price as may be offered by Purchaser in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designateOffer).
Appears in 2 contracts
Samples: Merger Agreement (Ibp Inc), Merger Agreement (Foodbrands America Inc)
Option. (a) In order to induce Parent and Purchaser to enter into the Merger Agreement, The Stockholder hereby grants to Purchaser Parent an ------- irrevocable option (a the "SECURITIES OPTIONOption") to purchase all the Securities Subject Shares at a ------ purchase price per share (the "OPTION SECURITIESPurchase Price") at equal to the Offer Price, subject to increase as set forth below (the "PURCHASE PRICE")Price in -------------- cash. The Securities Option may be exercisedwill become exercisable, in whole but not in part, by written notice Parent if, and only if, the Stockholder shall have breached or otherwise failed to Stockholder (as set forth below)comply with Section 3(c) and Sub shall otherwise have accepted shares of Company Common Stock for purchase pursuant to the Offer. If the Option becomes exercisable, the Option may be exercised at any time during the period commencing with the acceptance by Sub of shares of Company Common Stock for a period of ten (10) business purchase pursuant to the Offer and ending 30 days thereafter (the "10 DAY PERIOD") following termination of the Merger Agreement or termination of the Offer, whichever shall first occur; PROVIDED that, prior to such termination, either (i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACT------ Period"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) so long as there shall not be in effect any preliminary or permanent ------ injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option pursuant to this Agreement; provided provided, however, that if (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) -------- ------- there shall be in effect any such injunction or order, in each case on the expiration of the 10 Day Option Period, the 10 Day Option Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or order.
(b) In the event that Purchaser If Parent wishes to exercise the Securities Option, Purchaser shall send a it may do so by giving written notice (the date of such notice being herein called the "NOTICENotice Date") ----------- to the Stockholder identifying (in the manner set forth in Section 8(b)) specifying that all the Subject Shares are to be purchased and specifying the place, time and date (not less earlier than two (2) one business day, nor more later than five (5) 10 business days days, from the date of the NoticeNotice Date) for the closing of such purchase, which closing shall be held at the executive offices purchase of the Company (or Subject Shares by Parent pursuant to such other place as exercise. Such notice may be given prior to the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer commencement of the Option Securities, against payment to Stockholder of Period if the Purchase Price, Option shall have become exercisable as provided in same day funds, by wire transfer to such account as Stockholder shall designateSection 4(a).
(c) In the event the Option Securities are acquired Parent represents that any Subject Shares purchased by Purchaser Parent pursuant to the exercise Option will be acquired for investment only and not with a view to any public distribution thereof, and Parent will not offer to sell or otherwise dispose of any Subject Shares so acquired by it in violation of the registration requirements of the Securities Option (the "ACQUIRED SECURITIES") and, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess of the Purchase Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increaseAct.
(d) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designate.
Appears in 2 contracts
Samples: Stockholder Agreement (Atlantic Richfield Co /De), Stockholder Agreement (Union Texas Petroleum Holdings Inc)
Option. (a) In order On the terms and subject to induce Parent and Purchaser to enter into the Merger Agreementconditions set forth herein, Stockholder hereby grants to Purchaser Parent an irrevocable option (a "SECURITIES OPTION"the “Option”) to purchase all of the Securities right, title and interest of the Stockholder in and to all of the Covered Shares (the "OPTION SECURITIES"“Optioned Shares”) at with a price per share equal to the Offer Price, subject to increase as set forth below (. Parent may exercise the "PURCHASE PRICE"). The Securities Option may be exercised, in whole but not in part, by written notice to Stockholder (as set forth below), for a period of ten (10) business days (the "10 DAY PERIOD") following termination of the Merger Agreement or termination of the Offer, whichever shall first occur; PROVIDED that, prior to such termination, either only if (i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate has acquired shares of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent common stock pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied Offer and (ii) there shall not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting Stockholder has failed to tender into the exercise Offer all of the Securities Option pursuant to Covered Shares or shall have withdrawn the tender of any Covered Shares in breach of this Agreement; provided that if . Parent may exercise the Option at any time within the sixty (i60) all HSR Act waiting periods shall not have expired or been terminated or (ii) there shall be in effect any such injunction or order, in each case on the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after the later of (A) following the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of when such injunction or orderOption first becomes exercisable.
(b) In the event that Purchaser Parent is entitled to and wishes to exercise the Securities Option, Purchaser Parent shall send a written notice (the "NOTICE") to Stockholder identifying specifying the place and the date (not less than two (2) nor more than five (5) business days from the date of the Notice) for the closing of such purchase, which closing date shall be held at not more than sixty (60) days after the executive offices date of such notice; provided, that in the Company (event that prior notification to, or such other place as approval of, any Governmental Authority is required in connection with the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer exercise of the Option Securities, against payment to Stockholder or there shall be in effect any preliminary or final injunction or other order issued by any Governmental Authority prohibiting the exercise of the Purchase PriceOption, in same the period of time during which the date of the closing may be fixed shall be extended until the tenth (10th) day fundsfollowing the last date on which all required approvals shall have been obtained, by wire transfer to all required waiting periods shall have expired or been terminated and any such account as Stockholder prohibition shall designatehave been vacated, terminated or waived.
(c) In At the event the Option Securities are acquired by Purchaser pursuant to the exercise closing of the Securities Option (the "ACQUIRED SECURITIES") and, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess of the Purchase Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at Optioned Shares pursuant to exercise of the time Option, simultaneously with the payment by Parent of such increasethe purchase price for Stockholder’s Optioned Shares, Stockholder shall deliver, or cause to be entitled delivered, to receivePurchaser certificates representing the Optioned Shares duly endorsed to Parent or accompanied by stock powers or other transfer documents duly executed by the Company in blank, together with any necessary stock transfer stamps properly affixed, free and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer clear of same day funds to such account as Stockholder shall designate, the amount of the increaseall Liens.
(d) In The Parent, Purchaser or the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities OptionCompany, Stockholder as applicable, shall be entitled to receive, deduct and Purchaser shall promptly (and in no event more than 48 hours following withhold from the consideration otherwise payable pursuant to this Section 1.6 to Stockholder such Sale) pay amounts as are required to Stockholder, upon any subsequent disposition, transfer be withheld under the Code or sale to an unaffiliated third party ("SALE") of all the Treasury Regulations or any portion of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designateother Tax law.
Appears in 2 contracts
Samples: Tender and Support Agreement (Merck & Co. Inc.), Tender and Support Agreement (Warburg Pincus Private Equity IX, L.P.)
Option. (a) In order to induce Parent and Purchaser to enter into the Merger Agreement, Stockholder hereby grants to Purchaser Parent an irrevocable option (a the "SECURITIES OPTIONOption") to purchase all the Securities Subject Shares of such Stockholder at a purchase price per share (the "OPTION SECURITIESPurchase Price") at the Offer Price, subject equal to increase as set forth below (the "PURCHASE PRICE")$0.75. The Securities Option may be exercised, exercised in whole but not or in part, by written notice at any time after the date hereof and prior to Stockholder the date which is twelve (as set forth below), for a period of ten (1012) business days (the "10 DAY PERIOD") following months after termination of the Merger Agreement or termination of the Offer, whichever shall first occur; PROVIDED that, prior to (such termination, either (i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoingperiod, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACTExercise Period"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) so long as there shall not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option pursuant to this Agreement; provided provided, however, that if (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) there shall be in effect any such injunction or order, in each case order on the expiration of the 10 Day Exercise Period, the 10 Day Exercise Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or order; provided, further, that no such extension shall extend the Exercise Period for more than eighteen (18) months following the termination of the Merger Agreement.
(b) In the event that Purchaser If Parent wishes to exercise the Securities Option, Purchaser shall send a it may do so by giving written notice (the date of such notice being herein called the "NOTICENotice Date") to Stockholder identifying specifying that the Subject Shares are to be purchased the number of Subject Shares that are to be purchased (the "Purchased Shares") and specifying the place, time and date (not less earlier than two (2) one trading day, nor more later than five (5) business days 10 trading days, from the date of the NoticeNotice Date) for the closing of the purchase by Parent pursuant to such purchase, which closing shall be held at the executive offices exercise. Upon exercise of the Company (or such other place as Option, Parent will pay the parties may agree). At Purchase Price for the closingPurchased Shares in cash; provided, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of however, that if Parent exercises the Option Securitiesprior to the Effective Time, against payment the Parent may at its option pay the Purchase Price for the Purchased Shares by delivering a Note with a principal amount equal to Stockholder of the Purchase Price, which accrues interest at the prime rate of interest per annum (as reported in same day fundsThe Wall Street Journal) and that is due and payable on the earlier of (i) one year from the date of issuance or (ii) the Effective Time (the "Note"). If the Merger is not consummated within five (5) months after the date of the Merger Agreement, by wire transfer the Parent may elect to such account as sell the Purchased Shares back to the Stockholder in exchange for the Note. If the Parent so elects the Stockholder shall designatesurrender such Note to Parent in exchange for the Purchased Shares.
(c) In addition, if the event the Option Securities are acquired by Purchaser Merger Agreement is terminated pursuant to the exercise Sections 8.01(c), 8.01(d) or 8.01(e) of the Securities Option (Merger Agreement or by the "ACQUIRED SECURITIES"Parent pursuant to Section 8.01(b)(i) and, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess of the Purchase Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increaseMerger Agreement, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to StockholderParent on demand an amount equal to all Profit (as defined below) realized by Stockholder or any Affiliated Person, in connection with the consummation of any Company Takeover Proposal that is consummated within twelve (12) months of such termination. Any payment of Profit under this Section 5(c) shall be paid by wire transfer of same day funds to such an account as Stockholder shall designatedesignated by Parent. For purposes of this Section 5, the Profit of Stockholder or an Affiliated Person from any Company Takeover Proposal shall equal (A) the aggregate consideration received by Stockholder or such Affiliated Person with respect to the Subject Shares pursuant to such Company Takeover Proposal (including but not limited to the face amount of any debt of Stockholder which is forgiven or otherwise satisfied in connection herewith), valuing any non-cash consideration (including any residual interest in the increaseCompany) at its Fair Market Value on the date of such consummation plus (B) the Fair Market Value, on the date of disposition, of all Subject Shares of such Stockholder or Affiliated Person disposed of after the termination of the Merger Agreement and prior to the date of such consummation less (C) the Merger Consideration that would have been received by the Stockholder or Affiliated Person with respect to the Subject Shares pursuant to the Merger Agreement as originally executed. For purposes of this Section 5, the Fair Market Value of any non-cash consideration consisting of:
(i) securities listed on a national securities exchange or traded on the Nasdaq National Market shall be equal to the average closing price per share of such security as reported on such exchange or Nasdaq National Market for the five trading days after the date of determination; and
(ii) debt of such Stockholder or Affiliated Person owed to the Company shall be equal to the face amount of such debt, plus all accrued and unpaid interest.
(diii) In consideration which is other than cash or securities of the event form specified in clause (i) above or Stockholder or Affiliated Person debt described in clause (ii) above shall be determined in good faith the Option Securities are acquired by Purchaser pursuant Board of Directors of the Company; provided, that if Parent objects to the exercise valuation as determined by the Board of Directors of the Securities OptionCompany (A) Parent shall notify the Company of its objection, Stockholder (B) Parent shall deliver to the Company its good faith determination of the Fair Market Value of the non-cash consideration and (C) Parent and the Company shall engage a nationally recognized independent investment banking firm mutually agreed upon by the parties within 10 business days of the Company's receipt of Parent's notice of objection; provided, further, that if the parties are unable to agree within two business days after the date of such event as to the investment banking firm, then the parties shall each select one firm, and those firms shall select a third investment banking firm, which third firm shall make such determination; provided, further that the fees and expenses of the investment banking firm shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") borne by the person whose estimate of all or any portion of Fair Market Value is furthest from the Acquired Securities within amount as finally determined by the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designateinvestment banking firm.
Appears in 2 contracts
Samples: Stockholder Voting and Option Agreement (Warrantech Corp), Stockholder Voting and Option Agreement (Warrantech Corp)
Option. (a) In order On the terms and subject to induce Parent and Purchaser to enter into the Merger Agreementconditions set forth herein, Stockholder each Shareholder hereby grants to each of Parent and Purchaser an irrevocable option (a "SECURITIES OPTION"the “Option”) to purchase all of the Securities (the "OPTION SECURITIES") right, title and interest of such Shareholder in and to such Shareholder’s Owned Shares at a price per share equal to the Offer Price, subject to increase as set forth below (the "PURCHASE PRICE")Price but not less than $16.75 per share. The Securities Parent or Purchaser, as the case may be, may exercise an Option may be exercisedin whole, in whole but not in part, by written notice to Stockholder (as set forth below)if, for a period of ten (10) business days (the "10 DAY PERIOD") following termination of the Merger Agreement or termination of the Offerbut only if, whichever shall first occur; PROVIDED that, prior to such termination, either (i) a Trigger Event shall have occurred or (ii) (A) the Purchaser has acquired all shares of Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent Common Stock validly tendered pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied Offer and (ii) such Shareholder shall have failed to tender into the Offer any Owned Shares or shall have withdrawn the tender of any Owned Shares into the Offer.
(b) In the event that Parent or Purchaser is entitled to and wishes to exercise an Option, Parent or Purchaser shall send a written notice to the relevant Shareholder or parties prior to the termination of this Agreement specifying the place and the date for the closing of such purchase, which date shall be not less than three business days and not more than five business days after the date of such notice; provided that in the event that prior notification to, or approval of, any Governmental Entity is required in connection with the exercise of an Option or there shall not be in effect any preliminary or final injunction or other order issued by any Governmental Entity prohibiting the exercise of an Option, the Securities Option pursuant to this Agreement; provided that if (i) period of time during which the date of the closing may be fixed shall be extended until the tenth day following the last date on which all HSR Act required approvals shall have been obtained, all required waiting periods shall not have expired or been terminated or (ii) there shall be in effect and any such injunction prohibition shall have been vacated, terminated or order, in each case on the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or order.
(b) In the event that Purchaser wishes to exercise the Securities Option, Purchaser shall send a written notice (the "NOTICE") to Stockholder identifying the date (not less than two (2) nor more than five (5) business days from the date of the Notice) for the closing of such purchase, which closing shall be held at the executive offices of the Company (or such other place as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designatewaived.
(c) In At the event closing of the Option Securities are acquired by Purchaser purchase of a Shareholder’s Owned Shares pursuant to the exercise of an Option, simultaneously with the Securities Option (the "ACQUIRED SECURITIES") and, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of payment by Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess of the Purchase Pricepurchase price for a Shareholder’s Owned Shares, then such Shareholder shall deliver, or cause to be delivered, to Parent or Purchaser certificates representing such Owned Shares duly endorsed to Parent or Purchaser or accompanied by stock powers duly executed by the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increaseCompany in blank, Stockholder shall be entitled to receivetogether with any necessary stock transfer stamps properly affixed, free and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increase.
(d) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") clear of all or any portion of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designateLiens.
Appears in 2 contracts
Samples: Shareholder Tender Agreement (Galyans Trading Co Inc), Shareholder Tender Agreement (Dicks Sporting Goods Inc)
Option. (a) In order On the terms and subject to induce the conditions set forth herein, each Shareholder hereby grants to each of Parent and Purchaser Acquisition Co. an irrevocable option to enter into purchase all of the right, title and interest of such Shareholder in and to such Shareholder’s Owned Shares, as well as any other shares of Company Common Stock Beneficially Owned by the Shareholder after the date hereof, at a price per share equal to the Per-Share Amount (as defined in the Merger Agreement, Stockholder hereby grants to Purchaser an irrevocable option (a "SECURITIES OPTION") to purchase the Securities (the "OPTION SECURITIES"“Option”) at any one time after the Offer Price, subject to increase as set forth below (the "PURCHASE PRICE"). The Securities Option may be exercised, in whole but not in part, by written notice to Stockholder Closing Date (as set forth below), for a period defined in the Merger Agreement) and until the earlier of ten (10a) business days immediately following the Closing Date (as defined in the "10 DAY PERIOD"Merger Agreement) following and (b) the termination of the Merger Agreement or termination of the Offer, whichever shall first occur; PROVIDED that, prior to such termination, either (i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of in accordance with its terms. The Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976Co., as amended (the "HSR ACT")case may be, required for the purchase of the Securities upon such may exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall an Option in whole, but not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option pursuant to this Agreement; provided that if (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) there shall be in effect any such injunction or order, in each case on the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or orderpart.
(b) In the event that Purchaser wishes Parent or Acquisition Co. desires to exercise the Securities an Option, Purchaser Parent or Acquisition Co. shall send a written notice (in accordance with Section 12(e) hereof to the "NOTICE") relevant Shareholder or parties prior to Stockholder identifying the termination of this Agreement specifying the place and the date (not less than two (2) nor more than five (5) business days from the date of the Notice) for the closing of such purchase, which closing date may be the date of the notice and shall be held at not more than three business days after the executive offices date of such notice; provided that in the event that prior notification to, or approval of, any Governmental Body is required in connection with the exercise of an Option or there shall be in effect any preliminary or final injunction or other order issued by any Governmental Body prohibiting the exercise of an Option, the period of time during which the date of the Company closing may be fixed shall be extended until the fifth business day following the last date on which all required approvals shall have been obtained, all required waiting periods shall have expired or been terminated and any such prohibition shall have been vacated, terminated or waived; provided further that (x) in no event shall notice of such purchase be given after the termination of this Agreement pursuant to paragraph (ii) of Section 11 and (y) in no event such purchase be consummated after the termination of this Agreement pursuant to paragraph (i), (iii), (iv) or such other place as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments (v) of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designateSection 11.
(c) In At the event the Option Securities are acquired by Purchaser pursuant to the exercise closing of the Securities Option (the "ACQUIRED SECURITIES") and, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess of the Purchase Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of a Shareholder’s Owned Shares pursuant to exercise of an Option, simultaneously with the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, payment by wire transfer of same day funds to such account as Stockholder shall designate, the amount Parent or Acquisition Co. of the increasepurchase price for a Shareholder’s Owned Shares, such Shareholder shall deliver, or cause to be delivered, to Parent or Acquisition Co. certificates representing such Owned Shares duly endorsed to Parent or Acquisition Co. or accompanied by stock powers duly executed by the Shareholder in blank, together with any necessary stock transfer stamps properly affixed, free and clear of all liens.
(d) In Notwithstanding the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Optionforegoing, Stockholder shall be entitled to receive, and Purchaser shall promptly (at no time and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion shall the shares of the Acquired Securities within Company’s capital stock subject to this Section 4 exceed the one-year period following such acquisitionMaximum Restricted Amount. In the event that the total number of Owned Shares exceeds the Maximum Restricted Amount, an amount per share then Acquisition Co., in cash equal to the excessits sole and absolute discretion, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall determine which Owned Shares shall be made by wire transfer of same day funds subject to such account as Stockholder shall designatethis Section 4.
Appears in 2 contracts
Samples: Tender and Voting Agreement (Norstan Inc), Tender and Voting Agreement (Black Box Corp)
Option. (a) In order to induce Parent and Purchaser to enter into Upon the Merger Agreement, Stockholder hereby grants to Purchaser an irrevocable option (a "SECURITIES OPTION") to purchase the Securities (the "OPTION SECURITIES") at the Offer Price, subject to increase as set forth below (the "PURCHASE PRICE"). The Securities Option may be exercised, in whole but not in part, by written notice to Stockholder (as set forth below), for a period of ten (10) business days (the "10 DAY PERIOD") following termination of the Merger Agreement or termination of the Offer, whichever shall first occur; PROVIDED that, prior to such termination, either earliest time that (i) a Trigger Event shall have occurred BCLC delivers an OSA Termination Notice to the Landlord pursuant to Section 5(a) above, or (ii) BCLC receives an Option Period Notice or Lease Termination Notice pursuant to Section 5(c) above, then BCLC shall have the exclusive and irrevocable option to assume the Lease (the “Option”), which Option is exercisable within 30 Business Days (the “Option Period”) of the earliest of BCLC’s receipt of the Option Period Notice or the Lease Termination Notice or BCLC’s delivery of the OSA Termination Notice, as applicable. If BCLC wishes to exercise the Option, then:
(i) within the Option Period, BCLC must deliver to the Landlord and the Tenant written notice (the “BCLC Exercise”) that it has irrevocably exercised its Option; and
(ii) within 30 Business Days the BCLC Exercise, BCLC and Landlord shall enter into an assumption agreement in favour of the Landlord (the date of such agreement being the “Assumption Date”), assigning the Lease to BCLC and confirming that BCLC agrees to be bound by all terms of the Lease arising in the period from and after the Assumption Date, provided that (other than as set out below) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal it shall not have expired be a condition that defaults under the Lease shall be cured concurrently or been withdrawnprior to such assumption becoming effective, and (B) neither BCLC nor any Permitted Assignee shall be liable for any act or omission of the Merger Agreement Tenant, nor any default of the Tenant under the Lease occurring prior to the Assumption Date, including without limitation a Monetary Default, nor subject to any set-offs or defences which the Landlord might have against the Tenant, and the Landlord shall have been terminated by Parent pursuant to Section 8.01(b)provide BCLC and any Permitted Assignee with a release of such acts, 8.01(d)(ii), 8.01(f) or 8.01(g) omissions and defaults; and (C) at the time of Tenant shall remain solely liable to the Landlord for all such termination defaults, acts, omissions occurring prior to the Minimum Condition shall not have been satisfiedAssumption Date. Notwithstanding the foregoing, (1) BCLC acknowledges and agrees that upon the Securities delivery of the BCLC Exercise, it shall be obligated to the Landlord to pay all Rents and applicable Sales Tax accruing under the Lease from and after the BCLC Exercise (and not only from and after the Assumption Date); and (2) nothing in this clause (ii) of Section 6(a) shall negate or limit Landlord’s rights under Section 2 hereof.
(b) Landlord will not terminate the Lease prior to or during the Option Period, and BCLC may not exercise, or continue to exercise, the Step In Remedy during the Option Period and, if it exercises the Option, until the Assumption Date.
(c) At any time following the Assumption Date, BCLC shall be exercised until: permitted to designate a Permitted Assignee, and such Permitted Assignee shall, on the assumption of the lease by such Permitted Assignee (the “Lease Assumption Date”) enter into:
(i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), required a new operating services agreement with BCLC for the purchase balance of the Securities upon such exercise term of the Tenant OSA, on substantially the same terms as the Tenant OSA, which shall have expired or been waived thereafter be the Tenant OSA for the purposes of the New Tri Party Agreement and any other conditions under the other Antitrust Laws shall have been satisfied and Lease;
(ii) there an assumption agreement in favour of the Landlord, agreeing to be bound by all terms of the Lease arising in the period from and after the Lease Assumption Date; provided that (except as set forth in clause (ii) of Section 6(a) above) (A) it shall not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting a condition that defaults under the exercise of the Securities Option pursuant to this Agreement; provided that if (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) there Lease shall be in effect any cured concurrently or prior to such injunction or order, in each case on the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periodsassumption becoming effective, and (B) neither BCLC nor any Permitted Assignee shall be liable for any act or omission of the date Tenant, nor any default of removal the Tenant under the Lease occurring prior to the Assumption Date, including without limitation a Monetary Default, nor subject to any set-offs or lifting defences which the Landlord might have against the Tenant and the Landlord shall provide BCLC and any Permitted Assignee with a release of all such injunction or order.
acts, omissions and defaults; (bC) In the event that Purchaser wishes Tenant shall remain solely liable to exercise the Securities OptionLandlord for all such defaults, Purchaser acts, omissions occurring prior to the Assumption Date; and (D) the Permitted Assignee shall send a written notice (be solely liable to the "NOTICE") to Stockholder identifying Landlord for all obligations under the date (not less than two (2) nor more than five (5) business days from Lease after the date of the Notice) for assumption, and the closing Landlord shall provide BCLC with a release of all such purchase, which closing shall be held at the executive offices of the Company (or such other place as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designateobligations.
(ciii) In an agreement, on the event same terms and conditions as this Agreement (a “New Tri Party Agreement”), with each of the Option Securities are acquired by Purchaser pursuant Landlord and BCLC which Agreement shall govern (and replace this Agreement) with respect to the exercise of period from and after (but not prior to) the Securities Option (the "ACQUIRED SECURITIES") and, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess of the Purchase Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increaseLease Assumption Date.
(d) In the event If BCLC does not exercise the Option Securities are acquired by Purchaser pursuant to within the exercise Option Period, then BCLC will remove the BCLC Property from the Premises within 30 Business Days of the Securities Optionearlier of: (i) the date of termination set out in the OSA Termination Notice, Stockholder shall be entitled to receive, and Purchaser shall promptly or (and in no event more than 48 hours following such Saleii) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion the end of the Acquired Securities within the one-year period following such acquisitionOption Period, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designateapplicable.
Appears in 2 contracts
Samples: Agreement of Purchase and Sale (GTWY Holdings LTD), Agreement of Purchase and Sale (Gateway Casinos & Entertainment LTD)
Option. (a) During the Exclusivity Option Term, Amgen shall have the right to exercise the Library Compound Exclusivity Option in accordance with this Section 3.6.1 with respect to each Library Compound that has been identified as a Hit (or is structurally related to a Hit) which Amgen selects to move forward in a Drug Discovery Program. In order the event that Amgen desires to induce Parent and Purchaser exercise the Library Compound Exclusivity Option with respect to enter into the Merger Agreementa Library Compound, Stockholder hereby grants to Purchaser an irrevocable option (a "SECURITIES OPTION") to purchase the Securities (the "OPTION SECURITIES") at the Offer Price, subject to increase as set forth below (the "PURCHASE PRICE"). The Securities Option may be exercised, in whole but not in part, by Amgen shall give Infinity written notice of such desire prior to Stockholder (as set forth below), for a period of ten (10) business days (the "10 DAY PERIOD") following termination end of the Merger Agreement or termination of the Offer, whichever shall first occur; PROVIDED that, prior to such termination, either (i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition TransactionExclusivity Option Term, which proposal notice shall not have expired or been withdrawn, (B) specify the Merger Agreement shall have been terminated by Parent pursuant Library Compound with respect to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at which Amgen desires to exercise the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option pursuant to this Agreement; provided that if (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) there shall be in effect any such injunction or order, in each case on the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or orderLibrary Compound Exclusivity Option.
(b) Within [**] Business Days after receiving Amgen’s notice, Infinity shall notify Amgen of whether, prior to the date of receipt of Amgen’s notice, (i) [**] and [**], (ii) Infinity [**] directed to the same [**] requested by Amgen and Infinity is [**] either [**] or [**] or (iii) Infinity has [**] that specifically claims the [**] requested by Amgen and has [**] therefor. If any of the conditions described in clauses (i), (ii) or (iii) of the immediately preceding sentence exist, then Amgen shall not be permitted to exercise the Library Compound Exclusivity Option with respect to such Library Compound; provided that if the condition(s) that make such Library Compound unavailable later cease to exist at any time within five (5) years after the end of the Exclusivity Option Term, Infinity shall promptly notify Amgen in writing of such cessation and Amgen shall thereupon have the right to exercise the Library Compound Exclusivity Option with respect to such Library Compound in accordance with this Section 3.6.
1. In the event that Purchaser wishes to exercise the Securities Option, Purchaser shall send a written notice (the "NOTICE") to Stockholder identifying the date (not less than two (2) nor more than five (5) business days from the date none of the Noticeconditions described in clauses (i), (ii) for or (iii) of this Section
3.6.1 (b) exist, then Infinity shall disclose to Amgen a [**] in relation to the closing of such purchase, which closing shall be held at the executive offices of the Company (or such other place as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate Library Compound(s) requested by Amgen and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designatea [**].
(c) In the event the Option Securities are acquired by Purchaser pursuant If Infinity does not notify Amgen that such Library Compound is unavailable in accordance with Section 3.6.1(b) within [**] Business Days after Amgen delivered its notice to the exercise of the Securities Option (the "ACQUIRED SECURITIES") andInfinity, either before or at any time within the one-year period then Amgen shall have [**] Business Days following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from [**] day period to exercise the Company) at a price in excess of the Purchase Price, then the Purchase Price hereunder shall be increased Library Compound Exclusivity Option with respect to such higher price. If Library Compound by paying to Infinity $[**] (which, together with the purchase of the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (and amounts specified below in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increase.
(d) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion of the Acquired Securities within the oneSection 3.6.2 for additional Back-year period following such acquisition, an amount per share in cash equal to the excessUp Library Compounds, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer designated the “Library Compound Exclusivity Fee”). During the [**] or [**] day periods described in this Section 3.6.1(c), Infinity shall not grant any conflicting right to any Third Party or otherwise take any action inconsistent with Amgen’s exercise of same day funds its option to obtain exclusive rights to the requested Library Compound, including without limitation, filing any patent applications and conducting any research activities with such account as Stockholder shall designatecompound(s).
Appears in 2 contracts
Samples: License Agreement (Infinity Pharmaceuticals, Inc.), License Agreement (Discovery Partners International Inc)
Option. (a) In order to induce Parent and Purchaser to enter into the Merger Agreement, Stockholder hereby grants to Purchaser an irrevocable option (a "SECURITIES OPTION") to purchase the Securities (the "OPTION SECURITIES") at the Offer Price, subject to increase as set forth below (the "PURCHASE PRICE"). The Securities Option may be exercised, in whole but Upon not in part, by written notice to Stockholder (as set forth below), for a period of ten (10) business days (the "10 DAY PERIOD") following termination of the Merger Agreement or termination of the Offer, whichever shall first occur; PROVIDED that, prior to such termination, either (i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other less than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option pursuant to this Agreement; provided that if (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) there shall be in effect any such injunction or order, in each case on the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after days’ notice to the later Company prior to the consummation of (A) the date Business Combination, at the option of expiration or termination of all HSR Act waiting periodsthe Subscriber but subject to receiving the Company’s consent pursuant to this Section 1.6(a), the Company shall issue and sell to the Subscriber, and the Subscriber shall purchase from the Company, on a private placement basis, up to 3,000,000 Private Placement Units (Bthe “Option Units”) at a purchase price of $10.00 per unit (the date “Option”), for an aggregate purchase price of removal or lifting up to $30,000,000 (the “Option Purchase Price”). The Subscriber shall pay the Option Purchase Price in accordance with the Company’s wire instructions by wire transfer of such injunction or orderimmediately available funds at least one (1) business day prior to the closing of the Option purchase, which closing shall occur immediately prior to the consummation of the Business Combination of the Company (“Option Closing Date”). The Subscriber may not exercise the Option without the Company’s prior consent. In the event the Company does not provide consent to the Subscriber’s exercise of the Option, the Option will expire without any further recourse to the Subscriber.
(b) In the event that Purchaser wishes to exercise the Securities Option, Purchaser shall send a written notice (the "NOTICE") to Stockholder identifying the date (not less than two (2) nor more than five (5) business days from the date of the Notice) for the closing of such purchase, which closing shall be held at the executive offices The obligations of the Company to the Subscriber with respect to the Option are subject to the fulfillment, on or before the Option Closing Date, each of the following conditions: (or such other place i) the representations and warranties of the Subscriber contained in Section 2 as applicable to the parties may agree). At the closing, Stockholder Option Units shall deliver to Purchaser appropriate be true and effective instruments of transfer correct at and as of the Option SecuritiesClosing Date as though then made; (ii) the Subscriber shall have performed and complied with all agreements, against payment obligations and conditions contained in this Agreement that are required to Stockholder be performed or complied with by the Subscriber on or before the Option Closing Date; and (iii) no litigation, statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by or in any court or governmental authority of competent jurisdiction or any self-regulatory organization having authority over the matters contemplated hereby, which prohibits the consummation of any of the Purchase Price, in same day funds, transactions contemplated by wire transfer to such account as Stockholder shall designatethis Agreement.
(c) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option (the "ACQUIRED SECURITIES") and, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess of the Purchase Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increase.
(d) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designate.
Appears in 2 contracts
Samples: Private Placement Securities Subscription Agreement (Lionheart III Corp), Private Placement Securities Subscription Agreement (Lionheart III Corp)
Option. 3,000,000 of the Shares shall be subject to EESTECH’s Repurchase Option (a) the "Unreleased Shares"). In order the event the PROVIDER ceases to induce Parent and Purchaser to enter into the Merger Agreementbe an employee, Stockholder hereby grants to Purchaser an irrevocable option consultant, advisor, officer or director of EESTECH (a "SECURITIES OPTIONService Provider") due to purchase resignation or termination with just cause, EESTECH shall, from such time (as determined by EESTECH in its discretion), have the Securities right, but not the obligation (the "OPTION SECURITIESRepurchase Option") at the Offer Price, subject to increase as set forth below (the "PURCHASE PRICE"). The Securities Option may be exercised, in whole but not in part, by written notice to Stockholder (as set forth below), for a period of ten 90 days from the date the PROVIDER ceases to be a Service Provider, to repurchase any of the Unreleased Shares which have not yet been released from the Repurchase Option pursuant to Section 3.3.1 at a price per share equal to the lesser of (10x) business days the fair market value of the shares at the time the Repurchase Option is exercised, as determined by XXXXXXX’s board of directors and (y) the purchase price for the shares or $0.10 cent per share (the "10 DAY PERIODRepurchase Price") following termination ). The Repurchase Option shall be exercised by EESTECH by delivering written notice to the PROVIDER or, in the event of the Merger Agreement or termination of PROVIDER’s death, the OfferPROVIDER’s executor and, whichever shall first occur; PROVIDED thatat EESTECH’s option, prior to such termination, either (i) by delivering to the PROVIDER or the PROVIDER’s executor a Trigger Event shall have occurred or check in the amount of the aggregate Repurchase Price, (ii) by canceling an amount of the PROVIDER’s indebtedness to EESTECH equal to the aggregate Repurchase Price, or (Aiii) the Company shall have received by a written proposal from any person other than Parent, Purchaser or any affiliate combination of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting such that the exercise combined payment and cancellation of indebtedness equals the aggregate Repurchase Price. Upon delivery of such notice and the payment of the Securities Option pursuant to this Agreement; provided that if (i) all HSR Act waiting periods aggregate Repurchase Price, EESTECH shall not have expired or been terminated or (ii) there shall be in effect any such injunction or order, in each case on become the expiration legal and beneficial owner of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after the later of (A) the date of expiration Unreleased Shares being repurchased and all rights and interests therein or termination of all HSR Act waiting periodsrelating thereto, and (B) EESTECH shall have the date of removal or lifting of such injunction or order.
(b) In the event that Purchaser wishes right to exercise the Securities Option, Purchaser shall send a written notice (the "NOTICE") to Stockholder identifying the date (not less than two (2) nor more than five (5) business days from the date of the Notice) for the closing of such purchase, which closing shall be held at the executive offices of the Company (or such other place as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate retain and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designateits own name the number of Unreleased Shares being repurchased by XXXXXXX.
(c) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option (the "ACQUIRED SECURITIES") and, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess of the Purchase Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increase.
(d) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designate.
Appears in 2 contracts
Samples: Professional Services (EESTech, Inc.), Consulting Agreement (EESTech, Inc.)
Option. (a) In order On the terms and subject to induce Parent and Purchaser to enter into the Merger Agreementconditions set forth herein, each Stockholder Party hereby grants to Purchaser the Parent an irrevocable option (a "SECURITIES OPTION"the “Option”) to purchase all of the Securities (the "OPTION SECURITIES") right, title and interest of such Stockholder Party in and to such Stockholder Party’s Owned Shares at the Offer Price, subject a price equal to increase as set forth below (the "PURCHASE PRICE")US$7.00 per share. The Securities Parent may exercise an Option may be exercisedin whole, in whole but not in part, by written notice to Stockholder (as set forth below)if, for a period of ten (10) business days (the "10 DAY PERIOD") following termination of the Merger Agreement or termination of the Offerbut only if, whichever shall first occur; PROVIDED that, prior to such termination, either (i) a Trigger Event shall have occurred or (ii) (A) the Purchaser has acquired shares of Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent Common Stock pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied Offer and (ii) such Stockholder Party shall have failed to tender into the Offer any Owned Shares or shall have withdrawn the tender of any Owned Shares into the Offer. Parent may exercise an Option at any time within the 60 days following the date when such Option first becomes exercisable.
(b) In the event that the Parent is entitled to and wishes to exercise an Option, the Parent shall send a written notice to the relevant Stockholder Party or Parties specifying the place and the date for the closing of such purchase, which date shall be not more than 60 days after the date of such notice; provided that in the event that prior notification to, or approval of, any Governmental Entity is required in connection with the exercise of an Option or there shall not be in effect any preliminary or final injunction or other order issued by any Governmental Entity prohibiting the exercise of an Option, the Securities Option pursuant to this Agreement; provided that if (i) period of time during which the date of the closing may be fixed shall be extended until the tenth day following the last date on which all HSR Act required approvals shall have been obtained, all required waiting periods shall not have expired or been terminated or (ii) there shall be in effect and any such injunction prohibition shall have been vacated, terminated or order, in each case on the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or order.
(b) In the event that Purchaser wishes to exercise the Securities Option, Purchaser shall send a written notice (the "NOTICE") to Stockholder identifying the date (not less than two (2) nor more than five (5) business days from the date of the Notice) for the closing of such purchase, which closing shall be held at the executive offices of the Company (or such other place as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designatewaived.
(c) In At the event the Option Securities are acquired by Purchaser pursuant to the exercise closing of the Securities Option (the "ACQUIRED SECURITIES") and, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess of the Purchase Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of a Stockholder Party’s Owned Shares pursuant to exercise of an Option, simultaneously with the Acquired Securities has been completed at payment by the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount Parent of the increase.
(d) In the event the Option Securities are acquired by Purchaser pursuant purchase price for a Stockholder Party’s Owned Shares, such Stockholder Party shall deliver, or cause to be delivered, to the exercise of Parent certificates representing such Owned Shares duly endorsed to the Securities OptionParent or accompanied by stock powers duly executed by the Company in blank, Stockholder shall be entitled to receivetogether with any necessary stock transfer stamps properly affixed, free and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") clear of all or any portion of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designateLiens.
Appears in 2 contracts
Samples: Stockholder Tender Agreement (Numerical Technologies Inc), Stockholder Tender Agreement (Synopsys Inc)
Option. (a) In order On the terms and subject to induce Parent and Purchaser to enter into the Merger Agreementconditions set forth herein, each Stockholder hereby grants to Purchaser Parent an irrevocable option (a "SECURITIES OPTION"the “Option”) to purchase all of the Securities (the "OPTION SECURITIES") right, title and interest of such Stockholder in and to such Stockholder’s Covered Shares at a price equal to the Offer Price. Parent may exercise an Option in whole, subject to increase as set forth below (the "PURCHASE PRICE"). The Securities Option may be exercised, in whole but not in part, by written notice to Stockholder (as set forth below)if, for a period of ten (10) business days (the "10 DAY PERIOD") following termination of the Merger Agreement or termination of the Offerbut only if, whichever shall first occur; PROVIDED that, prior to such termination, either (i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate has acquired shares of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent Common Stock pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied Offer and (ii) such Stockholder shall have failed to tender into the Offer any Covered Shares or shall have withdrawn the tender of any Covered Shares into the Offer. Parent may exercise an Option at any time within the sixty (60) days following the date when such Option first becomes exercisable.
(b) In the event that Parent is entitled to and wishes to exercise an Option, Parent shall send a written notice to the relevant Stockholder(s) specifying the place and the date for the closing of such purchase, which date shall be not more than sixty (60) days after the date of such notice; provided that in the event that prior notification to, or approval of, any Governmental Entity is required in connection with the exercise of an Option or there shall not be in effect any preliminary or final injunction or other order issued by any Governmental Entity prohibiting the exercise of an Option, the Securities Option pursuant to this Agreement; provided that if period of time during which the date of the closing may be fixed shall be extended until the tenth (i10th) day following the last date on which all HSR Act required approvals shall have been obtained, all required waiting periods shall not have expired or been terminated or (ii) there shall be in effect and any such injunction prohibition shall have been vacated, terminated or order, in each case on the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or order.
(b) In the event that Purchaser wishes to exercise the Securities Option, Purchaser shall send a written notice (the "NOTICE") to Stockholder identifying the date (not less than two (2) nor more than five (5) business days from the date of the Notice) for the closing of such purchase, which closing shall be held at the executive offices of the Company (or such other place as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designatewaived.
(c) In At the event the Option Securities are acquired by Purchaser pursuant to the exercise closing of the Securities Option (the "ACQUIRED SECURITIES") and, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess of the Purchase Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of a Stockholder’s Covered Shares pursuant to exercise of an Option, simultaneously with the Acquired Securities has been completed at payment by the time Parent of the purchase price for a Stockholder’s Covered Shares, such increase, Stockholder shall deliver, or cause to be entitled delivered, to receivethe Purchaser certificates representing such Covered Shares duly endorsed to the Parent or accompanied by stock powers or other transfer documents duly executed by the Company in blank, together with any necessary stock transfer stamps properly affixed, free and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer clear of same day funds to such account as Stockholder shall designate, the amount of the increaseall Encumbrances.
(d) In Parent, Purchaser or the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities OptionCompany, Stockholder as applicable, shall be entitled to receivededuct and withhold from the consideration otherwise payable pursuant to this Section 4 to a holder of Covered Shares such amounts as are required to be withheld under the Code, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion applicable provision of state, local or foreign tax law. To the extent that amounts are so withheld, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Acquired Securities within the one-year period following Covered Shares in respect of which such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designatededuction and withholding was made.
Appears in 2 contracts
Samples: Tender and Stockholder Support Agreement (Sirtris Pharmaceuticals, Inc.), Tender and Stockholder Support Agreement (Glaxosmithkline PLC)
Option. (a) JJPRD shall have the right to exercise the Library Compound Exclusivity Option in accordance with this Section 3.6.1 with respect to each compound included in the Library Compound Pool. In order the event that JJPRD desires to induce Parent and Purchaser exercise the Library Compound Exclusivity Option with respect to enter into a compound included in the Merger AgreementLibrary Compound Pool, Stockholder hereby grants to Purchaser an irrevocable option (a "SECURITIES OPTION") to purchase the Securities (the "OPTION SECURITIES") at the Offer Price, subject to increase as set forth below (the "PURCHASE PRICE"). The Securities Option may be exercised, in whole but not in part, by JJPRD shall give Infinity written notice to Stockholder (as set forth below), for a period of ten (10) business days (the "10 DAY PERIOD") following termination of the Merger Agreement or termination of the Offer, whichever shall first occur; PROVIDED that, prior to such termination, either (i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination desire which notice shall specify the Minimum Condition shall not have been satisfied. Notwithstanding compound with respect to which JJPRD desires to exercise the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option pursuant to this Agreement; provided that if (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) there shall be in effect any such injunction or order, in each case on the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or orderLibrary Compound Exclusivity Option.
(b) In Within [**] Business Days after receiving JJPRD’s notice, Infinity shall notify JJPRD of whether, prior to the event date of receipt of JJPRD’s notice, (i) [**] and [**], (ii) Infinity [**]including [**] and [**] and [**] directed to the same [**] requested by JJPRD and Infinity is [**] either [**] or [**] or (iii) Infinity has [**] that Purchaser wishes specifically claims the [**] requested by JJPRD and has [**] therefor. If any of the conditions described in clauses (i), (ii) or (iii) of the immediately preceding sentence exist, then JJPRD shall not be permitted to exercise the Securities Option, Purchaser shall send a written notice (the "NOTICE") to Stockholder identifying the date (not less than two (2) nor more than five (5) business days from the date of the Notice) for the closing of such purchase, which closing shall be held at the executive offices of the Company (or such other place as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the Library Compound Exclusivity Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer with respect to such account as Stockholder compound included in the Library Compound Pool. If Infinity does not notify JJPRD that such compound included in the Library Compound Pool is unavailable in accordance with Section 3.6.1(b) within [**] Business Days after JJPRD delivered its notice to Infinity, then JJPRD shall designate.
(c) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option (the "ACQUIRED SECURITIES") and, either before or at any time within the one-year period have [**] Business Days following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from [**] day period to exercise the Company) at a price in excess of the Purchase Price, then the Purchase Price hereunder shall be increased Library Compound Exclusivity Option with respect to such higher price. If compound included in the purchase of Library Compound Pool by paying to Infinity $[**] (which, together with the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (and amounts specified below in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increase.
(d) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion of the Acquired Securities within the oneSection 3.6.2 for additional Back-year period following such acquisition, an amount per share in cash equal to the excessUp Library Compounds, if any, shall be designated the “Library Compound Exclusivity Fee”). Upon receipt of such payment, the net proceeds received per share applicable compound included in the Sale over Library Compound Pool shall become an Exclusive Library Compound. During the Purchase Price. Any [**] or [**] day periods described in this Section 3.6.1(c), Infinity shall not grant any conflicting right to any Third Party or otherwise take any action inconsistent with JJPRD’s exercise of its option to obtain exclusive rights to the requested compound included in the Library Compound Pool, including without limitation, filing any patent applications and conducting any research activities with such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designatecompound(s).
Appears in 2 contracts
Samples: Collaboration and License Agreement (Infinity Pharmaceuticals, Inc.), Collaboration and License Agreement (Discovery Partners International Inc)
Option. (a) In order On the terms and subject to induce the conditions set forth herein, the Stockholders hereby grant to Parent and Purchaser to enter into the Merger Agreement, Stockholder hereby grants to Purchaser an irrevocable option (a "SECURITIES OPTION"the “Option”) to purchase all of the Securities right, title and interest of the Stockholders in and to the Permissible Number of the Stockholders’ Shares (the "OPTION SECURITIES"“Optioned Shares”) at with a price per share equal to the Offer Price. Parent may exercise the Option in whole, subject to increase as set forth below (the "PURCHASE PRICE"). The Securities Option may be exercised, in whole but not in part, by written notice to Stockholder (as set forth below)if, for a period of ten (10) business days (the "10 DAY PERIOD") following termination of the Merger Agreement or termination of the Offerbut only if, whichever shall first occur; PROVIDED that, prior to such termination, either (i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate has acquired shares of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent common stock pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied Offer and (ii) the Stockholders have failed to tender into the Offer at least the Permissible Number of Shares or shall have withdrawn the tender of a number of Shares equal to or greater than the Permissible Number in breach of this Agreement. The Parent may exercise the Option at any time within the sixty (60) days following the date when such Option first becomes exercisable.
(b) In the event that the Parent is entitled to and wishes to exercise the Option, the Parent shall send a written notice to Stockholders specifying the place and the date for the closing of such purchase, which date shall be not more than sixty (60) days after the date of such notice; provided that in the event that prior notification to, or approval of, any Governmental Entity is required in connection with the exercise of the Option or there shall not be in effect any preliminary or final injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option pursuant to this Agreement; provided that if Option, the period of time during which the date of the closing may be fixed shall be extended until the tenth (i10th) day following the last date on which all HSR Act required approvals shall have been obtained, all required waiting periods shall not have expired or been terminated or (ii) there shall be in effect and any such injunction prohibition shall have been vacated, terminated or order, in each case on the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or order.
(b) In the event that Purchaser wishes to exercise the Securities Option, Purchaser shall send a written notice (the "NOTICE") to Stockholder identifying the date (not less than two (2) nor more than five (5) business days from the date of the Notice) for the closing of such purchase, which closing shall be held at the executive offices of the Company (or such other place as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designatewaived.
(c) In At the event closing of the Option Securities are acquired by Purchaser purchase of Stockholders’ Optioned Shares pursuant to the exercise of the Securities Option (Option, simultaneously with the "ACQUIRED SECURITIES") andpayment by the Parent of the purchase price for Stockholders’ Optioned Shares, either before the Stockholders shall deliver, or at any time within cause to be delivered, to the one-year period following such acquisition, Parent, Purchaser or any affiliate of certificates representing the Optioned Shares duly endorsed to the Parent or Purchaser shall acquire Common Stock (accompanied by stock powers or other than from transfer documents duly executed by the Company) at a price Company in excess blank, together with any necessary stock transfer stamps properly affixed, free and clear of the Purchase Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increaseall Liens.
(d) In The Parent, the event Purchaser or the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities OptionCompany, Stockholder as applicable, shall be entitled to receive, deduct and Purchaser shall promptly (and in no event more than 48 hours following withhold from the consideration otherwise payable pursuant to this Section 1.6 to Stockholders such Sale) pay amounts as are required to Stockholder, upon any subsequent disposition, transfer be withheld under the Code or sale to an unaffiliated third party ("SALE") of all the Treasury Regulations thereunder or any portion of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designateother Tax Law.
Appears in 2 contracts
Samples: Tender and Voting Agreement (COV Delaware Corp), Tender and Voting Agreement (Ev3 Inc.)
Option. (a) In order On the terms and subject to induce Parent and Purchaser to enter into the Merger Agreementconditions set forth herein, Stockholder each Shareholder hereby grants to Purchaser Parent an irrevocable option (a "SECURITIES OPTION"the “Option”) to purchase all of the Securities (the "OPTION SECURITIES") right, title and interest of such Shareholder in and to such Shareholder’s Covered Shares at a price equal to the Offer Price. Parent may exercise an Option in whole, subject to increase as set forth below (the "PURCHASE PRICE"). The Securities Option may be exercised, in whole but not in part, by written notice to Stockholder (as set forth below)if, for a period of ten (10) business days (the "10 DAY PERIOD") following termination of the Merger Agreement or termination of the Offerbut only if, whichever shall first occur; PROVIDED that, prior to such termination, either (i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate has acquired shares of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent Common Stock pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied Offer and (ii) such Shareholder shall have failed to tender into the Offer any Covered Shares or shall have withdrawn the tender of any Covered Shares into the Offer. Parent may exercise an Option at any time within the sixty (60) days following the date when such Option first becomes exercisable.
(b) In the event that Parent is entitled to and wishes to exercise an Option, Parent shall send a written notice to the relevant Shareholder(s) specifying the place and the date for the closing of such purchase, which date shall be not more than sixty (60) days after the date of such notice; provided that in the event that prior notification to, or approval of, any Governmental Entity is required in connection with the exercise of an Option or there shall not be in effect any preliminary or final injunction or other order issued by any Governmental Entity prohibiting the exercise of an Option, the Securities Option pursuant to this Agreement; provided that if period of time during which the date of the closing may be fixed shall be extended until the tenth (i10th) day following the last date on which all HSR Act required approvals shall have been obtained, all required waiting periods shall not have expired or been terminated or (ii) there shall be in effect and any such injunction prohibition shall have been vacated, terminated or order, in each case on the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or order.
(b) In the event that Purchaser wishes to exercise the Securities Option, Purchaser shall send a written notice (the "NOTICE") to Stockholder identifying the date (not less than two (2) nor more than five (5) business days from the date of the Notice) for the closing of such purchase, which closing shall be held at the executive offices of the Company (or such other place as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designatewaived.
(c) In At the event the Option Securities are acquired by Purchaser pursuant to the exercise closing of the Securities Option (the "ACQUIRED SECURITIES") and, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess of the Purchase Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of a Shareholder’s Covered Shares pursuant to exercise of an Option, simultaneously with the Acquired Securities has been completed at payment by the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount Parent of the increasepurchase price for a Shareholder’s Covered Shares, such Shareholder shall deliver, or cause to be delivered, to the Purchaser certificates representing such Covered Shares duly endorsed to the Parent or accompanied by stock powers or other transfer documents duly executed by the Company in blank, together with any necessary stock transfer stamps properly affixed, free and clear of all Encumbrances.
(d) In Parent, Purchaser or the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities OptionCompany, Stockholder as applicable, shall be entitled to receivededuct and withhold from the consideration otherwise payable pursuant to this Section 4 to a holder of Covered Shares such amounts as are required to be withheld under the Code, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion applicable provision of state, local or foreign tax law. To the extent that amounts are so withheld, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Acquired Securities within the one-year period following Covered Shares in respect of which such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designatededuction and withholding was made.
Appears in 2 contracts
Samples: Tender and Shareholder Support Agreement (Genelabs Technologies Inc /Ca), Tender and Shareholder Support Agreement (Glaxosmithkline PLC)
Option. (a) In order The Stockholder and the Individual hereby grant to induce Parent and Purchaser to enter into Newco (or its designee, provided such designee is an affiliate of the Merger Agreementcontrolling stockholders of Newco), Stockholder hereby grants to Purchaser an irrevocable option (a "SECURITIES OPTION") to purchase the Securities Subject Shares, on the terms and subject to the conditions set forth herein (the "OPTION SECURITIES") at the Offer Price, subject to increase as set forth below (the "PURCHASE PRICEOption"). .
(b) The Securities Option may be exercisedexercised by Newco, in as a whole but and not in part, by written notice to Stockholder (as set forth below), for a at any time during the period commencing upon the occurrence of ten (10) business days (the "10 DAY PERIOD") following termination any of the Merger Agreement or termination following events and ending on the date which is the 90th calendar day following the first to occur of the Offer, whichever shall first occur; PROVIDED that, prior to such termination, either events:
(i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent either the Company or Newco pursuant to Section 8.01(b8.1(b) or (c) thereof (other than a termination by the Company pursuant to Section 8.1(c), 8.01(d)(iiwhich was based on an actual material breach by Newco of its obligations under the Merger Agreement (a "Newco Breach Termination"));
(ii) the Merger Agreement shall have been terminated by Newco pursuant to Section 8.1(d) thereof; or
(iii) the Merger Agreement shall have been terminated by the Company pursuant to Section 8.1(e) thereof.
(c) If Newco wishes to exercise the Option, 8.01(f) or 8.01(g) Newco shall send a written notice to the Stockholder and (C) at the Individual of its intention to exercise the Option, specifying the place, and, if then known, the time of such termination and the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended date (the "HSR ACTOption Closing Date"), required for the purchase ) of the Securities upon such exercise shall have expired or been waived and any other conditions under closing (the other Antitrust Laws shall have been satisfied and (ii"Option Closing") there shall not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities purchase. The Option pursuant to this Agreement; provided that if (i) all HSR Act waiting periods Closing Date shall not have expired or been terminated or (ii) there shall be in effect any such injunction or order, in each case occur on the expiration of the 10 Day Period, the 10 Day Period shall fifth business day (or such longer period as may be extended until five (5required by applicable law or regulation) business days after the later of (Ai) the date of expiration or termination of all HSR Act waiting periods, on which such notice is delivered and (Bii) the date satisfaction of removal or lifting of such injunction or orderthe conditions set forth in Section 4(f).
(bd) In the event that Purchaser wishes to exercise the Securities Option, Purchaser shall send a written notice (the "NOTICE") to Stockholder identifying the date (not less than two (2) nor more than five (5) business days from the date of the Notice) for the closing of such purchase, which closing shall be held at the executive offices of the Company (or such other place as the parties may agree). At the closingOption Closing, the Stockholder and the Individual shall deliver to Purchaser appropriate and effective instruments of transfer Newco (or its designee) all of the Option SecuritiesSubject Shares by delivery of a certificate or certificates evidencing such Subject Shares duly endorsed to Newco or accompanied by powers duly executed in favor of Newco, against payment to Stockholder of the Purchase Price, in same day funds, by wire with all necessary stock transfer to such account as Stockholder shall designatestamps affixed.
(ce) In the event At the Option Securities are acquired by Purchaser Closing, Newco shall pay to the Stockholder pursuant to the exercise of the Securities Option, by wire transfer, cash in immediately available funds to the account of the Stockholder (such account to be specified in writing at least two days prior to the Option Closing, an amount equal to the product of $9.83 and the number of Subject Shares (the "ACQUIRED SECURITIES") and, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess of the Subject Purchase Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increase").
(df) In The Option Closing shall be subject to the event satisfaction of each of the Option Securities are acquired by Purchaser following conditions:
(i) no court, arbitrator or governmental body, agency or official shall have issued any order, decree or ruling and there shall not be any statute, rule or regulation, restraining, enjoining or prohibiting the consummation of the purchase and sale of the Subject Shares pursuant to the exercise of the Securities Option;
(ii) any waiting period applicable to the consummation of the purchase and sale of the Subject Shares pursuant to the exercise of the Option under the HSR Act shall have expired or been terminated; and
(iii) all actions by or in respect of, and any filing with, any governmental body, agency, official, or authority required to permit the consummation of the purchase and sale of the Subject Shares pursuant to the exercise of the Option shall have been obtained or made and shall be in full force and effect.
(g) Newco hereby agrees that, in the event that it purchases the Subject Shares pursuant to the Option, Stockholder as promptly as practicable thereafter, Newco will make a tender offer for the remaining shares of Company Common Stock to the stockholders of the Company (the consummation of which shall be entitled subject only to receivethe condition that no court, arbitrator or governmental body, agency or official shall have issued any order, decree or ruling and there shall not be any statute, rule or regulation, restraining, enjoining or prohibiting the consummation of such tender offer) pursuant to which the stockholders of the Company (other than the Company, any direct or indirect subsidiary of the Company or Newco) will receive an amount of cash consideration per share of Company Common Stock equal to $16.50, and Purchaser shall promptly (and will take such actions as may be necessary or appropriate in no event more than 48 hours following order to effectuate such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion of tender offer at the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designateearliest practicable time.
Appears in 2 contracts
Samples: Voting Agreement (Amscan Holdings Inc), Voting Agreement (Confetti Acquisition Inc)
Option. (a) In order The Stockholder and each Fund hereby grant to induce Parent and Purchaser to enter into the Merger AgreementNewco (or its designee, Stockholder hereby grants to Purchaser provided such designee is an affiliate of KKR & Co.) an irrevocable option (a "SECURITIES OPTION") to purchase the Securities Subject Securities, on the terms and subject to the conditions set forth herein (the "OPTION SECURITIES") at the Offer Price, subject to increase as set forth below (the "PURCHASE PRICEOption"). .
(b) The Securities Option may be exercisedexercised by Newco, in as a whole but and not in part, by written notice to Stockholder (as set forth below), for a at any time during the period commencing upon the occurrence of ten (10) business days (the "10 DAY PERIOD") following termination either of the Merger Agreement or termination following events and ending on the date which is the 30th calendar day following the first to occur of the Offer, whichever shall first occur; PROVIDED that, prior to such termination, either events:
(i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent either the Company or Newco pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f8.1(b) or 8.01(gthereof; or
(ii) the Merger Agreement shall have been terminated by the Company pursuant to Section 8.1(c) and on March 31, 1997 or thereafter there shall have been in effect any of (A) an Extending Action, (B) a condition which would permit the Merger Agreement to be terminated under Section 8.1(b) thereof or (C) at any statute, rule or regulation enjoining or prohibiting in whole or in any significant respect the consummation of the Merger, the Debt Offer or any of the transactions contemplated by the Merger Agreement or this Agreement.
(c) If Newco wishes to exercise the Option, Newco shall send a written notice to the Stockholder of its intention to exercise the Option, specifying the place, and, if then known, the time of such termination and the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended date (the "HSR ACTOption Closing Date"), required for the purchase ) of the Securities upon such exercise shall have expired or been waived and any other conditions under closing (the other Antitrust Laws shall have been satisfied and (ii"Option Closing") there shall not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities purchase. The Option pursuant to this Agreement; provided that if (i) all HSR Act waiting periods Closing Date shall not have expired or been terminated or (ii) there shall be in effect any such injunction or order, in each case occur on the expiration of the 10 Day Period, the 10 Day Period shall fifth business day (or such longer period as may be extended until five (5required by applicable law or regulation) business days after the later of (Ai) the date of expiration or termination of all HSR Act waiting periods, on which such notice is delivered and (Bii) the date satisfaction of removal or lifting of such injunction or orderthe conditions set forth in Section 4(f).
(bd) In the event that Purchaser wishes to exercise the Securities Option, Purchaser shall send a written notice (the "NOTICE") to Stockholder identifying the date (not less than two (2) nor more than five (5) business days from the date of the Notice) for the closing of such purchase, which closing shall be held at the executive offices of the Company (or such other place as the parties may agree). At the closingOption Closing, the Stockholder and the Funds shall deliver to Purchaser appropriate and effective instruments of transfer Newco (or its designee) all of the Option SecuritiesSubject Securities by delivery of a certificate or certificates evidencing such Securities duly endorsed to Newco or accompanied by powers duly executed in favor of Newco, against payment to Stockholder of the Purchase Price, in same day funds, by wire with all necessary stock transfer to such account as Stockholder shall designatestamps affixed.
(ce) In the event At the Option Securities are acquired by Purchaser Closing, Newco shall pay to the Stockholder pursuant to the exercise of the Securities Option (the "ACQUIRED SECURITIES") and, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess of the Purchase Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to StockholderOption, by wire transfer of same day transfer, cash in immediately available funds to such the account as of the Stockholder shall designatespecified in writing no more than two days prior to the Option Closing, (i) with respect to the Subject Shares, an amount equal to the product of $20.25 and the number of Subject Shares and (ii) with respect to the Subject Warrants, an amount equal to the product of $7.75 and the number of Subject Warrants (collectively, the amount of the increase"Subject Securities Purchase Price").
(df) In The Option Closing shall be subject to the event satisfaction of each of the Option following conditions:
(i) no court, arbitrator or governmental body, agency or official shall have issued any order, decree or ruling and there shall not be any statute, rule or regulation, restraining, enjoining or prohibiting the consummation of the purchase and sale of the Subject Securities are acquired by Purchaser pursuant to the exercise of the Option;
(ii) any waiting period applicable to the consummation of the purchase and sale of the Subject Securities Optionpursuant to the exercise of the Option under the HSR Act shall have expired or been terminated; and
(iii) all actions by or in respect of, Stockholder and any filing with, any governmental body, agency, official, or authority required to permit the consummation of the purchase and sale of the Subject Securities pursuant to the exercise of the Option shall have been obtained or made and shall be entitled to receive, in full force and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designateeffect.
Appears in 2 contracts
Samples: Voting Agreement (KCLC Acquisition Corp), Voting Agreement (TCW Group Inc)
Option. In the event this Agreement is terminated pursuant to Section 9(c) hereof as a result of a termination of the Purchase Agreement in accordance with Section 8.01(d)(i) thereof, Parent shall have the right (a) In order to induce Parent and Purchaser to enter into but not the Merger Agreement, Stockholder hereby grants to Purchaser an irrevocable option (a "SECURITIES OPTION"obligation) to purchase all (but not less than all) of the Securities (the "OPTION SECURITIES") at Covered Shares, for the Offer PriceConsideration per share, subject provided Parent makes an irrevocable written election to increase as set forth below purchase all such Covered Shares (the "PURCHASE PRICE"). The Securities Option may be exercised, in whole but not in part, by written notice a “Purchase Election”) that is delivered to Stockholder Shareholder within thirty (as set forth below), for a period of ten (1030) business days (the "10 DAY PERIOD") following such termination of the Merger Purchase Agreement or termination of (the Offer“Option Period”). If Parent makes a Purchase Election during the Option Period, whichever shall first occur; PROVIDED that, prior to such termination, either Shareholder agrees (i) a Trigger Event shall have occurred or to sell the Covered Shares to Parent for the Offer Consideration per share, and (ii) not to Transfer the Covered Shares to any other Person (A) the Company shall have received a written proposal from any person other than ParentPermitted Transfers, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, in which proposal shall not have expired or been withdrawn, (B) the Merger case this Agreement shall have been terminated by bind any transferee and such transferee shall deliver to Parent and Buyer a Transfer Agreement). If Parent makes a Purchase Election during the Option Period, Shareholder and Parent shall enter into a mutually agreed customary stock purchase agreement with respect to the transfer of the Covered Shares (subject to customary conditions, including any regulatory approvals required, to the extent not previously obtained; provided that such agreement will not include any representations from Shareholder other than with respect to title to Covered Shares and authority and similar fundamental representations regarding such Shareholder’s entry into such agreement and will not include any indemnification obligations) pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition which Parent shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), required for promptly consummate the purchase of the Securities upon such exercise Covered Shares. If Parent does not provide written notice of its Purchase Election within the Option Period, then Parent’s rights described in this Section 5(h) shall have expired terminate and Shareholder shall be free to retain or been waived and Transfer its Covered Shares to any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option pursuant to this Agreement; provided that if (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) there shall be in effect any such injunction or order, in each case on the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or orderparty.
(b) In the event that Purchaser wishes to exercise the Securities Option, Purchaser shall send a written notice (the "NOTICE") to Stockholder identifying the date (not less than two (2) nor more than five (5) business days from the date of the Notice) for the closing of such purchase, which closing shall be held at the executive offices of the Company (or such other place as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designate.
(c) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option (the "ACQUIRED SECURITIES") and, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess of the Purchase Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increase.
(d) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designate.
Appears in 2 contracts
Samples: Tender and Support Agreement (Thermo Fisher Scientific Inc.), Tender and Support Agreement (JLL Associates G.P. V (Patheon), Ltd.)
Option. (a) In order Subject to induce Parent the terms and Purchaser to enter into the Merger conditions set forth in this Agreement, Stockholder each of the Stockholders hereby grants to Purchaser Parent an irrevocable option (a the "SECURITIES OPTIONOption") to purchase (i) the Securities number of Shares set forth next to such Stockholder's name on Exhibit A hereto (as adjusted as set forth herein) and any other Shares owned by such Stockholder beneficially or acquired after the date of this Agreement, at a purchase price of $19.00 (as adjusted as set forth herein) per Share (the "OPTION SECURITIES") at the Offer Purchase Price, subject to increase as set forth below (the "PURCHASE PRICE"). The Securities Option may be exercised, in whole but not in part, by written notice to Stockholder (as set forth below), for a period of ten (10) business days (the "10 DAY PERIOD") following termination of the Merger Agreement or termination of the Offer, whichever shall first occur; PROVIDED that, prior to such termination, either (i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option pursuant to this Agreement; provided that if (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) there shall be in effect any such injunction or order, in each case on the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or order.
(b) In The Option may be exercised by Parent, in whole at any time prior to the event that Purchaser wishes to exercise the Securities Option, Purchaser shall send a written notice earlier of (the "NOTICE"i) to Stockholder identifying the date upon which the Effective Time (not less than two as defined in the Merger Agreement) occurs and (2ii) nor more than five (5) the date fifteen business days from after the date of the Notice) for the closing of such purchase, which closing shall be held at the executive offices termination of the Company (or such other place as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designateMerger Agreement.
(c) In the event that Parent wishes to exercise the Option, it shall send to the Stockholders a written notice (the date of each such notice being herein referred to as a "Notice Date") to that effect, which notice also specifies a date not earlier than three business days nor later than 30 business days from the Notice Date for the closing of such purchase (an "Option Securities are acquired by Purchaser Closing Date"); provided, however, that (i) if the closing of a purchase and sale pursuant to the Option (an "Option Closing") cannot be consummated by reason of any applicable judgment, decree, order, law or regulation, the period of time that otherwise would run pursuant to this sentence shall run instead from the date on which the restriction on consummation has expired or been terminated and (ii) without limiting the foregoing, if prior notification to or approval of any regulatory authority is required in connection with the purchase, Parent and the Stockholders shall promptly file the required notice or application for approval and shall cooperate in the expeditious filing of such notice or application, and the period of time that otherwise would run pursuant to this sentence shall run instead from the date on which, as the case may be, (A) any required notification period has expired or been terminated or (B) any required approval has been obtained, and in either event, any requisite waiting period has expired or been terminated. Each of Parent and the Stockholders agrees to use commercially reasonable efforts to cooperate with and provide information to the other, for the purpose of any required notice or application for approval. Any exercise of the Securities Option (shall be deemed to occur on the "ACQUIRED SECURITIES") and, either before or Notice Date relating thereto. The place of any Option Closing shall be at any time within the one-year period following such acquisition, offices of Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess of the Purchase Price0X Xxxxxx, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at Xx Xxxx, MN 55133 and the time of such increase, Stockholder the Option Closing shall be entitled to receive, and Purchaser shall promptly 10:00 a.m. (and in no event more than 48 hours following such increaseCentral Time) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, on the amount of the increaseapplicable Option Closing Date.
(d) At any Option Closing, Parent shall pay to each Stockholder in immediately available funds by wire transfer to a bank account designated in writing by such Stockholder an amount equal to the Purchase Price multiplied by the number of Shares being delivered by such Stockholder; provided, that failure or refusal of any Stockholder to designate a bank account shall not preclude Parent from exercising the Option, in whole or in part.
(e) At any Option Closing, simultaneously with the delivery of immediately available funds as provided above, each Stockholder shall deliver to Parent a certificate or certificates representing its pro rata portion of the Shares to be purchased at such Option Closing, which Shares shall be free and clear of all liens, claims, charges and encumbrances of any kind whatsoever.
(f) In the event of any change in the Option Securities are acquired Company Common Shares by Purchaser pursuant reason of a stock dividend, split-up, merger, recapitalization, combination, exchange of shares or similar transaction, the type and number of Shares subject to the Option, and the Purchase Price therefor, shall be adjusted appropriately, so that Parent shall receive upon exercise of the Securities Option, Stockholder shall be entitled to receive, Option the number and Purchaser shall promptly (and class of shares or other securities or property that Parent would have received in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion respect of the Acquired Securities within Option Shares if the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds Option had been exercised immediately prior to such account event or the record date therefor, as Stockholder shall designateapplicable.
Appears in 2 contracts
Samples: Voting and Stock Option Agreement (Robinson Nugent Inc), Voting and Stock Option Agreement (Minnesota Mining & Manufacturing Co)
Option. (a) In order to induce Parent and Purchaser to enter into the Merger Agreement, Each Stockholder hereby irrevocably grants to Purchaser Parent an irrevocable option (a "SECURITIES OPTION") the “Option”), exercisable only upon the events and subject to the conditions set forth herein, to purchase the Securities any or all of such Stockholder’s Individual Shares at a purchase price per share equal to $3.00 (the "OPTION SECURITIES") at the Offer Price, subject to increase or such higher per share price as set forth below (the "PURCHASE PRICE"). The Securities Option may be exercised, offered by Sub in whole but not in part, by written notice to Stockholder (as set forth below), for a period of ten (10) business days (the "10 DAY PERIOD") following termination of the Merger Agreement or termination of the Offer, whichever shall first occur; PROVIDED that, prior to such termination, either (i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option pursuant to this Agreement; provided that if (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) there shall be in effect any such injunction or order, in each case on the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or order.
(b) In Subject to the event that Purchaser wishes conditions to the Offer and Sub’s obligation to purchase tendered Shares, each as set forth in the Merger Agreement, and the termination provisions of Section 12 hereof, Parent may exercise the Option in whole or in part at any time prior to the Option Expiration Date if the Stockholder fails to comply with any of its obligations under this Agreement, or the Stockholder withdraws the tender of the Individual Shares (but the Option shall not limit any other right or remedy available to Parent or Sub against such Stockholder for breach of this Agreement). Upon the occurrence of any of such circumstances, Parent shall be entitled to exercise the Securities OptionOption and purchase such Stockholder’s Individual Shares, Purchaser and the Stockholder shall send a sell such Individual Shares to Parent. Parent shall exercise the Option by delivering written notice of such exercise to the Stockholder (the "NOTICE") “Notice”), specifying the number of Individual Shares to Stockholder identifying be purchased and the date (not less than two (2) nor more than five (5) business days from the date of the Notice) date, time and place for the closing of such purchase, which date shall not be less than three business days nor more than five business days from the date the Stockholder received the Notice and in no event shall such date be later than the Option Expiration Date. The closing of the purchase of Individual Shares pursuant to this Section 8(b) (the “Closing”) shall be held take place on the date, at the executive offices time and at the place specified in such Notice; provided, that if at such date any of the Company Tender Offer Conditions and Sub’s obligation to purchase tendered Shares shall not have been satisfied (or waived), Parent may postpone the Closing until a date within five business days after such other place as conditions are satisfied or waived (but not later than the parties may agreeOption Expiration Date). At Upon the closingrequest of Parent, each Stockholder shall deliver promptly take, or cause to Purchaser appropriate be taken, all action required to effect all necessary filings by such Stockholder under applicable law and effective instruments shall cooperate with Parent with respect to the filing obligations of transfer of the Option Securities, against payment to Stockholder of the Purchase PriceParent and Sub, in same day funds, by wire transfer to such account each case as Stockholder shall designatemay be required in connection with the Closing.
(c) In At the event Closing, each Stockholder will deliver to Parent (i) a certificate, dated the Option Securities date of the Closing, certifying that the representations and warranties of such Stockholder in Section 10 are acquired by Purchaser true and correct as of the date of the Closing and (ii) in accordance with Parent’s instructions, the certificates representing the Individual Shares and being purchased pursuant to the exercise of the Securities Option (the "ACQUIRED SECURITIES") andSection 8(a), either before duly endorsed or at any time within the one-year period following accompanied by stock powers duly executed in blank. At such acquisitionClosing, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess of the Purchase Price, then the Purchase Price hereunder shall be increased deliver to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to each Stockholder, by bank wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increase.
(d) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion of the Acquired Securities within the one-year period following such acquisitionimmediately available funds, an amount per share in cash equal to the excess, if any, number of such Stockholder’s Individual Shares being purchased as specified in the net proceeds received Notice multiplied by $3.00 (or such higher per share price as may be offered by Sub in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designateOffer).
Appears in 2 contracts
Samples: Stock Tender Agreement (Mercator Software Inc), Stock Tender Agreement (Ascential Software Corp)
Option. (a) In order to induce Parent and Purchaser to enter into the Merger Agreement, Stockholder hereby grants to Purchaser an irrevocable option (a "SECURITIES OPTION") to purchase the Securities (the "OPTION SECURITIES") at the Offer Price, subject to increase as set forth below (the "PURCHASE PRICE"). The Securities Option may be exercised, in whole but not in part, by written notice to Stockholder (as set forth below), At any time for a period of ten 12 months from the date hereof, the Tenant may exercise the Option in accordance with the following terms and conditions:
(10a) business days Upon receipt by the Landlord of a bona fide and valid expression of interest from a third party that is not a Group Company in relation to a letting of the First Floor Premises (which the Landlord in its absolute discretion has deemed acceptable), the Landlord shall notify the Tenant in writing of the expression of interest including details of the commercial terms proposed (the "10 DAY PERIOD") following termination “Landlord’s Expression of the Merger Agreement or termination of the Offer, whichever shall first occur; PROVIDED that, prior to such termination, either (i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(bInterest Notice”), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option pursuant to this Agreement; provided that if (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) there shall be in effect any such injunction or order, in each case on the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or order.
(b) In The Tenant shall then respond to the event that Purchaser wishes to exercise the Securities Option, Purchaser shall send a written notice Landlord in writing within ten (the "NOTICE"10) to Stockholder identifying the date (not less than two (2) nor more than five (5) business working days from of the date of the Notice) for Landlord’s Expression of Interest Notice indicating if it intends to exercise the closing of such purchase, which closing shall be held at the executive offices Option and take a demise of the Company First Floor Premises (or such other place as the parties may agree“Tenant’s Option Notice”). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designate.
(c) In the event that the Tenant decides not to issue the Tenant’s Option Securities are acquired by Purchaser pursuant Notice, the Tenant shall acknowledge this fact in writing to the exercise Landlord within ten (10) working days of the Securities Option (the "ACQUIRED SECURITIES") and, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess date of the Purchase Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase Landlord’s Expression of the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increaseInterest Notice.
(d) In the event that the Tenant serves the Tenant’s Option Securities are acquired by Purchaser pursuant Notice on the Landlord in accordance with the provisions of this clause 3.1, the following provisions shall apply:-
(i) Both the Landlord and the Tenant shall execute a supplemental lease in a form to be agreed between the parties reflecting the demise of the First Floor Premises (“Supplemental Lease”) within twenty one (21) days (or such longer period as may be agreed between the parties) after the service of the Tenant’s Option Notice.
(ii) The Supplemental Lease shall be identical in form (in so far as is reasonably practicable) to the exercise Lease, shall be for a term of years commencing on the date of the Securities Option, Stockholder execution of the Supplemental Lease and expiring on the last day of the Term of the Lease and the rent payable per square metre thereunder shall be entitled agreed between the parties (both acting reasonably) as that reflecting the open market rent (as that phrase is commonly understood to receivemean) prevailing at that time. If there is any dispute in relation to the determination of open market rent for the purpose of this clause, an independent third party surveyor shall be appointed (on the agreement of both parties) to determine same acting as an expert and not as an arbitrator.
(e) In the event that the Tenant does not issue the Tenant’s Option Notice and the expression of interest from the relevant third party does not result in the execution of a lease in favour of such third party, and Purchaser shall promptly further in the event that the Landlord subsequently receives a further valid and bona fide expression of interest from a further third party, the provisions of sub-clauses (a), (b) and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE"c) of all or any portion of the Acquired Securities within the one-year period following such acquisition, an amount per share this clause 3.1 shall also apply in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds relation to such account as Stockholder shall designatefurther expression of interest PROVIDED THAT such further expression of interest is also received within 12 months from the date hereof.
Appears in 1 contract
Samples: Lease (Hubspot Inc)
Option. (a) In order to induce Parent and Purchaser to enter into As additional consideration for the Merger Agreementcovenants of Sublessee under this Sublease, Stockholder hereby Sublessor grants to Purchaser Sublessee an irrevocable option (a the "SECURITIES OPTIONOption") to purchase lease Phase 2 and add such Phase 2 to the Securities Demised Premises for a term commencing within ninety (90) days after Sublessee's Notice (as hereinafter defined) and expiring on the Expiration Date. The Option shall be on the following terms and conditions:
33.1 Written notice of Sublessee's interest in exercising the Option shall be given to Sublessor at any time during the first three (3) years of the initial Sublease term, but not later than ninety (90) days prior to the expiration of such three (3)-year period ("Sublessee's Notice").
33.2 Unless Sublessee timely provides Sublessee's Notice to Sublessor in accordance with Section 33.1 above, and the parties execute an amendment as provided above, the Option shall terminate and shall be of no further force or effect.
33.3 In addition to the timely written notice as required by Section 33.1 above, as a condition of Sublessee's right to exercise the Option granted hereunder, there shall be no Event of Default on the date of exercise or the date the Option is to commence and Sublessee shall have made all of the Option Payments (as hereinafter defined) when due.
33.4 In the event Sublessee exercises the Option, Sublessee must take the entire Phase 2 and may not elect only to lease a portion thereof.
33.5 All notifications contemplated by this Section must be in writing and given in the manner provided in the Sublease.
33.6 Sublessee's rights with respect to the Option terminate if this Sublease or Sublessee's right to possession of the Demised Premises is terminated at any time prior to the third anniversary of the Commencement Date.
33.7 Commencing on the second (2nd) anniversary of the Commencement Date through and including the last day of such second (2nd) year of the term of this Sublease, in order to continue the Option, and in addition to, but not deemed a portion of, the Net Rent, Sublessee shall make monthly payments to Sublessor on the first (1st) day of each calendar month in the amount of $0.25 per square foot of Phase 2 [Seven Thousand Seven Hundred Forty-Five and 06/100 Dollars ($7,745.06)] ("Second Year Option Payments").
33.8 Commencing on the third (3rd) anniversary of the Commencement Date through and including the last day of such third (3rd) year of the term of this Sublease, in order to continue the Option, and in addition to, but not deemed a portion of, the Net Rent, Sublessee shall make monthly payments to Sublessor on the first (1st) day of each calendar month in the amount of $0.50 per square foot of Phase 2 [Fifteen Thousand Four Hundred Ninety and 13/100 Dollars ($15,490.13)] (together with the Second Year Option Payments, the "OPTION SECURITIES") at the Offer Price, subject to increase as set forth below (the "PURCHASE PRICEOption Payments"). The Securities Option may be exercised, in whole but not in part, by written notice to Stockholder (as set forth below), for a period of ten (10) business days (the "10 DAY PERIOD") following termination If any of the Merger Agreement Option Payments is not timely made, the Option will terminate and be of no further force or termination of the Offereffect, whichever shall first occur; PROVIDED that, prior to such termination, either (i) a Trigger Event and Sublessee shall have occurred or (ii) (A) no further right to lease Phase 2. All Option Payments shall be in the Company amounts specified on Exhibit C. At such time as Sublessee exercises the Option, any Option Payments not yet due shall have received a written proposal from any person other than Parentno longer be payable, Purchaser or any affiliate of Parent or Purchaser and Sublessee shall pay Net Rent for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976Phase 2 in lieu thereof, as amended (the "HSR ACT"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall not be provided in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting Section 3.1.2.
33.9 Upon the exercise of the Securities Option pursuant Option, Phase 2 shall become part of the Demised Premises and, within thirty (30) days after Sublessee has exercised the Option, the parties shall execute an amendment to this Agreement; provided that if (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) there the Sublease reflecting such addition of Phase 2 to the Demised Premises and setting forth the Net Rent with respect thereto, in accordance with Section 3.1.2, which amendment shall be in effect any such injunction or order, in each case on the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, form and (B) the date of removal or lifting of such injunction or ordersubstance acceptable to Sublessor.
(b) In the event that Purchaser wishes 33.10 The Option is personal to exercise the Securities OptionSublessee and cannot be exercised by any other party, Purchaser shall send a written notice (the "NOTICE") nor can it be assigned by Sublessee to Stockholder identifying the date (not less than two (2) nor more than five (5) business days from the date of the Notice) for the closing of such purchase, which closing shall be held at the executive offices of the Company (or such any other place as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designateparty.
(c) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option (the "ACQUIRED SECURITIES") and, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess of the Purchase Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increase.
(d) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designate.
Appears in 1 contract
Option. (a) In order to induce Parent and Purchaser Merger Sub to enter into the Merger Agreement, the Stockholder hereby grants to Purchaser Parent an irrevocable option (a the "SECURITIES OPTIONStockholder Option") to purchase one-third (33 1/3%) of the Securities Shares Beneficially Owned by the Stockholder as of the date of this Agreement, rounded down to the nearest whole share (the "OPTION SECURITIESStockholder Option Shares") at a purchase price per share equal to the Offer Consideration (the "Stockholder Option Price"), subject which Stockholder Option shall be exercisable only if the Merger Agreement is terminated pursuant to increase Section 8.1(f) or 8.1(i) thereof and shall expire if not exercised prior to expiration as provided in Section 4(f) hereof. The Stockholder Option shall become exercisable only (1) in the case of an Acquisition Proposal structured as a tender offer, 9:00 a.m. Eastern Time ("ET") on the business day immediately preceding the initial expiration date of such tender offer or (2) in the case of an Acquisition Proposal not structured as a tender offer, 9:00 a.m. ET on the business day immediately preceding the date on which the meeting of the holders of the Company's Common Stock (the "Stockholder Meeting") is scheduled to be held (or if action is being taken by written consent, the effective date of such written consent) for the purpose of voting on the Acquisition Proposal and any related matters, as set forth below (in the "PURCHASE PRICE"). The Securities Option may be exercised, proxy statement/information statement sent to the Company's stockholders in whole but not in part, by written notice to Stockholder (as set forth below), for a period of ten (10) business days (the "10 DAY PERIOD") following termination of the Merger Agreement or termination of the Offer, whichever shall first occur; PROVIDED that, prior to connection with such termination, either (i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option pursuant to this Agreement; provided that if (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) there shall be in effect any such injunction or order, in each case on the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or orderProposal.
(b) In (i) Beginning on the date the Merger Agreement is terminated pursuant to Section 8.1(f) or 8.1(i) thereof (the "Merger Termination Date") and continuing through the Option Termination Time (as defined in Section 4(f) hereof), the Stockholder shall provide to Parent within one (1) business day of receipt thereof by Stockholder copies of all notices, letters, reports, documents, disclosure materials, writings and other communications ("Communications"), including but not limited to, proxy/information statements, tender offer materials, transmittal letters, solicitations, SEC filings, notices of stockholder meetings, written consents of stockholders and any other Communications received by or communicated to Stockholder in connection with any Acquisition Proposal. Any such Communications shall be governed by the terms of the Confidentiality Agreement dated August 20, 2001 between the Stockholder and Parent as supplemented by a letter dated August 16, 2001.
(ii) The Stockholder shall provide or arrange to have provided to Parent a written report from the Company or the Company's transfer agent, solicitation agent, exchange agent or similar third party in possession of the necessary information in form and substance reasonably satisfactory to Parent (a "Weekly Report") by 6:00 p.m. ET on Friday of each week beginning with the first Friday following the Merger Termination Date and ending on the Friday preceding the Option Termination Time, which Weekly Report shall contain a detailed presentation of the number and percentage of shares of Company Common Stock which have been tendered or voted in connection with the Acquisition Proposal (including a breakdown of the number and percentage of shares which have been voted for, against or abstained from a vote on the Acquisition Proposal), as the case may be, by the Company's stockholders as of 5:00 p.m. ET on the day preceding such Weekly Report. Notwithstanding anything to the contrary contained in this Agreement, each Weekly Report shall be delivered to Parent by facsimile, with a copy delivered to Parent's counsel, in accordance with the information set forth in Section 13(e) hereof.
(iii) The Stockholder shall further provide or arrange to have provided to Parent a written report from the Company or the Company's transfer agent, solicitation agent, exchange agent or similar third party in possession of the necessary information, in form and substance reasonably satisfactory to Parent (a "Daily Report"), by 6:00 p.m. EST on each of the seven (7) business days preceding the date on which (A) in the case of an Acquisition Proposal structured as a tender offer, such tender offer is initially scheduled to expire (in the event that Purchaser wishes the initial offering period is extended, the Daily Report shall also be provided for each business day during which the offering period is so extended) or (B) in the case of an Acquisition Proposal not structured as a tender offer, the Stockholder Meeting is scheduled to exercise be held (or if action is being taken by written consent, the Securities Optioneffective date of such written consent) for the purpose of voting on the Acquisition Proposal and any related matters, Purchaser which Daily Report shall send contain a detailed presentation of the number and percentage of shares of Company Common Stock which have been tendered or voted in connection with the Acquisition Proposal (including a breakdown of the number and percentage of shares which have been voted for, against or abstained from a vote on the Acquisition Proposal), as the case may be, by the Company's stockholders as of 5:00 p.m. EST on the date of such Daily Report. Notwithstanding anything to the contrary contained in this Agreement, each Daily Report shall be delivered to Parent by facsimile, with a copy delivered to Parent's counsel, and preceded by a telephone call informing Parent of the forthcoming facsimile transmission, all in accordance with the information set forth in Section 13(e) hereof.
(iv) The Stockholder shall further provide or arrange to have provided to Parent a final written notice report from the Company or the Company's transfer agent, solicitation agent, exchange agent or similar third party in possession of the necessary information, in form and substance reasonably satisfactory to Parent (the "NOTICEFinal Report") to Stockholder identifying the date within at least seven (not less than two (27) nor but no more than five eight (58) hours prior to the time at which (A) business days from in the case of an Acquisition Proposal structured as a tender offer, such tender offer is initially scheduled to expire (in the event the initial offering period is extended, the Final Report shall also be provided in the preceding time frame for each date such extension period is scheduled to expire or (B) in the case of an Acquisition Proposal not structured as a tender offer, the Stockholder Meeting is scheduled to be held (or if action is being taken by written consent, the effective date of the Noticesuch written consent) for the closing purpose of such purchasevoting on the Acquisition Proposal and any related matters, which closing report shall be held at the executive offices contain a detailed presentation of the number and percentage of shares of Company Common Stock which have been tendered or voted in connection with the Acquisition Proposal (including a breakdown of the number and percentage of shares which have been voted for, against or such other place abstained from a vote on the Acquisition Proposal), as the parties case may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day fundsbe, by wire transfer to such account as Stockholder shall designate.
(c) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option (the "ACQUIRED SECURITIES") and, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess 's stockholders as of the Purchase Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increaseFinal Report. Notwithstanding anything to the contrary in this Agreement, Stockholder the Final Report shall be entitled delivered to receive, Parent by facsimile and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, preceded by wire transfer of same day funds to such account as Stockholder shall designate, the amount a telephone call informing Parent of the increaseforthcoming facsimile transmission, in accordance with the information set forth in Section 13(e) hereof.
(dv) In The Company shall assist the event Stockholder in order to ensure that the Stockholder's obligation to deliver the Weekly Reports, Daily Reports and Final Report(s) as required under this Section 4(b) is fulfilled.
(vi) The Stockholder shall not, from the Merger Termination Date through and including the Option Securities are acquired by Purchaser pursuant Termination Date (A) tender or agree to the exercise tender any of the Securities Option, Stockholder shall be entitled Option Shares to receive, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE"other than Parent, Merger Sub or their respective assignees) or (B) in connection with any Acquisition Proposal, vote, agree to vote, grant any proxy or power of all attorney to vote, deposit into a voting trust or enter into a voting agreement with respect to any portion Stockholder Option Shares except for, with, by or on behalf of Parent, Merger Sub or their respective assignees as provided in this Agreement unless the Acquired Securities within Stockholder has first complied with the one-year period following such acquisition, an amount per share in cash equal provisions of this Section 4 and Parent has allowed the option to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account expire without delivering a Stockholder Exercise Notice (as Stockholder shall designatedefined below).
Appears in 1 contract
Samples: Stockholder Agreement (Autologic Information International Inc)
Option. (a) In order to induce Parent 4.1. Provided that this Lease is then in full force and Purchaser to enter into the Merger Agreementeffect, Stockholder hereby grants to Purchaser and Tenant is not in default hereunder, Tenant shall have an irrevocable option (a the "SECURITIES OPTIONOption") to purchase renew the Securities term of this Lease for one additional period of three (3) years and six (6) months (the "OPTION SECURITIES") at the Offer Price, subject to increase as set forth below (the "PURCHASE PRICERenewal Term"). The Securities Option , which term shall commence at 12:00 a.m. immediately following the Expiration Date of the original Term and expire at 11:59 p.m. on the date which is three (3) years and six (6) months after the commencement date of the Renewal Term or such earlier date upon which this Lease may be exercised, in whole but not in part, terminated as herein provided. Tenant may only exercise this Option by giving written notice to Stockholder Landlord of its intent to renew this Lease pursuant to this Section 4.1 not less than twelve (as set forth below), for a period of ten (1012) business days (the "10 DAY PERIOD") following termination of the Merger Agreement or termination of the Offer, whichever shall first occur; PROVIDED that, calendar months prior to such termination, either (i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfiedExpiration Date. Notwithstanding the foregoing, Tenant shall not have the Securities Option may right to extend the term of this Lease for the Renewal Term if a default shall have occurred beyond the expiration of any applicable notice and cure periods and otherwise have not be exercised until: (i) all waiting periods under been cured on or before the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act date on which notice of 1976renewal is given by Tenant or on the date preceding the Expiration Date, as amended (the "HSR ACT"), required for the purchase case may be. Time shall be of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting essence with respect to the exercise of Tenant's notice to renew. The Renewal Term shall be upon all of the Securities terms and conditions of this Lease, except that (a) the Fixed Rent for the Renewal Term shall be as determined pursuant to Section 4.2, (b) the Expiration Date shall be deemed extended as hereinabove described and (c) Tenant shall have no further right or option to renew or extend the term of this Lease.
4.2. In the event Tenant exercises its Option pursuant to this Agreement; provided that if Section 4.1, then Tenant agrees to pay Landlord Fixed Rent for the Renewal Term at the annual rate of Six Hundred Forty-Seven Thousand Six Hundred Forty Dollars (i$647,640.00) all HSR Act waiting periods shall not have expired or been terminated or in equal monthly installments of Fifty-Three Thousand Nine Hundred Seventy Dollars (ii$53,970.00) there shall be in effect any such injunction or order, in each case on for the period from the commencement of the Renewal Term through the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or orderRenewal Term.
(b) 4.3. In the event that Purchaser wishes Tenant exercises its Option pursuant to exercise the Securities Option, Purchaser shall send a written notice (the "NOTICE") to Stockholder identifying the date (not less than two (2) nor more than five (5) business days from the date of the Notice) Section 4.1 for the closing of such purchase, which closing shall be held at the executive offices of the Company (or such other place as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designate.
(c) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option (the "ACQUIRED SECURITIES") and, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess of the Purchase Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designateRenewal Term, the amount definition of Base Rate and Base Tax shall not change for the increaseRenewal Term.
(d) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designate.
Appears in 1 contract
Samples: Lease Agreement (Happy Kids Inc)
Option. Upon the terms and conditions herein stated, Seller (areferred to in this Section 6 as "OPTIONOR") In order to induce Parent and Purchaser to enter into the Merger Agreement, Stockholder hereby grants to Purchaser (referred to in this Section 6 as "OPTIONEE") an exclusive and irrevocable option right to purchase (a each, an "SECURITIES OPTION") to purchase any or all of the Securities four parcels described in Schedule 8 annexed hereto and made a part hereof (each an "OPTION PARCEL" and collectively, the "OPTION PREMISES") at any time during the four year period (the "OPTION SECURITIESPERIOD") beginning on the Closing Date and ending at 4:00 PM (EST) on the Offer Price, subject day prior to increase as set forth below the fourth anniversary of the Closing Date (the "PURCHASE PRICEOPTION TERMINATION DATE"). The Securities Option may be exercised, in whole but not in part, by written notice to Stockholder (as set forth below), for a period of ten (10) business days (the "10 DAY PERIOD") following termination of the Merger Agreement or termination of the Offer, whichever shall first occur; PROVIDED that, prior to such termination, either (i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, in the Securities Option may event this Agreement is terminated prior to the Closing Date, or the Closing does not occur for any reason, the grant of the Options set forth herein shall automatically terminate and be exercised until: (i) of no further force or effect and Optioner and Optionee shall be relieved form all waiting periods under further liability or obligations with respect to the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976Options. On the Closing Date, as amended Optionor and Optionee shall execute and cause to be recorded a memorandum (the "HSR ACTMEMORANDUM OF OPTION")) in the form attached hereto as Exhibit O; provided, required for the purchase of the Securities upon such exercise shall have expired or been waived however, that Optionee hereby covenants and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option pursuant to this Agreement; provided agrees that if (i) all HSR Act waiting periods shall the Options are not have expired or been terminated or (ii) there shall be in effect any such injunction or orderexercised by the Option Termination Date, in each case on the expiration of the 10 Day Period, the 10 Day Period shall be extended until within five (5) business days Business Days after the later earlier of (Ax) the date of expiration Option Termination Date or (y) other termination of all HSR Act waiting periodsthe Options pursuant to this Section 6, Optionee shall execute and (B) the date of removal or lifting of such injunction or order.
(b) In the event that Purchaser wishes cause to exercise the Securities Option, Purchaser shall send a written notice (the "NOTICE") to Stockholder identifying the date (not less than two (2) nor more than five (5) business days from the date be recorded an unconditional release of the Notice) for the closing Memorandum of such purchase, which closing shall be held at the executive offices of the Company (or such other place as the parties may agree)Option in form reasonably acceptable to Optionor and Optionee. At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer The purchase of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designate.
(c) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option (the "ACQUIRED SECURITIES") and, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess of the Purchase Price, then the Purchase Price hereunder Premises shall be increased to such higher price. If upon the purchase of the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled to receive, terms and Purchaser shall promptly (and conditions contained in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increasethis Section 6.
(d) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designate.
Appears in 1 contract
Samples: Sale Purchase Agreement (Readers Digest Association Inc)
Option. (a) In order On the terms and subject to induce Parent and Purchaser to enter into the Merger Agreementconditions set forth herein, Stockholder hereby grants to Purchaser the Parent an irrevocable option (a "SECURITIES OPTION"the “Option”) to purchase all of the Securities (the "OPTION SECURITIES") right, title and interest of Stockholder in and to Stockholder’s shares of Company Common Stock, other than Stockholder’s Non-Tender Securities, at a price per share equal to the Offer Price, subject to increase as set forth below (the "PURCHASE PRICE"). The Securities Parent may exercise the Option may be exercisedin whole, in whole but not in part, by if, but only if, (i) the Purchaser has acquired shares of Company Common Stock pursuant to the Offer and (ii) Stockholder has failed to tender into the Offer any shares of Company Common Stock other than Stockholder’s Non-Tender Securities or shall have withdrawn the tender of any shares of Company Common Stock other than Stockholder’s Non-Tender Securities into the Offer. The Parent may exercise the Option at any time within the sixty (60) days following the date when such Option first becomes exercisable.
(b) In the event that the Parent is entitled to and wishes to exercise the Option, the Parent shall send a written notice to Stockholder specifying the place and the date for the closing of such purchase, which date shall be not more than sixty (as set forth below)60) days after the date of such notice; provided that in the event that prior notification to, for a period of ten (10) business days (or approval of, any Governmental Entity is required in connection with the "10 DAY PERIOD") following termination exercise of the Merger Agreement Option or termination of the Offer, whichever shall first occur; PROVIDED that, prior to such termination, either (i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary or final injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option pursuant to this Agreement; provided that if Option, the period of time during which the date of the closing may be fixed shall be extended until the tenth (i10th) day following the last date on which all HSR Act required approvals shall have been obtained, all required waiting periods shall not have expired or been terminated or (ii) there shall be in effect and any such injunction prohibition shall have been vacated, terminated or order, in each case on the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or order.
(b) In the event that Purchaser wishes to exercise the Securities Option, Purchaser shall send a written notice (the "NOTICE") to Stockholder identifying the date (not less than two (2) nor more than five (5) business days from the date of the Notice) for the closing of such purchase, which closing shall be held at the executive offices of the Company (or such other place as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designatewaived.
(c) In At the event closing of the Option purchase of Stockholder’s shares of Company Common Stock other than Stockholder’s Non-Tender Securities are acquired by Purchaser pursuant to the exercise of the Securities Option (Option, simultaneously with the "ACQUIRED SECURITIES") andpayment by the Parent of the purchase price for Stockholder’s shares of Company Common Stock, either before such Stockholder shall deliver, or at any time within cause to be delivered, to the one-year period following Purchaser certificates representing such acquisition, Parent, Purchaser or any affiliate shares of Company Common Stock duly endorsed to the Parent or Purchaser shall acquire Common Stock accompanied by stock powers or other transfer documents duly executed by the Company in blank, together with any necessary stock transfer stamps properly affixed, free and clear of all liabilities, claims, liens, options, proxies, charges, participations and encumbrances of any kind or character whatsoever (other than from the Company) at a price in excess of the Purchase Pricecollectively, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increase“Liens”).
(d) In The Parent, the event Purchaser or the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities OptionCompany, Stockholder as applicable, shall be entitled to receivededuct and withhold from the consideration otherwise payable pursuant to this Section 1.6 to a holder of Securities such amounts as are required to be withheld under the Code, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion applicable provision of state, local or non-U.S. Tax Law. To the extent that amounts are so withheld, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Acquired Securities within the one-year period following in respect of which such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designatededuction and withholding was made.
Appears in 1 contract
Samples: Tender and Voting Agreement (Aspect Medical Systems Inc)
Option. (a) In order Subject to induce the terms and conditions set forth in this Agreement, the Stockholder hereby grants to Parent an irrevocable option (the "Option") to purchase (i) the number of Shares set forth next to the Stockholder's name on Schedule A hereto (as adjusted as set forth herein) and Purchaser any other Shares owned by the Stockholder beneficially or acquired after the date of this Agreement, at a per share purchase price equal to enter into $18.00 (the "Purchase Price").
(i) Section 8.1(e) or Section 8.1(g) of the Merger Agreement; or
(ii) Section 8.1(b) or Section 8.1(f) of the Merger Agreement, Stockholder hereby grants to Purchaser an irrevocable option (a "SECURITIES OPTION") to purchase the Securities (the "OPTION SECURITIES") at the Offer Price, subject to increase as set forth below (the "PURCHASE PRICE"). The Securities Option may be exercised, in whole but not in part, by written notice to Stockholder (as set forth below), for a period of ten (10) business days (the "10 DAY PERIOD") following termination of the Merger Agreement or termination of the Offer, whichever shall first occur; PROVIDED that, and prior to such termination, either (i) a Trigger Event termination any Person shall have occurred made a Takeover Proposal or (ii) (A) Superior Proposal to the Company shall have received a written proposal from or its stockholders or publicly announces any person other than Parent, Purchaser Takeover Proposal or Superior Proposal relating to the Company or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) its Subsidiaries and (C) at the time of such termination such Takeover Proposal or Superior Proposal had not been withdrawn and within 60 days after any such termination any Acquisition Transaction involving the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act Company or any of 1976, as amended (the "HSR ACT"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws its Subsidiaries shall have been satisfied and (ii) there consummated or any Acquisition Agreement with respect to an Acquisition Transaction involving the Company or any of its Subsidiaries shall not be have been entered into. For purposes of this Agreement, each reference to "25%" in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise definition of the Securities Option pursuant to this Agreement; provided that if (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) there term "Acquisition Transaction" shall be in effect any such injunction or order, in each case on the expiration of the 10 Day Period, the 10 Day Period shall deemed to be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or ordera reference to "51%.
(b) In the event that Purchaser wishes to exercise the Securities Option, Purchaser shall send a written notice (the "NOTICE") to Stockholder identifying the date (not less than two (2) nor more than five (5) business days from the date of the Notice) for the closing of such purchase, which closing shall be held at the executive offices of the Company (or such other place as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designate.
(c) In the event that Parent wishes to exercise the Option, it shall send to the Stockholder a written notice (the date of each such notice being herein referred to as a "Notice Date") setting forth its irrevocable election to that effect, which notice also specifies a date not earlier than three business days nor later than 30 business days from the Notice Date for the closing of such purchase (an "Option Securities are acquired by Purchaser Closing Date"); provided, however, that (i) if the closing of a purchase and sale pursuant to the Option (an "Option Closing") cannot be consummated by reason of any applicable judgment, decree, order, law or regulation, the period of time that otherwise would run pursuant to this sentence shall run instead from the date on which the restriction on consummation has expired or been terminated and (ii) without limiting the foregoing, if prior notification to or approval of any regulatory authority is required in connection with the purchase, Parent and the Stockholder shall promptly file the required notice or application for approval and shall cooperate in the expeditious filing of such notice or application, and the period of time that otherwise would run pursuant to this sentence shall run instead from the date on which, as the case may be, (A) any required notification period has expired or been terminated or (B) any required approval has been obtained, and in either event, any requisite waiting period has expired or been terminated. Each of Parent and the Stockholder agrees to use commercially reasonable efforts to cooperate with and provide information to the other, for the purpose of any required notice or application for approval. Any exercise of the Securities Option (shall be deemed to occur on the "ACQUIRED SECURITIES") and, either before or Notice Date relating thereto. The place of any Option Closing shall be at any time within the one-year period following such acquisition, offices of Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from which address is set forth in the Company) at a price in excess of the Purchase PriceMerger Agreement, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at and the time of such increase, Stockholder the Option Closing shall be entitled to receive, and Purchaser shall promptly 10:00 a.m. (and in no event more than 48 hours following such increaseEastern Time) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, on the amount of the increaseapplicable Option Closing Date.
(d) At any Option Closing, Parent shall pay to the Stockholder in immediately available funds by wire transfer to a bank account designated in writing by the Stockholder an amount equal to the Purchase Price multiplied by the number of Shares being delivered by the -3- 4 Stockholder; provided, that failure or refusal of the Stockholder to designate a bank account shall not preclude Parent from exercising the Option, in whole or in part.
(e) At any Option Closing, simultaneously with the delivery of immediately available funds as provided above, the Stockholder shall deliver to Parent a certificate or certificates representing its Shares to be purchased at such Option Closing, which Shares shall be free and clear of all liens, claims, charges and encumbrances of any kind whatsoever.
(f) In the event of any change in the Option Securities are acquired Company Common Stock by Purchaser pursuant reason of a stock dividend, split-up, merger, recapitalization, combination, exchange of shares or similar transaction, the type and number of Shares subject to the Option, and the Purchase Price therefor, shall be adjusted appropriately, so that Parent shall receive upon exercise of the Securities Option, Stockholder shall be entitled to receive, Option the number and Purchaser shall promptly (and class of shares or other securities or property that Parent would have received in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion respect of the Acquired Securities within Option Shares if the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds Option had been exercised immediately prior to such account event or the record date therefor, as Stockholder shall designateapplicable.
Appears in 1 contract
Option. (a) In order Subject to induce Parent the terms and Purchaser to enter into the Merger conditions set forth in this Agreement, Stockholder effective immediately, the Stockholders hereby grants grant to Purchaser Optionees an irrevocable option (a the "SECURITIES OPTIONOption") to purchase up to 2,000,000 Shares (“Option Shares”) from the Securities Stockholders (for each Optionee up to the Proportionate Amount set forth on the signature pages hereof), at a per share purchase price equal to Four Dollars and Fifty Cents ($4.50) per share (the "OPTION SECURITIES") at the Offer Purchase Price, subject to increase as set forth below (the "PURCHASE PRICE"). The Securities Option may be exercised, in whole but not in part, by written notice to Stockholder (as set forth below), for a period of ten (10) business days (the "10 DAY PERIOD") following termination of the Merger Agreement or termination of the Offer, whichever shall first occur; PROVIDED that, prior to such termination, either (i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option pursuant to this Agreement; provided that if (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) there shall be in effect any such injunction or order, in each case on the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or order.
(b) Simultaneously with the execution of this Option Agreement, Stockholders will deliver 2,000,000 into escrow with Grushko & Xxxxxxx, P.C., as escrow agent (“Escrow Agent”), pursuant to the form of escrow agreement attached hereto as Exhibit A. If at any time after the date of execution of this Agreement and during the term hereof, Stockholders receive any further shares of stock due to a stock split, or otherwise, with regard to the shares represented by Certificates, they shall immediately deliver those shares into escrow with the Escrow Agent.
(c) The Option may be exercised by an Optionee in whole or in part commencing on the Closing Date and continuing through December 31, 2008. There may be up to five exercises of the Option by each Optionee. At the time of each partial exercise the Stockholders shall make a notation in their books and records as to the remaining portion of the Option subject to exercise.
(d) This Option may be exercised by each Optionee only up to the same number of shares as are purchased by such Optionee under the SPA.
(e) In the event that Purchaser an Optionee wishes to exercise the Securities Option, Purchaser it shall send to the Stockholders and Escrow Agent a written notice (the date of each such notice being herein referred to as a "NOTICENotice Date") setting forth its irrevocable election to Stockholder identifying the that effect, which notice also specifies a date (not less than two (2) nor more earlier than five (5) business days nor later than thirty (30) business days from the date of the Notice) Notice Date for the closing of such purchase, which closing purchase (an "Option Closing Date"). The place of any Option Closing shall be held at the executive offices of Grushko & Xxxxxxx, P.C. at 000 Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, XX 00000, and the Company (or such other place as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer time of the Option SecuritiesClosing shall be 10:00 a.m. (New York Time) on the Option Closing Date.
(f) At the Option Closing, against payment an Optionee shall pay to Stockholder of the Purchase Price, Stockholders by delivery to Escrow Agent in same day funds, immediately available funds by wire transfer to such the bank account as Stockholder designated in writing in the Escrow Agreement an amount equal to the Purchase Price. The terms of the Escrow Agreement shall designategovern mechanics for release of stock and funds and related matters.
(cg) At the Option Closing, upon delivery of immediately available funds as provided above, the Escrow Agent shall deliver: (i) to the Optionee a certificate or certificates representing the Option Shares to be purchased at such Option Closing (or, a certificate endorsed in blank) and registered on the books and records of the Company in Optionee’s name, which Securities shall be free and clear of all liens, claims, charges and encumbrances of any kind whatsoever, and (ii) to Stockholders, the Purchase Price.
(h) In the event of any change in the Common Stock by reason of a stock dividend, split-up, merger, recapitalization, combination, exchange of shares or similar transaction, the type and number of Option Securities are acquired by Purchaser pursuant Shares subject to the Option, and the Purchase Price therefor, shall be adjusted appropriately, so that Optionee shall receive upon exercise of the Securities Option (the "ACQUIRED SECURITIES"number and class of shares or other securities or property together with any additional shares delivered to the Escrow Agent pursuant to Section 2(b) and, either before or at any time within above that Optionee would have received if the one-year period following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess of the Purchase Price, then the Purchase Price hereunder shall be increased Option had been exercised immediately prior to such higher price. If event or the purchase of the Acquired Securities has been completed at the time of such increaserecord date therefor, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increaseapplicable.
(d) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designate.
Appears in 1 contract
Samples: Stock Option Agreement (Sulphco Inc)
Option. (a) In order On the terms and subject to induce Parent and Purchaser to enter into the Merger Agreementconditions set forth herein, Stockholder hereby grants to Purchaser the Parent an irrevocable option (a "SECURITIES OPTION"the “Option”) to purchase all of the Securities (the "OPTION SECURITIES") right, title and interest of Stockholder in and to Stockholder’s shares of Company Common Stock, other than Stockholder’s Non-Tender Securities, at a price per share equal to the Offer Price, subject to increase as set forth below (the "PURCHASE PRICE"). The Securities Parent may exercise the Option may be exercisedin whole, in whole but not in part, by if, but only if, (i) the Purchaser has acquired shares of Company Common Stock pursuant to the Offer and (ii) Stockholder has failed to tender into the Offer any shares of Company Common Stock other than Stockholder’s Non-Tender Securities or shall have withdrawn the tender of any shares of Company Common Stock other than Stockholder’s Non-Tender Securities into the Offer. The Parent may exercise the Option at any time within the sixty (60) days following the date when such Option first becomes exercisable.
(b) In the event that the Parent is entitled to and wishes to exercise the Option, the Parent shall send a written notice to Stockholder specifying the place and the date for the closing of such purchase, which date shall be not more than sixty (as set forth below)60) days after the date of such notice; provided that in the event that prior notification to, for a period of ten (10) business days (or approval of, any Governmental Entity is required in connection with the "10 DAY PERIOD") following termination exercise of the Merger Agreement Option or termination of the Offer, whichever shall first occur; PROVIDED that, prior to such termination, either (i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary or final injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option pursuant to this Agreement; provided that if Option, the period of time during which the date of the closing may be fixed shall be extended until the tenth (i10th) day following the last date on which all HSR Act required approvals shall have been obtained, all required waiting periods shall not have expired or been terminated or (ii) there shall be in effect and any such injunction prohibition shall have been vacated, terminated or order, in each case on the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or order.
(b) In the event that Purchaser wishes to exercise the Securities Option, Purchaser shall send a written notice (the "NOTICE") to Stockholder identifying the date (not less than two (2) nor more than five (5) business days from the date of the Notice) for the closing of such purchase, which closing shall be held at the executive offices of the Company (or such other place as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designatewaived.
(c) In At the event closing of the Option purchase of Stockholder’s shares of Company Common Stock other than Stockholder’s Non-Tender Securities are acquired by Purchaser pursuant to the exercise of the Securities Option (Option, simultaneously with the "ACQUIRED SECURITIES") andpayment by the Parent of the purchase price for Stockholder’s shares of Company Common Stock, either before such Stockholder shall deliver, or at any time within cause to be delivered, to the one-year period following Purchaser certificates representing such acquisition, Parent, Purchaser or any affiliate shares of Company Common Stock duly endorsed to the Parent or Purchaser shall acquire Common Stock (accompanied by stock powers or other than from transfer documents duly executed by the Company) at a price Company in excess of the Purchase Priceblank, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increasetogether with any necessary stock transfer stamps properly affixed, Stockholder shall be entitled to receive, free and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increase.
(d) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") clear of all liabilities, claims, liens, options, proxies, charges, participations and encumbrances of any kind or any portion of the Acquired Securities within the one-year period following such acquisitioncharacter whatsoever (collectively, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designate“Liens”).
Appears in 1 contract
Option. (a) In order On the terms and subject to induce Parent and Purchaser to enter into the Merger Agreementconditions set forth herein, Stockholder each Shareholder hereby grants to each of Parent and Purchaser an irrevocable option (a the "SECURITIES OPTIONOption") to purchase all of the Securities (the "OPTION SECURITIES") right, title and interest of such Shareholder in and to such Shareholder's Owned Shares at a price per share equal to the Offer Price, subject to increase as set forth below (the "PURCHASE PRICE")Price but not less than $16.75 per share. The Securities Parent or Purchaser, as the case may be, may exercise an Option may be exercisedin whole, in whole but not in part, by written notice to Stockholder (as set forth below)if, for a period of ten (10) business days (the "10 DAY PERIOD") following termination of the Merger Agreement or termination of the Offerbut only if, whichever shall first occur; PROVIDED that, prior to such termination, either (i) a Trigger Event shall have occurred or (ii) (A) the Purchaser has acquired all shares of Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent Common Stock validly tendered pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied Offer and (ii) such Shareholder shall have failed to tender into the Offer any Owned Shares or shall have withdrawn the tender of any Owned Shares into the Offer.
(b) In the event that Parent or Purchaser is entitled to and wishes to exercise an Option, Parent or Purchaser shall send a written notice to the relevant Shareholder or parties prior to the termination of this Agreement specifying the place and the date for the closing of such purchase, which date shall be not less than three business days and not more than five business days after the date of such notice; provided that in the event that prior notification to, or approval of, any Governmental Entity is required in connection with the exercise of an Option or there shall not be in effect any preliminary or final injunction or other order issued by any Governmental Entity prohibiting the exercise of an Option, the Securities Option pursuant to this Agreement; provided that if (i) period of time during which the date of the closing may be fixed shall be extended until the tenth day following the last date on which all HSR Act required approvals shall have been obtained, all required waiting periods shall not have expired or been terminated or (ii) there shall be in effect and any such injunction prohibition shall have been vacated, terminated or order, in each case on the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or order.
(b) In the event that Purchaser wishes to exercise the Securities Option, Purchaser shall send a written notice (the "NOTICE") to Stockholder identifying the date (not less than two (2) nor more than five (5) business days from the date of the Notice) for the closing of such purchase, which closing shall be held at the executive offices of the Company (or such other place as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designatewaived.
(c) In At the event closing of the Option Securities are acquired by Purchaser purchase of a Shareholder's Owned Shares pursuant to the exercise of an Option, simultaneously with the Securities Option (the "ACQUIRED SECURITIES") and, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of payment by Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess of the Purchase Pricepurchase price for a Shareholder's Owned Shares, then such Shareholder shall deliver, or cause to be delivered, to Parent or Purchaser certificates representing such Owned Shares duly endorsed to Parent or Purchaser or accompanied by stock powers duly executed by the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increaseCompany in blank, Stockholder shall be entitled to receivetogether with any necessary stock transfer stamps properly affixed, free and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increase.
(d) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") clear of all or any portion of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designateLiens.
Appears in 1 contract
Samples: Shareholder Tender Agreement (Galyans Trading Co Inc)
Option. (a) In order to induce Parent and Purchaser to enter into the Merger Agreement, Stockholder Each Seller hereby grants to Purchaser an irrevocable Buyer the option (a the "SECURITIES OPTION") to purchase the Securities number of shares of Common Stock set forth opposite such Seller's name under the caption "Option Shares" on Schedule I hereto (the "OPTION SECURITIESSHARES" and together with the Initial Closing Shares, the "SHARES") at the Offer Pricea purchase price of $56.00 per share. In addition, subject Allegiance agrees to increase as set forth below cause certain management stockholders (other than its Chairman and Chief Executive Officer or any of his transferees) to sell to Buyer a total of 852,999 shares (the "PURCHASE PRICEMANAGEMENT SHARES")) at a purchase price of $56.00 per share. The Securities When used with respect to the Option, the term "Seller" shall be deemed to include holders of Management Shares. Allegiance shall cause each such holder to execute a counterpart to this Agreement as a Seller prior to the Option may be exercised, in whole but not in part, by written notice to Stockholder Closing (as set forth defined in paragraph 5 below), for a period of ten (10) business days (the "10 DAY PERIOD") following termination of the Merger Agreement or termination of the Offer, whichever shall first occur; PROVIDED that, prior to such termination, either (i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option pursuant to this Agreement; provided that if (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) there shall be in effect any such injunction or order, in each case on the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or order.
(b) In If and when exercised, the event that Purchaser wishes to exercise the Securities Option, Purchaser shall send a written notice (the "NOTICE") to Stockholder identifying the date (not less than two (2) nor more than five (5) business days from the date of the Notice) for the closing of such purchase, which closing Option shall be held at deemed exercised with respect to all Sellers in an amount equal to the executive offices total number of Option Shares listed with respect to such Seller on Schedule I hereto multiplied by a fraction, the Company (or such other place numerator of which is the number of shares as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of which the Option Securities, against payment to Stockholder has been exercised and the denominator of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designatewhich is 5,000,000.
(c) In To exercise the event Option, Buyer must provide written notice to Allegiance and each of the Sellers on or before November 1, 1999 (the "OPTION EXERCISE DATE" and the period from the date hereof through the Option Securities are acquired by Purchaser pursuant Exercise Date, the "OPTION PERIOD") and must exercise the Option for no less than one million and no more than five million Option Shares. The Option may be exercised only once and shall expire to the extent not properly exercised on or before the Option Exercise Date. Upon exercise of the Securities Option Option, Buyer and Sellers shall (a) promptly, and in any event no less than two business days thereafter, make all required filings under the "ACQUIRED SECURITIES"HSR Act and (b) and, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess use its best efforts to receive early termination of the Purchase Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increaseHSR waiting period.
(d) In the event At the Option Securities are acquired by Purchaser pursuant Closing and upon the terms and conditions set forth in this Agreement, each Seller shall sell, transfer and assign to Buyer, and Buyer shall purchase from each Seller, all of such Seller's right, title and interest in and to the exercise number of Option Shares with respect to which the Option has been exercised.
(e) As consideration for the Option, the parties agree that promptly after the date hereof, Allegiance and Go2Net, Inc. ("GO2NET") shall enter into good faith negotiations with a view towards establishing a mutually acceptable strategic alliance. Such negotiations will include, among other things, a discussion of (i) a customized business portal created by Go2Net for Allegiance, which will include selected components of Go2Net's Web sites targeted at Allegiance's end-users, (ii) hosting by Go2Net of the Securities Optioncustomized portal, Stockholder shall be entitled to receive(iii) Go2Net providing the home page on a co-branded basis with Allegiance and (iv) Go2Net providing the design, hosting and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designateengineering associated with customizable modules.
Appears in 1 contract
Samples: Common Stock Purchase and Option Agreement (Allegiance Telecom Inc)
Option. (ai) In order Subject to induce Parent and Purchaser to enter into the Merger Agreementthis Section 6.1, Stockholder Anthra hereby grants Berlex an option to Purchaser an irrevocable option acquire irrevocably all right, title and interest of Anthra to its perpetual exclusive right and license under Section 2.1, subject to Anthra retaining such rights as Anthra may require for the maintenance of the IND and the NDA and the filing of the SNDA for the second Indication until the date of transfer thereof to Berlex pursuant to Section 4.10. Berlex shall have the right to grant to third parties sublicenses under such right and license, subject to the prior written approval of Anthra, which approval shall not be unreasonably withheld, and further provided that Anthra's consent shall not be required with respect to any sublicensee which is a member of the Schering Group.
(a "SECURITIES OPTION"ii) to purchase The Option may be exercised by Berlex, at any time during the Securities period (the "OPTION SECURITIESOption Period") at commencing on the Offer Price, subject to increase as set forth below (Effective Date and ending on the "PURCHASE PRICE"). The Securities Option may 180th day following the acceptance for filing of the NDA for the first Indication for which the filing shall be exercised, in whole but not in partaccepted, by providing written notice thereof to Stockholder (as set forth below), for a period of ten (10) business days (the "10 DAY PERIOD") following termination of the Merger Agreement or termination of the Offer, whichever shall first occur; PROVIDED that, prior to such termination, either (i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option pursuant to this Agreement; provided that if (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) there shall be in effect any such injunction or order, in each case on the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or orderAnthra.
(biii) Prior to Berlex exercising the Option, no member of the Schering Group shall discuss, negotiate, or enter into any agreement with any 30 prospective sublicensee, concerning the commercialization of the Product in the Territory.
(iv) In the event that Purchaser wishes to exercise Berlex exercises the Securities Option, Purchaser Berlex shall send a written notice (have the "NOTICE") right to Stockholder identifying develop the date (not less than two (2) nor more than five (5) business days from the date of the Notice) Product for the closing of such purchase, which closing shall be held at OP Indication and obtain FDA approval for an SNDA for the executive offices of the Company (or such other place as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designateOP Indication.
(cv) In the event Berlex exercises its Option, Anthra shall transfer and assign to Berlex, free and clear of all liens and encumbrances, all right, title and interest of Anthra to its perpetual exclusive right and license under Section 2.1, subject to such rights as Anthra may require for the Option Securities are acquired by Purchaser maintenance of the IND and the NDA and the filing of the SNDA for the second Indication until the date of transfer thereof to Berlex, such transfer and assignment to be made substantially in accordance with the assignment set forth in Exhibit 6.1(e). Berlex shall pay Anthra the following amounts:
(A) within thirty-three (33) days of FDA approval of an NDA or SNDA for the Product for the H-Indication, a payment of Six Million U.S. Dollars (U.S. $6,000,000);
(B) within thirty-three (33) days of FDA approval of an NDA or SNDA for the Product for the O-Indication, a payment of Fifteen Million U.S. Dollars (U.S. $15,000,000). None of the amounts paid pursuant to this Section 6.1(e)(i) and (ii) shall be refundable or creditable towards any other payments due under this Section 6.1;
(C) a royalty for each Royalty Period (or part thereof) on the exercise Net Sales of the Securities Option Product in the Territory during the period commencing on the date of Launch and ending on the fifteenth (15th) anniversary of the Effective Date. The royalty shall be payable at the fixed rate set forth in the table below relating to the Indication for which an NDA is approved and the twelve (12) month period in which such NDA is approved by the FDA (the "ACQUIRED SECURITIESApplicable Rate") and, either before or at ). The royalty payable with respect to any time within Royalty Period shall be computed by multiplying the one-year period following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from 31 Applicable Rate by the Company) at a price in excess Net Sales of the Purchase Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increase.
(d) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share Product in the Sale over the Purchase Price. Any Territory during such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designateRoyalty Period.
Appears in 1 contract
Option. If the Closing has not occurred on or prior to September 30, 2006 (athe “Backstop Termination Date”), for any reason whatsoever, other than a material breach hereunder by the Standby Purchasers or failure of the closing condition specified in Section 9(a)(iv), or (ii) In order if the Company terminates this Agreement prior thereto other than as a result of a material breach hereunder by the Standby Purchasers or (iii) if the Standby Purchasers terminate this Agreement prior thereto (other than pursuant to induce Parent Section 11(a)(ii) hereof) in accordance with the terms hereof (such dates in clauses (i), (ii) and (iii) above referred to as the “Termination Date”), each Standby Purchaser to enter into shall have the Merger Agreement, Stockholder hereby grants to Purchaser an irrevocable option (a "SECURITIES OPTION") to purchase the Securities (the "OPTION SECURITIES") at the Offer Price, subject to increase as set forth below (the "PURCHASE PRICE"). The Securities Option may be exercised, in whole but not in part, by written notice to Stockholder (as set forth below), Additional Subscription Shares for a period of ten (10) business days Business Days following the Termination Date (the "10 DAY PERIOD"“Option Period”) following termination upon delivery of written notice to the Merger Agreement or termination Company. If the stockholders of the Offer, whichever shall first occur; PROVIDED that, prior to such termination, either (i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from approved the Rights Offering and the transactions contemplated hereby, the Standby Purchasers may elect to purchase any person other than Parentor all of the Additional Subscription Shares (the “Complete Option”), Purchaser or any affiliate at the Subscription Price. If the stockholders of Parent or Purchaser for an Acquisition Transaction, which proposal the Company shall not have expired or been withdrawnapproved the Rights Offering and the transactions contemplated hereby, the Standby Purchasers may elect to purchase a portion of the Additional Subscription Shares equal to up to 19.9% of the issued and outstanding Common Stock (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b“Partial Option”), 8.01(d)(ii), 8.01(f) or 8.01(g) at a purchase price of $4.50 per share. It is understood and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: agreed that (i) all waiting periods under with respect to the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976Partial Option, as amended (Tontine shall have the "HSR ACT"), required for the option to purchase 50% of the Securities upon such exercise Additional Subscription Shares and Xxxx Xxxxx shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied option to purchase 50% of the Additional Subscription Shares and (ii) there with respect to the Complete Option, Tontine shall not be in effect any preliminary injunction or have the option to purchase 60% of the Additional Subscription Shares and Xxxx Xxxxx shall have the option to purchase 40% of the Additional Subscription Shares pursuant to this Section 3, provided that Tontine and Xxxx Xxxxx reserve the right to agree between each other order issued by any Governmental Entity prohibiting to reallocate the percentage of the Additional Subscription Shares that they shall each purchase upon exercise of the Securities Complete Option pursuant to this Agreement; provided that if (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) there shall be in effect any such injunction or order, in each case on the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or order.
(b) In the event that Purchaser wishes to exercise the Securities Partial Option, Purchaser shall send a written notice (the "NOTICE") to Stockholder identifying the date (not less than two (2) nor more than five (5) business days from the date of the Notice) for the closing of such purchase, which closing shall be held at the executive offices of the Company (or such other place as the parties case may agree)be. At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designateSection 4.
(c) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option (the "ACQUIRED SECURITIES") and, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess of the Purchase Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increase.
(d) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designate.
Appears in 1 contract
Samples: Standby Purchase Agreement
Option. (a) In order to induce Parent and Purchaser to enter into At any time from the Merger Agreementdate hereof through the Option Termination Date, Stockholder hereby grants to Purchaser an irrevocable Ampal shall have the option (a "SECURITIES OPTION"but not the obligation) to purchase from Merhav (or the Securities relevant subsidiary or Affiliate of Merhav) up to a 35% equity interest in the Project on a fully diluted basis (the "OPTION SECURITIES") at “Option”). Ampal may exercise the Offer Price, subject to increase as Option set forth below in this Section 2.1 by delivering written notice of its exercise of such right to Merhav (the "PURCHASE PRICE"). “Option Notice”) prior to the Option Termination Date, setting forth the percentage interest (the “Optioned Interest”) up to 35% of the Project that Ampal shall acquire pursuant to the Option.
(b) The Securities Option may be exercised, in whole but not in part, by written notice to Stockholder Purchase Price (as set forth defined below), ) for a period of ten (10) business days (the "10 DAY PERIOD") following termination of the Merger Agreement or termination of the Offer, whichever Option Interest shall first occur; PROVIDED that, prior to such termination, either (i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised untilpaid as follows: (i) first, by conversion of the balance (up to the amount of the Purchase Price) of the outstanding balance of principal, interest and all waiting periods other amounts due under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended Promissory Note (the "HSR ACT")“Note Balance”) and (ii) if the Purchase Price exceeds the Note Balance, required the excess of the Purchase Price over the Note Balance shall be paid by Ampal to Merhav at the Option Closing. The purchase price for the Optioned Interest (the “Purchase Price”) shall be determined as follows: the sum of (A) to the extent the Note Balance is being converted for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under Optioned Interest, the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise purchase price for each portion of the Securities Option pursuant to this Agreement; provided that if Optioned Interest shall be the lower of (ix) all HSR Act waiting periods shall not have expired or been terminated the purchase price for the Optioned Interest based on a valuation of the Project in accordance with the Valuation Model or (ii) there shall be in effect any such injunction or order, in each case on the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after the later of (Ay) the date of expiration or termination of all HSR Act waiting periodsThird Party Price, and (B) after converting the date Note Balance in full at the price determined pursuant to clause (A) of removal or lifting of such injunction or order.
(b) In the event that Purchaser wishes to exercise the Securities Optionthis sentence, Purchaser shall send a written notice (the "NOTICE") to Stockholder identifying the date (not less than two (2) nor more than five (5) business days from the date any portion of the Notice) for the closing of such purchase, which closing Optioned Interest that remains to be purchased shall be held purchased at the executive offices of the Company (or such other place as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Third Party Price, in same day funds, by wire transfer to such account as Stockholder shall designateexcept if no Third Party price exists the purchase price will be based on the Valuation Model.
(c) In the event the Option Securities are acquired by Purchaser pursuant to the Upon exercise of the Securities Option Option, Ampal and Merhav shall execute within 45 days (the "ACQUIRED SECURITIES"“Option Closing”) andof the date of the Option Notice but not later than the Qualified Financing Date definitive documents evidencing (i) the purchase by Ampal from Merhav of the Optioned Interest, either before or at which documents shall have customary representations and warranties from Merhav, including with respect to Merhav (and any time within relevant subsidiary and affiliate relating to the one-year period following Project), the Project and the Optioned Interest and (ii) the agreement between Ampal and Merhav with respect to the management and governance of the Project and the rights of Ampal as a holder of an Interest in the Project (the “Definitive Documents”). At the Option Closing, Merhav shall deliver to Ampal such acquisitiondocumentation reasonably requested by Ampal and required to transfer to Ampal the Optioned Interest, Parent, Purchaser free and clear of any Liens attributable to Merhav or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess of the Purchase Price, then the Purchase Price hereunder shall be increased is Affiliates. Merhav hereby acknowledges and confirms that Ampal’s obligation to such higher price. If consummate the purchase of the Acquired Securities has been completed at Optioned Interest is expressly conditioned upon the time approval by the Audit Committee of the Board of Directors of Ampal of the Definitive Documents. Without limiting anything contained herein, Merhav and Ampal hereby agree that the Definitive Documents shall contain the following provisions:
(i) the right to appoint such increasenumber of the directors (or members of any applicable governing body of the Project) of the total board of directors (or similar body) managing the project equal to the percentage interest the Optioned Interest is to the total outstanding equity interests of the Project (to the extent there is more than one entity is involved in the Project, Stockholder this provision shall be entitled read to receiveprovide Ampal with the ability to exercise the same amount of control as such number of directors (or other persons) would have if the Project was a single entity);
(ii) the right to participate in any sale of an interest in the Project by an other interest holder on the same terms as such interest holder;
(iii) full ratchet anti-dilution protection with respect to the Optioned Interest, with respect to any equity interest of the Project sold by the Company from and Purchaser shall promptly after the date of the Option Closing;
(and in no event more than 48 hours following such increaseiv) pay to Stockholderright of first refusal for Ampal on any sale of any equity interest by Merhav after the Option Closing, by wire provided that Merhav may transfer of same day funds shares not subject to such account as Stockholder shall designateright of first refusal (i) to a single strategic partner to the extent that such transferred equity interest, together with any equity interest currently held by such strategic partner, will not result in such strategic partner or its affiliates having an equity interest in the amount Project in excess of 35% of the increaseProject and (ii) to Riagro S.A. to the extent such transferred equity interest does not exceed 2.5% of the Project;
(v) any financing obtained by and for the Project shall be non-recourse to Ampal without Ampal’s consent;
(vi) Ampal shall have the right to consent to any modification of the Charter Documents of the Project or any entity comprising the Project in a manner adverse to Ampal or any change in purpose of the Project;
(vii) the right for Ampal to consent to any transactions involving the Project and Merhav or any of its Affiliates.
(viii) customary preemptive rights; and
(ix) Ampal shall be permitted to Transfer its interest.
(d) In Notwithstanding the event forgoing and without limiting the Option Securities are acquired by Purchaser pursuant to the exercise forgoing requirements of the Securities OptionDefinitive Documents, Stockholder Ampal shall be entitled have the benefit of any broader rights and preferences held or granted to receive, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designateother investor.
Appears in 1 contract
Option. (a) In order to induce Parent and Purchaser to enter into the Merger Agreement, The Stockholder hereby irrevocably grants to Purchaser Merger Subsidiary an irrevocable option (a "SECURITIES OPTION") to purchase the Securities (the "OPTION SECURITIESOption") at ), exercisable only upon the Offer Price, events and subject to increase as the conditions set forth below herein, to purchase all of the Shares at a purchase price per share equal to $9.00 (the "PURCHASE PRICEExercise Price"). The Securities .
(b) Subject to the conditions set forth in Section 2.02 hereof and the termination provisions of Section 5.07 hereof, Merger Subsidiary may exercise the Option may be exercised, in whole but not in part, by written notice at any time prior to Stockholder (as set forth below), for a period of ten (10) business the date 60 days (after the "10 DAY PERIOD") following expiration or termination of the Merger Agreement (such sixtieth day being herein called the "Option Expiration Date") if (x) the Stockholder fails to comply with any of its obligations under this Agreement (but the Option shall not limit any other right or termination remedy available to the Parent or Merger Subsidiary against the Stockholder for breach of the Offerthis Agreement), whichever shall first occur; PROVIDED that, prior to such termination, either (i) a Trigger Event shall have occurred or (iiy) (A) the Company shall have received a written proposal from any person Merger is not consummated because of the failure to satisfy the conditions to the Merger set forth in Article VIII of the Merger Agreement (other than Parentas a result of a failure of the conditions set forth in any of Sections 8.1(b), Purchaser 8.1(c), 8.1(d), 8.1(e), 8.2(d), 8.3(a), 8.3(b), 8.3(c) or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, 8.3(e) thereof to be satisfied) and (B) the Merger Agreement shall have has been terminated by Parent pursuant to Section 8.01(bSections 9.1(a), 8.01(d)(ii9.1(b), 8.01(f9.1(d), 9.1(h), 9.1(i) (other than solely as a result of a breach by Parent) or 8.01(g9.1(j) (other than solely as a result of an untrue representation or warranty of Parent) thereof.
(c) Upon the occurrence of any of such circumstances, Merger Subsidiary shall be entitled to exercise the Option and (Csubject to Section 2.02 hereof) at Merger Subsidiary shall be entitled to purchase the time of such termination Shares and the Minimum Condition Stockholder shall not have been satisfiedsell the Shares to Merger Subsidiary. Notwithstanding Merger Subsidiary shall exercise the foregoing, Option by delivering written notice thereof to the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended Stockholder (the "HSR ACTNotice"), required specifying the date, time and place for the closing of such purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there which date shall not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option pursuant to this Agreement; provided that if (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) there shall be in effect any such injunction or order, in each case on the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) less than three business days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or order.
(b) In the event that Purchaser wishes to exercise the Securities Option, Purchaser shall send a written notice (the "NOTICE") to Stockholder identifying the date (not less than two (2) nor more than five (5) business days from the date of the Notice) for Stockholder receives the closing of such purchase, which closing shall be held at the executive offices of the Company (or such other place as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designate.
(c) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option (the "ACQUIRED SECURITIES") and, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess of the Purchase Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (Notice and in no event more shall such date be later than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount Option Expiration Date. The closing of the increasepurchase of Shares pursuant to this Section 2.01 (the "Closing") shall take place on the date, at the time and at the place specified in the Notice; provided, that if at such date any of the conditions specified in Section 2.02 hereof shall not have been satisfied (or waived), Merger Subsidiary may postpone the Closing until a date within five business days after such conditions are satisfied (but not later than the Option Expiration Date).
(d) In At the event Closing, the Option Securities are acquired Stockholder will deliver to Merger Subsidiary (in accordance with Merger Subsidiary's instructions) the certificates representing the Shares, duly endorsed or accompanied by Purchaser pursuant stock powers duly executed in blank, free and clear of all mortgages, liens, pledges, charges, security interests, encumbrances, hypothecations, adverse rights, interests, or claims of any nature whatsoever ("Liens"). At such Closing, Merger Subsidiary shall deliver to the exercise of the Securities Option, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, by bank wire transfer or sale to an unaffiliated third party ("SALE") of all or any portion of the Acquired Securities within the one-year period following such acquisitionimmediately available funds, an amount per share in cash equal to the excess, if any, number of Shares multiplied by the net proceeds received per share in the Sale over the Purchase Exercise Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designate.
Appears in 1 contract
Samples: Stockholder Voting and Option Agreement (Gtech Holdings Corp)
Option. (a) In order to induce Parent and Purchaser to enter into the Merger Agreement, Stockholder hereby grants to Purchaser an irrevocable option (a "SECURITIES OPTIONSecurities Option") to purchase the Securities (the "OPTION SECURITIESOption Securities") at the ----------------- ----------------- Offer Price, subject to increase as set forth below (the "PURCHASE PRICEPurchase Price"). The -------------- Securities Option may be exercised, in whole but not in part, by written notice to Stockholder (as set forth below), for a period of ten (10) business days (the "10 DAY PERIODDay Period") following termination of the Merger Agreement or termination of ------------- the Offer, whichever shall first occur; PROVIDED provided that, prior to such -------- termination, either (i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACTAct"), required for the purchase of the Securities ------- upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option pursuant to this Agreement; provided that if (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) there shall be in effect any such injunction or order, in each case on the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or order.
(b) In the event that Purchaser wishes to exercise the Securities Option, Purchaser shall send a written notice (the "NOTICENotice") to Stockholder ------ identifying the date (not less than two (2) nor more than five (5) business days from the date of the Notice) for the closing of such purchase, which closing shall be held at the executive offices of the Company (or such other place as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designate.
(c) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option (the "ACQUIRED SECURITIESAcquired Securities") ------------------- and, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess of the Purchase Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increase.
(d) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALESale") of all or any portion ---- of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designate.
Appears in 1 contract
Option. (a) In order to induce Parent and Purchaser to enter into the Merger Agreement, Stockholder hereby Lessor grants to Purchaser Lessee one option to renew this Lease for an irrevocable additional five (5) year period beginning immediately after expiration of the initial lease term. This five year period shall be known as the Option Period. This option (may not be exercised if, after receiving notice from Lessor of a "SECURITIES OPTION") to purchase the Securities (the "OPTION SECURITIES") default, Lessxx xxx not cured said default at the Offer Price, subject time Lessee is to increase as set forth below (the "PURCHASE PRICE")exercise such option. The Securities option shall be exercised by the Lessee giving the Lessor written notice of exercise of the option not less than one hundred twenty (120) days and not more than two hundred seventy days (270) days before the expiration of the initial lease term. In the absence of such notice, the option shall conclusively be deemed not to have been exercised. In the event of the exercise of such option, Lessxx'x xenancy shall be pursuant to all of the terms and conditions of this Lease except that there shall not be any further Option may be Period. In the event the option is exercised, the terms "Lease" and " lease term" shall be construed to include the Option Period.
1) If the option is exercised Lessor and Lessxx xxxee to negotiate in whole but not good faith in part, by written notice an effort to Stockholder agree upon an acceptable market rental rate for the Option Period. If no agreement is reached within thirty (30) days of Lessee's exercise of the option then the monthly rental during the Option Period shall be one hundred percent (100%) of the then fair market rental value of the premises determined as set forth below). The phrase "then fair market rental value" means what a Lessor and Lessee with no bias to lease the premises would determine as rent for the Option Period, for a period of ten (10) business days (the "10 DAY PERIOD") following termination as of the Merger Agreement or termination of the Offer, whichever shall first occur; PROVIDED that, prior to such termination, either (i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option pursuant to this Agreement; provided that if (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) there shall be in effect any such injunction or order, in each case on the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or order.
(b) In the event that Purchaser wishes to exercise the Securities Option, Purchaser shall send a written notice (the "NOTICE") to Stockholder identifying the date (not less than two (2) nor more than five (5) business days from the date of the Notice) for the closing of such purchase, which closing shall be held at the executive offices of the Company (or such other place as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer commencement of the Option SecuritiesPeriod, against payment to Stockholder of taking into consideration the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designate.
(c) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option (the "ACQUIRED SECURITIES") and, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess of the Purchase Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increase.
(d) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designate.uses permitted under this /s/ SRC /s/ MP /s/ gb ------------ ------------ ---------- Media Metrix Media Metrix Grazia Co.
Appears in 1 contract
Samples: Lease (Media Metrix Inc)
Option. The Company hereby grants to Employee the option to ------ purchase, on the terms hereinafter set forth, ______ shares of the Company's Common Stock at a price of $____ per share during the period beginning on the Commencement Date and ending on the first to occur of (a) In order the Expiration Date or (b) the date on which the employment of Employee by the Company or any of its Affiliates terminates for any reason; provided, however, that if such employment terminates on or after the Commencement Date and on or before the Expiration Date, other than by reason of Employee's death or disability, then Employee may exercise this option, to induce Parent and Purchaser the extent he was entitled to enter into the Merger Agreement, Stockholder hereby grants to Purchaser an irrevocable option (a "SECURITIES OPTION") to purchase the Securities (the "OPTION SECURITIES") do so at the Offer Price, subject to increase as set forth below (the "PURCHASE PRICE"). The Securities Option may be exercised, in whole but not in part, by written notice to Stockholder (as set forth below), for a period of ten (10) business days (the "10 DAY PERIOD") following termination of the Merger Agreement or termination of the Offer, whichever shall first occur; PROVIDED that, prior to such termination, either (i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time date of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoingof employment, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option pursuant to this Agreement; provided that if (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) there shall be in effect any such injunction or order, in each case on the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or order.
(b) In the event that Purchaser wishes to exercise the Securities Option, Purchaser shall send a written notice (the "NOTICE") to Stockholder identifying the date (not less than two (2) nor more than five (5) business days from the date of the Notice) for the closing of such purchase, which closing shall be held at the executive offices of the Company (or such other place as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designate.
(c) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option (the "ACQUIRED SECURITIES") and, either before or at any time within thirty (30) days after the one-year period following date of such acquisitiontermination but not after the Expiration Date; and provided further, Parent, Purchaser that if such employment terminates on or any affiliate after the Commencement Date and on or before the Expiration Date by reason of Parent or Purchaser shall acquire Common Stock Employee's becoming permanently and totally disabled (other than from within the Companymeaning of Section 22(e) at a price in excess (3) of the Purchase PriceInternal Revenue Code of 1986, as amended), or by reason of amended), or by reason of Employee's death, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increaseEmployee (or Employee's legal representative, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designateif Employee is legally incompetent), the amount executor or administrator of the increase.
(d) In the event the Option Securities are Employee's estate or anyone who shall have acquired this option by Purchaser will or pursuant to the laws of descent and distribution may exercise of this option, to the Securities Option, Stockholder shall be extent Employee was entitled to receivedo so at the date of such termination, and Purchaser shall promptly at any time within one (and in no event more than 48 hours following 1) year after such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion of termination but not after the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal Expiration Date. Notwithstanding anything to the excesscontrary herein, if anythis option shall terminate immediately upon the termination of Employee's employment on account of fraud, dishonesty or the performance of other acts detrimental to the net proceeds received per share in Company or an Affiliate, or if, following the Sale over date of termination of Employee's employment, the Purchase PriceCompany determines that there is good cause to cancel this option. Any such payment shall be made by wire A transfer of same day funds to such account as Stockholder employment among the Company and any of its Affiliates without interruption of service shall designatenot be considered a termination of employment for purposes of this Agreement.
Appears in 1 contract
Samples: Nonqualified Stock Option Agreement (Carrington Laboratories Inc /Tx/)
Option. (a) In order to induce Parent and Purchaser to enter into the Merger Agreement, Stockholder The Company hereby grants to the Purchaser an irrevocable the option (a "SECURITIES OPTION") to purchase the Securities (the "OPTION SECURITIESOption"), during the one-year period commencing on the Shares Closing ------ Date (the "Option Period"), to purchase up to an additional 746,713 shares ------------- (the "Transworld Option Shares") of Company Common Stock at a cash purchase ------------------------ price of $1.00 per Transworld Option Share (the Offer "Exercise Price"), subject to increase as set forth below (the "PURCHASE PRICE"). The Securities Option may be exercised, in whole but not in part, by written notice to Stockholder (as set forth below), for a period of ten (10) business days (the "10 DAY PERIOD") following termination of the Merger Agreement or termination of the Offer, whichever shall first occur; PROVIDED that, prior to such termination, either (i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent -------------- adjustment pursuant to Section 8.01(b1.03(c), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option pursuant to this Agreement; provided that if (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) there shall be in effect any such injunction or order, in each case on the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or order.
(b) In The Option may be exercised at any time or from time to time during the event that Purchaser wishes Option Period by written notice delivered to the Company pursuant to the provisions of Section 6.01 and shall specify the number of Transworld Option Shares to be purchased. The closing of the Option exercise (the Securities Option"Option Closing") shall take place at the offices of Proskauer Rose -------------- Xxxxx & Xxxxxxxxxx LLP, Purchaser shall send a written 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, at 10:00 a.m. on the fifth Business Day after the giving of notice (the "NOTICEOption Closing Date"). The number of Transworld Option Shares being purchased at the Option Closing shall be multiplied by the Exercise Price and the resulting total (the "Total Exercise Price") to Stockholder identifying the date (not less than two (2) nor more than five (5) business days from the date of the Notice) for the closing of such purchase, which closing shall be held paid to the Company at the executive offices Option -------------------- Closing by certified or bank check payable to the order of the Company or (or such other place as at the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, Purchaser's election) by wire transfer against delivery of certificates representing the Transworld Option Shares so purchased, registered in the name of the Purchaser; provided, however, that the Purchaser shall be -------- ------- entitled (to the extent not previously offset as of the Shares Closing Date) to deduct as an offset to the Total Exercise Price all amounts loaned by the Purchaser to the Company on or subsequent to the date hereof under the Credit Agreement which are outstanding on the Option Closing Date (the amount of any such account deduction to be treated as Stockholder shall designatea repayment first of the accrued interest on, and thereafter of the outstanding principal amount of, the indebtedness under the Credit Agreement).
(c) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option (the "ACQUIRED SECURITIES") andIf, either before or at any time within the one-year period following such acquisitionOption Period, Parentthe Company shall reclassify, Purchaser split, reverse split, or pay a stock or cash dividend on any affiliate of Parent its securities, or Purchaser shall acquire Common Stock (other than from if the Company) at a price in excess of the Purchase Price, then the Purchase Price hereunder Company shall be increased to reorganized, or consolidated or merged with another corporation, the Purchaser shall, at such higher price. If time as it exercises the purchase of the Acquired Securities has been completed at the time of such increaseOption, Stockholder shall be entitled to receivereceive the same number and kind of shares of stock or other securities or property as it would have been entitled to receive upon the occurrence of any of the events described in this Section 1.03(c), if it had exercised the Option and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer been a holder of same day funds shares of Company Common Stock prior to such account as Stockholder shall designateoccurrence. Similarly, upon the occurrence of any of the events described in this Section 1.03(c), the amount of Exercise Price will be adjusted accordingly, so that upon exercising the increase.
(d) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option, Stockholder shall the Purchaser will be entitled required to receive, and Purchaser shall promptly (and in no event more than 48 hours following pay the same Total Exercise Price after the occurrence of such Saleevent(s) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designateit would have paid prior thereto.
Appears in 1 contract
Samples: Stock Purchase Agreement (Health Management Inc/De)
Option. Tenant shall have options to extend the Term of this Lease (the "Extension Options") on the basis of each and all of the provisions contained in this Lease as then amended for two (2) consecutive periods of five (5) years each (the "Extension Periods"), the first of which (the "First Extension Period") commencing on the day after expiration of the initial Term, and unless sooner terminated pursuant to the provisions hereof, ending on the last day of the fifth (5th) consecutive year thereafter, and the second of which (the "second Extension Period") commencing on the day after the expiration of the First Extension Period, and unless sooner terminated pursuant to the provisions hereof, ending on the last day of the fifth consecutive year thereafter. Such option shall be exercised by Tenant, if at all, by giving written notice of exercise ("Extension Notice") to Landlord (a) In order to induce Parent and Purchaser to enter into in the Merger Agreement, Stockholder hereby grants to Purchaser an irrevocable option (a "SECURITIES OPTION") to purchase the Securities (the "OPTION SECURITIES") at the Offer Price, subject to increase as set forth below (the "PURCHASE PRICE"). The Securities Option may be exercised, in whole but not in part, by written notice to Stockholder (as set forth below), for a period of ten (10) business days (the "10 DAY PERIOD") following termination case of the Merger Agreement or termination First Extension Period, not less than twelve (12) months nor more than fifteen (15) months prior to the expiration of the Offerinitial Term and (b) in the case of the Second Extension Period, whichever shall first occur; PROVIDED that, not less than twelve (12) months nor more than fifteen (15) months prior to such termination, either (i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate expiration of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfiedFirst Extension Period. Notwithstanding the foregoing, in the Securities Option may not be exercised until: event (i) all waiting periods Tenant is in Default under this Lease on the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976date an Extension Notice is given, as amended (the "HSR ACT"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option pursuant to this Agreement; provided that if (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) there Landlord has given Tenant three or more notices regarding Tenant's failure to pay rent when due during the twelve months preceding the giving of such notice, or (iii) Tenant is in Default on the date the Initial Lease Term expires (in the case of the First Extension Period) or is in Default on the date the First Extension Period expires (in the case of the Second Extension Period), then in any such event the Extension Option shall be in effect any such injunction or order, in each case on deemed automatically terminated. Tenant shall have no right to extend the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or order.
(b) In the event that Purchaser wishes to exercise the Securities Option, Purchaser shall send a written notice (the "NOTICE") to Stockholder identifying the date (not less than two (2) nor more than five (5) business days from the date of the Notice) Term for the closing of such purchase, which closing Second Extension Period unless it shall be held at have extended the executive offices of Term for the Company (or such other place as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designateFirst Extension Period.
(c) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option (the "ACQUIRED SECURITIES") and, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess of the Purchase Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increase.
(d) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designate.
Appears in 1 contract
Samples: Lease (Virco MFG Corporation)
Option. (a) In order On the terms and subject to induce Parent and Purchaser to enter into the Merger Agreementconditions set forth herein, Stockholder hereby grants to Purchaser Parent an irrevocable option (a "SECURITIES OPTION"the “Option”) to purchase all of the Securities (the "OPTION SECURITIES") right, title and interest of Stockholder in and to Stockholder’s Securities, other than Stockholder’s Non-Tender Securities, at a price per share equal to the Offer Price. Parent may exercise the Option in whole, subject to increase as set forth below (the "PURCHASE PRICE"). The Securities Option may be exercised, in whole but not in part, by if, but only if, (i) Sub has acquired Shares pursuant to the Offer and (ii) Stockholder has failed to tender into the Offer any Shares other than Stockholder’s Non-Tender Securities or shall have withdrawn the tender of any Shares other than Stockholder’s Non-Tender Securities into the Offer. Parent may exercise the Option at any time within the sixty (60) days following the date when such Option first becomes exercisable.
(b) In the event that Parent is entitled to and wishes to exercise the Option, Parent shall send a written notice to Stockholder specifying the place and the date for the closing of such purchase, which date shall be not more than sixty (as set forth below)60) days after the date of such notice; provided that in the event that prior notification to, for a period of ten (10) business days (or approval of, any Governmental Entity is required in connection with the "10 DAY PERIOD") following termination exercise of the Merger Agreement Option or termination of the Offer, whichever shall first occur; PROVIDED that, prior to such termination, either (i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary or final injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option pursuant to this Agreement; provided that if Option, the period of time during which the date of the closing may be fixed shall be extended until the tenth (i10th) day following the last date on which all HSR Act required approvals shall have been obtained, all required waiting periods shall not have expired or been terminated or (ii) there shall be in effect and any such injunction prohibition shall have been vacated, terminated or order, in each case on the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or order.
(b) In the event that Purchaser wishes to exercise the Securities Option, Purchaser shall send a written notice (the "NOTICE") to Stockholder identifying the date (not less than two (2) nor more than five (5) business days from the date of the Notice) for the closing of such purchase, which closing shall be held at the executive offices of the Company (or such other place as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designatewaived.
(c) In At the event closing of the Option purchase of Stockholder’s Securities are acquired by Purchaser other than Stockholder’s Non-Tender Securities pursuant to the exercise of the Option, simultaneously with the payment by Parent of the purchase price for Stockholder’s Securities, such Stockholder shall deliver, or cause to be delivered, to the Sub certificates representing Securities Option (the "ACQUIRED SECURITIES") and, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of duly endorsed to Parent or Purchaser shall acquire Common Stock (accompanied by stock powers or other transfer documents duly executed by the Company in blank, together with any necessary stock transfer stamps properly affixed, free and clear of all liabilities, claims, liens, options, proxies, charges, participations and encumbrances of any kind or character whatsoever, other than from those arising under the securities laws or under the Company) at a price in excess of ’s governance documents or under any Registration Rights Agreement between the Purchase PriceCompany and Stockholder (collectively, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increase“Liens”).
(d) In the event the Option Securities are acquired by Purchaser pursuant to the exercise Without limitation of any provision of the Securities OptionMerger Agreement or the Annexes thereto, Stockholder each of Parent, Sub, the Surviving Corporation, the Paying Agent and the Company, as applicable, shall be entitled to receivededuct and withhold, and Purchaser shall promptly (/or cause to be deducted and in no event more than 48 hours following withheld, from any amounts payable or otherwise deliverable pursuant to this Section 1.6 such Sale) pay amounts as are required to Stockholderbe deducted or withheld under the Code, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion applicable provision of state, local or non-U.S. Tax Law. To the extent such amounts are so deducted or withheld, such amounts shall be (a) remitted by Parent, Sub, the Surviving Corporation, the Paying Agent, or the Company, as the case may be, to the applicable Governmental Entity and (b) treated for all purposes under this Agreement as having been paid to the person to whom such amounts would otherwise have been paid. Any transfer and similar Taxes imposed in connection with the transactions contemplated by this Agreement shall be for the account of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal person(s) to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds whom consideration is payable with respect to such account as Stockholder shall designatetransactions.
Appears in 1 contract
Samples: Merger Agreement (Icagen Inc)
Option. (a) In order Following the later to induce Parent occur of the (i) Series A Shareholder Approval Date, (ii) Bank Approval Date, (iii) Board Approval Date and Purchaser to enter into (iv) Option Approval Date, the Merger Agreement, Stockholder hereby grants to Purchaser Investor shall have an irrevocable option (a the "SECURITIES OPTIONOption") to purchase the Securities an additional 21,000 shares of Series A Preferred Stock (the "OPTION SECURITIESOption Shares") at the Offer Price, subject to increase as set forth below for an aggregate purchase price of $21,000,000 (the "PURCHASE PRICEOption Purchase Price"). The Securities Option may be exercisedexercised by the Investor at any time, in whole but and not in part, by during the period commencing on the later to occur of the (i) Series A Shareholder Approval Date, (ii) Bank Approval Date, (iii) Board Approval Date and (iv) Option Approval Date and ending on the Expiration Date. Except as expressly provided in Section 2.02(b) hereof, exercise of the Option shall be at the Investor's sole discretion. In the event that the Investor elects to exercise the Option, the Investor shall deliver a written notice (an "Option Exercise Notice") to Stockholder (as that effect to the Company not later than the Expiration Date. Delivery of the Option Exercise Notice in accordance with the terms hereof shall constitute a binding agreement on the part of the Investor to purchase, and on the part of the Company to issue, sell and deliver, the Option Shares at the Option Closing on the terms and subject to the conditions set forth belowherein. The purchase of the Option Shares pursuant to the Option is referred to herein as the "Option Purchase."
(b) Subject to Section 2.02(c) hereof, in the event that the Closing Price exceeds the Conversion Price on each Trading Day in a 45-Trading Day Reference Period, the Company shall have the right, at its option and election, to require the Investor to exercise the Option, in whole and not in part, and to purchase the Option Shares on the terms and subject to the conditions set forth herein. In the event that the Company elects to require the Investor to exercise the Option and to purchase the Option Shares in accordance with this Section 2.02(b), the Company shall deliver a written notice (a "Mandatory Exercise Notice") to that effect to the Investor not later than the third Business Day after the last day of the relevant 45-Trading Day Reference Period. The Mandatory Exercise Notice shall set forth in reasonable detail the supporting data used by the Company in its determination that it has the right to require the Investor to exercise the Option. Delivery of the Mandatory Exercise Notice in accordance with the terms hereof shall constitute exercise of the Option by the Investor, and shall constitute a binding agreement on the part of the Investor to purchase, and on the part of the Company to issue, sell and deliver, the Option Shares at the Option Closing, on the terms and subject to the conditions set forth herein; provided, however, that in the event the conditions set forth in Section 9.03 hereof are not satisfied or waived on or prior to the tenth Business Day following the delivery of the Mandatory Exercise Notice, (i) the Investor shall not be deemed to have exercised the Option, (ii) the Investor shall not be obligated to purchase the Option Shares, (iii) the Mandatory Exercise Notice shall be deemed to have been withdrawn, and (iv) the Company shall not have the right to require exercise of the Option and shall not deliver a subsequent Mandatory Exercise Notice for a period of ten (10) business 30 days (following such tenth Business Day. The Company shall not deliver a Mandatory Exercise Notice if, to the "10 DAY PERIOD") following termination knowledge of the Merger Agreement or termination of Company, the Offerconditions set forth in Section 9.04(b), whichever shall first occur; PROVIDED that, prior to such termination, either (ic) a Trigger Event shall have occurred or (iid) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall hereof cannot have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been be satisfied. Notwithstanding The Company's right to require the foregoing, Investor to exercise the Securities Option may not be exercised until: (i) all waiting periods under and purchase the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option Shares pursuant to this Agreement; provided that if (iSection 2.02(b) all HSR Act waiting periods shall not have expired or been terminated or (ii) there shall expire on, and no Mandatory Exercise Notice may be in effect any such injunction or order, in each case on the expiration of the 10 Day Perioddelivered later than, the 10 Day Period shall be extended until five (5) business days date that is 30 calendar months after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or order.
(b) In the event that Purchaser wishes to exercise the Securities Option, Purchaser shall send a written notice (the "NOTICE") to Stockholder identifying the date (not less than two (2) nor more than five (5) business days from the date of the Notice) for the closing of such purchase, which closing shall be held at the executive offices of the Company (or such other place as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designateSeries A Shareholder Approval Date.
(c) In Notwithstanding anything in this Section 2.02 to the event contrary, the Company shall not require the Investor to exercise the Option Securities are acquired by Purchaser and the Investor shall not be required to purchase the Option Shares pursuant to a Mandatory Exercise Notice unless (i) the exercise Common Stock shall have been validly listed for trading on the NYSE or other national securities exchange or quoted on a nationally recognized quotation system on each day in the relevant 45-Trading Day Reference Period and on the Option Closing Date, (ii) the average daily trading volume in the Common Stock during the relevant 45-Trading Day Reference Period is at least 60% of the Securities Option (average daily trading volume in the "ACQUIRED SECURITIES") and, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock for the 180-day period ending on the date of the Investment Agreement, (iii) as of the Option Closing, the Shelf Registration Statement (as such term is defined in the Registration Rights Agreement) is effective under the Securities Act and is available for use in connection with the offer and sale of shares of Series A Preferred Stock and Common Stock by those holders that have such right under the Registration Rights Agreement (it being understood that if a Shelf Suspension (as such term is defined in the Registration Rights Agreement) is in effect, the Shelf Registration Statement shall not be deemed effective or available for use), (iv) no Change of Control shall have occurred since the date hereof, (v) the Company shall not have breached or defaulted under this Agreement or the Certificates of Designations in any material respect, (other than from breaches or defaults that have been cured or waived prior to the Company) at a price in excess date of the Purchase Price, then Mandatory Exercise Notice) and (vi) the Purchase Price hereunder shall be increased Company is permitted to such higher price. If the purchase sell all of the Acquired Securities has been completed at Option Shares to the time of such increase, Stockholder shall be entitled Investor on the Option Closing Date under the Indenture. Notwithstanding anything in this Section 2.02 to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designatethe contrary, the amount Company may not require the Investor to exercise the Option and purchase the Option Shares pursuant to a Mandatory Exercise Notice if such exercise or purchase would: (a) violate any provision of the increaseCertificate of Incorporation or Bylaws; (b) conflict with, contravene or result in a breach or violation of any of the terms or provisions of, or constitute a default (with or without notice or the passage of time) under, or result in or give rise to a right of termination, cancellation, acceleration or modification of any right or obligation under, or give rise to a right to put or to compel a tender offer for outstanding securities of the Company or any of its Subsidiaries under, or require any consent, waiver or approval under, any note, bond, debt instrument, indenture, mortgage, deed of trust, lease, loan agreement, joint venture agreement, Regulatory Approval, contract or any other agreement, instrument or obligation to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or any property of the Company or any of its Subsidiaries is bound; (c) result in the creation or imposition of any Lien upon any assets or properties of the Company or any of its Subsidiaries; or (d) violate any Law applicable to the Company or any of its Subsidiaries.
(d) Notwithstanding anything in this Section 2.02 to the contrary, in the event (a "Restriction Event") that an Option Exercise Notice has been delivered and the Company is prohibited from selling any Option Shares to the Investor pursuant to (A) the provisions set forth in Section 4.03(a) of the Indenture (as in effect on the date hereof) or (B) under comparable provisions of any Indenture so long as such comparable provisions are not materially more restrictive than those referred to in clause (A), the Company shall not be required to sell Option Shares to the Investor at the Option Closing to the extent that the Company is prohibited from doing so pursuant to such provisions. In such event, the Investor shall have the right to (i) exercise the Option in part and purchase (a "PartiaL Purchase") at the Option Closing that number of Option Shares that the Company is permitted to sell under the Indenture (as in effect on the date hereof) or (ii) withdraw the Option Exercise Notice (a "Withdrawal"). In connection with any Partial Purchase, the Option Purchase Price shall be proportionately reduced to reflect the actual number of Option Shares purchased at the Option Closing. Following the Option Closing at which a Partial Purchase is completed, the Option shall remain effective with respect to the Option Shares that the Company was not permitted to sell at the Option Closing under the Indenture on the same terms and conditions set forth herein, except that the Option Purchase Price shall be proportionately reduced to reflect the number of Option Shares still subject to the Option. In the event of a Withdrawal, no Option Exercise Notice shall deemed to have been delivered hereunder, except for the Option Securities are acquired by Purchaser pursuant to the exercise purposes of the Securities Option, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designatethis Section 2.02(d).
Appears in 1 contract
Option. If a Management Member's or Additional Employed ------ Member's relationship with the Company or any Portfolio Company is terminated (aincluding termination of the Engagement or termination of any employment agreement with a Portfolio Company for any reason) In order (such terminated Management Member or Additional Employed Member being hereinafter referred to induce Parent as the "Terminated Management/Employed Member"), then the Class A Members (other than ------------------------------------- the Management Members and Purchaser the Additional Employed Members) or any Affected Member, other than Alta (unless the exercise of such Purchase Option by Alta would cause the Company to enter into violate the Merger Agreementforeign ownership limitations of Section 310(b) of the Communications Act, Stockholder hereby grants provided that the limitation of such Purchase Option shall be limited only to Purchaser an irrevocable the extent necessary to prevent such violation) and/or their designee(s) (the "Purchasing Members") shall have the option (a the ------------------ "SECURITIES OPTIONPurchase Option") to purchase and, if the Securities option is exercised, such Terminated --------------- Management/Employed Member (or his executor or the administrator of his estate or the Person or Persons who acquired part or all of such Member's Purchasable Interests (as defined below) by bequest or inheritance in the event of the death of the holder, or the holder's legal representative in the event of the holder's incapacity and collectively with such Member and any direct or indirect transferee of such Member) (hereinafter, the "OPTION SECURITIESGrantor") at the Offer Price, subject to increase as set forth below (the "PURCHASE PRICE"). The Securities Option may be exercised, in whole but not in part, by written notice to Stockholder (as set forth below), for a period of ten (10) business days (the "10 DAY PERIOD") following termination of the Merger Agreement or termination of the Offer, whichever shall first occur; PROVIDED that, prior to such termination, either (i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option pursuant to this Agreement; provided that if (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) there shall be in effect any such injunction or order, in each case on the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or order.
(b) In the event that Purchaser wishes to exercise the Securities Option, Purchaser shall send a written notice (the "NOTICE") to Stockholder identifying the date (not less than two (2) nor more than five (5) business days from the date of the Notice) for the closing of such purchase, which closing shall be held at the executive offices of the Company (or such other place as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designate.
(c) In the event the Option Securities are acquired by Purchaser pursuant sell to the exercise of the Securities Option (the "ACQUIRED SECURITIES") and, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess of the Purchase Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increase.
(d) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of Purchasing Members all or any portion (at the ------- Purchasing Members' option) of such Member's Class B Interests then held by the Acquired Securities within the one-year period following Grantor (other than any interest simultaneously forfeited as a result of such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Pricetermination)("Purchasable Interests"). Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designate.---------------------
Appears in 1 contract
Samples: Limited Liability Company Agreement (Nm Licensing LLC)
Option. (a) In order to induce Parent consideration of Buyer's undertakings herein, the receipt and Purchaser to enter into the Merger Agreementsufficiency of which are hereby acknowledged by Seller, Stockholder Seller hereby grants to Purchaser Buyer an exclusive and irrevocable option (a "SECURITIES OPTION") to purchase from Seller the Securities Option Interests (the "OPTION SECURITIESCall Option"), free and clear of any claims, liabilities, security interests, mortgages, liens, pledges, conditions, charges or encumbrances of any nature whatsoever; provided, however, that, subject to Section 9.4(c), the Call Option shall not be exercisable by Buyer if the Fair Market Value determined in accordance with Section 9.4 is less than $13,500,000. In consideration of Seller's undertakings herein, the receipt and sufficiency of which are hereby acknowledged by Buyer, Buyer hereby grants to Seller an exclusive and irrevocable option to require Buyer to purchase from Seller the Option Interests (the "Put Option"), free and clear of any claims, liabilities, security interests, mortgages, liens, pledges, conditions, charges or encumbrances of any nature whatsoever.
(b) Buyer may give written notice to Seller of Buyer's intention to exercise the Call Option, and Seller may give written notice to Buyer of Seller's intention to exercise the Put Option (in either case, the "Option Notice") at any time during the Offer Price, subject ninety (90) day period beginning on the date the Station commences operations pursuant to increase as set forth below program test authority (the "PURCHASE PRICEOption Period"). The Securities In the event that Buyer fails to give Seller its Option may be exercised, in whole but not in part, by written notice Notice prior to Stockholder (as set forth below), for a period of ten (10) business days (the "10 DAY PERIOD") following termination end of the Merger Agreement or termination of the Offer, whichever shall first occur; PROVIDED that, prior to such termination, either (i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option pursuant to this Agreement; provided that if (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) there shall be in effect any such injunction or order, in each case on the expiration of the 10 Day Period, the 10 Day Period Call Option shall be extended until expire, and in the event that Seller fails to give Buyer its Option Notice prior to the end of the Option Period, then the Put Option shall expire.
(c) Within five (5) business days after of Buyer's or Seller's receipt of an Option Notice, Seller and Buyer shall file with the later of (A) FCC the date of expiration or termination of all HSR Act waiting periodsapplication for the FCC Consent and shall file such notices with, and (B) the date of removal or lifting of obtain such injunction or order.
(b) In the event approvals of, any other governmental authorities that Purchaser wishes to exercise the Securities Option, Purchaser shall send a written notice (the "NOTICE") to Stockholder identifying the date (not less than two (2) nor more than five (5) business days from the date of the Notice) are required for the closing of such purchase, which closing shall be held at the executive offices of the Company (or such other place as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer acquisition by Buyer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to Interests and shall diligently and expeditiously prosecute such account as Stockholder shall designatefilings.
(c) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option (the "ACQUIRED SECURITIES") and, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess of the Purchase Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increase.
(d) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designate.
Appears in 1 contract
Samples: Membership Purchase Agreement (Paxson Communications Corp)
Option. (a) In order to induce Parent Tenant shall have the right and Purchaser to enter into the Merger Agreement, Stockholder hereby grants to Purchaser an irrevocable option (a "SECURITIES OPTION") to purchase the Securities Property (the "OPTION SECURITIESPurchase Option") at a purchase price equal to Fair Market Value, disregarding the Offer Pricefact that the Property is encumbered with this Lease (as hereinafter defined), subject which Purchase Option shall be exercisable on the earlier of (i) the last day of the fifth year of the Term hereof, and (ii) the date on which the environmental condition of the Property is acceptable to increase as set forth below Tenant, and which Purchase Option shall be exercisable at any time during each year thereafter during the Term hereof on any extended Term, if applicable. In the event Tenant elects to exercise its Purchase Option, Tenant shall so notify Landlord of its election on or before the date which is ninety (90) days prior to the date on which such purchase is to occur (the "PURCHASE PRICEClosing Date"). The Securities Option may be exercised, in whole but not in part, by written notice to Stockholder (as set forth below), for a period of ten (10) business days (the "10 DAY PERIOD") following termination terms of the Merger Agreement or termination sale by Landlord and the purchase by Tenant of the Offer, whichever shall first occur; PROVIDED that, prior to such termination, either (i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option pursuant to this Agreement; provided that if (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) there Property shall be in effect any such injunction or order, in each case on accordance with the expiration provisions of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, Exhibit E attached hereto and (B) the date of removal or lifting of such injunction or ordermade a part hereof.
(b) In the event that Purchaser wishes to exercise the Securities Option, Purchaser shall send a written notice (the Determination of Fair Market Value. "NOTICE") to Stockholder identifying the date (not less than two (2) nor more than five (5) business days from the date of the Notice) for the closing of such purchase, which closing Fair Market Value" as used herein shall be held at determined as follows: If Landlord and Tenant shall fail to agree upon the executive offices Fair Market Value within thirty (30) days of the Company (or such other place as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designate.
(c) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of Tenant's option to purchase the Securities Option Property, then Landlord and Tenant each shall give notice to the other setting forth the name and address of an arbitrator designated by the party giving such notice. If either party shall fail to give notice of such designation within forty-five (the "ACQUIRED SECURITIES"45) and, either before or at any time within the one-year period following days after such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock thirty (other than from the Company30) at a price in excess of the Purchase Priceday period, then the Purchase Price hereunder arbitrator chosen shall make the determination alone. If two arbitrators shall have been designated, such two arbitrators shall, within thirty (30) days, make their determination of Fair Market Value in writing and given notice thereof to each other and to Landlord and Tenant. Such two arbitrators shall have thirty (30) days after the receipt of notice of each other's determination to confer with each other and attempt to reach a determination as to Fair Market Value. If such two arbitrators shall concur as to the determination of the Fair Market Value, such concurrence shall be increased to such higher pricefinal and binding upon Landlord and Tenant. If the purchase Fair Market Value of such two arbitrators are within ten percent (10%) of each other, the Fair Market Value during the option period shall be the average of the Acquired Securities has been completed at two arbitrators' Fair Market Values. If such two arbitrators shall fail to concur and their respective Fair Market Value are more than ten percent (10%) different, then such two arbitrators shall immediately designate a third arbitrator, who shall satisfy the time requirements set forth herein for an arbitrator and shall also be an American Arbitration Association arbitrator. If the two arbitrators shall fail to agree upon the designation of such increasethird arbitrator within ten (10) days of such notice, Stockholder then either party may apply to the American Arbitration Association or any successor thereto having jurisdiction for the designation of such arbitrator. All arbitrators shall be entitled to receivenon-affiliated industrial real estate appraisers, who shall have at least ten (10) years experience in the business of appraising industrial real estate in the State of Ohio and who shall have not worked for either party hereto or for an affiliate or owner of either party hereto for ten (10) years. The third arbitrator shall conduct such hearings and investigations as he may deem appropriate, and Purchaser shall promptly shall, within thirty (and in no event more than 48 hours following such increase30) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount days of the increase.
(d) In the event the Option Securities are acquired by Purchaser pursuant to the exercise designation of the Securities Optionthird arbitrator, Stockholder choose one of the determinations of the two arbitrators originally selected by the parties and that choice by the third arbitrator shall be entitled to receive, binding upon Landlord and Purchaser Tenant. Each party shall promptly (pay its own counsel fees and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal to the excessexpenses, if any, in connection with any arbitration under this Section 11 including the expenses and fees of any arbitrator selected by it and the net proceeds received per parties shall share in the Sale over the Purchase Price. Any equally all other expenses and fees of any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designatearbitration.
Appears in 1 contract
Option. If, within five (a5) In order years prior to induce Parent and Purchaser the expiration of the term of this Lease, the improvements shall be damaged or destroyed to enter into any extent greater than thirty percent (30%) of the Merger Agreementthen replacement value thereof, Stockholder hereby grants Lessee shall have the option within sixty (60) days from the date of such damage or destruction to Purchaser an irrevocable option terminate this Lease by giving not less than thirty (a "SECURITIES OPTION"30) to purchase the Securities (the "OPTION SECURITIES") at the Offer Price, subject to increase as set forth below (the "PURCHASE PRICE"). The Securities Option may be exercised, in whole but not in part, by days written notice to Stockholder (as Authority of its election to so terminate this Lease. Upon the termination date set forth below)in said notice, for a period this Lease shall expire and terminate and Lessee shall thereupon make payment of ten (10) business days (all rent and other sums and charges payable by Lessee hereunder as justly apportioned to the "10 DAY PERIOD") following termination date of such termination; provided, however, that the total unpaid balance of any Imposition assessed or in:posed during the term of the Merger Agreement Lease that Lessee has elected to pay in installments shall be paid in full to Authority or termination of the Offer, whichever shall first occur; PROVIDED that, applicable taxing authority prior to such termination, either (i) a Trigger Event shall have occurred or (ii) (A) . In the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time event of such termination the Minimum Condition Lessee shall not have been satisfiedbe required to repair the damage but shall, at the request of Authority raze the damaged or destroyed improvements and return the leased premises to proper grade and compaction and to a neat and clean condition and all net insurance monies payable as a result of such E damage or destruction shall, after payment therefrom of the cost of such razing, grading and compacting, subject to the claims of any approved Mortgagee, belong and be paid to Authority. Notwithstanding the foregoing, the Securities Option may . Lessee shall not be exercised until: entitled to exercise the aforesaid option (and any purported exercise thereof shall be void) H at the time such notice of termination is delivered to Authority (i) all waiting periods an Event of Default shall exist under this Lease, other than the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act duty to rebuild, or would exist with the giving of 1976notice or the passage of time, as amended (the "HSR ACT")or both such notice and passage of time, required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option pursuant to this Agreement; provided that if (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) there shall is or are in force any subleases under this Lease previously agreed to in writing by Authority, as hereinafter provided, which will not expire upon or prior to the termination of this Lease pursuant to this Article XIII, or (iii) a Mortgage approved by Authority will be in effect any such injunction or order, in each case on the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or ordertermination.
(b) In the event that Purchaser wishes to exercise the Securities Option, Purchaser shall send a written notice (the "NOTICE") to Stockholder identifying the date (not less than two (2) nor more than five (5) business days from the date of the Notice) for the closing of such purchase, which closing shall be held at the executive offices of the Company (or such other place as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designate.
(c) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option (the "ACQUIRED SECURITIES") and, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess of the Purchase Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increase.
(d) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designate.
Appears in 1 contract
Option. 3.1 Chemgenex hereby grants to Vernalis an irrevocable exclusive option (“Option”) to negotiate in good faith a Licence and Collaboration Agreement which will govern the terms of the future relationship of the Parties and will include terms relating to, but not limited to:
(a) In order the grant to induce Parent Vernalis of an exclusive sub-licensable world-wide licence under Chemgenex’s interest in the Programme Intellectual Property and Purchaser Results and Chemgenex IP to enter into develop, use and otherwise exploit and commercialise the Merger Agreement, Stockholder hereby grants to Purchaser an irrevocable option Programme Intellectual Property and the Results;
(a "SECURITIES OPTION"b) to purchase timing and quantum of milestone payments;
(c) royalty share on products;
(d) IP protection costs and rights; and
(e) Pro forma licence agreements
3.2 Vernalis may exercise the Securities (Option from the "OPTION SECURITIES") at date of expiry of the Offer Price, subject to increase as set forth below (the "PURCHASE PRICE"). The Securities Option may be exercised, in whole but not in part, by written notice to Stockholder (as set forth below), Extended Term and for a period of ten [*] days thereafter (10) business days (“The Option Period”). For the "10 DAY PERIOD") following termination avoidance of the Merger Agreement or termination of the Offer, whichever shall first occur; PROVIDED that, prior to such termination, either (i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoingdoubt, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary injunction or other order issued exercisable by any Governmental Entity prohibiting Vernalis if Vernalis has not exercised its right to extend the provision of Services under this Agreement for the Extended Term.
3.3 In consideration of the grant of the Option, Vernalis shall pay to Chemgenex [*] pounds (£[*]) on the date of exercise of the Securities Option pursuant to this Agreement; provided that if and a further [*] pounds (i£[*]) all HSR Act waiting periods shall not have expired or been terminated or (ii) there shall be in effect any such injunction or order, in each case on the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination execution of all HSR Act waiting periodsthe License and Collaboration Agreement.
3.4 In the event;
3.4.1 that the Parties acting reasonably and with good faith have not executed a Licence and Collaboration Agreement within eighteen (18) months of the end of the Extended Term; or;
3.4.2 Vernalis does not exercise its Option during the Option Period; the Parties shall negotiate in good faith the terms of a licence to Chemgenex of Vernalis’ joint interest in the Results and Programme Intellectual Property. For the avoidance of doubt, unless and (B) until the date of removal or lifting Parties agree on the definitive terms of such injunction licence, Chemgenex shall have no right to use, licence or order.
(b) In otherwise exploit in any way the event that Purchaser wishes to exercise Results or the Securities Option, Purchaser shall send a Programme Intellectual Property without Vernalis’ prior written notice (the "NOTICE") to Stockholder identifying the date (not less than two (2) nor more than five (5) business days from the date of the Notice) for the closing of such purchase, which closing shall be held at the executive offices of the Company (or such other place as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designate.
(c) In the event the Option Securities are acquired by Purchaser pursuant consent except to the exercise of extent required to perform the Securities Option (the "ACQUIRED SECURITIES") and, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price Services in excess of the Purchase Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increaseaccordance with this Agreement.
(d) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designate.
Appears in 1 contract
Samples: Research and Development Option Agreement (Chemgenex Pharmaceuticals LTD)
Option. (a) In order to induce Parent and Purchaser to enter into the Merger Agreement, Stockholder Shareholder hereby grants to Purchaser Parent and Acquisition an exclusive and irrevocable option (a the "SECURITIES OPTIONOption") to purchase all (and not less than all) of the Securities Shareholder Shares (including any Shareholder Shares acquired after the "OPTION SECURITIES"date hereof) at the Offer Pricea price per share equal to $14.05, subject to increase adjustment as set forth provided in Subsection 3(d) below (the "PURCHASE PRICEExercise Price"). .
(b) The Securities Option may be exercisedexercised by Parent or Acquisition, in whole whole, but not in part, by written notice and only in the event that Parent has become entitled to Stockholder (as liquidated damages set forth below), for a period in Section 6.3 of ten the Merger Agreement and the conditions precedent set forth below have been satisfied. The Option shall terminate in its entirety on the earlier (10i) business days of the Effective Time or (ii) the "10 DAY PERIOD"tenth (10th) day following the termination of the Merger Agreement (the "Option Termination Date") if the Option did not become exercisable, or termination of the Offerif, whichever shall first occur; PROVIDED thatdespite becoming exercisable, it is not exercised by Parent or Acquisition, prior to such termination, either (i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfiedOption Termination Date. Notwithstanding the foregoingforaging, the Securities Option may not be exercised until: (i) even if Parent has become entitled to the liquidated damages as set forth in Section 6.3 of the Merger Agreement, unless Parent or Acquisition, concurrently with the exercise of this Option and prior to the Option Expiration Date, also exercises in full the option to purchase all waiting periods under of the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act shares of 1976, as amended Company Common Stock beneficially owned by Xxxxx X. Xxxx (the "HSR ACTOther Option Shares"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option pursuant to this Agreement; provided that if (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) there shall be in effect any an option agreement of even date herewith entered into by such injunction or order, in each case on the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or order.
(b) In the event that Purchaser wishes to exercise the Securities Option, Purchaser shall send a written notice Shareholder (the "NOTICEOther Shareholder") to Stockholder identifying with Parent and Acquisition (the date (not less than two (2) nor more than five (5) business days from the date of the Notice) for the closing of such purchase, which closing shall be held at the executive offices of the Company (or such other place as the parties may agree"Other Option"). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designate.
(c) In the event Shareholder shall not, prior to the Option Securities are acquired by Purchaser pursuant Expiration Date, take or refrain from taking any action that would have the effect of preventing or disabling Shareholder from delivering the Shareholder Shares to the Parent or Acquisition upon exercise of the Securities Option (the "ACQUIRED SECURITIES") andOption, either before or at any time within the one-year period following such acquisition, Parent, Purchaser preventing or any affiliate of disabling Parent or Purchaser shall acquire Common Stock (other than Acquisition from exercising the Company) at a price in excess of the Purchase Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increaseOption or otherwise performing its obligations or exercising its rights under this Section 3.
(d) In the event Parent or Acquisition exercises the Option, Parent or Acquisition shall give written notice (the "Exercise Notice") to Shareholder prior to the Option Securities are acquired Expiration Date specifying the place and date (not later than ten (10) business days, nor earlier than one (1) business day, from the date of such notice) for the closing of such purchase. It shall be a condition precedent to the consummation of the purchase of the Option Shares that (i) the Exercise Notice shall be accompanied by Purchaser a copy of the Exercise Notice sent to the Other Shareholder with respect to the Option granted by him to Parent and Acquisition and (ii) Parent or Acquisition shall have consummated the purchase of al of the Other Option Shares from the Other Shareholder concurrently with the consummation of the purchase of all of the Shareholder Shares. Upon receipt of such notice, Shareholder shall take or cause to be taken all step necessary to effect the sale and delivery of the Shareholder Shares to Parent or Acquisition at the place and date specified in the notice. At the closing of the purchase of the Shareholder Shares by Parent or Acquisition, (i) Parent or Acquisition, as the case mat be, shall pay to Shareholder the aggregate Exercise Price for the Shareholder Shares by bank check or wire transfer and (ii) Shareholder will deliver or cause to be delivered to Parent or Acquisition, as the case may be, a certificate or certificates representing the Shareholder Shares, duly endorsed or accompanied by stock powers duly endorsed in blank; provided that the obligation of Shareholder to deliver the Shareholder Shares.
(e) In the event of any adjustment in the number of Shareholder Shares pursuant to the exercise of the Securities Option, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion of the Acquired Securities within the one-year period following such acquisitionSection 7, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment appropriate and proportional adjustment shall be made by wire transfer to the per Share Exercise Price, such that the aggregate Exercise Price for all of same day funds to such account as Stockholder the Shareholder Shares shall designateremain constant.
Appears in 1 contract
Samples: Irrevocable Proxy, Voting and Option Agreement (Virata Corp)
Option. (ae) In order to induce For a period of thirty-six months (36) months from the Effective Date, Parent and Purchaser to enter into the Merger Agreement, Stockholder hereby further grants to Purchaser an Algo Sub the irrevocable option (a the "SECURITIES OPTIONOption") to purchase acquire all right, title and interest in the Securities Specific Patent Rights.
(f) During the "OPTION SECURITIES") at thirty-six month period following the Offer PriceEffective Date, subject Parent shall not license, exclusively, non-exclusively, or otherwise encumber in any manner, any of the Specific Patent Rights to increase as any third party without the prior written consent of Algo Sub. Should Algo Sub fail to exercise the Option to acquire the Specific Patent Rights prior to expiration of the option period, nothing herein shall be construed to prevent Parent from subsequently licensing, on a non-exclusive basis, any invention covered by the Specific Patent Rights hereunder to any other for the purpose of practicing any such invention. In the event Algo Sub elects not to exercise the Option, Algo Sub's non-exclusive license shall continue on the terms set forth below herein without modification.
(g) Algo may exercise the "PURCHASE PRICE"). The Securities Option may be exercised, in whole but not in part, at any time prior to the third year anniversary of the Effective Date by providing Parent written notice of its desire to Stockholder (as set forth below), exercise such Option. As full consideration for a period of ten (10) business days (the "10 DAY PERIOD") following termination exercise of the Merger Agreement or termination Option, Algo shall pay to Parent the sum of the Offer, whichever shall first occur; PROVIDED that, prior to such termination, either One Million Two Hundred Fifty Thousand Dollars (i$1,250,000) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised untilpayable as follows: (i) all waiting periods under an initial payment of Eighty Thousand Dollars ($80,000) upon the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), required for the purchase filing of the Securities upon such exercise shall have expired or been waived Patent Assignments (as defined below) with the United States Patent and any other conditions under the other Antitrust Laws shall have been satisfied Trademark Office and (ii) there shall not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise subject to Section XIV, eighteen monthly payments of Sixty Five Thousand Dollars ($65,000). After Parent's receipt of the Securities Option pursuant written notice and initial payment, Parent shall assist Algo Sub in every proper way to this Agreement; provided obtain, and from time to time enforce the Specific Patent Rights in any and all countries. To that if (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) there shall be in effect any such injunction or orderend, Parent has executed the patent assignment, in each case on substantially the expiration of form attached hereto as Exhibit A (the 10 Day Period"Patent Assignment"), the 10 Day Period shall which Patent Assignment will be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periodsheld in trust by Blakely, Sokoloff, Xxxxxx, and Zafman and filed only following the written notice and initial payment referred to above. Parent will execute, verify and deliver such other documents and perform such other acts (Bincluding appearances as a witness) as Algo Sub may reasonably request for use in applying for, obtaining, perfecting, evidencing, sustaining and enforcing such Specific Patent Rights and the date of removal or lifting of such injunction or orderassignment thereof. Algo Sub shall reimburse Parent for its reasonable expenses incurred to comply with this provision.
(bh) In Parent has executed the event that Purchaser wishes attached documents in Exhibit C for filing as public records to exercise the Securities put third parties on notice of this Option, Purchaser shall send a written notice (the "NOTICE") to Stockholder identifying the date (not less than two (2) nor more than five (5) business days from the date of the Notice) for the closing of such purchase, which closing shall be held at the executive offices of the Company (or such other place as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designate.
(c) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option (the "ACQUIRED SECURITIES") and, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess of the Purchase Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increase.
(d) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designate.
Appears in 1 contract
Samples: Assignment and License Agreement (Aura Systems Inc)
Option. (a) In order to induce Parent and Purchaser to enter into negotiation of the Merger Agreement, Stockholder each Shareholder hereby grants to Purchaser an irrevocable option (a each, an "SECURITIES OPTIONOption") to purchase the Securities Shares beneficially owned by such Shareholder (the "OPTION SECURITIESOption Shares") at the Offer Pricea price equal to $12.00 per Share, subject to increase as set forth below (adjustment in the "PURCHASE PRICE")event of a stock-split, stock dividend or additional share issuance by the Company. The Securities Each Option granted by a Shareholder may be exercised, exercised in whole but or in part at any time after (i) sixty days from the date hereof if the Merger Agreement has not in part, been signed by written notice the Company and Purchaser; (ii) the occurrence of any event as a result of which Parent is entitled to Stockholder (as set forth below), for receive a period of ten (10) business days (the "10 DAY PERIOD") following termination of fee under the Merger Agreement or termination (iii) such time as such Shareholder shall have breached any of its agreements in the Offer, whichever Merger Agreement.
(b) Each Option that becomes exercisable under Section 3(a) shall first occur; PROVIDED that, prior to such termination, either remain exercisable until the later of (i) a Trigger Event shall have occurred or the date that is 120 days after the date such Option becomes exercisable and (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) date that is 60 days after the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) date that all waiting periods under the XxxxHart-Xxxxx-Xxxxxx Antitrust Xxxi-Trust Improvements Act of 1976, as amended (the "HSR ACTAct"), ) required for the purchase of the Securities Shares upon such exercise shall have expired or been waived and any other conditions under terminated; provided that if at the other Antitrust Laws shall have been satisfied and (ii) expiration of such period there shall not be in effect any preliminary injunction or other order issued by any federal, state, local or foreign governmental unit or agency (a "Governmental Entity Entity") prohibiting the exercise of the Securities Option pursuant to this Agreement; provided that if (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) there shall be in effect any such injunction or order, in each case on the expiration of the 10 Day PeriodOption, the 10 Day Period exercise period shall be extended until five (5) business 60 days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of that no such injunction or order.
(b) order is in effect. In the event that Purchaser wishes to exercise the Securities an Option, Purchaser shall send a written notice (to the "NOTICE") to Stockholder applicable Shareholder identifying the place and date (not less than two (2) nor more than five (5) ten business days from the date of the Noticenotice) for the closing of such purchase, which closing shall be held at the executive offices of the Company (or such other place as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designate.
(c) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option (the "ACQUIRED SECURITIES") and, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess of the Purchase Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increase.
(d) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designate.
Appears in 1 contract
Option. (a) In order to induce Parent and Purchaser Merger Sub to enter into the Merger Agreement, Stockholder the Shareholder hereby grants to Purchaser Merger Sub an irrevocable option (a "SECURITIES OPTIONSecurities Option") to purchase the Securities 1,520,709 shares of Common Stock (the "OPTION SECURITIESExisting Securities," and together with any shares of Common Stock acquired by the Shareholder in any capacity after the date hereof and prior to the termination of this Agreement by means of purchase, dividend, distribution, exercise of warrants, options or other rights to acquire Common Stock or in any other way, the "Securities") (the "Option Securities") at the Offer Price, subject to increase as set forth below $3.56 per share (the "PURCHASE PRICE"). The Securities Option may be exercised, in whole but not in part, by written notice to Stockholder (as set forth below), for a period of ten (10) business days (the "10 DAY PERIODExercise Price") in cash upon the following termination of conditions: (i) if the Merger Agreement is terminated pursuant to Section 9.1(c)(iii) or termination of the Offer, whichever shall first occurSection 9.1(d)(ii) thereof; PROVIDED that, prior to such termination, either (i) a Trigger Event shall have occurred or (ii) the Merger Agreement is terminated in accordance with Section 9.1(b)(i), Section 9.1(b)(iii), Section 9.1(d)(i) or Section 9.1(d)(iii) thereof and at any time after the date of this Agreement and prior to a termination under this subsection (A) ii), an Acquisition Proposal shall have been received by the Company and/or publicly announced or otherwise publicly communicated to the Company’s Shareholders generally and, prior to the 90th day after such termination, the Company shall have received enter into a written proposal from definitive agreement with respect to such Acquisition Proposal or such Acquisition Proposal is consummated; then, in any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoingcase, the Securities Option may not be exercised until: (i) all waiting periods under shall become exercisable, in whole or in part, upon the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act first to occur of 1976, as amended (the "HSR ACT"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option pursuant to this Agreement; provided that if (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) there shall be in effect any such injunction event and remain exercisable in whole or order, in each case on part until the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business date which is 90 days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting occurrence of such injunction or order.
(b) event. In the event that Purchaser Merger Sub wishes to exercise the Securities Option, Purchaser Merger Sub shall send a written notice (the "NOTICENotice") to Stockholder the Shareholder identifying the place and date (not less than two (2) nor more than five (5) business days 10 Business Days from the date of the Notice) for the closing of such purchase, which closing shall be held at the executive offices of the Company (or such other place as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer (i) against delivery of the Option Securities, against free and clear of all liens, claims, charges and encumbrances of any kind or nature whatsoever, Parent shall cause Merger Sub to make payment to Stockholder the Shareholder of the Purchase Price, in same day funds, aggregate price for the Option Securities by wire transfer of immediately available funds; and (ii) the Shareholder shall deliver to Merger Sub a duly executed certificate or certificates representing the number of Option Securities purchased from the Shareholder, together with transfer powers endorsed in blank relating to such account as Stockholder shall designate.
(c) certificates. In the event that the Option Securities are acquired by Purchaser Merger Sub pursuant to the exercise of the Securities Option (the "ACQUIRED SECURITIESAcquired Securities") and), either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess of the Purchase Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increase, Stockholder Shareholder shall be entitled to receive, and Purchaser the Merger Sub shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increase.
(d) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to StockholderShareholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALESale") of all or any portion of the Acquired Securities within during the one-year period following such acquisition, term of this Agreement an amount per share in cash equal to 50% of the excess, if any, of difference between the net proceeds received per share in the Sale over and the Purchase Exercise Price. Any such payment The Merger Sub shall be made by wire transfer of same day funds only effect any Sale in an arms’ length bona fide transaction to such account as Stockholder shall designatean unaffiliated third party.
Appears in 1 contract
Option. (a) In order to induce Parent and Purchaser to enter into the Merger Agreement, Stockholder Optionor hereby grants to Purchaser an irrevocable Holder the option (a "SECURITIES OPTION"the “Option”) to purchase from Optionor 1,500,000 shares of the Securities common stock of the Optionor (the "OPTION SECURITIES") at “Shares”), upon the Offer Price, subject to increase as conditions and terms set forth below (herein and in the "PURCHASE PRICE")Stock Option Plan. The Securities Option may be exercised, parties understand and agree that the Shares’ transferability is restricted in whole but not in part, by written notice to Stockholder (as set forth below), for a period of ten (10) business days (the "10 DAY PERIOD") following termination of the Merger Agreement or termination of the Offer, whichever shall first occur; PROVIDED that, prior to such termination, either (i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) accordance with state and (C) at the time of such termination the Minimum Condition shall not have been satisfiedfederal laws. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option The Shares pursuant to this Agreement; provided Option shall vest as follows: 500,000 of the Shares shall vest immediately on the Effective Date and during the period from the Effective Date through the eighteen month anniversary of the Effective Date, the Option shall become vested with respect to an additional 166,666 shares for each full three month period that if Holder continues to be employed by the Company (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) there provided, however, the final three month period of vesting shall be in effect any as to 166,670 shares such injunction or order, in each case that on the expiration eighteen month anniversary of the 10 Day PeriodEffective Date, the 10 Day Period full 1,500,000 shares shall be extended until five vested) (5) business days after once vested, the later Shares shall be deemed “Vested Shares”); provided, however, that the vesting on the Shares pursuant to this Option shall accelerate in full, and such Shares shall be fully vested and exercisable, upon a Change of (A) Control of the date Company. For purposes hereof, a “Change of expiration Control” shall mean the consummation of a reorganization, merger, share exchange, consolidation, or termination sale or disposition of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or order.
(b) In the event that Purchaser wishes to exercise the Securities Option, Purchaser shall send a written notice (the "NOTICE") to Stockholder identifying the date (not less than two (2) nor more than five (5) business days from the date substantially all of the Notice) for the closing of such purchase, which closing shall be held at the executive offices assets of the Company unless, in any case, the persons or entities who or which Beneficially Own the Voting Securities of the Company immediately before that transaction Beneficially Own, directly or indirectly, immediately after the transaction, at least 75% of the Voting Securities of the Company or any other corporation or other entity resulting from or surviving the transaction (including a corporation or such other place entity which, as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer result of the Option Securitiestransaction, against payment to Stockholder owns all or substantially all of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designate.
(c) In the event the Option Voting Securities are acquired by Purchaser pursuant to the exercise of the Securities Option (Company or all or substantially all of the "ACQUIRED SECURITIES") andCompany’s assets, either before directly or at any time within indirectly through one or more subsidiaries) in substantially the one-year period following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess same proportion as their respective ownership of the Purchase Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase Voting Securities of the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly Company immediately before that transaction (and capitalized terms as defined in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increase.
(d) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities OptionExchange Act of 1934, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designateamended).
Appears in 1 contract
Samples: Option Agreement (Sanswire Corp.)
Option. (a) In order to induce Parent and Purchaser to enter into If during the Merger AgreementRestricted Period, Stockholder hereby grants to Purchaser an irrevocable option (a "SECURITIES OPTION") to purchase the Securities (the "OPTION SECURITIES") at the Offer PricePHL, subject to increase as set forth below (the "PURCHASE PRICE"). The Securities Option may be exercised, in whole but not in part, by written notice to Stockholder (as set forth below), for a period of ten (10) business days (the "10 DAY PERIOD") following termination of the Merger Agreement or termination of the Offer, whichever shall first occur; PROVIDED that, prior to such termination, either (i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser Holdings or any affiliate of Parent their Affiliates wishes to Acquire, directly or Purchaser for an Acquisition Transactionindirectly, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent a Controlling interest in a Property-Casualty Business pursuant to clause (vi) of Section 8.01(b)5.17.3 above, 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option it may not be exercised untildo so provided: (i) all waiting periods under it offers an option to Buyer to acquire, in the Xxxxoptionor's discretion, the whole Property-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, Casualty Business being acquired or only that portion thereof that causes such business to fail to qualify as amended (the "HSR ACT"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied an Incidental Business; and (ii) there the limitation contained in clause (i) of Section 5.17.4 shall not continue to be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option satisfied. The offer pursuant to this Agreement; provided that if (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) there Section 5.17.5 to Buyer shall be in effect any such injunction the form of a notice providing (a) identifying information as to the Property-Casualty Business or orderportion thereof that the offeror is proposing to sell to Buyer, (b) relevant summary financial information pertaining to the business identified in each case on the expiration of the 10 Day Period, the 10 Day Period shall be extended until five clause (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periodsa), and (Bc) the purchase price for such business, determined as provided hereinafter. Buyer shall have sixty (60) days from receipt of the notice hereunder in which to elect whether to exercise its option, which exercise shall be evidenced by a writing delivered to the Offeror by the close of business on the sixtieth day following receipt of the notice of option, but if such date is not a day on which Buyer is open for business, then by the close of removal business on its first business day thereafter. The purchase price under this Section 5.17.5 shall be the price Offeror would be paying for the Property-Casualty Business or, if only a portion thereof is subject to the option hereunder, then the purchase price shall be calculated on a pro rata basis. If Buyer does not accept the offer, or, having accepted the offer, fails to settle in a timely manner, then the Offeror may Acquire such business on the terms and conditions of the offer presented to Buyer; provided that, PHL, Holdings or lifting any of their Affiliates, as the case may be, shall dispose of the whole Property-Casualty Business being Acquired or only that portion thereof that causes such business to fail to qualify as an Incidental Business within twenty-four (24) calendar months following its acquisition. During any period pending the disposition of such injunction business to a third party pursuant to the terms of this Section 5.17.5, PHL, Holdings or order.
(b) In their Affiliates, as the event that Purchaser wishes case may be, shall pay to exercise Buyer, on a net basis, the Securities Option, Purchaser shall send a written notice (revenue generated by such Property-Casualty Business during the "NOTICE") to Stockholder identifying the date (not less than two (2) nor more than five (5) business days period from the date of that Buyer elects not to purchase such business through the Notice) for the closing of date on which such purchaseProperty-Casualty Business or portion thereof is sold by PHL, which closing shall be held at the executive offices of the Company (Holdings or such other place their Affiliates, as the parties case may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designatebe.
(c) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option (the "ACQUIRED SECURITIES") and, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess of the Purchase Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increase.
(d) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designate.
Appears in 1 contract
Samples: Stock Purchase Agreement (Hilb Rogal & Hamilton Co /Va/)
Option. (a) In order Subject to induce Parent the terms and Purchaser to enter into the Merger Agreementconditions set forth herein, each Stockholder hereby grants to Purchaser an irrevocable Parent a continuing option (a the "SECURITIES OPTION") to purchase for cash all or any portion of the Securities Company Common Stock (including, without limitation, the Shares) beneficially owned by such Stockholder as of the date hereof, or beneficially owned by such Stockholder at any time hereafter (including, without limitation, shares acquired by way of exercise of Company Options or other rights to purchase Company Common Stock or by way of dividend, distribution, exchange, merger, consolidation, recapitalization, reorganization, stock split, grant of proxy or otherwise, but excluding shares owned by other Stockholders) by such Stockholder (as adjusted as set forth herein) (the "OPTION SECURITIESSHARES") at a purchase price per Option Share equal to the Offer Price, subject to increase as set forth below Price (the "PURCHASE PRICE"). The Securities Option may be exercised, in whole but not in part, by written notice to Stockholder (as set forth below), for a period of ten (10) business days (the "10 DAY PERIOD") following termination of the Merger Agreement or termination of the Offer, whichever shall first occur; PROVIDED that, prior to such termination, either (i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option pursuant to this Agreement; provided that if (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) there shall be in effect any such injunction or order, in each case on the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or order.
(b) In the event that Purchaser Parent wishes to exercise the Securities Option, Purchaser it shall send to the Stockholder a written notice (the date of each such notice being herein referred to as a "NOTICENOTICE DATE") setting forth its irrevocable election to that effect, which notice also specifies the total number of Option Shares it intends to purchase from such Stockholder identifying the pursuant to such exercise and a date (not less earlier than two (2) three business days nor more later than five (5) 30 business days from the date of the Notice) Notice Date for the closing of such purchase (an "OPTION CLOSING DATE"); provided, however, that (i) if the closing of a purchase and sale pursuant to the Option (an "OPTION CLOSING") cannot be consummated by reason of any applicable judgment, decree, order, law or regulation, the period of time that otherwise would run pursuant to this sentence shall run instead from the date on which the restriction on consummation has expired or been terminated (but in no case more than six (6) months from the original Notice Date) and (ii) without limiting the foregoing, if prior notification to or approval of any regulatory authority is required in connection with the purchase, which closing Parent and the Stockholder shall be held at promptly file the executive offices required notice or application for approval and shall cooperate in the expeditious filing of such notice or application, and the Company (or such other place period of time that otherwise would run pursuant to this sentence shall run instead from the date on which, as the parties case may agree)be, (A) any required notification period has expired or been terminated or (B) any required approval has been obtained, and in either event, any requisite waiting period has expired or been terminated. At Each of Parent and the closingStockholder agrees to use commercially reasonable efforts to cooperate with and provide information to the other, Stockholder shall deliver to Purchaser appropriate and effective instruments for the purpose of transfer any required notice or application for approval. Any exercise of the Option Securitiesshall be deemed to occur on the Notice Date relating thereto. The place of any Option Closing shall be at the offices of Parent, against payment to Stockholder which address is set forth in the Merger Agreement, and the time of the Purchase PriceOption Closing shall be 10:00 a.m. (California time) on the applicable Option Closing Date. Parent shall not be under any obligation to exercise the Option, in same day funds, by wire transfer and may allow the Option to such account as Stockholder shall designateterminate without purchasing any Option Shares hereunder from any Stockholder.
(c) In At any Option Closing, Parent shall pay to each Stockholder in immediately available funds by check or wire transfer to a bank account designated in writing by the event the Option Securities are acquired by Purchaser pursuant Stockholder an amount equal to the exercise of the Securities Option (the "ACQUIRED SECURITIES") and, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess of the Purchase Price, then the Purchase Price hereunder shall be increased multiplied by the number of Option Shares being delivered by the Stockholder; provided, that, with respect to such higher price. If the purchase any wire transfer, failure or refusal of the Acquired Securities has been completed at Stockholder to designate a bank account shall not preclude Parent from exercising the time of such increaseOption, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increasewhole or in part.
(d) In At any Option Closing, simultaneously with the event delivery of immediately available funds as provided above, the Stockholder shall deliver to Parent a certificate or certificates representing the Option Securities are acquired by Purchaser pursuant Shares to the exercise of the Securities Optionbe purchased at such Option Closing, Stockholder which Option Shares shall be entitled to receive, free and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") clear of all or liens, claims, charges and encumbrances of any portion of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designatekind whatsoever (other than restrictions under applicable securities laws).
Appears in 1 contract
Option. In addition to, and not in lieu of, the rights granted to ------ Tenant in Special Stipulation 11 of the Original Lease, Tenant is hereby granted an option to lease, and Landlord hereby grants Tenant an option to lease, that certain area on the fifteenth (15th) floor of the Building, in the area shown on Exhibit "A", attached hereto and by this reference incorporated herein (the ----------- "Option Space"). Provided this Lease is then in full force and effect and Tenant is in full compliance with the terms and conditions of this Lease, then beginning on the Commencement Date and continuing for one (1) year thereafter, Tenant shall have the option to lease the Option Space, on and subject to the following terms and conditions:
(a) In order Tenant shall exercise its option to induce Parent and Purchaser to enter into lease the Merger Agreement, Stockholder hereby grants to Purchaser an irrevocable option (a "SECURITIES OPTION") to purchase the Securities (the "OPTION SECURITIES") at the Offer Price, subject to increase as set forth below (the "PURCHASE PRICE"). The Securities Option may be exercised, in whole but not in part, Space by giving Landlord written notice to Stockholder (as set forth below), for a period of ten (10) business days (the "10 DAY PERIOD") following termination of the Merger Agreement or termination of the Offer, whichever shall first occur; PROVIDED that, thereof at any time prior to twelve (12) months after the Commencement Date. If Tenant fails to give such terminationnotice within said period, either (i) a Trigger Event Tenant shall have occurred or (ii) (A) no further right to lease the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option pursuant to this Agreement; provided that if (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) there shall be in effect any such injunction or order, in each case on the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or orderSpace.
(b) In the event that Purchaser wishes to exercise the Securities Option, Purchaser shall send a written notice (the "NOTICE") to Stockholder identifying the date (not less than two (2) nor more than five (5) business days from the date of the Notice) The base rent for the closing Option Space shall be at the same rate of such purchaseMonthly Rental (on a per square foot per annum basis) then being paid by Tenant for the Premises, which closing rate of Monthly Rental shall be held at increase as provided in the executive offices of the Company (or such other place as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designateLease.
(c) In the event The Rent for the Option Securities are acquired by Purchaser pursuant Space shall commence and be due and payable from Tenant on the earliest to occur of (i) the date Tenant first occupies the Option Space, (ii) ninety (90) days after Tenant gives the notice to Landlord specified in Paragraph 1(a) above, or (iii) twelve (12) months after the Commencement Date (it being acknowledged and agreed to that Tenant may have the obligation to commence paying Rent on the Option Space prior to the exercise of the Securities Option (the "ACQUIRED SECURITIES") and, either before completion or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess of the Purchase Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increaseTenant's occupancy thereof).
(d) In Landlord shall cause the event tenant fit-up and finish work in the Option Securities Space to be completed in accordance with plans and specifications to be agreed upon by Landlord and Tenant, in their respective reasonable judgment, and shall provide an allowance for the tenant fit-up and finish work in the Option Space equal to $41.50 per usable square foot within the Option Space multiplied by a fraction, the numerator of which shall be the number of months left in the initial ten (10) year Term after Tenant commences paying rent for the Option Space, and the denominator of which shall be one hundred twenty (120) (the "Option Space Allowance"). To the extent the costs to complete the tenant fit- up and finish work in the Option Space are acquired greater than the Option Space Allowance, then the amount of such excess shall be paid by Purchaser pursuant Tenant to Landlord on demand.
(e) Except as expressly set forth to the exercise contrary herein, all other terms and conditions of this Lease shall apply to the Option Space, and from and after the date Tenant elects to lease the Option Space, the Option Space shall be and shall be deemed to be a part of the Securities Option, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designatePremises.
Appears in 1 contract
Option. (a) In order Pursuant to induce Parent and Purchaser to enter into Section 10(c) of the Merger Employment Agreement, Stockholder the Company hereby grants to Purchaser the Optionee an irrevocable option (a the "SECURITIES OPTIONOption") to purchase 100,000 shares of Common Stock, $.01 par value of the Securities Company (the "OPTION SECURITIESOption Shares") at the Offer Price, subject to increase as set forth below a purchase price per share of $9.00 (the "PURCHASE PRICEOption Price"), and agrees to cause certificates for any shares purchased hereunder to be delivered to the Optionee upon payment of the Option Price in full, all subject, however, to the terms and conditions hereinafter set forth.
(b) Subject to Section 3(a) hereof, this Option (until terminated as hereinafter provided) shall be exercisable only to the extent of 33% of the shares covered hereby after the Optionee shall have been in the continuous employ of the Company or any Subsidiary through the third anniversary of __________, ____ (the "Date of Grant") to the extent of an additional 33% of the shares covered hereby after the Optionee shall have been in the continuous employ of the Company or any Subsidiary through the fourth anniversary of the Date of Grant and to the extent of an additional 34% of the shares covered hereby after the Optionee shall have been in the continuous employ of the Company or any Subsidiary through the fifth anniversary of the Date of Grant. The Securities For purposes of this Agreement, the employment of the Optionee with the Company or a Subsidiary shall not be deemed interrupted, and the Optionee shall not be deemed to have ceased to be an employee of the Company or any Subsidiary by reason of the transfer of his employment among or between the Company and its Subsidiaries. For the purpose of this paragraph, leaves of absence approved by the Board of Directors of the Company, or any committee thereof, for illness, military or government service, or other cause, shall be considered as employment.
(c) To the extent exercisable, the Option may be exercisedexercised in whole, or in whole but not part from time to time, until expiration as provided in part, by written notice to Stockholder Section 1(d).
(as set forth below), for a period of ten (10d) business days (This Option shall terminate on the "10 DAY PERIOD") following termination earliest of the Merger Agreement or termination of the Offer, whichever shall first occur; PROVIDED that, prior to such termination, either following dates:
(i) On the date on which the Optionee ceases to be an employee of the Company or a Trigger Event shall have occurred or Subsidiary unless he ceases to be such an employee in a manner described in (ii) or (iii) below.
(ii) On the later to occur of (A) the Company shall have received a written proposal from any person other than Parent, Purchaser second anniversary of the Commencement Date (as defined in the Employment Agreement) or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) 60 days after the Merger Agreement shall have been Optionee ceases to be an employee of the Company or any Subsidiary if (I) Optionee retires from employment with the Company or any Subsidiary after reaching the age of 65 years, or (II) Optionee's employment is terminated by Parent pursuant under Section 7(d) of the Employment Agreement.
(iii) On the later to Section 8.01(b), 8.01(d)(ii), 8.01(foccur of (A) the second anniversary of the Commencement Date (as defined in the Employment Agreement) or 8.01(g(B) 90 days after the date on which Optionee's employment is terminated as a result of the Optionee's death or Disability (as defined in the Employment Agreement).
(iv) Ten years from the Date of Grant. In the event the Optionee shall intentionally commit an act materially inimical to the interests of the Company or a Subsidiary, and (C) the Board shall so find, the Option shall terminate at the time of such termination act, notwithstanding any other provision of this Agreement. Nothing in this Section 1(d) shall be construed to modify or enlarge the Minimum Condition rights of the Optionee and the conditions of exercising this Option as set forth in Section 1(b) hereof, and at no time shall not any right to exercise this Option accrue to the Optionee unless and to the extent that the conditions set forth in Section 1(b) shall have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option pursuant to this Agreement; provided that if (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) there shall be in effect any such injunction or order, in each case on the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or order.
(be) In Nothing contained in this Agreement shall limit whatever right the event that Purchaser wishes Company or any Subsidiary might otherwise have to exercise terminate the Securities Option, Purchaser shall send a written notice (the "NOTICE") to Stockholder identifying the date (not less than two (2) nor more than five (5) business days from the date employment of the Notice) for the closing of such purchase, which closing shall be held at the executive offices of the Company (or such other place as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designateOptionee.
(c) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option (the "ACQUIRED SECURITIES") and, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess of the Purchase Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increase.
(d) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designate.
Appears in 1 contract
Option. (aA) In order consideration of a payment of EURO 1 by Tewina to induce Parent Xxxxxx (the sufficiency and Purchaser to enter into the Merger Agreementreceipt of which is hereby acknowledged by Xxxxxx), Stockholder hereby Xxxxxx grants to Purchaser an irrevocable option Tewina the right (a the "SECURITIES OPTION") to serve on Xxxxxx the Option Notice requiring Xxxxxx to buy from Tewina or its permitted assignee all or part of the Option Shares in accordance with the provisions of this Agreement. Upon service of an Option Notice Xxxxxx shall be bound to purchase such number of Option Shares from Tewina (as specified in the Securities Option Notice) in accordance with the terms of this Agreement. Once served, an Option Notice may only be revoked by Tewina (provided that it has received the prior written consent of Xxxxxx).
(B) An Option Notice may be served by Tewina at any time during the Option Period. More than one Option Notice may be served during the Option Period provided that:
(i) Tewina and each of its permitted assignees shall exercise no more than one Option Notice each; and
(ii) the total number of Option Shares subject to the Option Notices shall not exceed in aggregate a maximum of 11,000,000 Shares (subject to adjustment in accordance with Clause 7).
(C) Any Option Notice
(i) may only be served by fax or in writing and delivered in person or by courier on a Business Day during the Option Period;
(ii) must be served at or prior to 16h30 London time for it to be effective on that Business Day. Any Option Notice served after such time will be deemed to have been served on the immediately following Business Day and will therefore take effect on that following Business Day. The day on which the Option Notice takes effect shall be the "OPTION SECURITIESNOTICE DATE") at the Offer Price, subject to increase as set forth below (the "PURCHASE PRICE"). The Securities Option may be exercised, in whole but not in part, by written notice to Stockholder (as set forth below), for a period of ten (10) business days (the "10 DAY PERIOD") following termination of the Merger Agreement or termination of the Offer, whichever shall first occur; PROVIDED that, prior to such termination, either (i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option pursuant to this Agreement; provided that if (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) there shall be in effect any such injunction or order, in each case on the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or order.
(biii) In the event that Purchaser wishes to exercise the Securities Option, Purchaser shall send a written notice (the "NOTICE") to Stockholder identifying the date (not less than two (2) nor more than five (5) business days from the date of the Notice) for the closing of such purchase, which closing shall be held at the executive offices of the Company (or such other place as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designate.
(c) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option (the "ACQUIRED SECURITIES") and, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess of the Purchase Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increase.
(d) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share substantially in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designateform set out in Schedule 1.
Appears in 1 contract
Option. (a) In order to induce Parent and Purchaser to enter into negotiation of the Merger Agreement, Stockholder the Shareholder hereby grants to Purchaser an irrevocable option (a the "SECURITIES OPTIONOption") to purchase the Securities Shares (the "OPTION SECURITIESOption Shares") at the Offer Pricea price equal to $12.00 per Share, subject to increase as set forth below (adjustment in the "PURCHASE PRICE")event of a stock-split, stock dividend or additional share issuance by the Company. The Securities Option granted by the Shareholder may be exercised, exercised in whole but or in part at any time after (i) sixty days from the date hereof if the Merger Agreement has not in part, been signed by written notice the Company and Purchaser; (ii) the occurrence of any event as a result of which Parent is entitled to Stockholder (as set forth below), for receive a period of ten (10) business days (the "10 DAY PERIOD") following termination of fee under the Merger Agreement or termination (iii) such time as the Shareholder shall have breached any of its agreements in the Offer, whichever Merger Agreement.
(b) The Option that becomes exercisable under Section 3(a) shall first occur; PROVIDED that, prior to such termination, either remain exercisable until the later of (i) a Trigger Event shall have occurred or the date that is 120 days after the date the Option becomes exercisable and (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) date that is 60 days after the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) date that all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Anti-Trust Improvements Act of 1976, as amended (the "HSR ACTAct"), ) required for the purchase of the Securities Shares upon such exercise shall have expired or been waived and any other conditions under terminated; provided that if at the other Antitrust Laws shall have been satisfied and (ii) expiration of such period there shall not be in effect any preliminary injunction or other order issued by any federal, state, local or foreign governmental unit or agency (a "Governmental Entity Entity") prohibiting the exercise of the Securities Option pursuant to this Agreement; provided that if (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) there shall be in effect any such injunction or order, in each case on the expiration of the 10 Day PeriodOption, the 10 Day Period exercise period shall be extended until five (5) business 60 days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of that no such injunction or order.
(b) order is in effect. In the event that Purchaser wishes to exercise the Securities Option, Purchaser shall send a written notice (to the "NOTICE") to Stockholder Shareholder identifying the place and date (not less than two (2) nor more than five (5) ten business days from the date of the Noticenotice) for the closing of such purchase, which closing shall be held at the executive offices of the Company (or such other place as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designate.
(c) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option (the "ACQUIRED SECURITIES") and, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess of the Purchase Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increase.
(d) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designate.
Appears in 1 contract
Samples: Shareholder Option Agreement (Laifer Capital Managment Inc)
Option. The Optionor hereby grants to the Optionee, subject to the Net Smelter Royalty reserved to the Optionor, the sole and exclusive right and option (the “Option”) to earn a I 00% interest in the Property exercisable as follows:
(a) In order to induce Parent and Purchaser to enter into the Merger AgreementOn or before May 26, Stockholder hereby grants to Purchaser an irrevocable option (a "SECURITIES OPTION") to purchase the Securities (the "OPTION SECURITIES") at the Offer Price, subject to increase as set forth below (the "PURCHASE PRICE"). The Securities Option may be exercised, in whole but not in part, by written notice to Stockholder (as set forth below), for a period of ten (10) business days (the "10 DAY PERIOD") following termination of the Merger Agreement or termination of the Offer, whichever shall first occur; PROVIDED that, prior to such termination, either 2013:
(i) a Trigger Event The Optionee shall have occurred or incur Expenditures of $100,000 CON on the property;
(ii) (A) The Optionee shall pay $20,000 CON to the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option pursuant to this Agreement; provided that if (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) there shall be in effect any such injunction or order, in each case on the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or order.Optionor;
(b) In On or before May 26,2014:
(i) Optionee shall incur Expenditures of $100,000 CON on the event that Purchaser wishes Property in addition to exercise the Securities Option, Purchaser expenditures referred to in clause (a)(i);
(ii) The Optionee shall send a written notice (pay $20,000 CON to the "NOTICE") to Stockholder identifying the date (not less than two (2) nor more than five (5) business days from the date of the Notice) for the closing of such purchase, which closing shall be held at the executive offices of the Company (or such other place as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designate.Optionor;
(c) In On or before May 26,2015:
(i) The Optionee shall incur Expenditures of $200,000 CON on the event the Option Securities are acquired by Purchaser pursuant Property in addition to the exercise expenditures referred to in clauses (a)(i) and (b)(i) hereof; and
(ii) The Optionee shall pay $40,000 CON to the Optionor;
(d) On or before May 26, 2016:
(i) The Optionee shall incur Expenditures of $300,000 CON on the Securities Property in addition to the expenditures referred to in clauses (a)(i), (b)(i) and (c)(i) hereof; and
(ii) The Optionee shall pay $60,000 CON to the Optionor
(e) On or before May 26, 2017:
(i) The Optionee shall incur Expenditures of $300,000 CON on the Property in addition to the expenditures referred to in clauses (a)(i), (b)(i),(c)(i) and (d)(i) hereof; and
(ii) The Optionee shall pay $60,000 CON to the Optionor Following which the Optionee shall be deemed to have exercised the Option (the "ACQUIRED SECURITIES"“Exercise Date”) and, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess of the Purchase Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increase, Stockholder and shall be entitled to receivean undivided 100% right, title and Purchaser interest in and to the Property with the full right and authority to equip the Property for production and operate the Property as a mine subject to the rights of the Optionor to receive the NSR. Property Option Agreement 4 | Page The Optionor and Optionee understand and confirm that all Expenditures incurred in a particular period, including any excess in the amount of Expenditures required to be incurred to maintain the Option during such period, shall promptly be carried over and included in the aggregate amount of Expenditures for the subsequent period. Notwithstanding paragraphs (a)(i), (b)(i), (c)(i), (d)(i) and (e)(i) if the Optionee has not incurred the requisite Expenditures to maintain its option in no event more than 48 hours following such increase) good standing prior to May 2 6, of any given year, the Optionee may pay to Stockholder, by wire transfer the Optionor within 60 days following the expiry of same day funds to such account as Stockholder shall designateperiod, the amount of the increasedeficiency and such amount shall thereupon be deemed to have been Expenditures incurred by the Optionee during such period.
(df) In the event the Option Securities are acquired This Agreement may be amended, supplemented or modified from time to time only by Purchaser pursuant to the exercise of the Securities Option, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share a written document executed in the Sale over same manner as this Agreement.
(g) All figures are Canadian Funds.
(h) The doing of any act or the Purchase Price. Any such payment incurrence of any cash payments by the Optionee shall be made by wire transfer of same day funds not obligate the Optionee to such account as Stockholder shall designatedo any further acts or make any further payments.
Appears in 1 contract
Option. (a) In order to induce The Principal Shareholder hereby irrevocably grants Parent and Purchaser to enter into the Merger Agreement, Stockholder hereby grants to Purchaser an irrevocable option (a the "SECURITIES OPTIONOption") to purchase all of the Securities Shares at a purchase price per share equal to $48.50 (as adjusted pursuant to Section 1.3(e), the "OPTION SECURITIESOption Price") at on the Offer Price, terms and subject to increase as the conditions set forth below in this Section 1.3.
(b) Subject to the "PURCHASE PRICE"). The Securities Option may be exercised, in whole but not in part, by written notice to Stockholder (as conditions set forth belowin Section 1.3(d), for a period of ten (10) business Parent may exercise the Option, at any time prior to the date 40 days (after the "10 DAY PERIOD") following expiration or termination of the Merger Agreement or (such 40th day being herein called the "Option Expiration Date") if the Merger Agreement is terminated pursuant to a "Triggering Termination." For purposes of this Agreement, a "Triggering Termination" means a termination of the Offer, whichever shall first occur; PROVIDED that, prior to such termination, either (i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent (x) pursuant to Section 8.01(b8.01(g) or (y) as a result of a breach by the Principal Shareholder of its obligations under Section 1.1 or Section 3.4 hereof in any material respect. Parent shall exercise the Option by delivering written notice thereof to the Principal Shareholder (the "Notice"), 8.01(d)(iispecifying the date, time and place for the closing of such purchase which date shall not be less than three business days nor more than five business days from the date Parent provides the Notice (the "Option Closing"), 8.01(f) or 8.01(g) . The Option Closing shall take place on the date and (C) at the time and place specified in such notice; PROVIDED, that if at such time any of such termination the Minimum Condition conditions specified in Section 1.3(d) shall not have been satisfied (or waived), Parent may postpone the Option Closing (but in no event for more than 90 days) until a date within five business days after such conditions are satisfied. Notwithstanding Upon the foregoingexercise of the Option (and subject to the satisfaction of the conditions set forth in Section 1.3(d)), Parent shall be entitled to purchase the Shares under the Option (the "Option Shares") and the Principal Shareholder shall sell the Option Shares to Parent.
(c) At the Option Closing, the Securities Principal Shareholder will deliver to Parent (in accordance with Parent's instructions) the certificates representing the Option may not be exercised untilShares being purchased pursuant to this Section 1.3, duly endorsed or accompanied by stock powers duly executed in blank. At such Option Closing, Parent shall deliver to the Principal Shareholder, by bank wire transfer of immediately available funds, an amount equal to the number of Option Shares being purchased from the Principal Shareholder as specified in the Notice multiplied by the Option Price.
(d) The obligation of Parent to purchase the Option Shares at the Option Closing is subject to the following conditions: (i) all the waiting periods period under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements HSR Act of 1976, as amended (the "HSR ACT"), required for the purchase and all other foreign antitrust laws covered by Section 7.01(d) of the Securities upon Merger Agreement with respect to the acquisition of such exercise Shares shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied terminated and (ii) there shall not be in effect any no preliminary or permanent injunction or other order order, decree or ruling issued by any Governmental Entity, nor any statute, rule, regulation or order promulgated or enacted by any Governmental Entity prohibiting the exercise of the Securities Option pursuant to this Agreement; provided that if (i) all HSR Act waiting periods shall not have expired prohibiting, or been terminated or (ii) there shall be in effect any otherwise restraining, such injunction or order, in each case on the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or orderpurchase.
(be) In the event that Purchaser wishes to exercise of any change in the Securities OptionCompany's capital stock by reason of any stock dividend, Purchaser shall send a written notice (stock split, merger, consolidation, recapitalization, combination, conversion, exchange of shares, extraordinary or liquidating dividend or other change in the "NOTICE") to Stockholder identifying the date (not less than two (2) nor more than five (5) business days from the date of the Notice) for the closing of such purchase, which closing shall be held at the executive offices corporate or capital structure of the Company (which would have the effect of diluting or such changing Parent's rights hereunder, the number and kind of Option Shares or other place as the parties may agree). At the closing, Stockholder shall deliver securities subject to Purchaser appropriate this Agreement and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder Price shall designate.
(c) In the event the Option Securities are acquired by Purchaser be appropriately and equitably adjusted so that Parent shall receive pursuant to the exercise of the Securities Option (the "ACQUIRED SECURITIES") and, either before that number and class of shares or at any time within the one-year period following such acquisition, Parent, Purchaser other securities or any affiliate of property that Parent or Purchaser shall acquire Common Stock (other than from Merger Subsidiary, as the Company) at a price case may be, would have received in excess respect of the Purchase Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increase.
(d) In the event the Option Securities are acquired by Purchaser Shares purchasable pursuant to the exercise of the Securities OptionOption if such purchase had occurred immediately prior to such event.
(f) If the Option is exercised and the Option Shares are acquired by Parent (or its permitted assigns), Stockholder Parent shall be entitled offer to receive, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of purchase all or any portion outstanding shares of the Acquired Securities within the one-year period following such acquisition, an amount Company's Common Stock or effect a merger or similar business combination at a price per share in cash equal to not less than the excess, if any, of the net proceeds received price per share in paid for the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designateOption Shares.
Appears in 1 contract
Option. (a) In order The CITY may exercise its option for performance of the Phase 2 Work if CITY and CONTRACTOR agree to induce Parent a Phase 2 GMP or Lump Sum Contract Price and Purchaser Phase Contract Time by the end of the Phase 1 Contract Time, and by providing a written Notice to enter into Proceed to the Merger Agreement, Stockholder hereby grants to Purchaser an irrevocable option (a "SECURITIES OPTION") to purchase the Securities (the "OPTION SECURITIES") at the Offer Price, subject to increase as set forth below (the "PURCHASE PRICE")CONTRACTOR for performance under Phase 2. The Securities Option for Phase 2 may be exercised, in whole but exercised not in part, by written notice to Stockholder (as set forth below), for a period of ten (10) business later than 90 days (the "10 DAY PERIOD") following termination of the Merger Agreement or termination of the Offer, whichever shall first occur; PROVIDED that, prior to such termination, either (i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option pursuant to this Agreement; provided that if (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) there shall be in effect any such injunction or order, in each case on after the expiration of Phase 1 Contract Time. If CONTRACTOR has complied with all other terms of the 10 Day PeriodContract and the CITY fails to exercise its Option for Phase 2 by such calculated date, the 10 Day Period it shall be extended until five (5) business days after deemed that the later of (A) CITY has decided not to exercise the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or orderOPTION.
(b) In the event that Purchaser wishes If CITY decides not to exercise the Securities OptionOPTION under this Article, Purchaser and CITY notifies CONTRACTOR that CONTRACTOR is not required to perform construction services for Phase 2, it is anticipated that the CITY will take the “off-ramp” as identified in Section 3.4 and Appendix C of the RFP for the Project, and CONTRACTOR will perform, at CITY’s discretion and option, and after a Notice to Proceed is issued pursuant to Article 1(g) hereinabove, two separate scopes of work/services:
(i) Upon receipt of the Notice to Proceed identified above in Article 1(g), CONTRACTOR will complete the design of the Project by preparing unified sets of plans and specifications for use by the CITY to solicit competitive bids for construction of the Facilities in accordance with the scope of work set forth in Appendix J, and within the Final Design Documents Contract Time (as identified above in Article 1(g)). The performance of the final design services under this paragraph shall send be performed for the Lump Sum Contract price of $X,XXX,XXX, as set forth in Exhibit K.
(ii) Upon receipt of a written notice (the "NOTICE") Notice to Stockholder identifying the date (not less than two (2) nor more than five (5) business days Proceed from the date CITY at a time after CONTRACTOR has completed the services required under Article 5(b)(i) above, CONTRACTOR, pursuant to the terms of the Notice) Contract Documents, shall remain the Engineer of Record, and will provide engineering services during construction as set forth in Exhibit L, for the closing Lump Sum Contract price of such purchase$X,XXX,XXX, which closing shall be held at the executive offices of the Company (or such other place as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, set forth in same day funds, by wire transfer to such account as Stockholder shall designate.Exhibit M.
(c) In The CITY’s “OPTION” rights under this Article 5 are independent of the event “Termination for Convenience” rights set forth in General Conditions Section 00700-7.2.5. As such, if the Option Securities are acquired by Purchaser pursuant CITY opts to not proceed with Phase 2 after the completion of Phase 1, CONTRACTOR’s right of recovery is limited to the exercise of the Securities Option (the "ACQUIRED SECURITIES") and, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess of the Purchase Phase 1 Lump Sum Contract Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increase.
(d) In The CITY retains the event the Option Securities are acquired by Purchaser pursuant right to the exercise of the Securities Option, Stockholder shall be entitled to receive, and Purchaser shall promptly (and terminate this Contract for convenience at any time in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion of the Acquired Securities within the oneaccordance with General Conditions Section 00700-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designate6.7.
Appears in 1 contract
Samples: Progressive Design Build Contract
Option. 2.1 IP Owners grants to STF3, that accepts, an exclusive option right for STF3 to take an exclusive, worldwide, sublicensable (athrough multiple tiers), royalty-bearing license to the Licensed IP and the Existing Results to research, develop, manufacture, have manufactured, make, have made, use, sell, offer for sale, import, export, distribute, supply, commercialize and otherwise exploit the Licensed Product(s) In order in the Field and in the Territory (as all defined in Annex A) (“Option Right”).
2.2 STF3 has the right to induce Parent exercise (at its discretion, including – without limitation - by taking into account the results of the Research Agreements and Purchaser of subcontracts under Section 3.3) the Option Right within the Option Period by sending a written notice to the IP Owners (“Option Exercise Notice”). Following receipt by IP Owners of such Option Exercise Notice, indicating that STF3 wishes to exercise its Option Right, IP Owners shall enter into an agreement with STF3 – within 2 (two) months from the Option Exercise Notice (or such longer period as the Parties may agree in writing in good faith; hereinafter the “Interim Period”) – to grant STF3 the above mentioned exclusive license to the Licensed IP and the Existing Results, it being hereby agreed that such license agreement shall be in accordance with the terms set forth in Annex A attached hereto (that for the sake of clarity shall be considered as binding between the Parties), it being also understood that the Parties will define in good faith any ancillary terms to such license agreement as they deem appropriate.
2.3 For the sake of clarity, during the Option Period and, to the extent that STF3 exercises its Option Right, during the Interim Period, each of the IP Owners shall not use the Licensed IP and the Existing Results (except to the extent consented herein under Section 2.4) and shall not negotiate with, or grant a license or other rights to, any of the other IP Owners, its Affiliates or any Third Party upon the Licensed IP and the Existing Results. If STF3 does not exercise its Option Right within the Option Period then (i) STF3 Option Right in relation to the Licensed IP and the Existing Results shall terminate immediately; (ii) IP Owners shall be free to exploit such Licensed IP and Existing Results without restriction or any further obligation to STF3, including (but not limited) to enter into the Merger Agreementa license, Stockholder hereby grants sale or similar transfer agreement with an Affiliate or a Third Party in connection with such Licensed IP and Existing Results.
2.4 Without prejudice to Purchaser an irrevocable option (a "SECURITIES OPTION") to purchase the Securities (the "OPTION SECURITIES") at the Offer Price, subject to increase as set forth below (the "PURCHASE PRICE"). The Securities Option may be exercised, in whole but not in part, by written notice to Stockholder (as set forth below), for a period of ten (10) business days (the "10 DAY PERIOD") following termination of the Merger Agreement or termination of the Offer, whichever shall first occur; PROVIDED that, prior to such termination, either (i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, during the Securities Option may not be exercised until: Period and, to the extent that STF3 exercises its Option Right, during the Interim Period, each IP Owner shall have the non-sublicensable, non-transferable right to use the patents and the published know-how comprised in the Licensed IP for non-commercial research purposes in the Field, also in collaboration with (ino-profit) all waiting periods under Third Parties, without granting any right to such Third Parties upon the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act patents and the published know- how comprised in the Licensed IP, other than the right to use such Licensed IP to collaborate in the applicable IP Owner’s research. It is understood that each IP Owner shall retain Control over any Existing Improvement (as defined in Annex A) possibly generated in the performance of 1976such research activities, as amended (the "HSR ACT"), required in order for the purchase of IP Owners to be able to grant to STF3 the Securities license rights set forth in Annex A upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option pursuant to this Agreement; provided that if (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) there shall be in effect any such injunction or order, in each case on the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or orderRight.
(b) In the event that Purchaser wishes to exercise the Securities Option, Purchaser shall send a written notice (the "NOTICE") to Stockholder identifying the date (not less than two (2) nor more than five (5) business days from the date of the Notice) for the closing of such purchase, which closing shall be held at the executive offices of the Company (or such other place as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designate.
(c) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option (the "ACQUIRED SECURITIES") and, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess of the Purchase Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increase.
(d) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designate.
Appears in 1 contract
Samples: Option Agreement
Option. (a) In order The CITY may exercise its option for performance of the Phase 2 Work if CITY and CONTRACTOR agree to induce Parent a Phase 2 GMP or Lump Sum Contract Price and Purchaser Phase Contract Time by the end of the Phase 1 Contract Time, and by providing a written Notice to enter into Proceed to the Merger Agreement, Stockholder hereby grants to Purchaser an irrevocable option (a "SECURITIES OPTION") to purchase the Securities (the "OPTION SECURITIES") at the Offer Price, subject to increase as set forth below (the "PURCHASE PRICE")CONTRACTOR for performance under Phase 2. The Securities Option for Phase 2 may be exercised, in whole but exercised not in part, by written notice to Stockholder (as set forth below), for a period of ten (10) business later than 90 days (the "10 DAY PERIOD") following termination of the Merger Agreement or termination of the Offer, whichever shall first occur; PROVIDED that, prior to such termination, either (i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option pursuant to this Agreement; provided that if (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) there shall be in effect any such injunction or order, in each case on after the expiration of Phase 1 Contract Time. If CONTRACTOR has complied with all other terms of the 10 Day PeriodContract and the CITY fails to exercise its Option for Phase 2 by such calculated date, the 10 Day Period it shall be extended until five (5) business days after deemed that the later of (A) CITY has decided not to exercise the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or orderOPTION.
(b) In the event that Purchaser wishes If CITY decides not to exercise the Securities OptionOPTION under this Article, Purchaser and CITY notifies CONTRACTOR that CONTRACTOR is not required to perform construction services for Phase 2, it is anticipated that the CITY will take the “off-ramp” as identified in Section 3.4 and Appendix C of the RFP for the Project, and CONTRACTOR will perform, at CITY’s discretion and option, and after a Notice to Proceed is issued pursuant to Article 1(g) hereinabove, two separate scopes of work/services:
(i) Upon receipt of the Notice to Proceed identified above in Article 1(g), CONTRACTOR will complete the design of the Project by preparing unified sets of plans and specifications for use by the CITY to solicit competitive bids for construction of the Facilities in accordance with the scope of work set forth in Appendix J, and within the Final Design Documents Contract Time (as identified above in Article 1(g)). The performance of the final design services under this paragraph shall send be performed for the Lump Sum Contract price of $360,355, as set forth in Exhibit K.
(ii) Upon receipt of a written notice (the "NOTICE") Notice to Stockholder identifying the date (not less than two (2) nor more than five (5) business days Proceed from the date CITY at a time after CONTRACTOR has completed the services required under Article 5(b)(i) above, CONTRACTOR, pursuant to the terms of the Notice) Contract Documents, shall remain the Engineer of Record, and will provide engineering services during construction as set forth in Exhibit L, for the closing Lump Sum Contract price of such purchase$166,462, which closing shall be held at the executive offices of the Company (or such other place as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, set forth in same day funds, by wire transfer to such account as Stockholder shall designate.Exhibit M.
(c) In The CITY’s “OPTION” rights under this Article 5 are independent of the event “Termination for Convenience” rights set forth in General Conditions Section 00700-7.2.5. As such, if the Option Securities are acquired by Purchaser pursuant CITY opts to not proceed with Phase 2 after the completion of Phase 1, CONTRACTOR’s right of recovery is limited to the exercise of the Securities Option (the "ACQUIRED SECURITIES") and, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess of the Purchase Phase 1 Lump Sum Contract Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increase.
(d) In The CITY retains the event the Option Securities are acquired by Purchaser pursuant right to the exercise of the Securities Option, Stockholder shall be entitled to receive, and Purchaser shall promptly (and terminate this Contract for convenience at any time in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion of the Acquired Securities within the oneaccordance with General Conditions Section 00700-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designate6.7.
Appears in 1 contract
Samples: Progressive Design Build Contract
Option. Provided Tenant is not in default hereunder, Tenant shall ------ have an option to extend the Term of this Lease for one (a1) In order additional period (referred to induce Parent and Purchaser to enter into the Merger Agreement, Stockholder hereby grants to Purchaser an irrevocable option (a herein as "SECURITIES OPTIONExtension Term") of three (3)years; such Extension Term (if the option to purchase extend is exercised) shall commence on the Securities (first day following the "OPTION SECURITIES") expiration of the Primary Term of this Lease and Tenant's option to extend the Term of this Lease are contingent upon the following conditions being satisfied:
2.2.1 Tenant shall not be in default under the terms and conditions of this Lease at the Offer Pricetime Tenant elects to exercise such option, subject to increase as set forth below (and on the "PURCHASE PRICE"). The Securities Option may be exercised, in whole but not in part, by date upon which such option becomes effective; and
2.2.2 Tenant shall have given written notice to Stockholder (as set forth below), for a period of ten (10) business days (the "10 DAY PERIOD") following termination Landlord of the Merger Agreement or termination exercise of such option no less than one hundred eighty (180) days prior to the expiration of the OfferPrimary Term. It is understood and agreed that time is of the essence in all provisions of this Lease. Further, whichever if Tenant fails to timely exercise the option to extend, then such option and rights to extend the Term of this Lease shall first occur; PROVIDED thatbe null, prior void and of no force and effect.
2.2.3 In the event Tenant effectively exercises such option to such terminationextend the Term of this Lease, either (i) a Trigger Event then all of the terms and provisions of this Lease applicable during the Primary Term hereof shall have occurred or (ii) (A) likewise be applicable during the Company shall have received a written proposal from any person other than ParentExtension Term, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised untilexcept: (i) all waiting periods under after the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), required for the purchase expiration of the Securities upon such exercise Extension Term (if the option to extend the Term is exercised) Tenant shall have expired or been waived and any other conditions under no further rights to extend the other Antitrust Laws shall have been satisfied Term of this Lease, and (ii) there the Rent (as herein defined) which shall not be due and payable, in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise advance, for each month of the Securities Option pursuant to this Agreement; provided that if (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) there Extension Term shall be in effect any such injunction or order, in each case on Ten Thousand and No/100 Dollars ($10,000.00) multiplied by a fraction the expiration numerator of which is the Index Number of the 10 Day PeriodConsumer Price Index (as defined below) for April, the 10 Day Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periods2002, and (B) the date denominator of removal or lifting of such injunction or order.
(b) In which is the event that Purchaser wishes to exercise the Securities Option, Purchaser shall send a written notice (the "NOTICE") to Stockholder identifying the date (not less than two (2) nor more than five (5) business days from the date Index Number of the NoticeConsumer Price Index for April, 1999. "CPI," as that term is used herein, means the Consumer Price Index For All Urban Consumers (Houston, Texas) for the closing of such purchase, which closing shall be held at the executive offices of the Company Bureau of Labor Statistics of the U.S. Department of Labor (or such other place as the parties may agreefor which 1982-1984 is 100). At "Bureau" shall mean the closingU.S. Department of Labor, Stockholder shall deliver to Purchaser appropriate and effective instruments Bureau of transfer Labor Statistics, or any successor agency of the Option Securities, against payment United States that shall issue the indexes or data referred to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designatethis Article 2.2.
(c) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option (the "ACQUIRED SECURITIES") and, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess of the Purchase Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increase.
(d) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designate.
Appears in 1 contract
Option. (a) In order to induce Parent and Purchaser to enter into the Merger Agreement, Stockholder The terminating Party hereby grants the other Party the exclusive option to Purchaser acquire (i) an irrevocable option assignment of all its Information solely and exclusively pertaining to a Collaboration Product that is the subject of a termination pursuant to Section 10.2, (ii) an assignment of all its Specific Third Party Agreements for such Collaboration Product, (iii) a "SECURITIES OPTION"right, under all its Generic Third Party Agreements for such Collaboration Product, to receive products or services related to such Collaboration Product, and (iv) to purchase the Securities an exclusive, worldwide, royalty bearing (the "OPTION SECURITIES"in accordance with Section 10.3(e) at the Offer Price, subject to increase as set forth below (the "PURCHASE PRICE"). The Securities Option may be exercised, in whole but not in part, by written notice to Stockholder (as set forth below), for a period of ten irrevocable license (10) business days (with the "10 DAY PERIOD") following termination of the Merger Agreement or termination of the Offer, whichever shall first occur; PROVIDED that, prior right to such termination, either (i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(bgrant further sublicenses), 8.01(d)(ii)under its Technology, 8.01(f) or 8.01(g) to develop, make, have made, use, sell and (C) at offer for sale such Collaboration Product in the time of such termination the Minimum Condition shall not have been satisfiedField. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option pursuant to this Agreement; provided that if (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) there Such option shall be exercisable solely as provided in effect any such injunction or order, in each case on the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or orderthis Section 10.3.
(b) In the event that Purchaser wishes to exercise the Securities Option, Purchaser shall send a written notice (the "NOTICE") to Stockholder identifying the date (not less than two (2) nor more than five (5) business days from the date anticipation of the Notice) for the closing potential exercise of such purchaseoption, which closing the terminating Party shall be held at the executive offices of the Company (or such other place as the parties may agree). At the closingmaintain and preserve all its Technology, Stockholder shall deliver to Purchaser appropriate Generic Third Party Agreements, and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase PriceSpecific Third Party Agreements, in same day funds, by wire transfer each case to the extent that they would reasonably be expected to be the subject of such account as Stockholder shall designateoption.
(c) In the event the Option Securities are acquired The other Party may exercise such option by Purchaser pursuant written notification to the exercise of the Securities Option (the "ACQUIRED SECURITIES") and, either before or terminating Party at any time within during the one-year period following such acquisition, Parent, Purchaser or any affiliate commencing on the date of Parent or Purchaser shall acquire Common Stock termination pursuant to Section 10.2(a) and ending ninety (other than from the Company90) at a price in excess of the Purchase Price, then the Purchase Price hereunder shall be increased to such higher pricedays thereafter. If the purchase of the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly During this ninety (and in no event more than 48 hours following such increase90) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designateoption period, the amount of other Party may use the increaseterminating Party Information pertaining to the applicable Collaboration Product to evaluate whether it wishes to exercise such option and may disclose such Information to a Third Party in confidence for such Third Party to evaluate whether it wishes to collaborate, or enter into a license agreement, with respect to the applicable Collaboration Product.
(d) In At any time during the event option period, either Party may request that the Option Securities are acquired by Purchaser pursuant other Party provide it with a listing of all pertinent Information, Generic Third Party Agreements, Specific Third Party Agreements, and Technology, to the exercise extent not previously reported in performance of the Securities OptionResearch Program, Stockholder that would be assigned, licensed or otherwise conveyed if a Party were to elect to exercise its option.
(e) The other Party may choose to exercise its option by giving written notice to the terminating Party. Upon receipt of such notice, the terminating Party shall (i) be deemed to have granted to the other Party the assignments, rights and licenses set forth in Section 10.3(a), (ii) negotiate in good faith a supply agreement under which the terminating Party will supply any components of its Technology necessary for manufacture of the applicable Collaboration Product; and (iii) be obligated to promptly take all steps (1) necessary to record or otherwise effectuate such assignments, rights and licenses and (2) to provide the other Party with access to any other documents required to develop and commercialize the Collaboration Product independent of the terminating Party, and the other Party shall be entitled obligated to receive, commence and Purchaser shall promptly (and continue paying the royalty as set forth in no event more than 48 hours following such SaleSection 10.3(e) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") on the attached Schedule of all or any portion of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designatecommercial terms.
Appears in 1 contract
Option. Provided no Event of Default (awhich has continued beyond any applicable cure periods) In order to induce Parent exists and Purchaser to enter into the Merger Agreement, Stockholder hereby grants to Purchaser an irrevocable option (a "SECURITIES OPTION") to purchase the Securities (the "OPTION SECURITIES") at the Offer Price, subject to increase as set forth below Paragraph 3 of this Exhibit, Tenant may renew this Lease for two (2) additional periods of five (5) years each on the "PURCHASE PRICE"). The Securities Option may be exercised, same terms provided in whole but not in part, by written notice to Stockholder this Lease (except as set forth below), for a period of ten (10) business days (the "10 DAY PERIOD") following termination by delivering written notice of the Merger Agreement or termination of the Offer, whichever shall first occur; PROVIDED that, prior exercise thereof to such termination, either Landlord not later than nine (i9) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option pursuant to this Agreement; provided that if (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) there shall be in effect any such injunction or order, in each case on months before the expiration of the 10 Day Periodapplicable Term (the "ELECTION NOTICE"). On or before the commencement date of the extended Term in question, Landlord and Tenant shall execute an amendment to this Lease extending the 10 Day Period Term on the same terms provided in this Lease, except as follows:
(a) The Basic Rental payable for each month during each such extended Term shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periodsFair Market Rental Rate, and (B) the date of removal or lifting of such injunction or orderdetermined in accordance with Paragraph 2 below.
(b) In The Premises during the event renewal Term may be for all or such fewer number of full floors in the Premises as Tenant shall designate in the Election Notice. If the renewal is as to at least three (3) full floors, Tenant shall designate in the Election Notice which floor or floors will be included in the Premises, provided that Purchaser wishes Tenant must choose contiguous floors (except that Tenant may choose the 2nd floor and other floors that are not contiguous to exercise the Securities Option, Purchaser shall send a written notice (2nd floor but are contiguous to one another). If the "NOTICE") renewal is as to Stockholder identifying the date (not less than two three full floors, Landlord shall determine which floors may be renewed (2) nor more than five (5) business days from except that Tenant may specify in the date of Election Notice that the Notice) for the closing of such purchase, which closing 2nd floor shall be held at the executive offices of the Company (or such other place as the parties may agreeincluded). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designate.
(c) In the event the Option Securities are acquired Tenant shall have no further renewal options unless expressly granted by Purchaser pursuant to the exercise of the Securities Option (the "ACQUIRED SECURITIES") Xxxxxxxx in writing; and, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess of the Purchase Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increase.
(d) In Landlord shall lease to Tenant the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option, Stockholder shall be entitled to receivePremises in their then-current condition, and Purchaser Landlord shall promptly not provide to Tenant any allowances (e.g., moving allowance, construction allowance, and in no event more than 48 hours following such Salethe like) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designateother tenant inducements.
Appears in 1 contract
Option. (a) In order to induce Parent and Purchaser to enter into the ------ Merger Agreement, each Stockholder hereby grants to Purchaser an irrevocable option (a each, an "SECURITIES OPTIONOption") to purchase all (but not less than all) of the Securities Shares ------ beneficially owned by such Stockholder (the "OPTION SECURITIESOption Shares") at a price per ------------- Share equal to the Offer Price, subject to increase as set forth below (the "PURCHASE PRICE"). The Securities Each Option granted by a Stockholder may be exercised, exercised in whole but not at any time after (i) the occurrence of any event as a result of which Parent is entitled to receive the fee referred to in part, by written notice to Stockholder (as set forth below), for a period of ten (10Section 7.02(b) business days (the "10 DAY PERIOD") following termination of the Merger Agreement or termination (ii) such time as such Stockholder shall have breached any of its agreements in Section 2(a), 5(a), 5(b) or 5(d).
(b) Each Option that becomes exercisable under Section 3(a) shall remain exercisable until the Offer, whichever shall first occur; PROVIDED that, prior to such termination, either later of (i) a Trigger Event shall have occurred or the date that is sixty (60) days after the date such Option becomes exercisable and (ii) the date that is ten (A10) days after the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate later of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) date that all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements HSR Act of 1976, as amended (the "HSR ACT"), required for the purchase of the Securities Shares upon such exercise shall have expired or been waived terminated and any other conditions the date on which all approvals required under the other Foreign Antitrust Laws shall have been satisfied and (ii) obtained; provided that if at the expiration of such period there shall not be in -------- effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option pursuant to this Agreement; provided that if (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) there shall be in effect any such injunction or order, in each case on the expiration of the 10 Day PeriodOption, the 10 Day Period exercise period shall be extended until five ten (510) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of that no such injunction or order.
(b) order is in effect. In the event that Purchaser wishes to exercise the Securities an Option, Purchaser shall send a written notice (to the "NOTICE") to applicable Stockholder identifying the place and date (not less than two (2) nor more than five ten (510) business days from the date of the Noticenotice) for the closing of such purchase, which closing shall be held at the executive offices of the Company purchase (or such other place as the parties may agreean "Option Closing"). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the each Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designate.
(c) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option (the "ACQUIRED SECURITIES") and, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of Closing Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess of the Purchase Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (and deliver in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day immediately available funds to such account as Stockholder shall designate, the amount of the increase.
(d) In the event aggregate exercise price due for the Option Securities are acquired by Purchaser pursuant Shares to the exercise be purchased at such Option Closing, against delivery of the Securities Option, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designateOption Shares.
Appears in 1 contract
Samples: Stockholder Agreement (United Technologies Corp /De/)
Option. (a) In order Subject to induce Parent the terms and Purchaser to enter into the Merger Agreementconditions set forth herein, each Stockholder hereby grants to Purchaser an irrevocable Parent a continuing option (a "SECURITIES OPTION"the “Option”) to purchase for cash all or any portion of the Securities Company Common Stock (including, without limitation, the "OPTION SECURITIES"Shares) beneficially owned by such Stockholder as of the date hereof, or beneficially owned by such Stockholder at the Offer Priceany time hereafter (including, subject without limitation, shares acquired by way of exercise of Company Options or other rights to increase purchase Company Common Stock or by way of dividend, distribution, exchange, merger, consolidation, recapitalization, reorganization, stock split, grant of proxy or otherwise, but excluding shares owned by other Stockholders) by such Stockholder (as adjusted as set forth below herein) (the "PURCHASE PRICE"). The Securities “Option may be exercised, in whole but not in part, by written notice Shares”) at a purchase price per Option Share equal to Stockholder (as set forth below), for a period of ten (10) business days the Offer Price (the "10 DAY PERIOD") following termination of the Merger Agreement or termination of the Offer, whichever shall first occur; PROVIDED that, prior to such termination, either (i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b“Purchase Price”), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option pursuant to this Agreement; provided that if (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) there shall be in effect any such injunction or order, in each case on the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or order.
(b) In the event that Purchaser Parent wishes to exercise the Securities Option, Purchaser it shall send to the Stockholder a written notice (the "NOTICE"date of each such notice being herein referred to as a “Notice Date”) setting forth its irrevocable election to that effect, which notice also specifies the total number of Option Shares it intends to purchase from such Stockholder identifying the pursuant to such exercise and a date (not less earlier than two (2) three business days nor more later than five (5) 30 business days from the date of the Notice) Notice Date for the closing of such purchase (an “Option Closing Date”); provided, however, that (i) if the closing of a purchase and sale pursuant to the Option (an “Option Closing”) cannot be consummated by reason of any applicable judgment, decree, order, law or regulation, the period of time that otherwise would run pursuant to this sentence shall run instead from the date on which the restriction on consummation has expired or been terminated (but in no case more than six (6) months from the original Notice Date) and (ii) without limiting the foregoing, if prior notification to or approval of any regulatory authority is required in connection with the purchase, which closing Parent and the Stockholder shall be held at promptly file the executive offices required notice or application for approval and shall cooperate in the expeditious filing of such notice or application, and the Company (or such other place period of time that otherwise would run pursuant to this sentence shall run instead from the date on which, as the parties case may agree)be, (A) any required notification period has expired or been terminated or (B) any required approval has been obtained, and in either event, any requisite waiting period has expired or been terminated. At Each of Parent and the closingStockholder agrees to use commercially reasonable efforts to cooperate with and provide information to the other, Stockholder shall deliver to Purchaser appropriate and effective instruments for the purpose of transfer any required notice or application for approval. Any exercise of the Option Securitiesshall be deemed to occur on the Notice Date relating thereto. The place of any Option Closing shall be at the offices of Parent, against payment to Stockholder which address is set forth in the Merger Agreement, and the time of the Purchase PriceOption Closing shall be 10:00 a.m. (California time) on the applicable Option Closing Date. Parent shall not be under any obligation to exercise the Option, in same day funds, by wire transfer and may allow the Option to such account as Stockholder shall designateterminate without purchasing any Option Shares hereunder from any Stockholder.
(c) In At any Option Closing, Parent shall pay to each Stockholder in immediately available funds by check or wire transfer to a bank account designated in writing by the event the Option Securities are acquired by Purchaser pursuant Stockholder an amount equal to the exercise of the Securities Option (the "ACQUIRED SECURITIES") and, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess of the Purchase Price, then the Purchase Price hereunder shall be increased multiplied by the number of Option Shares being delivered by the Stockholder; provided, that, with respect to such higher price. If the purchase any wire transfer, failure or refusal of the Acquired Securities has been completed at Stockholder to designate a bank account shall not preclude Parent from exercising the time of such increaseOption, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increasewhole or in part.
(d) In At any Option Closing, simultaneously with the event delivery of immediately available funds as provided above, the Stockholder shall deliver to Parent a certificate or certificates representing the Option Securities are acquired by Purchaser pursuant Shares to the exercise of the Securities Optionbe purchased at such Option Closing, Stockholder which Option Shares shall be entitled to receive, free and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") clear of all or liens, claims, charges and encumbrances of any portion of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designatekind whatsoever (other than restrictions under applicable securities laws).
Appears in 1 contract
Option. Provided (ai) In order Tenant is then occupying at least seventy percent (70%) of the rentable area of the Premises, and (ii) Tenant's financial condition, as reasonably determined by Landlord, has not materially and adversely changed from that existing on the Commencement Date such that Landlord reasonably determines that Tenant cannot satisfy its duties, obligations and liabilities under this Lease for the Option Term (as hereinafter defined), Tenant is given the option to induce Parent and Purchaser to enter into extend the Merger Agreement, Stockholder hereby grants to Purchaser an irrevocable option (a "SECURITIES OPTION") to purchase the Securities Term hereof (the "OPTION SECURITIESExtension Option"), on all the provisions contained in this Lease as the same may be amended from time to time (together with such changes as Landlord may reasonably require in order to conform the terms and provisions of this Lease to then prevailing industry standards, provided that in no event shall the duties, obligations or liabilities of Tenant be materially increased thereby), for one (1) at the Offer Price, subject to increase as set forth below additional five (5) year period (the "PURCHASE PRICEOption Term"). The Securities Option may be exercised, ) following expiration of the initial Term stated in whole but not in part, by written notice to Stockholder (as set forth below), for a period Article 2 of ten (10) business days this Lease (the "10 DAY PERIODInitial Term") following termination ), by giving written notice of exercise of the Merger Agreement or termination option (the "Option Notice') to Landlord at least nine (9) months before the expiration of the Offer, whichever Initial Term; provided that in no event shall first occur; PROVIDED that, the Annual Base Rent for the Option Term be determined prior to such termination, either the commencement of the seventh (i7th) a Trigger Event shall have occurred or (ii) (A) calendar month preceding the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate expiration of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfiedInitial Term. Notwithstanding the foregoing, if Tenant is in default on the Securities date of giving the Option may Notice, Tenant shall have no right to extend the Term and this Lease shall expire at the end of the Initial Term; or if Tenant is in default on the date the Option Term is to commence, the Option Term shall not commence and this Lease shall expire at the end of the Initial Term. The Annual Base Rent for the Option Term shall, during the first year of the Option Term, be exercised until: in an amount equal to the fair market rental (i"Fair Market Rental" as hereinafter defined) all waiting periods under of the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act Premises at the commencement of 1976the Option Term, as amended but in no event less than 3% greater than the Base Rent for the last year of the original lease term (the "HSR ACTAdjustment Date"), required for and shall escalate by 3% per annum every twelve months during the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option pursuant to this Agreement; provided that if (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) there shall be in effect any such injunction or order, in each case on the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or order.
(b) In the event that Purchaser wishes to exercise the Securities Option, Purchaser shall send a written notice (the "NOTICE") to Stockholder identifying the date (not less than two (2) nor more than five (5) business days from the date of the Notice) for the closing of such purchase, which closing shall be held at the executive offices of the Company (or such other place as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer balance of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designateTerm.
(c) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option (the "ACQUIRED SECURITIES") and, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess of the Purchase Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increase.
(d) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designate.
Appears in 1 contract
Samples: Lease Agreement (Improvenet Inc)
Option. (a) In order to induce Parent and Purchaser to enter into During the Merger Agreement, Stockholder hereby grants to Purchaser an irrevocable option (period commencing on the date that Stiefel shall have converted the Principal Amount of the Note ixxx Xxnversion Shares until the date that Stiefel shall no longer be a "SECURITIES OPTION") to purchase holder of any of the Securities Company's equixx xxxxrities (the "OPTION SECURITIESOption Period") at ), Stiefel may exercise, from time to time during the Offer Price, Option Periox xxx subject to increase as set forth below the terms and conditions contained herein, the option to acquire the Option Shares for the Option Price (the "PURCHASE PRICEOption"). The Securities Option may be exercised, in whole but not in part, exercise by written notice to Stockholder (as set forth below), for a period of ten (10) business days (the "10 DAY PERIOD") following termination Stiefel of the Merger Agreement or termination of the OfferOption shall entitle Stiefel to purchase, whichever shall first occur; PROVIDED that, prior to such termination, either (i) a Trigger Event shall have occurred or (ii) (A) and xxxxx require the Company shall have received a written proposal from any person other than Parentto sell, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, thx Xxxxxn Shares as amended (the "HSR ACT"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option pursuant to this Agreement; provided that if (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) there shall be in effect any such injunction or order, in each case on the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or orderherein provided.
(b) In During the event that Purchaser wishes to exercise Option Period, the Securities Option, Purchaser Company shall send a provide prior written notice to Stiefel of any Dilutive Event (the a "NOTICEDilutive Event Notice") to Stockholder identifying the date (not less than two (2) nor more than five (5) business days from the date of the Notice) for the closing of such purchase, which closing shall be held at the executive offices of the Company (or such other place as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designate.
(c) In the event The Option may be exercised by Stiefel as to all or less than all of the Option Securities are acquired Shares at any txxx xxxing the Option Period by Purchaser pursuant delivery of written notice(s) from Stiefel to the exercise of the Securities Option Company (the "ACQUIRED SECURITIESNotice of Exercise") and, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate address xxxxxxxed on the signature page hereto designating the number of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess and description of the Purchase Price, then the Purchase Price hereunder shall desired class of Option Shares to be increased to such higher price. If purchased and a date and time for closing the purchase and sale of such Option Shares (each, a "Closing Date"), which date and time shall not be earlier than the close of business on the 5th Business Day, nor later than the close of business on the 10th Business Day, following delivery by Stiefel of the Acquired Securities has been completed at the time Notice of such increase, Stockholder shall be entitled Exercise pursuant to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increasethis paragraph.
(d) In the event the Option Securities are acquired by Purchaser pursuant to Upon the exercise of the Securities OptionOption by Stiefel, Stockholder the Option Price (or the corresponding proportionate xxxxxx of the Option Price in the event of an exercise of the Option for less than all of the Option Shares) shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal paid by Stiefel to the excess, if any, of Company on the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made Closing Date by wire transfer xx xxxediately available funds. In exchange for the payment by Stiefel of same day funds the Option Price (or the lesser proportionate purchaxx xxxce), the Company shall deliver to such account Stiefel certificates evidencing the Option Shares described in xxx Xxtice of Exercise in proper form for transfer, free and clear of any claims, security interests, liens and encumbrances of any kind, except as Stockholder shall designateprovided by law and/or in the Stockholders Agreement.
Appears in 1 contract
Samples: Option Agreement (Inyx Inc)
Option. 1.1 Subject to the terms and conditions set out herein, Owner hereby grants Enbridge the exclusive option (a“Option”) In order to induce Parent and Purchaser acquire the license contemplated by the TWS Agreement in respect of the use of a portion of the Property (the “Optioned Property”) the approximate location of which is set out in the sketch attached as Schedule B to enter into the Merger this Agreement, Stockholder hereby grants which license shall be across, over, and through the Optioned Property, substantially in the location as shown on the property sketch attached hereto. The Option shall be exercised by Enbridge by providing written notice to Purchaser an irrevocable option (a "SECURITIES OPTION") to purchase the Securities Owner (the "OPTION SECURITIES"“Exercise Notice”) at any time prior to the Offer Priceexpiry of the Option Term (as herewith below).
1.2 If, subject at the time Enbridge exercises the Option, the owner of the Property is the Owner as first named above, then such Owner does hereby concurrently upon entering into this Agreement sign and deliver to increase Enbridge the TWS Agreement and Release of Damages Agreement (together, the “Agreements”), which Agreements are not intended to have legal force and effect until such time as Enbridge exercises its Option. Upon exercising the Option, Xxxxxxxx is further irrevocably authorized and directed by the Owner to finalize the Agreements, by completing any missing information such as the date of the document (to be the same date as the Exercise Notice), and, thereafter, Xxxxxxxx shall execute the Agreements and provide a copy of the completed, fully executed Agreements to Owner, both of which will then be in full force and effect. Without limiting the foregoing irrevocable authorization and direction hereby given by such Owner to Enbridge, as a further assurance Owner irrevocably constitutes and appoints Enbridge the true and lawful attorney of such Owner to execute the Agreements, and to execute and deliver all other instruments, approvals and documents as provided for in the Agreements.
1.3 If, at the time Enbridge exercises the Option, the owner of the Property is not the Owner as first named above, then Owner first named above agrees to have obtained the covenant of the subsequent Owner in favour of Xxxxxxxx, prior to any transfer of title to the Property by such first named owner, which covenant is to have the effect that such subsequent Owner of the Property shall duly execute and deliver to Enbridge on such date as is specified by Enbridge to the Owner, the Agreements substantially in the forms attached hereto as Schedule C and Schedule D, respectively, upon the terms and conditions provided therein.
1.4 The Option shall be exercisable by Xxxxxxxx at any time from the Effective Date up to and including the date which is the third anniversary of the Effective Date (the “Option Term”). Notwithstanding anything to the contrary herein, however, if Enbridge shall give written notice to the Owner prior to the expiry of the Option Term that Enbridge has submitted, or is in the process of submitting, an application to the National Energy Board (or equivalent government or public authority) in respect of the Pipeline and such application references this Option and/or the Optioned Property, then Enbridge may, in its sole discretion, elect to extend the Option Term for an additional period of one year (“Extended Option Term”) on the same terms, conditions and privileges as set forth below (hereunder, at the "PURCHASE PRICE"). The Securities Option may be exercised, in whole but not in partpayment then being paid as herein provided, by providing written notice to Stockholder Owner of such extension, which shall accompany payment pursuant to Schedule E, no less than sixty (as set forth below), for a period of ten (1060) business days (the "10 DAY PERIOD") following termination of the Merger Agreement or termination of the Offer, whichever shall first occur; PROVIDED that, prior to such termination, either (i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option pursuant to this Agreement; provided that if (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) there shall be in effect any such injunction or order, in each case on the expiration of the 10 Day PeriodOption Term. The Option Term and the Extended Option Term may sometimes be collectively referred to herein as the “Term”.
1.5 Enbridge shall pay Owner the amounts (referred to collectively and individually as the “compensation”) set forth in Schedule E as consideration for the Owner entering into this Agreement, as consideration for extending the 10 Day Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periodsOption Term, if applicable, and as compensation for entering into the Agreements, in accordance with and at the times set forth in Schedule E.
1.6 The Owner acknowledges receipt of a notice given pursuant to Section 87(1) of the National Energy Board Act (BCanada) and given prior to the date entering into of removal this Agreement, setting out or lifting accompanied by:
(a) a description of such injunction or order.the Optioned Property of the Owner required by Enbridge for the TWS Agreement;
(b) In the event that Purchaser wishes to exercise the Securities Option, Purchaser shall send a written notice (the "NOTICE") to Stockholder identifying the date (not less than two (2) nor more than five (5) business days from the date details of the Notice) compensation offered by Xxxxxxxx for the closing of such purchase, which closing shall be held at the executive offices of the Company (or such other place as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designate.Optioned Property required;
(c) In the event the Option Securities are acquired a detailed statement made by Purchaser pursuant to the exercise Enbridge of the Securities Option (the "ACQUIRED SECURITIES") and, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess of the Purchase Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time value of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (and Optioned Property required in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer respect of same day funds to such account as Stockholder shall designate, the amount of the increase.which compensation was offered;
(d) In a description of the procedure for approval of the detailed route of the Pipeline; and
(e) a description of the procedure available for negotiation and arbitration under Part V of the National Energy Board Act (Canada) in the event that the Option Securities Owner and Xxxxxxxx are acquired by Purchaser pursuant unable to agree on any matter respecting the exercise of the Securities Option, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designatecompensation payable.
Appears in 1 contract
Samples: Temporary Workspace Option Agreement
Option. (a) In order Subject to induce Parent the terms and Purchaser to enter into the Merger conditions set forth in this Agreement, Stockholder effective immediately, the Stockholders hereby grants grant to Purchaser Optionees an irrevocable option (a "SECURITIES OPTION"the “Option”) to purchase up to 2,000,000 Shares (“Option Shares”) from the Securities Stockholders (for each Optionee up to the Proportionate Amount set forth on the signature pages hereof), at a per share purchase price equal to Four Dollars and Fifty Cents ($4.50) per share (the "OPTION SECURITIES") at the Offer “Purchase Price, subject to increase as set forth below (the "PURCHASE PRICE"”). The Securities Option may be exercised, in whole but not in part, by written notice to Stockholder (as set forth below), for a period of ten (10) business days (the "10 DAY PERIOD") following termination of the Merger Agreement or termination of the Offer, whichever shall first occur; PROVIDED that, prior to such termination, either (i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option pursuant to this Agreement; provided that if (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) there shall be in effect any such injunction or order, in each case on the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or order.
(b) Simultaneously with the execution of this Option Agreement, Stockholders will deliver 2,000,000 into escrow with Grushko & Mxxxxxx, P.C., as escrow agent (“Escrow Agent”), pursuant to the form of escrow agreement attached hereto as Exhibit A. If at any time after the date of execution of this Agreement and during the term hereof, Stockholders receive any further shares of stock due to a stock split, or otherwise, with regard to the shares represented by Certificates, they shall immediately deliver those shares into escrow with the Escrow Agent.
(c) The Option may be exercised by an Optionee in whole or in part commencing on the Closing Date and continuing through December 31, 2008. There may be up to five exercises of the Option by each Optionee. At the time of each partial exercise the Stockholders shall make a notation in their books and records as to the remaining portion of the Option subject to exercise.
(d) This Option may be exercised by each Optionee only up to the same number of shares as are purchased by such Optionee under the SPA.
(e) In the event that Purchaser an Optionee wishes to exercise the Securities Option, Purchaser it shall send to the Stockholders and Escrow Agent a written notice (the "NOTICE"date of each such notice being herein referred to as a “Notice Date”) setting forth its irrevocable election to Stockholder identifying the that effect, which notice also specifies a date (not less than two (2) nor more earlier than five (5) business days nor later than thirty (30) business days from the date of the Notice) Notice Date for the closing of such purchase, which closing purchase (an “Option Closing Date”). The place of any Option Closing shall be held at the executive offices of Grushko & Mxxxxxx, P.C. at 500 Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, XX 00000, and the Company (or such other place as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer time of the Option SecuritiesClosing shall be 10:00 a.m. (New York Time) on the Option Closing Date.
(f) At the Option Closing, against payment an Optionee shall pay to Stockholder of the Purchase Price, Stockholders by delivery to Escrow Agent in same day funds, immediately available funds by wire transfer to such the bank account as Stockholder designated in writing in the Escrow Agreement an amount equal to the Purchase Price. The terms of the Escrow Agreement shall designategovern mechanics for release of stock and funds and related matters.
(cg) At the Option Closing, upon delivery of immediately available funds as provided above, the Escrow Agent shall deliver: (i) to the Optionee a certificate or certificates representing the Option Shares to be purchased at such Option Closing (or, a certificate endorsed in blank) and registered on the books and records of the Company in Optionee’s name, which Securities shall be free and clear of all liens, claims, charges and encumbrances of any kind whatsoever, and (ii) to Stockholders, the Purchase Price.
(h) In the event of any change in the Common Stock by reason of a stock dividend, split-up, merger, recapitalization, combination, exchange of shares or similar transaction, the type and number of Option Securities are acquired by Purchaser pursuant Shares subject to the Option, and the Purchase Price therefor, shall be adjusted appropriately, so that Optionee shall receive upon exercise of the Securities Option (the "ACQUIRED SECURITIES"number and class of shares or other securities or property together with any additional shares delivered to the Escrow Agent pursuant to Section 2(b) and, either before or at any time within above that Optionee would have received if the one-year period following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess of the Purchase Price, then the Purchase Price hereunder shall be increased Option had been exercised immediately prior to such higher price. If event or the purchase of the Acquired Securities has been completed at the time of such increaserecord date therefor, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increaseapplicable.
(d) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designate.
Appears in 1 contract
Option. (a) In order On the terms and subject to induce the conditions set forth herein, the Stockholders hereby grant to Parent and Purchaser to enter into the Merger Agreement, Stockholder hereby grants to Purchaser an irrevocable option (a "SECURITIES OPTION"the “Option”) to purchase all of the Securities right, title and interest of the Stockholders in and to the Permissible Number of the Stockholders’ Shares (the "OPTION SECURITIESOptioned Shares") at with a price per share equal to the Offer Price. Parent may exercise the Option in whole, subject to increase as set forth below (the "PURCHASE PRICE"). The Securities Option may be exercised, in whole but not in part, by written notice to Stockholder (as set forth below)if, for a period of ten (10) business days (the "10 DAY PERIOD") following termination of the Merger Agreement or termination of the Offerbut only if, whichever shall first occur; PROVIDED that, prior to such termination, either (i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate has acquired shares of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent common stock pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied Offer and (ii) the Stockholders have failed to tender into the Offer at least the Permissible Number of Shares or shall have withdrawn the tender of a number of Shares equal to or greater than the Permissible Number in breach of this Agreement. The Parent may exercise the Option at any time within the sixty (60) days following the date when such Option first becomes exercisable.
(b) In the event that the Parent is entitled to and wishes to exercise the Option, the Parent shall send a written notice to Stockholders specifying the place and the date for the closing of such purchase, which date shall be not more than sixty (60) days after the date of such notice; provided that in the event that prior notification to, or approval of, any Governmental Entity is required in connection with the exercise of the Option or there shall not be in effect any preliminary or final injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option pursuant to this Agreement; provided that if Option, the period of time during which the date of the closing may be fixed shall be extended until the tenth (i10th) day following the last date on which all HSR Act required approvals shall have been obtained, all required waiting periods shall not have expired or been terminated or (ii) there shall be in effect and any such injunction prohibition shall have been vacated, terminated or order, in each case on the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or order.
(b) In the event that Purchaser wishes to exercise the Securities Option, Purchaser shall send a written notice (the "NOTICE") to Stockholder identifying the date (not less than two (2) nor more than five (5) business days from the date of the Notice) for the closing of such purchase, which closing shall be held at the executive offices of the Company (or such other place as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designatewaived.
(c) In At the event closing of the Option Securities are acquired by Purchaser purchase of Stockholders’ Optioned Shares pursuant to the exercise of the Securities Option (Option, simultaneously with the "ACQUIRED SECURITIES") andpayment by the Parent of the purchase price for Stockholders’ Optioned Shares, either before the Stockholders shall deliver, or at any time within cause to be delivered, to the one-year period following such acquisition, Parent, Purchaser or any affiliate of certificates representing the Optioned Shares duly endorsed to the Parent or Purchaser shall acquire Common Stock (accompanied by stock powers or other than from transfer documents duly executed by the Company) at a price Company in excess blank, together with any necessary stock transfer stamps properly affixed, free and clear of the Purchase Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increaseall Liens.
(d) In The Parent, the event Purchaser or the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities OptionCompany, Stockholder as applicable, shall be entitled to receive, deduct and Purchaser shall promptly (and in no event more than 48 hours following withhold from the consideration otherwise payable pursuant to this Section 1.6 to Stockholders such Sale) pay amounts as are required to Stockholder, upon any subsequent disposition, transfer be withheld under the Code or sale to an unaffiliated third party ("SALE") of all the Treasury Regulations thereunder or any portion of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designateother Tax Law.
Appears in 1 contract
Option. (a) In order to induce Parent and Purchaser to enter into the Merger Agreement, Stockholder hereby grants to Purchaser an irrevocable option (a "SECURITIES OPTION") to purchase the Securities (the "OPTION SECURITIES") at the Offer Price, subject to increase as set forth below (the "PURCHASE PRICE"). The Securities Option may be exercised, in whole but not in part, by written notice to Stockholder (as set forth below), for a period of ten (10) business days (the "10 DAY PERIOD") following termination of the Merger Agreement or termination of the Offer, whichever shall first occur; PROVIDED that, prior to such termination, either (i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) TO Provided that at the time of such termination exercise (i) there then EXTEND exists no Default of LESSEE, (ii) this Lease is then in full force and effect, and (iii) LESSEE is in actual occupancy of all or substantially all of the Minimum Condition Premises, LESSEE shall have the right and option to extend the term of this Lease for one (1) extended term of five years (the "Extended Term"). The Extended Term shall commence on the day immediately succeeding the expiration date of the Initial Term, and shall end on the day immediately preceding the fifth anniversary of the first day of such Extended Term. LESSEE shall exercise such option to extend by giving written notice to LESSOR of its desire to do so not earlier than twelve (12) months and not later than nine (9) months prior to the expiration date of the Initial Term. Provided the conditions of clauses (i), (ii) and (iii) of this section shall have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under giving of such notice by LESSEE shall automatically extend the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act Term of 1976, as amended (the "HSR ACT"), required this Lease for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option pursuant to this Agreement; provided that if (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) there shall be in effect any such injunction or order, in each case on the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periodsExtended Term, and (B) the date no instrument of removal or lifting of such injunction or order.
(b) renewal need be executed. In the event that Purchaser wishes LESSEE fails to exercise give such notice to LESSOR, this Lease shall automatically terminate at the Securities Optionend of the Initial Term, Purchaser and LESSEE shall send a written notice have no further option to extend the Term of this Lease. It is agreed that time is of the essence with respect to the giving of such notice. The Extended Term shall be on all the terms and conditions of this Lease, except that (I) option to extend that Term of this Lease shall be deleted, and (II) the Basic Rent for the Extended Term shall be at Fair Market Value, not less than the sum of the rent and all additional rent being paid by LESSEE during the final year of the Initial Term. LESSOR shall designate Fair Market Value, (the "NOTICEFair Market Value") by written notice to Stockholder identifying LESSEE within sixty (60) days of receipt of notice from LESSEE. If LESSEE disagrees with such designation, (the date "Designation"), LESSEE shall by written notice within thirty (not less than two (230) nor more than five (5) business days from the date after receipt of the Notice) for the closing LESSOR'S figure, advise LESSOR of such purchase, which closing disagreement; otherwise LESSEE shall conclusively be held at the executive offices of the Company (or such other place as the parties may agree). At the closing, Stockholder shall deliver deemed to Purchaser appropriate and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer have agreed to such account as Stockholder shall designate.
(c) Designation. In the event that the Option Securities Parties are acquired by Purchaser pursuant unable to the exercise of the Securities Option (the "ACQUIRED SECURITIES") andagree, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser each Party shall acquire Common Stock (other than from the Company) at a price in excess of the Purchase Price, then the Purchase Price hereunder appoint an appraiser. Each appraiser so appointed shall be increased instructed to such higher pricedetermine independently the Fair Market Value and then confer. If the purchase two appraisers are unable to determine a Designation acceptable to both parties, they shall appoint a third appraiser. The Designation of the Acquired Securities has been completed at the time of such increase, Stockholder this appraiser shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increaseconsidered final.
(d) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designate.
Appears in 1 contract
Option. (a) In order Following the later to induce Parent occur of the (i) Series A Shareholder Approval Date, (ii) Bank Approval Date, (iii) Board Approval Date and Purchaser to enter into (iv) Option Approval Date, the Merger Agreement, Stockholder hereby grants to Purchaser Investor shall have an irrevocable option (a the "SECURITIES OPTION") to purchase the Securities an additional 21,000 shares of Series A Preferred Stock (the "OPTION SECURITIESSHARES") at the Offer Price, subject to increase as set forth below for an aggregate purchase price of $21,000,000 (the "OPTION PURCHASE PRICE"). The Securities Option may be exercisedexercised by the Investor at any time, in whole but and not in part, by during the period commencing on the later to occur of the (i) Series A Shareholder Approval Date, (ii) Bank Approval Date, (iii) Board Approval Date and (iv) Option Approval Date and ending on the Expiration Date. Except as expressly provided in Section 2.02(b) hereof, exercise of the Option shall be at the Investor's sole discretion. In the event that the Investor elects to exercise the Option, the Investor shall deliver a written notice (an "OPTION EXERCISE NOTICE") to Stockholder (as that effect to the Company not later than the Expiration Date. Delivery of the Option Exercise Notice in accordance with the terms hereof shall constitute a binding agreement on the part of the Investor to purchase, and on the part of the Company to issue, sell and deliver, the Option Shares at the Option Closing on the terms and subject to the conditions set forth belowherein. The purchase of the Option Shares pursuant to the Option is referred to herein as the "OPTION PURCHASE."
(b) Subject to Section 2.02(c) hereof, in the event that the Closing Price exceeds the Conversion Price on each Trading Day in a 45-Trading Day Reference Period, the Company shall have the right, at its option and election, to require the Investor to exercise the Option, in whole and not in part, and to purchase the Option Shares on the terms and subject to the conditions set forth herein. In the event that the Company elects to require the Investor to exercise the Option and to purchase the Option Shares in accordance with this Section 2.02(b), the Company shall deliver a written notice (a "MANDATORY EXERCISE NOTICE") to that effect to the Investor not later than the third Business Day after the last day of the relevant 45-Trading Day Reference Period. The Mandatory Exercise Notice shall set forth in reasonable detail the supporting data used by the Company in its determination that it has the right to require the Investor to exercise the Option. Delivery of the Mandatory Exercise Notice in accordance with the terms hereof shall constitute exercise of the Option by the Investor, and shall constitute a binding agreement on the part of the Investor to purchase, and on the part of the Company to issue, sell and deliver, the Option Shares at the Option Closing, on the terms and subject to the conditions set forth herein; PROVIDED, HOWEVER, that in the event the conditions set forth in Section 9.03 hereof are not satisfied or waived on or prior to the tenth Business Day following the delivery of the Mandatory Exercise Notice, (i) the Investor shall not be deemed to have exercised the Option, (ii) the Investor shall not be obligated to purchase the Option Shares, (iii) the Mandatory Exercise Notice shall be deemed to have been withdrawn, and (iv) the Company shall not have the right to require exercise of the Option and shall not deliver a subsequent Mandatory Exercise Notice for a period of ten (10) business 30 days (following such tenth Business Day. The Company shall not deliver a Mandatory Exercise Notice if, to the "10 DAY PERIOD") following termination knowledge of the Merger Agreement or termination of Company, the Offerconditions set forth in Section 9.04(b), whichever shall first occur; PROVIDED that, prior to such termination, either (ic) a Trigger Event shall have occurred or (iid) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall hereof cannot have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been be satisfied. Notwithstanding The Company's right to require the foregoing, Investor to exercise the Securities Option may not be exercised until: (i) all waiting periods under and purchase the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option Shares pursuant to this Agreement; provided that if (iSection 2.02(b) all HSR Act waiting periods shall not have expired or been terminated or (ii) there shall expire on, and no Mandatory Exercise Notice may be in effect any such injunction or order, in each case on the expiration of the 10 Day Perioddelivered later than, the 10 Day Period shall be extended until five (5) business days date that is 30 calendar months after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or order.
(b) In the event that Purchaser wishes to exercise the Securities Option, Purchaser shall send a written notice (the "NOTICE") to Stockholder identifying the date (not less than two (2) nor more than five (5) business days from the date of the Notice) for the closing of such purchase, which closing shall be held at the executive offices of the Company (or such other place as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designateSeries A Shareholder Approval Date.
(c) In Notwithstanding anything in this Section 2.02 to the event contrary, the Company shall not require the Investor to exercise the Option Securities are acquired by Purchaser and the Investor shall not be required to purchase the Option Shares pursuant to a Mandatory Exercise Notice unless (i) the exercise Common Stock shall have been validly listed for trading on the NYSE or other national securities exchange or quoted on a nationally recognized quotation system on each day in the relevant 45-Trading Day Reference Period and on the Option Closing Date, (ii) the average daily trading volume in the Common Stock during the relevant 45-Trading Day Reference Period is at least 60% of the Securities Option (average daily trading volume in the "ACQUIRED SECURITIES") and, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock for the 180-day period ending on the date of the Investment Agreement, (iii) as of the Option Closing, the Shelf Registration Statement (as such term is defined in the Registration Rights Agreement) is effective under the Securities Act and is available for use in connection with the offer and sale of shares of Series A Preferred Stock and Common Stock by those holders that have such right under the Registration Rights Agreement (it being understood that if a Shelf Suspension (as such term is defined in the Registration Rights Agreement) is in effect, the Shelf Registration Statement shall not be deemed effective or available for use), (iv) no Change of Control shall have occurred since the date hereof, (v) the Company shall not have breached or defaulted under this Agreement or the Certificates of Designations in any material respect, (other than from breaches or defaults that have been cured or waived prior to the Company) at a price in excess date of the Purchase Price, then Mandatory Exercise Notice) and (vi) the Purchase Price hereunder shall be increased Company is permitted to such higher price. If the purchase sell all of the Acquired Securities has been completed at Option Shares to the time of such increase, Stockholder shall be entitled Investor on the Option Closing Date under the Indenture. Notwithstanding anything in this Section 2.02 to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designatethe contrary, the amount Company may not require the Investor to exercise the Option and purchase the Option Shares pursuant to a Mandatory Exercise Notice if such exercise or purchase would: (a) violate any provision of the increaseCertificate of Incorporation or Bylaws; (b) conflict with, contravene or result in a breach or violation of any of the terms or provisions of, or constitute a default (with or without notice or the passage of time) under, or result in or give rise to a right of termination, cancellation, acceleration or modification of any right or obligation under, or give rise to a right to put or to compel a tender offer for outstanding securities of the Company or any of its Subsidiaries under, or require any consent, waiver or approval under, any note, bond, debt instrument, indenture, mortgage, deed of trust, lease, loan agreement, joint venture agreement, Regulatory Approval, contract or any other agreement, instrument or obligation to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or any property of the Company or any of its Subsidiaries is bound; (c) result in the creation or imposition of any Lien upon any assets or properties of the Company or any of its Subsidiaries; or (d) violate any Law applicable to the Company or any of its Subsidiaries.
(d) Notwithstanding anything in this Section 2.02 to the contrary, in the event (a "RESTRICTION EVENT") that an Option Exercise Notice has been delivered and the Company is prohibited from selling any Option Shares to the Investor pursuant to (A) the provisions set forth 18 in Section 4.03(a) of the Indenture (as in effect on the date hereof) or (B) under comparable provisions of any Indenture so long as such comparable provisions are not materially more restrictive than those referred to in clause (A), the Company shall not be required to sell Option Shares to the Investor at the Option Closing to the extent that the Company is prohibited from doing so pursuant to such provisions. In such event, the Investor shall have the right to (i) exercise the Option in part and purchase (a "PARTIAL PURCHASE") at the Option Closing that number of Option Shares that the Company is permitted to sell under the Indenture (as in effect on the date hereof) or (ii) withdraw the Option Exercise Notice (a "WITHDRAWAL"). In connection with any Partial Purchase, the Option Purchase Price shall be proportionately reduced to reflect the actual number of Option Shares purchased at the Option Closing. Following the Option Closing at which a Partial Purchase is completed, the Option shall remain effective with respect to the Option Shares that the Company was not permitted to sell at the Option Closing under the Indenture on the same terms and conditions set forth herein, except that the Option Purchase Price shall be proportionately reduced to reflect the number of Option Shares still subject to the Option. In the event of a Withdrawal, no Option Exercise Notice shall deemed to have been delivered hereunder, except for the Option Securities are acquired by Purchaser pursuant to the exercise purposes of the Securities Option, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designatethis Section 2.02(d).
Appears in 1 contract
Samples: Investment Agreement (Magellan Health Services Inc)
Option. Provided no Event of Default exists when Tenant delivers such ------ notice, Tenant may renew this Lease as to all of the Premises for two additional period of five years each on the same terms provided in this Lease (a) In order to induce Parent and Purchaser to enter into the Merger Agreement, Stockholder hereby grants to Purchaser an irrevocable option (a "SECURITIES OPTION") to purchase the Securities (the "OPTION SECURITIES") at the Offer Price, subject to increase as set forth below (the "PURCHASE PRICE"). The Securities Option may be exercised, in whole but not in part, by written notice to Stockholder (except as set forth below), for a period of ten (10) business days (. On or before the "10 DAY PERIOD") following termination commencement date of the Merger Agreement or termination of the Offerextended Term in question, whichever Landlord and Tenant shall first occur; PROVIDED that, prior to such termination, either (i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for execute an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option pursuant amendment to this Agreement; Lease extending the Term on the same terms provided that if in this Lease, except as follow:
(ia) all HSR Act waiting periods shall not have expired or been terminated or (ii) there The Base Rent payable for each month during the extended Term in question shall be the Fair Market Rental Rate determined in effect any such injunction or order, in each case on the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or order.accordance with paragraph 2 below;
(b) In the event Tenant shall have no further renewal options unless expressly granted by Landlord in writing (other than those that Purchaser wishes to exercise the Securities Option, Purchaser shall send a written notice (the "NOTICE") to Stockholder identifying the date (have not less than two (2) nor more than five (5) business days from the date of the Notice) for the closing of such purchase, which closing shall be held at the executive offices of the Company (or such other place as the parties may agreebeen exercised hereunder). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designate.; and
(c) In Landlord shall lease to Tenant the event Premises in their then-current condition, and Landlord shall not provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the Option Securities are acquired by Purchaser pursuant like) or other tenant inducements. Tenant's rights under this Exhibit shall terminate if (1) this Lease expires or is cancelled or this Lease or Tenant's right to the exercise possession of the Securities Option Premises is terminated or (the "ACQUIRED SECURITIES"2) andTenant fails timely to exercise its option under this Exhibit, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess being of the Purchase Price, then essence with respect to Tenant's exercise thereof. Tenant's rights under this Exhibit are personal to Tenant and may only be exercised by Tenant or a Permitted Transferee occupying the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed entire Premises at the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increaseoption provided herein is exercised.
(d) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designate.
Appears in 1 contract
Samples: Commercial Lease Agreement (Millipore Microelectronics Inc)
Option. (a) In order 8.1 If the Tenant wishes to induce Parent and Purchaser to enter into take a tenancy of the Merger Agreement, Stockholder hereby grants to Purchaser an irrevocable option (a "SECURITIES OPTION") to purchase the Securities (the "OPTION SECURITIES") at the Offer Price, subject to increase as set forth below (the "PURCHASE PRICE"). The Securities Option may be exercised, in whole but not in part, by written notice to Stockholder (as set forth below), Premises for a period further term of ten (10) business days (the "10 DAY PERIOD") following termination of the Merger Agreement or termination of the Offer, whichever shall first occur; PROVIDED that, prior to such termination, either (i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal three years from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option pursuant to this Agreement; provided that if (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) there shall be in effect any such injunction or order, in each case on the expiration of the 10 Day Period, Term at the 10 Day Period rent and on the terms and conditions hereinafter mentioned and shall not less than six months before the expiration of the Term give to the Landlord notice in writing of such its desire and if it shall have paid the rent hereby reserved and shall have performed and observed all the terms and conditions herein contained and on its part to be performed and observed up to the expiration of the Term then the Landlord will let the Premises to the Tenant for a further term of three years from the 1 July 2000 at the then current market rent such rent to be determined in manner hereinafter provided or the Rent specified in this Agreement which is higher and subject in all other respects to the same stipulations as are herein contained except this clause for renewal and any rent-free period allowed to the Tenant.
8.2 The rent payable for the said further term (the "new rent") shall be extended until five notified by the Landlord to the Tenant and shall be agreed between the parties hereto not less than two months immediately prior to the expiration of the Term Provided that in the event of a failure by the parties hereto to agree on the new rent the same shall be determined by an independent professional valuer or firm of professional valuers (5the "valuer") business days after to be appointed jointly by the later parties hereto in writing or in the absence of agreement on the identity of the valuer not less than one month prior to the expiration of the Term the valuer shall be appointed (Aon the application of either party) by the date Chairman for the time being of expiration the Royal Institution of Chartered Surveyors (Hong Kong Branch). The valuer shall act as an expert and not as an arbitrator and the valuer's decision shall be conclusive and binding on the parties hereto.
8.3 In determining the current market rent for the Premises the valuer shall:
8.3.1 make the following assumptions:
(a) that no work has been carried out on the Premises by the Tenant its subtenants or termination their predecessors in title during the Term which has diminished the rental value of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or order.Premises;
(b) In that if the event that Purchaser wishes to exercise the Securities Option, Purchaser shall send a written notice (the "NOTICE") to Stockholder identifying the date (not less than two (2) nor more than five (5) business days from the date of the Notice) for the closing of such purchase, which closing shall be held at the executive offices of the Company (Premises have been destroyed or such other place as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designate.damaged they have been fully restored;
(c) In that the event agreements contained in this Agreement on the Option Securities part of the Tenant have been fully performed and observed;
(d) that the Premises are acquired available to let by Purchaser pursuant a willing landlord to a willing tenant by one Agreement without a premium being paid by either party and with vacant possession;
(e) that the Premises are ready for and fitted out and equipped for immediate occupation and use for the purpose or purposes required by the willing tenant referred to in paragraph (d) and that all the services required for such occupation and use are connected to the exercise of Premises;
(f) that the Securities Option Agreement referred to in paragraph (d) contains the "ACQUIRED SECURITIES") and, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess of the Purchase Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account terms as Stockholder shall designate, this Agreement except the amount of the increaserent and any rent free period allowed to the Tenant for fitting out the Premises for its occupation and use at the commencement of the Term;
8.3.2 and shall disregard the following matters:
(a) any effect on rent of the fact that the Tenant or its predecessors in title have been in occupation of the Premises;
(b) any goodwill attributable to the Tenant's business;
(c) any increase in rental value of the Premises attributable to the existence at the expiration of the Term of any improvement to the Premises carried out by the Tenant with consent where required otherwise than in pursuance of an obligation to the Landlord or its predecessors in title.
(d) In 8.4 Until the event new rent shall have been determined in accordance with sub- clause 8.2 above, the Option Securities are acquired by Purchaser pursuant Tenant shall pay to the exercise Landlord on account of the Securities Option, Stockholder new rent the existing monthly rent for the Premises and within twenty-one days of such determination the Tenant shall pay to the Landlord any shortfall between the new rent and the payments made by the Tenant on account.
8.5 The cost and expenses of the valuer shall be entitled borne by the Tenant. THE FIRST SCHEDULE ------------------ Particulars ----------- BUILDING : ALL THAT building or buildings erected or to receivebe erected on INLAND XXX XX.0000 Xxxxxx Xxxx, Xxxx Xxxx and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay intended to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account known as Stockholder shall designateCODA PLAZA.
Appears in 1 contract
Option. (a) In order to induce Parent and Purchaser to enter into the Merger Agreement, Stockholder hereby PFIZER grants to Purchaser XXXXXX-XXXXXXX an irrevocable option (a hereinafter, the "SECURITIES OPTIONOption") to purchase negotiate with PFIZER the Securities terms and conditions of a Co-Promotion Agreement relating to the Product that was the subject of a Notice of Anticipated Regulatory Filing as follows:
(the "OPTION SECURITIES"i) at the Offer Price, subject to increase as set forth below (the "PURCHASE PRICE"). The Securities Option may be exercisedexercised by XXXXXX-XXXXXXX by notifying PFIZER of its intent to exercise the Option at any time during the period beginning with the date of the Notice of Anticipated Regulatory Filing and ending thirty (30) days thereafter (hereinafter, in whole but not in part, by written notice to Stockholder (as set forth below), for a period of ten (10) business days (the "10 DAY PERIODOption Period") following termination of the Merger Agreement or termination of the Offer, whichever shall first occur; PROVIDED that, prior to such termination, either (i) a Trigger Event shall have occurred or );
(ii) If XXXXXX-XXXXXXX exercises the Option during the Option Period, a negotiation period (Ahereinafter, a "Negotiation Period") shall commence, beginning on the date the Option is exercised and ending on the earliest of (x) the Company date a Co-Promotion Agreement is entered into by the parties, (y) the date the Negotiation Period is terminated by the mutual agreement of the parties, or (z) ninety (90) days after the date of the Notice of Anticipated Regulatory Filing. During the Negotiation Period, the parties shall negotiate in good faith regarding the entering into of a Co-Promotion Agreement.
(iii) If XXXXXX-XXXXXXX does not exercise the Option during the Option Period with respect to a given Product or no Co-Promotion Agreement is entered into regarding such Product during the Negotiation Period despite good faith negotiations by both parties, XXXXXX-XXXXXXX shall have received a written proposal from any person other than Parentno further rights, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement and PFIZER shall have been terminated by Parent pursuant no further obligations, with respect to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option Product pursuant to this Agreement; provided that if (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) there , and PFIZER shall be in effect free to enter into any such injunction Transaction or order, in each case on the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or order.
(b) In the event that Purchaser wishes to exercise the Securities Option, Purchaser shall send a written notice (the "NOTICE") to Stockholder identifying the date (not less than two (2) nor more than five (5) business days from the date of the Notice) for the closing of such purchase, which closing shall be held at the executive offices of the Company (or such take any other place as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer action with respect to such account Product as Stockholder shall designatePFIZER may determine in its sole and absolute discretion.
(c) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option (the "ACQUIRED SECURITIES") and, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess of the Purchase Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increase.
(d) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designate.
Appears in 1 contract
Samples: Option Agreement (Warner Lambert Co)
Option. (a) In order to induce Parent The Lenders hereby agree that, in connection with any Involuntary Transfer, Gauss shall have the right and Purchaser to enter into the Merger Agreement, Stockholder hereby grants to Purchaser an irrevocable option (a "SECURITIES OPTION"the “Option”) to purchase all (but not less than all) the Securities Pledged Units that are the subject of such Involuntary Transfer (the "OPTION SECURITIES"“Foreclosed Units”), and, if Gauss elects to exercise such right and option, the Lenders agree to sell or otherwise cause the Transfer of the Foreclosed Units to Gauss, in exchange for the payment in cash by Gauss of a total price equal to the value at which the Foreclosed Units are Transferred (or proposed to be Transferred) at pursuant to the Offer Price, subject to increase as set forth below Involuntary Transfer (the "PURCHASE PRICE"“Foreclosure Price”). The Securities Option may be exercised, in whole but not in part, by written notice to Stockholder (as set forth below), for a period of ten (10) business days (the "10 DAY PERIOD") following termination of the Merger Agreement or termination of the Offer, whichever shall first occur; PROVIDED that, prior to such termination, either (i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option pursuant to this Agreement; provided that if (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) there shall be in effect any such injunction or order, in each case on the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or order.
(b) In The Lenders and GQ Holdco shall (and GQ Holdco shall cause Golden Queen to) notify Gauss and LUK Holdco of the occurrence of an Event of Default (as defined in the Term Loan Agreement) at the same time notice thereof is given to the other parties to the Term Loan Agreement, but in any event that Purchaser wishes to exercise the Securities Option, Purchaser shall send a written notice (the "NOTICE") to Stockholder identifying the date (not less than two (2) nor more no later than five (5) business calendar days from after such Event of Default (whether or not notice thereof is given to the other parties to the Term Loan Agreement). In addition, the Lenders shall notify Gauss and LUK Holdco at least ten (10) Business Days before the date of any Involuntary Transfer (the “Foreclosure Notice) for the closing of such purchase”), which closing notice shall include the number of Foreclosed Units, the Foreclosure Price and any other information as may be reasonably requested by Gauss. The Option shall be held at exercisable by notice in writing (the executive offices “Option Exercise Notice”) given by Gauss to the Lenders, copying Auvergne and LUK Holdco, within five (5) Business Days after receipt by Gauss and LUK Holdco of the Company (or such other place as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designateForeclosure Notice.
(c) In the event the Option Securities are acquired by Purchaser pursuant to the exercise The closing of the Securities Option purchase by Gauss of the Foreclosed Units (the "ACQUIRED SECURITIES"“Option Transfer”) and, either before or at any time within shall take place on the one-year period following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess date of the Purchase PriceInvoluntary Transfer. At such closing, then (i) Gauss shall pay the Purchase Lenders the aggregate Foreclosure Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds immediately available funds, and (ii) the Lenders shall Transfer the Foreclosed Units, or cause the Foreclosed Units to be Transferred, to Gauss free and clear of any lien or encumbrance, with any documentation reasonably requested by Gauss to evidence such account as Stockholder shall designate, the amount of the increaseTransfer.
(d) In the event GQ Holdco hereby agrees, in connection with any exercise by Gauss of the Option Securities are acquired by Purchaser pursuant and the Transfer of Foreclosed Units, to the exercise of the Securities Optionuse its commercially reasonable efforts to take, Stockholder shall or cause to be entitled taken, all actions necessary or appropriate to receive, and Purchaser shall promptly (and in no event more than 48 hours following consummate such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designateTransfer.
Appears in 1 contract
Option. (a) In order consideration of the payment to induce Parent Owner of 250,000(the "Advance"), the receipt of which Owner acknowledges, which shall be applicable against and Purchaser recoupable from any and all other payments to enter into the Merger AgreementOwner hereunder, Stockholder Owner hereby grants to Purchaser an Producer during the Option Period (as defined below) the exclusive and irrevocable option for each and every Subject Property to purchase all of the Rights (as defined below) in and to such Subject Property on and subject to the terms and conditions herein contained (individually an "Option" and collectively "Options").
(i) The Option for any Subject Property shall be effective only during the Option Period (as hereinafter defined) for that Subject Property. Each "Option Period" shall consist of the Initial Option Period (as defined below) plus, if applicable, the First Extended Period (as defined below), and, if also applicable, the Second Extended Period (as defined below).
(ii) The "Initial Option Period" for each Subject Property shall commence as of the date hereof (or, in the case of a Property that becomes a Subject Property after the date hereof, upon the date such Property becomes a Subject Property) and shall continue until December 31,2007.
(iii) If, prior to the expiration of the Initial Option Period, Owner has received payments pursuant to this Agreement in the amount of $350,000 or more (inclusive of the Advance), then the Initial Option Period shall be extended for an additional period of thirty (30) consecutive months (the "SECURITIES OPTIONFirst Extended Period") to purchase the Securities (the "OPTION SECURITIES") at the Offer PriceJune 30, subject to increase as set forth below (the "PURCHASE PRICE"). The Securities Option may be exercised, in whole but not in part, by written notice to Stockholder (as set forth below), for a period of ten (10) business days (the "10 DAY PERIOD") following termination of the Merger Agreement or termination of the Offer, whichever shall first occur; PROVIDED that, prior to such termination, either (i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied2010. Notwithstanding the foregoing, the Securities Option may if Owner has not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act received payments of 1976, as amended (the "HSR ACT"), required for the purchase of the Securities upon such exercise shall have expired $350,000 or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary injunction or other order issued more by any Governmental Entity prohibiting the exercise of the Securities Option pursuant to this Agreement; provided that if (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) there shall be in effect any such injunction or order, in each case on the expiration of the 10 Day Initial Option Period, Producer may extend the 10 Day Option Period through the First Extended Period by payment to Owner before the expiration of the Initial Option Period of the difference of the amounts received by Owner hereunder and $350,000. Owner acknowledges the receipt from Producer of $425,000 as of the date of Owner's execution hereof.
(iv) If prior to the expiration of the First Extended Period, Owner has received payments of $700,000or more (inclusive of the Advance) hereunder, then the First ExtendedPeriod shall be extended extend for an additional twelve (12) consecutive month period (the "Second Extended Period"). Notwithstanding the foregoing, if Owner has not received payment of $700,000 or more hereunder by the expiration of the First Extended Period, Producer may extend the option Period through the Second Extended Period by payment to Owner before the expiration of the First Extended Period of the difference between the amounts received by Owner hereunder and $700,000.
(v) In addition, if Producer shall have entered into a development agreement approved by Owner for a Production for a particular Subject Property, then Producer shall have the right to extend the option Period as follows for only that Subject Property (but not for any other Subject Property) by written notice thereof to Owner. Accordingly, the Option Period for such Subject Property shall, pursuant to the immediately preceding sentence, continue until five (5) business days after the later earlier of (A) such time as Producer exercises the date of expiration or termination of all HSR Act waiting periodsOption with respect to such Subject Property, if ever, and (B) the date twelve (12) months after the described in the first sentence of removal or lifting this paragraph (at least as it relates to such roperty) and [2] the termination of such injunction or order.
development agreement (b) In the event that Purchaser wishes to exercise the Securities Option, Purchaser shall send a written notice (the "NOTICE") to Stockholder identifying the date (not less than two (2) nor more than five (5) business days from the date of the Notice) for the closing of such purchase, which closing shall be held at the executive offices of the Company (or such other place least as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer it relates to such account as Stockholder Property); provided such twelve (12) month period shall designatetoll during all periods that such Subject Property is the subject of an option agreement with a third party approved by Owner.
(c) In the event If Owner shall receive during the Option Securities are acquired by Purchaser pursuant Period, directly or indirectly, any bona fide professional inquiry whatsoever (whether in writing or otherwise) regarding the availability and/or exploitation of any AV Production rights to any part of a Subject Property, including, but not limited to, the inclusion or adaptation of the Subject Property, or of any part thereof, in or for any form of AV Production, then Owner shall immediately notify Producer in writing of such inquiry, providing full details thereof, including, without limitation(to the extent Owner knows same) the name, company, postal and email addresses and telephone and facsimile numbers of any person making such inquiry, together with a full account of such inquiry. If Owner fails to refer such an inquiry to Producer and then enters into an agreement with the inquirer within twelve (12) months from the expiration of Producer's rights related to the exercise of the Securities Option (the "ACQUIRED SECURITIES") andapplicable Subject Property, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess of the Purchase Price, then the Purchase Price hereunder Producer shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increase.
(d) In the event the Option Securities are acquired by Purchaser pursuant irrevocably attached to the exercise of the Securities Optionproject, Stockholder shall with fees and credit for Producer to be entitled to receive, and Purchaser shall promptly (and negotiated in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designategood faith.
Appears in 1 contract
Option. (a) In order to induce Parent and Purchaser to enter into the Merger Agreement, Stockholder The Company hereby grants to Purchaser an irrevocable Employee the option (to purchase, as hereinafter set forth, ________ shares of the Common Stock of the Company at a "SECURITIES OPTION") to purchase the Securities (the "OPTION SECURITIES") at the Offer Price, subject to increase as set forth below (the "PURCHASE PRICE"). The Securities Option may be exercised, in whole but not in part, by written notice to Stockholder (as set forth below)price of $_________ per share, for a period commencing on the date provided in Section 4 hereof and terminating on the first to occur of ten (10) business days (the "10 DAY PERIOD") following termination of the Merger Agreement or termination of the Offer, whichever shall first occur; PROVIDED that, prior to such termination, either (i) a Trigger Event shall have occurred the expiration of ten years from the date of this Agreement, or (ii) (A) when the employment of Employee by the Company shall have received a written proposal or any of its Affiliates terminates for any reason, subject, however, to the following:
(a) if said employment terminates less than ten years from any person the date hereof other than Parentby reason of death or Employee’s becoming permanently and totally disabled as defined in Section 2(b) below, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transactionthen Employee may exercise this option, which proposal shall not have expired or been withdrawn, (B) to the Merger Agreement shall have been terminated by Parent pursuant extent he was entitled to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) do so at the date of termination of employment, at any time of within three months after such termination the Minimum Condition shall termination, but not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option pursuant to this Agreement; provided that if (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) there shall be in effect any such injunction or order, in each case on after the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or order.ten-year period;
(b) In the event that Purchaser wishes to exercise the Securities Option, Purchaser shall send a written notice (the "NOTICE") to Stockholder identifying the date (not if said employment terminates less than two (2) nor more than five (5) business days ten years from the date hereof by reason of Employee’s becoming permanently and totally disabled (within the meaning of Section 22(e)(3) of the NoticeInternal Revenue Code of 1986, as amended), then Employee (or Employee’s legal representative if Employee is legally incompetent) for may exercise this option, to the closing extent he was entitled to do so at the date of such purchasetermination, which closing shall be held at any time within one year after such termination but not after the executive offices expiration of the Company (or such other place as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designate.ten-year period; and
(c) In if said employment terminates less than ten years from the event date hereof by reason of Employee’s death, then the Option Securities are executor or administrator of Employee’s estate or anyone who shall have acquired this option by Purchaser will or pursuant to the laws of descent and distribution may exercise this option, to the extent Employee was entitled to do so on the date of the Securities Option (the "ACQUIRED SECURITIES") andhis death, either before or at any time within one year after such death but not after the oneexpiration of the ten-year period following such acquisitionperiod. Notwithstanding any other provision of this Agreement, Parentthe option granted hereunder shall terminate immediately upon the Employee’s termination of employment on account of fraud, Purchaser dishonesty or any affiliate the performance of Parent or Purchaser shall acquire Common Stock (other than from acts detrimental to the Company) at a price in excess of the Purchase Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire A transfer of same day funds to such account as Stockholder employment without interruption of service between or among the Company and any of its Affiliates shall designate, the amount not be considered a termination of the increaseemployment for purposes of this Agreement.
(d) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designate.
Appears in 1 contract
Samples: Non Qualified Stock Option Agreement (Encore Wire Corp)
Option. (a) In order to induce Parent and Purchaser to enter into the Merger Agreement, Stockholder Optionor hereby grants to Purchaser an irrevocable Optionee the exclusive right and option (a "SECURITIES OPTION"the “Option”) to purchase the Securities Property at any time from and after the June 9, 2004 through June 9, 2006 (the "OPTION SECURITIES"“Option Period”). If Optionee exercises the Option, then on the Closing Date (as hereinafter defined), Optionor shall sell, assign, transfer and convey to Optionee and Optionee shall purchase from Optionor all of Optionor’s right, title and interest in and to: (a) at the Offer PriceLand, and all other improvements located therein and associated therewith which are owned by Optionor, subject only to increase the Permitted Exceptions (as set forth below hereinafter defined); (b) all easements, covenants and other rights appurtenant to the Land; (c) to the extent assignable by Optionor, all permits, approvals, variances, rights, benefits, privileges and licenses (collectively, “Approvals”) issued in connection with the development, use and operation of the Land; and (d) to the extent assignable by Optionor, and to the extent in Optionor’s possession or control, all plans, specifications, drawings, site plans, blueprints, surveys, reports and studies performed in connection with the investigation of the Land and the issuance of the Approvals (the "PURCHASE PRICE"“Due Diligence Materials”). The Securities Land, together with the interests described in subsections (a) through (d) herein shall be referred to collectively as the “Property”. The Option may be exercised, in whole but shall automatically terminate if not in part, by written notice to Stockholder (as set forth below), for a period of ten (10) business days (the "10 DAY PERIOD") following termination of the Merger Agreement exercised on or termination of the Offer, whichever shall first occur; PROVIDED that, prior to such termination, either (i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option pursuant to this Agreement; provided that if (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) there shall be in effect any such injunction or order, in each case on the expiration of the 10 Day Option Period. This Agreement and the Option shall terminate upon closing of any purchase contract between Optionor and HQ (the “First Offer Contract”) pursuant to the right of first offer provided for in Section 13 of the Purchase Contract, provided, however, during the 10 Day pendency of the First Offer Contract, Optionee may not exercise the Option but the Option Period shall automatically be extended until five (5) business days after during the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or order.
(b) In the event that Purchaser wishes to exercise the Securities Option, Purchaser shall send a written notice (the "NOTICE") to Stockholder identifying the date (not less than two (2) nor more than five (5) business days from period between the date of the Notice) for First Offer Contract and the closing of such purchase, which closing shall be held at date under the executive offices of the Company (or such other place as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designateFirst Offer Contract.
(c) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option (the "ACQUIRED SECURITIES") and, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess of the Purchase Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increase.
(d) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designate.
Appears in 1 contract
Samples: Option Agreement (Gsi Commerce Inc)
Option. (a) In order to induce Parent and Purchaser Sub to enter into the Merger Agreement, the Stockholder hereby grants to Purchaser Sub an irrevocable option (a "SECURITIES OPTIONStock Option") to purchase the Securities Shares (the "OPTION SECURITIESOption Shares") at the Offer Price, subject to increase as set forth below an amount (the "PURCHASE PRICE"). The Securities Option may be exercised, in whole but not in part, by written notice to Stockholder (as set forth below), for a period of ten (10) business days (the "10 DAY PERIODPurchase Price") following termination of equal to $21.50 per Share. If (i) the Merger Agreement is terminated in accordance with Section 8.01(c) or termination of the Offer, whichever shall first occur; PROVIDED that, prior to such termination, either (iSection 8.01(d) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been is terminated by Parent pursuant to in accordance with Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g8.01(b)(i) and (Cx) the Stockholder shall have breached the agreements set forth in Section 2(a) hereof or (y) at the time of such termination termination, the Minimum Tender Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Stock Option may not be exercised untilshall, in any such case, become exercisable, in whole or in part, upon the first to occur of any such event and remain exercisable in whole or in part until the date which is 120 days after the date of the occurrence of such event (the "120 Day Period"), so long as: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACTAct"), required for the purchase of the Securities Option Shares upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Stock Option pursuant to this Agreement; provided that if (i) all HSR Act waiting periods shall not have expired or been terminated waived or (ii) there shall be in effect any such injunction or order, in each case on the expiration of the 10 120 Day Period, the 10 120 Day Period shall be extended until five (5) 5 business days after the later of (A) the date of expiration or termination waiver of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or order.
(b) . In the event that Purchaser Sub wishes to exercise the Securities Stock Option, Purchaser Sub shall send a written notice (the "NOTICENotice") to the Stockholder identifying the place and date (not less than two (2) nor more than five (5) 10 business days from the date of the Notice) for the closing of such purchase, which closing shall be held at the executive offices of the Company (or such other place as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designate.
(c) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option (the "ACQUIRED SECURITIES") and, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess of the Purchase Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increase.
(d) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designate.
Appears in 1 contract
Samples: Stockholder Agreement (Tomkins PLC)