Purchase and Sale of Subject Shares. (a) On the Closing Date (as defined below), the Seller shall sell, assign, and transfer all of the Subject Shares to the Buyer, free and clear of all liens, security interests, pledges, penalties, forfeitures or encumbrances of any kind, nature or description (“Liens”), for an aggregate purchase price equal to the “Fair Market Value” (defined below) of the Subject Shares on the Effective Date (the “Purchase Price”). The Fair Market Value of the Subject Shares shall be the value on the Effective Date of the Subject Shares as finally determined for federal gift tax purposes pursuant to a Final Determination, as defined in the Purchase Price Addendum to this Agreement attached hereto and made a part hereof (the “Price Addendum”). Neither of the Parties intend that the sale or purchase of the Subject Shares shall constitute a taxable gift for federal gift tax purposes without regard to any deductions provided for in subchapter C or exclusions under sections 2503(b)-(g) of the Code (hereafter, a “Gift”). (b) The Parties have agreed that the initial estimation of the Purchase Price shall be equal to One Hundred Thirty-Three Million Three Hundred Eighty-Nine Thousand Dollars ($133,389,000) (the “Estimated Purchase Price”). (c) The Estimated Purchase Price was determined after consideration of the Indication of Value, and after negotiations between the Parties. (d) The Buyer shall pay the Purchase Price to Seller by issuing a promissory note to the Seller on the Closing Date in the form attached as Exhibit B, which contains the following terms: (A) The principal amount shall be the Purchase Price. However, as the final Purchase Price may not be known until immediately before the Closing, and may be subject to further adjustment after the Closing as provided in the Price Addendum, the Parties contemplate using a series of Promissory Notes, each subject to revision as provided in this Agreement; (B) At Closing, the Buyer shall execute a promissory note (the “Estimated Purchase Price Note”) that shall reflect the Estimated Purchase Price referenced in Section 1(b) (the “Estimated Purchase Price”) if the Appraisal is not completed by the Closing or, if the Appraisal is completed prior to the Closing, the Buyer shall execute a promissory note (the “Initially Determined Purchase Price Note”) that shall reflect the Initially Determined Purchase Price referenced in the Price Addendum; (C) If the Estimated Purchase Price Note is delivered at Closing, then after the initial determination of the Purchase Price pursuant to the Price Addendum (the “Initially Determined Purchase Price”): (1) If the Initially Determined Purchase Price is different than the Estimated Purchase Price, the Parties agree promptly to revise the Estimated Purchase Price Note to reflect the Initially Determined Purchase Price. This revised note shall be the Initially Determined Purchase Price Note and will reflect the amount of principal due using the Initially Determined Purchase Price, after taking into consideration any payments made at Closing and payments under the Estimated Purchase Price Note. (2) If the Initially Determined Purchase Price is the same as the Estimated Purchase Price, the Estimated Purchase Price and the Estimated Purchase Price Note shall thereafter be known as the Initially Determined Purchase Price and the Initially Determined Purchase Price Note, respectively. (D) The Purchase Price Note (the Estimated Purchase Price Note or Initially Determined Purchase Price Note, as applicable) shall bear the legend “THIS NOTE IS SUBJECT TO REVISION AS PROVIDED IN THE PURCHASE AGREEMENT BETWEEN MAKER AND CREDITOR DATED JUNE 15, 2023”; (E) Promptly after the final determination for federal gift tax purposes of the Purchase Price under this Agreement (the “Finally Determined Purchase Price”), if the Finally Determined Purchase Price is different than the Initially Determined Purchase Price, the Parties agree to revise the Purchase Price Note. This revised note (“Finally Determined Purchase Price Note”) will reflect the amount of principal due using the Finally Determined Purchase Price after taking into consideration any payments made after Closing and payments made under a prior Purchase Price Note. (F) Interest shall accrue on any Purchase Price Note Principal Amount at the annual fixed rate of the greater of three and 72/100 percent (3.72%) per annum or the long-term applicable federal rate as of the Closing Date, with a default interest rate of three percent per annum in excess of such fixed rate; (G) Buyer shall pay the Purchase Price Note Principal Amount and the interest thereon as follows: Buyer shall pay consecutive equal monthly installments of principal and interest, such that on the twentieth anniversary of the Closing Date (the “Maturity Date”) the outstanding principal balance on this Note would be, if no prepayments were made, eighty percent (80%) of the Purchase Price, which results in an initial monthly payment in the amount of Four Hundred Eighty-Eight Thousand Five Hundred Fifty-Eight and Eight-Hundredths Dollars ($488,558.08), The monthly payments are due on the last day of each month, commencing with the first full month after the Closing Date, and all remaining principal, interest, and any other amounts owing under the Purchase Price Note shall be due and payable in full on the Maturity Date. If the principal due and accrued interest under a Purchase Price Note is adjusted as a result of a revision in the Purchase Price, then the remaining monthly payments of principal and interest under the revised Purchase Price Note shall be adjusted so that on the Maturity Date the outstanding principal balance on the Purchase Price Note would be, if no prepayments were made, eighty percent (80%) of the Purchase Price; any accrued but unpaid interest arising as a result of a revision in the Purchase Price through the date of the issuance of the revised Purchase Price Note shall be paid, in cash, within 90 days of the issuance of the revised Purchase Price Note; (H) Full or partial pre-payments of any Purchase Price Note Principal Amount shall be permitted without penalty or premium; (I) The obligations of the Buyer under the Purchase Price Note shall be secured by a grant by the Buyer of a security interest in or pledge of certain accounts, securities, and other assets of the Buyer pursuant to a security agreement, and/or pledge or other agreement in favor of the Seller dated as of the Closing Date in a form acceptable to the Parties (the “Security Agreement”) and such other documents required under the Security Agreement as the Seller may reasonably require from the Buyer; and (J) In the event the Buyer does not cooperate in revising the Estimated or Initially Determined Purchase Price Note in the manner contemplated above or in the Price Addendum, the Seller shall be entitled to attach to the Estimated or Initially Determined Purchase Price Note a statement fixing the amount of principal due, and monthly payments, under such note to reflect the Finally Determined Purchase Price and revised monthly payments, as appropriate.
Appears in 1 contract
Purchase and Sale of Subject Shares. (a) On the Closing Date (as defined below), the Seller shall sell, assign, and transfer all of the Subject Shares to the Buyer, free and clear of all liens, security interests, pledges, penalties, forfeitures or encumbrances of any kind, nature or description (“Liens”), for an aggregate purchase price equal to the “Fair Market Value” (defined below) of the Subject Shares on the Effective Date (the “Purchase Price”). The Fair Market Value of the Subject Shares shall be the value on the Effective Date of the Subject Shares as finally determined for federal gift tax purposes pursuant to a Final Determination, as defined in the Purchase Price Addendum to this Agreement attached hereto and made a part hereof (the “Price Addendum”). Neither of the Parties intend that the sale or purchase of the Subject Shares shall constitute a taxable gift for federal gift tax purposes without regard to any deductions provided for in subchapter C or exclusions under sections 2503(b)-(g) of the Code (hereafter, a “Gift”).
(b) The Parties have agreed that the initial estimation of the initially determined Purchase Price shall be equal to One Hundred Thirty-Three Million Three Hundred Forty Thousand Eighty-Nine Thousand Five and 52/100 Dollars ($133,389,0001,340,085.52) (the “Estimated Initially Determined Purchase Price”).
(c) The Estimated Initially Determined Purchase Price was determined after consideration of the Indication Opinion of Value, and after negotiations between the Parties.
(d) The Buyer shall pay the Purchase Price to Seller by issuing a promissory note to the Seller on the Closing Date in the form attached as Exhibit B, which contains the following terms:
(A) The principal amount shall be the Purchase Price. However, as the final Purchase Price may not be known until immediately before the Closing, and may be subject to further adjustment after the Closing as provided in the Price Addendum, the Parties contemplate using a series of Promissory Notespromissory note, each subject to revision as provided in this Agreement;
(B) At Closing, the Buyer shall execute a promissory note (the “Estimated Purchase Price Note”) that shall reflect the Estimated Purchase Price referenced in Section 1(b) (the “Estimated Purchase Price”) if the Appraisal is not completed by the Closing or, if the Appraisal is completed prior to the Closing, the Buyer shall execute a promissory note (the “Initially Determined Purchase Price Note”) that shall reflect the Initially Determined Purchase Price referenced in the Price AddendumSection 1(b);
(C) If the Estimated Purchase Price Note is delivered at Closing, then after the initial determination Opinion of the Purchase Price pursuant to the Price Addendum (the “Initially Determined Purchase Price”):
(1) If the Initially Determined Purchase Price Value is different than the Estimated Purchase PriceAppraisal, the Parties agree promptly to revise the Estimated Initially Determined Purchase Price Note to reflect the Initially Determined Purchase Pricevalue in the Appraisal. This revised note shall be the updated Initially Determined Purchase Price Note and will reflect the amount of principal due using the updated Initially Determined Purchase Price, after taking into consideration any payments made at Closing and payments under the Estimated Purchase Price Note.
(2) If the Initially Determined Purchase Price is Note prior to the same as the Estimated Purchase Price, the Estimated Purchase Price and the Estimated Purchase Price Note shall thereafter be known as the Initially Determined Purchase Price and the Initially Determined Purchase Price Note, respectivelyupdate.
(D) The Purchase Price Note (the Estimated Purchase Price Note or Initially Determined Purchase Price Note, as applicable) Note shall bear the legend “THIS NOTE IS SUBJECT TO REVISION AS PROVIDED IN THE PURCHASE AGREEMENT BETWEEN MAKER AND CREDITOR DATED JUNE 15JULY 29, 20232024”;
(E) Promptly after the final determination for federal gift tax purposes of the Purchase Price under this Agreement (the “Finally Determined Purchase Price”), if the Finally Determined Purchase Price is different than the Initially Determined Purchase Price, the Parties agree to revise the Purchase Price Note. This revised note (“Finally Determined Purchase Price Note”) will reflect the amount of principal due using the Finally Determined Purchase Price after taking into consideration any payments made after Closing and payments made under a prior Purchase Price Note.
(F) Interest shall accrue on any Purchase Price Note Principal Amount at the annual fixed rate of the greater of three four and 72/100 52/100 percent (3.724.52%) per annum or the long-term applicable federal rate as of the Closing Dateannum, with a default interest rate of three two percent per annum in excess of such fixed rate;
(G) Buyer shall pay the Purchase Price Note Principal Amount and the interest thereon as follows: Buyer shall pay consecutive equal monthly installments of principal Six Thousand Eight Hundred Five and interest, such that on the twentieth anniversary of the Closing Date (the “Maturity Date”) the outstanding principal balance on this Note would be, if no prepayments were made, eighty percent (80%) of the Purchase Price, which results in an initial monthly payment in the amount of Four Hundred Eighty-Eight Thousand Five Hundred Fifty-Eight and Eight-Hundredths 95/100 Dollars ($488,558.086,805.95), . The monthly payments are due on the last day of each month, commencing with the first full month after the Closing Date, and all remaining principal, interest, and any other amounts owing under the Purchase Price Note shall be due and payable in full on July 31, 2054 (the “Maturity Date”). If the principal due and accrued interest under a Purchase Price Note is adjusted as a result of a revision in the Purchase Price, then the remaining monthly payments of principal and interest under the revised Purchase Price Note shall be adjusted so that on to fully amortize and be paid as of the Maturity Date the outstanding principal balance on the Purchase Price Note would be, if no prepayments were made, eighty percent (80%) of the Purchase Price; any accrued but unpaid interest arising as a result of a revision in the Purchase Price through the date of the issuance of the revised Purchase Price Note shall be paid, in cash, within 90 days of the issuance of the revised Purchase Price Note;Date.
(H) Full or partial pre-payments of any Purchase Price Note Principal Amount shall be permitted without penalty or premium;
(I) The obligations of the Buyer under the Purchase Price Note shall be secured by a grant by the Buyer of a security interest in or pledge of certain accounts, securities, and other assets of the Buyer pursuant to a security agreement, and/or pledge or other agreement in favor of the Seller dated as of the Closing Date in a form acceptable to the Parties (the “Security Agreement”) and such other documents required under the Security Agreement as the Seller may reasonably require from the Buyer; and
(J) In the event the Buyer does not cooperate in revising the Estimated or Initially Determined Purchase Price Note in the manner contemplated above or in the Price Addendum, the Seller shall be entitled to attach to the Estimated or Initially Determined Purchase Price Note a statement fixing the amount of principal due, and monthly payments, under such note to reflect the Finally Determined Purchase Price and revised monthly payments, as appropriate.
Appears in 1 contract
Purchase and Sale of Subject Shares. (a) On the Closing Date (as defined below), the Seller shall sell, assign, and transfer all of the Subject Shares to the Buyer, free and clear of all liens, security interests, pledges, penalties, forfeitures or encumbrances of any kind, nature or description (“Liens”), for an aggregate purchase price equal to the “Fair Market Value” (defined below) of the Subject Shares on the Effective Date (the “Purchase Price”). The Fair Market Value of the Subject Shares shall be the value on the Effective Date of the Subject Shares as finally determined for federal gift tax purposes pursuant to a Final Determination, as defined in the Purchase Price Addendum to this Agreement attached hereto and made a part hereof (the “Price Addendum”). Neither of the Parties intend that the sale or purchase of the Subject Shares shall constitute a taxable gift for federal gift tax purposes without regard to any deductions provided for in subchapter C or exclusions under sections 2503(b)-(g) of the Code (hereafter, a “Gift”).
(b) The Parties have agreed that the initial estimation of the Purchase Price shall be equal to One Two Hundred ThirtySeventy-Three Million Three Hundred EightyTwenty-Nine Eight Thousand Dollars ($133,389,000273,328,000) (the “Estimated Purchase Price”).
(c) The Estimated Purchase Price was determined after consideration of the Indication of Value, and after negotiations between the Parties.
(d) The Buyer shall pay the Purchase Price to Seller by issuing a promissory note to the Seller on the Closing Date in the form attached as Exhibit B, which contains the following terms:
(A) The principal amount shall be the Purchase Price. However, as the final Purchase Price may not be known until immediately before the Closing, and may be subject to further adjustment after the Closing as provided in the Price Addendum, the Parties contemplate using a series of Promissory Notes, each subject to revision as provided in this Agreement;
(B) At Closing, the Buyer shall execute a promissory note (the “Estimated Purchase Price Note”) that shall reflect the Estimated Purchase Price referenced in Section 1(b) (the “Estimated Purchase Price”) if the Appraisal is not completed by the Closing or, if the Appraisal is completed prior to the Closing, the Buyer shall execute a promissory note (the “Initially Determined Purchase Price Note”) that shall reflect the Initially Determined Purchase Price referenced in the Price Addendum;
(C) If the Estimated Purchase Price Note is delivered at Closing, then after the initial determination of the Purchase Price pursuant to the Price Addendum (the “Initially Determined Purchase Price”):
(1) If the Initially Determined Purchase Price is different than the Estimated Purchase Price, the Parties agree promptly to revise the Estimated Purchase Price Note to reflect the Initially Determined Purchase Price. This revised note shall be the Initially Determined Purchase Price Note and will reflect the amount of principal due using the Initially Determined Purchase Price, after taking into consideration any payments made at Closing and payments under the Estimated Purchase Price Note.
(2) If the Initially Determined Purchase Price is the same as the Estimated Purchase Price, the Estimated Purchase Price and the Estimated Purchase Price Note shall thereafter be known as the Initially Determined Purchase Price and the Initially Determined Purchase Price Note, respectively.
(D) The Purchase Price Note (the Estimated Purchase Price Note or Initially Determined Purchase Price Note, as applicable) shall bear the legend “THIS NOTE IS SUBJECT TO REVISION AS PROVIDED IN THE PURCHASE AGREEMENT BETWEEN MAKER AND CREDITOR DATED JUNE 15, 2023”;
(E) Promptly after the final determination for federal gift tax purposes of the Purchase Price under this Agreement (the “Finally Determined Purchase Price”), if the Finally Determined Purchase Price is different than the Initially Determined Purchase Price, the Parties agree to revise the Purchase Price Note. This revised note (“Finally Determined Purchase Price Note”) will reflect the amount of principal due using the Finally Determined Purchase Price after taking into consideration any payments made after Closing and payments made under a prior Purchase Price Note.
(F) Interest shall accrue on any Purchase Price Note Principal Amount at the annual fixed rate of the greater of three and 72/100 percent (3.72%) per annum or the long-term applicable federal rate as of the Closing Date, with a default interest rate of three percent per annum in excess of such fixed rate;
(G) Buyer shall pay the Purchase Price Note Principal Amount and the interest thereon as follows: Buyer shall pay consecutive equal monthly installments of principal and interest, such that on the twentieth anniversary of the Closing Date (the “Maturity Date”) the outstanding principal balance on this Note would be, if no prepayments were made, eighty percent (80%) of the Purchase Price, which results in an initial monthly payment in the amount of Four One Million One Thousand One Hundred Eighty-Eight Thousand Five Hundred Six and Fifty-Eight and EightSix One-Hundredths Dollars ($488,558.081,001,106.56), The monthly payments are due on the last day of each month, commencing with the first full month after the Closing Date, and all remaining principal, interest, and any other amounts owing under the Purchase Price Note shall be due and payable in full on the Maturity Date. If the principal due and accrued interest under a Purchase Price Note is adjusted as a result of a revision in the Purchase Price, then the remaining monthly payments of principal and interest under the revised Purchase Price Note shall be adjusted so that on the Maturity Date the outstanding principal balance on the Purchase Price Note would be, if no prepayments were made, eighty percent (80%) of the Purchase Price; any accrued but unpaid interest arising as a result of a revision in the Purchase Price through the date of the issuance of the revised Purchase Price Note shall be paid, in cash, within 90 days of the issuance of the revised Purchase Price Note;
(H) Full or partial pre-payments of any Purchase Price Note Principal Amount shall be permitted without penalty or premium;
(I) The obligations of the Buyer under the Purchase Price Note shall be secured by a grant by the Buyer of a security interest in or pledge of certain accounts, securities, and other assets of the Buyer pursuant to a security agreement, and/or pledge or other agreement in favor of the Seller dated as of the Closing Date in a form acceptable to the Parties (the “Security Agreement”) and such other documents required under the Security Agreement as the Seller may reasonably require from the Buyer; and
(J) In the event the Buyer does not cooperate in revising the Estimated or Initially Determined Purchase Price Note in the manner contemplated above or in the Price Addendum, the Seller shall be entitled to attach to the Estimated or Initially Determined Purchase Price Note a statement fixing the amount of principal due, and monthly payments, under such note to reflect the Finally Determined Purchase Price and revised monthly payments, as appropriate.
Appears in 1 contract
Purchase and Sale of Subject Shares. (a) On the Closing Date (as defined below), the Seller shall sell, assign, and transfer all of the Subject Shares to the Buyer, free and clear of all liens, security interests, pledges, penalties, forfeitures or encumbrances of any kind, nature or description (“Liens”), for an aggregate purchase price equal to the “Fair Market Value” (defined below) of the Subject Shares on the Effective Date (the “Purchase Price”). The Fair Market Value of the Subject Shares shall be the value on the Effective Date of the Subject Shares as finally determined for federal gift tax purposes pursuant to a Final Determination, as defined in the Purchase Price Addendum to this Agreement attached hereto and made a part hereof (the “Price Addendum”). Neither of the Parties intend that the sale or purchase of the Subject Shares shall constitute a taxable gift for federal gift tax purposes without regard to any deductions provided for in subchapter C or exclusions under sections 2503(b)-(g) of the Code (hereafter, a “Gift”).
(b) The Parties have agreed that the initial estimation of the initially determined Purchase Price shall be equal to One Seventy-Two Million Seven Hundred Thirty-Three Million Three One Thousand Nine Hundred Eighty-Nine Thousand Fourteen and 48/100 Dollars ($133,389,00072,731,914.48) (the “Estimated Initially Determined Purchase Price”).
(c) The Estimated Initially Determined Purchase Price was determined after consideration of the Indication Opinion of Value, and after negotiations between the Parties.
(d) The Buyer shall pay the Purchase Price to Seller by issuing a promissory note to the Seller on the Closing Date in the form attached as Exhibit B, which contains the following terms:
(A) The principal amount shall be the Purchase Price. However, as the final Purchase Price may not be known until immediately before the Closing, and may be subject to further adjustment after the Closing as provided in the Price Addendum, the Parties contemplate using a series of Promissory Notespromissory note, each subject to revision as provided in this Agreement;
(B) At Closing, the Buyer shall execute a promissory note (the “Estimated Purchase Price Note”) that shall reflect the Estimated Purchase Price referenced in Section 1(b) (the “Estimated Purchase Price”) if the Appraisal is not completed by the Closing or, if the Appraisal is completed prior to the Closing, the Buyer shall execute a promissory note (the “Initially Determined Purchase Price Note”) that shall reflect the Initially Determined Purchase Price referenced in the Price AddendumSection 1(b);
(C) If the Estimated Purchase Price Note is delivered at Closing, then after the initial determination Opinion of the Purchase Price pursuant to the Price Addendum (the “Initially Determined Purchase Price”):
(1) If the Initially Determined Purchase Price Value is different than the Estimated Purchase PriceAppraisal, the Parties agree promptly to revise the Estimated Initially Determined Purchase Price Note to reflect the Initially Determined Purchase Pricevalue in the Appraisal. This revised note shall be the updated Initially Determined Purchase Price Note and will reflect the amount of principal due using the updated Initially Determined Purchase Price, after taking into consideration any payments made at Closing and payments under the Estimated Purchase Price Note.
(2) If the Initially Determined Purchase Price is Note prior to the same as the Estimated Purchase Price, the Estimated Purchase Price and the Estimated Purchase Price Note shall thereafter be known as the Initially Determined Purchase Price and the Initially Determined Purchase Price Note, respectivelyupdate.
(D) The Purchase Price Note (the Estimated Purchase Price Note or Initially Determined Purchase Price Note, as applicable) Note shall bear the legend “THIS NOTE IS SUBJECT TO REVISION AS PROVIDED IN THE PURCHASE AGREEMENT BETWEEN MAKER AND CREDITOR DATED JUNE 15JULY 29, 20232024”;
(E) Promptly after the final determination for federal gift tax purposes of the Purchase Price under this Agreement (the “Finally Determined Purchase Price”), if the Finally Determined Purchase Price is different than the Initially Determined Purchase Price, the Parties agree to revise the Purchase Price Note. This revised note (“Finally Determined Purchase Price Note”) will reflect the amount of principal due using the Finally Determined Purchase Price after taking into consideration any payments made after Closing and payments made under a prior Purchase Price Note.
(F) Interest shall accrue on any Purchase Price Note Principal Amount at the annual fixed rate of the greater of three four and 72/100 52/100 percent (3.724.52%) per annum or the long-term applicable federal rate as of the Closing Dateannum, with a default interest rate of three two percent per annum in excess of such fixed rate;
(G) Buyer shall pay the Purchase Price Note Principal Amount and the interest thereon as follows: Buyer shall pay consecutive equal monthly installments of principal and interest, such that on the twentieth anniversary of the Closing Date (the “Maturity Date”) the outstanding principal balance on this Note would be, if no prepayments were made, eighty percent (80%) of the Purchase Price, which results in an initial monthly payment in the amount of Four Three Hundred Sixty-Nine Thousand Three Hundred Eighty-Eight Thousand Five Hundred Fifty-Eight Six and Eight-Hundredths 74/100 Dollars ($488,558.08369,386.74), . The monthly payments are due on the last day of each month, commencing with the first full month after the Closing Date, and all remaining principal, interest, and any other amounts owing under the Purchase Price Note shall be due and payable in full on July 31, 2054 (the “Maturity Date”). If the principal due and accrued interest under a Purchase Price Note is adjusted as a result of a revision in the Purchase Price, then the remaining monthly payments of principal and interest under the revised Purchase Price Note shall be adjusted so that on to fully amortize and be paid as of the Maturity Date the outstanding principal balance on the Purchase Price Note would be, if no prepayments were made, eighty percent (80%) of the Purchase Price; any accrued but unpaid interest arising as a result of a revision in the Purchase Price through the date of the issuance of the revised Purchase Price Note shall be paid, in cash, within 90 days of the issuance of the revised Purchase Price Note;Date.
(H) Full or partial pre-payments of any Purchase Price Note Principal Amount shall be permitted without penalty or premium;
(I) The obligations of the Buyer under the Purchase Price Note shall be secured by a grant by the Buyer of a security interest in or pledge of certain accounts, securities, and other assets of the Buyer pursuant to a security agreement, and/or pledge or other agreement in favor of the Seller dated as of the Closing Date in a form acceptable to the Parties (the “Security Agreement”) and such other documents required under the Security Agreement as the Seller may reasonably require from the Buyer, with Buyer further acknowledging that Seller is requiring the Security Agreement to provide for cross-collateralization with the collateral pledged to Buyer pursuant to that certain Pledge Agreement dated as of August 1, 2023, with Buyer as pledgor and Seller as pledgee; and
(J) In the event the Buyer does not cooperate in revising the Estimated or Initially Determined Purchase Price Note in the manner contemplated above or in the Price Addendum, the Seller shall be entitled to attach to the Estimated or Initially Determined Purchase Price Note a statement fixing the amount of principal due, and monthly payments, under such note to reflect the Finally Determined Purchase Price and revised monthly payments, as appropriate.
Appears in 1 contract
Purchase and Sale of Subject Shares. (a) On the Closing Date (as defined below), the Seller shall sell, assign, and transfer all of the Subject Shares to the Buyer, free and clear of all liens, security interests, pledges, penalties, forfeitures or encumbrances of any kind, nature or description (“Liens”), for an aggregate purchase price equal to the “Fair Market Value” (defined below) of the Subject Shares on the Effective Date (the “Purchase Price”). The Fair Market Value of the Subject Shares shall be the value on the Effective Date of the Subject Shares as finally determined for federal gift tax purposes pursuant to a Final Determination, as defined in the Purchase Price Addendum to this Agreement attached hereto and made a part hereof (the “Price Addendum”). Neither of the Parties intend that the sale or purchase of the Subject Shares shall constitute a taxable gift for federal gift tax purposes without regard to any deductions provided for in subchapter C or exclusions under sections 2503(b)-(g) of the Code (hereafter, a “Gift”).
(b) The Parties have agreed that the initial estimation of the Purchase Price shall be equal to One Seventy-Eight Million Seven Hundred Thirty-Three Million Three Hundred EightySixty-Nine Thousand Dollars ($133,389,00078,769,000) (the “Estimated Purchase Price”).
(c) The Estimated Purchase Price was determined after consideration of the Indication of Value, and after negotiations between the Parties.
(d) The Buyer shall pay the Purchase Price to Seller by issuing a promissory note to the Seller on the Closing Date in the form attached as Exhibit B, which contains the following terms:
(A) The principal amount shall be the Purchase Price. However, as the final Purchase Price may not be known until immediately before the Closing, and may be subject to further adjustment after the Closing as provided in the Price Addendum, the Parties contemplate using a series of Promissory Notes, each subject to revision as provided in this Agreement;
(B) At Closing, the Buyer shall execute a promissory note (the “Estimated Purchase Price Note”) that shall reflect the Estimated Purchase Price referenced in Section 1(b) (the “Estimated Purchase Price”) if the Appraisal is not completed by the Closing or, if the Appraisal is completed prior to the Closing, the Buyer shall execute a promissory note (the “Initially Determined Purchase Price Note”) that shall reflect the Initially Determined Purchase Price referenced in the Price Addendum;
(C) If the Estimated Purchase Price Note is delivered at Closing, then after the initial determination of the Purchase Price pursuant to the Price Addendum (the “Initially Determined Purchase Price”):
(1) If the Initially Determined Purchase Price is different than the Estimated Purchase Price, the Parties agree promptly to revise the Estimated Purchase Price Note to reflect the Initially Determined Purchase Price. This revised note shall be the Initially Determined Purchase Price Note and will reflect the amount of principal due using the Initially Determined Purchase Price, after taking into consideration any payments made at Closing and payments under the Estimated Purchase Price Note.
(2) If the Initially Determined Purchase Price is the same as the Estimated Purchase Price, the Estimated Purchase Price and the Estimated Purchase Price Note shall thereafter be known as the Initially Determined Purchase Price and the Initially Determined Purchase Price Note, respectively.
(D) The Purchase Price Note (the Estimated Purchase Price Note or Initially Determined Purchase Price Note, as applicable) shall bear the legend “THIS NOTE IS SUBJECT TO REVISION AS PROVIDED IN THE PURCHASE AGREEMENT BETWEEN MAKER AND CREDITOR DATED JUNE 15, 2023”;
(E) Promptly after the final determination for federal gift tax purposes of the Purchase Price under this Agreement (the “Finally Determined Purchase Price”), if the Finally Determined Purchase Price is different than the Initially Determined Purchase Price, the Parties agree to revise the Purchase Price Note. This revised note (“Finally Determined Purchase Price Note”) will reflect the amount of principal due using the Finally Determined Purchase Price after taking into consideration any payments made after Closing and payments made under a prior Purchase Price Note.
(F) Interest shall accrue on any Purchase Price Note Principal Amount at the annual fixed rate of the greater of three and 72/100 percent (3.72%) per annum or the long-term applicable federal rate as of the Closing Date, with a default interest rate of three percent per annum in excess of such fixed rate;
(G) Buyer shall pay the Purchase Price Note Principal Amount and the interest thereon as follows: Buyer shall pay consecutive equal monthly installments of principal and interest, such that on the twentieth anniversary of the Closing Date (the “Maturity Date”) the outstanding principal balance on this Note would be, if no prepayments were made, eighty percent (80%) of the Purchase Price, which results in an initial monthly payment in the amount of Four Two Hundred Eighty-Eight Thousand Five Hundred FiftyThree and Seventy-Eight and EightNine One-Hundredths Dollars ($488,558.08288,503.79), . The monthly payments are due on the last day of each month, month commencing with the first full month after the Closing Date, and all remaining principal, interest, and any other amounts owing under the Purchase Price Note shall be due and payable in full on the Maturity Date. If the principal due and accrued interest under a Purchase Price Note is adjusted as a result of a revision in the Purchase Price, then the remaining monthly payments of principal and interest under the revised Purchase Price Note shall be adjusted so that on the Maturity Date the outstanding principal balance on the Purchase Price Note would be, if no prepayments were made, eighty percent (80%) of the Purchase Price; any accrued but unpaid interest arising as a result of a revision in the Purchase Price through the date of the issuance of the revised Purchase Price Note shall be paid, in cash, within 90 days of the issuance of the revised Purchase Price Note;
(H) Full or partial pre-payments of any Purchase Price Note Principal Amount shall be permitted without penalty or premium;
(I) The obligations of the Buyer under the Purchase Price Note shall be secured by a grant by the Buyer of a security interest in or pledge of certain accounts, securities, and other assets of the Buyer pursuant to a security agreement, and/or pledge or other agreement in favor of the Seller dated as of the Closing Date in a form acceptable to the Parties (the “Security Agreement”) and such other documents required under the Security Agreement as the Seller may reasonably require from the Buyer; and
(J) In the event the Buyer does not cooperate in revising the Estimated or Initially Determined Purchase Price Note in the manner contemplated above or in the Price Addendum, the Seller shall be entitled to attach to the Estimated or Initially Determined Purchase Price Note a statement fixing the amount of principal due, and monthly payments, under such note to reflect the Finally Determined Purchase Price and revised monthly payments, as appropriate.
Appears in 1 contract
Purchase and Sale of Subject Shares. (a1) On Each Stockholder hereby agrees to sell to Merger Subsidiary, and Merger Subsidiary hereby agrees to purchase, all Subject Shares of such Stockholder at a price equal to $34.00 per share (or, if higher, the Closing Date highest price paid in the Offer), net to each Stockholder in cash (the "Offer Price"), upon the termination or expiration of the Offer, as described in paragraphs (b) and (e) below; provided, that no Stockholder shall be so obligated to sell any such Subject Shares if this Agreement is terminated in accordance with Section 10 hereof; and provided, further, that (x) Merger Subsidiary shall not be so obligated to purchase the Subject Shares and no Stockholder shall be so obligated to sell any such Subject Shares if as of immediately prior to the expiration of the Offer, any applicable waiting period (and any extension thereof) under the Hart-Xxxxx-Xxxxxx Xxxitrust Improvements Act of 1976, as amended (the "HSR Act"), relating to the purchase of the Shares shall not have expired or been terminated, and (y) Merger Subsidiary shall not be so obligated to purchase the Subject Shares if at any time after the date of this Agreement until the purchase and sale of the Subject Shares under this Section 1 any of the following conditions have occurred and is continuing and no Stockholder shall be so obligated to sell any of such Subject Shares if during such period any of the conditions set forth in subparagraphs (i), (iii) and (iv) of this Section 1 have occurred and is continuing:
(1) there shall be issued by any U.S. Federal or state court of competent jurisdiction in connection with any legal proceeding, any final or nonappealable order, ruling or injunction (that has not been vacated, withdrawn or overturned), (A) restraining or prohibiting the acquisition by Buyer or Merger Subsidiary of any Subject Shares under this Agreement or the making of this Agreement or consummation of the transactions contemplated hereby or the Merger, or obtaining from the Company, or Merger Subsidiary any damages in connection with the aforesaid transactions that are material in relation to the Company and its subsidiaries taken as a whole, (B) prohibiting or materially limiting the ownership or operation by the Company, Buyer or any of their respective subsidiaries of a material portion of the business or assets of the Company and its subsidiaries, or Buyer and its subsidiaries, in each case taken as a whole, or compelling the Company or Buyer to dispose of or hold separate any material portion of the business or assets of the Company and its subsidiaries, or Buyer and its subsidiaries, in each case taken as a whole, as a result of this Agreement or any of the other transactions contemplated by this Agreement, (C) seeking to impose material limitations on the ability of Buyer or Merger Subsidiary to acquire or hold, or exercise full rights of ownership of, any Subject Shares to be accepted for payment pursuant to this Agreement including, without limitation, the right to vote such Subject Shares on all matters properly presented to the stockholders of the Company, or (D) prohibiting Buyer or any of its subsidiaries from effectively controlling in any material respect any significant portion of the business or operations of the Company and its subsidiaries taken as a whole;
(2) the Company shall not have performed or complied in any material respect with any obligation or shall have failed to comply in any material respect with any agreement or covenant required by the Merger Agreement to be performed or complied with by the Company on or prior to the date of consummation of the transactions contemplated
(3) any statute, rule or regulation enacted or promulgated by any Governmental Entity that results, directly or indirectly, in any of the consequences referred to in clauses (A) through (D) of paragraph (i) above;
(4) if required in accordance with applicable law or stock exchange regulations, Buyer shall have held a vote at the Buyer Shareholders Meeting (as defined belowin Section 7.08 of the Merger Agreement) of the holders of the outstanding ordinary shares of Buyer that are entitled to vote upon the proposals to approve this Agreement and the Merger Agreement and any approval so required with respect to this Agreement or the Merger Agreement shall not have been obtained; or
(5) any breach of the representations and warranties of the Company set forth in the Merger Agreement other than any breach that individually or in the aggregate with each other such breach has not had and would not reasonably be expected to have a Company Material Adverse Effect (as such term is defined in Section 4.01(a) of the Merger Agreement); provided, that for purposes of this Section 1(a)(v) each such representation and warranty of the Seller Company set forth in the Merger Agreement shall sell, assign, be read without giving effect to any qualification as to materiality or a Company Material Adverse Effect.
(2) Each Stockholder hereby agrees severally (and transfer not jointly) to accept the Offer with respect to all of the Subject Shares of the Stockholder and to tender (or cause the record owner of such Shares to tender) all of his, her or its Subject Shares into the Offer. Such tender shall be made within 10 business days following the date hereof and shall not be withdrawn. Subject to Section 10 below, (i) the obligation of any Stockholder to tender and not withdraw his, her or its Subject Shares is conditioned only upon lawful commencement of the Offer and otherwise is unconditional and (ii) immediately following the purchase of any Shares in the Offer, Merger Subsidiary shall purchase all Subject Shares not purchased in the Offer.
(3) Notwithstanding the foregoing, no Stockholder shall be required to tender his, her or its Subject Shares, not withdraw his, her or its Subject Shares or otherwise sell his, her or its Subject Shares in accordance with the terms of this Agreement in the event that, without the prior written consent of such Stockholder, any of the following has occurred: (i) a decrease in the price per Share or change in the form of consideration payable in the Offer, (ii) a decrease in the number of Shares sought in the Offer, (iii) an amendment or waiver of the Minimum Condition (as such term is defined in Section 1.01(a) of the Merger Agreement), (iv) the imposition of additional conditions to the Offer or amendment to any condition to the Offer that is adverse in any respect to the holders of the Shares, (v) an amendment of any other term of the Offer in any manner adverse in any respect to the holders of Shares, or (vi) an extension of the expiration date of the Offer which requires the consent of the Company under the Merger Agreement.
(4) Merger Subsidiary shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement such amounts as may be required to be deducted and withheld with respect to the making of such payment under the Internal Revenue Code of 1986, as amended, or under any provision of state, local or foreign tax law.
(5) If the Offer is terminated by Merger Subsidiary or Buyer, free or the Offer expires, and clear of all liensin either case, security interests, pledges, penalties, forfeitures or encumbrances without the purchase of any kindShares, nature or description (“Liens”)subject to Section 1(a) and Section 10 hereof, for an aggregate purchase price equal to the “Fair Market Value” (defined below) Merger Subsidiary shall purchase, and each Stockholder shall sell, all of the Subject Shares on hereunder within three business days following such termination or expiration (including extensions thereof); provided, however, that in the Effective Date event any condition in Section 1(a) has occurred and is continuing, Merger Subsidiary's obligation to purchase, and each Stockholder's obligation to sell, the Subject Shares in accordance with the foregoing shall not commence until the satisfaction (the “Purchase Price”). The Fair Market Value or waiver by Merger Subsidiary) of the all such conditions and; provided further, however, that no Subject Shares shall be the value on the Effective Date of purchased pursuant to this Agreement unless all Subject Shares (other than the Subject Shares which any Stockholder fails to deliver for sale as finally determined for federal gift tax purposes pursuant contemplated hereunder in breach of its obligations hereunder) are so purchased.
(6) Each of the Stockholders hereby permits Buyer and Merger Subsidiary to a Final Determination, publish and disclose in the Offer Documents (as such term is defined in the Purchase Price Addendum to this Agreement attached hereto and made a part hereof (the “Price Addendum”). Neither of the Parties intend that the sale or purchase of the Subject Shares shall constitute a taxable gift for federal gift tax purposes without regard to any deductions provided for in subchapter C or exclusions under sections 2503(b)-(gSection 1.01(c) of the Code (hereafterMerger Agreement) his, a “Gift”).
(b) The Parties have agreed that her or its identity and ownership of Subject Shares and the initial estimation nature of the Purchase Price shall be equal to One Hundred Thirty-Three Million Three Hundred Eighty-Nine Thousand Dollars ($133,389,000) (the “Estimated Purchase Price”).
(c) The Estimated Purchase Price was determined after consideration of the Indication of Valuehis, her or its commitments, arrangements and after negotiations between the Parties.
(d) The Buyer shall pay the Purchase Price to Seller by issuing a promissory note to the Seller on the Closing Date in the form attached as Exhibit B, which contains the following terms:
(A) The principal amount shall be the Purchase Price. However, as the final Purchase Price may not be known until immediately before the Closing, and may be subject to further adjustment after the Closing as provided in the Price Addendum, the Parties contemplate using a series of Promissory Notes, each subject to revision as provided in understandings under this Agreement;
(B) At Closing, the Buyer shall execute a promissory note (the “Estimated Purchase Price Note”) that shall reflect the Estimated Purchase Price referenced in Section 1(b) (the “Estimated Purchase Price”) if the Appraisal is not completed by the Closing or, if the Appraisal is completed prior to the Closing, the Buyer shall execute a promissory note (the “Initially Determined Purchase Price Note”) that shall reflect the Initially Determined Purchase Price referenced in the Price Addendum;
(C) If the Estimated Purchase Price Note is delivered at Closing, then after the initial determination of the Purchase Price pursuant to the Price Addendum (the “Initially Determined Purchase Price”):
(1) If the Initially Determined Purchase Price is different than the Estimated Purchase Price, the Parties agree promptly to revise the Estimated Purchase Price Note to reflect the Initially Determined Purchase Price. This revised note shall be the Initially Determined Purchase Price Note and will reflect the amount of principal due using the Initially Determined Purchase Price, after taking into consideration any payments made at Closing and payments under the Estimated Purchase Price Note.
(2) If the Initially Determined Purchase Price is the same as the Estimated Purchase Price, the Estimated Purchase Price and the Estimated Purchase Price Note shall thereafter be known as the Initially Determined Purchase Price and the Initially Determined Purchase Price Note, respectively.
(D) The Purchase Price Note (the Estimated Purchase Price Note or Initially Determined Purchase Price Note, as applicable) shall bear the legend “THIS NOTE IS SUBJECT TO REVISION AS PROVIDED IN THE PURCHASE AGREEMENT BETWEEN MAKER AND CREDITOR DATED JUNE 15, 2023”;
(E) Promptly after the final determination for federal gift tax purposes of the Purchase Price under this Agreement (the “Finally Determined Purchase Price”), if the Finally Determined Purchase Price is different than the Initially Determined Purchase Price, the Parties agree to revise the Purchase Price Note. This revised note (“Finally Determined Purchase Price Note”) will reflect the amount of principal due using the Finally Determined Purchase Price after taking into consideration any payments made after Closing and payments made under a prior Purchase Price Note.
(F) Interest shall accrue on any Purchase Price Note Principal Amount at the annual fixed rate of the greater of three and 72/100 percent (3.72%) per annum or the long-term applicable federal rate as of the Closing Date, with a default interest rate of three percent per annum in excess of such fixed rate;
(G) Buyer shall pay the Purchase Price Note Principal Amount and the interest thereon as follows: Buyer shall pay consecutive equal monthly installments of principal and interest, such that on the twentieth anniversary of the Closing Date (the “Maturity Date”) the outstanding principal balance on this Note would be, if no prepayments were made, eighty percent (80%) of the Purchase Price, which results in an initial monthly payment in the amount of Four Hundred Eighty-Eight Thousand Five Hundred Fifty-Eight and Eight-Hundredths Dollars ($488,558.08), The monthly payments are due on the last day of each month, commencing with the first full month after the Closing Date, and all remaining principal, interest, and any other amounts owing under the Purchase Price Note shall be due and payable in full on the Maturity Date. If the principal due and accrued interest under a Purchase Price Note is adjusted as a result of a revision in the Purchase Price, then the remaining monthly payments of principal and interest under the revised Purchase Price Note shall be adjusted so that on the Maturity Date the outstanding principal balance on the Purchase Price Note would be, if no prepayments were made, eighty percent (80%) of the Purchase Price; any accrued but unpaid interest arising as a result of a revision in the Purchase Price through the date of the issuance of the revised Purchase Price Note shall be paid, in cash, within 90 days of the issuance of the revised Purchase Price Note;
(H) Full or partial pre-payments of any Purchase Price Note Principal Amount shall be permitted without penalty or premium;
(I) The obligations of the Buyer under the Purchase Price Note shall be secured by a grant by the Buyer of a security interest in or pledge of certain accounts, securities, and other assets of the Buyer pursuant to a security agreement, and/or pledge or other agreement in favor of the Seller dated as of the Closing Date in a form acceptable to the Parties (the “Security Agreement”) and such other documents required under the Security Agreement as the Seller may reasonably require from the Buyer; and
(J) In the event the Buyer does not cooperate in revising the Estimated or Initially Determined Purchase Price Note in the manner contemplated above or in the Price Addendum, the Seller shall be entitled to attach to the Estimated or Initially Determined Purchase Price Note a statement fixing the amount of principal due, and monthly payments, under such note to reflect the Finally Determined Purchase Price and revised monthly payments, as appropriate.
Appears in 1 contract
Samples: Stockholders' Agreement (Emap PLC)
