Repurchase Obligation. In the event that the Company breaches its obligations under Section 2 or Section 3 of this Agreement, the Investors shall have the right to cause the Company to purchase the Registrable Securities that were the subject of such breach (the “Repurchase Right”), as follows: (a) In the event an Investor wishes to exercise its Repurchase Right, the Investor shall notify the Company in writing of the alleged breach of Section 2 or Section 3 and the Registrable Securities that were the subject of such breach. (b) In the event that the Company does not remedy or cure such breach within thirty (30) days of the receipt of the written notice set out in Section 6.10.2(a) above, then the Company shall be irrevocably obligated to purchase from the Investor the Registrable Securities that were the subject of such breach. The closing of such repurchase shall take place within sixty (60) days of such notice. (c) The purchase price for the Registrable Securities to be repurchased pursuant to the exercise of this Repurchase Right shall be equal to the average of the closing prices for the applicable Registrable Securities for the last 20 trading days prior to the day that the closing of the repurchase of such Registrable Securities is to occur hereunder. (d) If the Company is unable to purchase all Registrable Securities required to be purchased hereunder due to legal or contractual restrictions (as evidenced by the opinion letter of outside counsel to the Company acceptable to the Investors which shall attach the relevant law, regulation and/or contract), Registrable Securities shall be repurchased (on a pro rata basis from the holders of the Registrable Securities based upon the Ordinary Share equivalents) from time to time within thirty (30) days after such legal or contractual restriction is lifted, to the extent the Company is legally permitted to do so, and the obligations of the Company under this Section 6.10.2 will be a continuing obligation until the Company’s repurchase of all such Registrable Securities. (e) On each date (including any subsequent purchase closing date if multiple purchases result from the application of Section 6.10.2(d)) that a purchase is to occur hereunder, the closing shall occur at the Company’s principal office. At the closing, to the extent applicable, the Investor shall deliver the Registrable Securities being sold, duly endorsed in blank, accompanied by such supporting documents as may be necessary to pass to the Company good title to the Registrable Securities, free and clear of all liens (other than restrictions under applicable securities laws). In consideration therefor, the Company shall deliver to the Investor immediately available funds equal to the aggregate purchase price as determined hereunder. If the Company fails to purchase the Registrable Securities on any closing date, it shall pay interest to each Investor for the period commencing on the date of such closing and ending on the date such purchase is made equal to the US dollar prime rate by Citibank N.A. for such period (broker down to shorter periods if relevant) plus four percent (4%). (f) At any time prior to the sale of any Registrable Securities under this Section 6.10.2, the Investor may withdraw its notice, without impairing its right to exercise its rights pursuant to this Section 6.10.2 at a later date.
Appears in 4 contracts
Samples: Registration Rights Agreement (Hambrecht Asia Acquisition Corp.), Registration Rights Agreement (Shanghai Century Acquisition Corp), Registration Rights Agreement (Shanghai Century Acquisition Corp)
Repurchase Obligation. In the event that the Company breaches its obligations under Section 2 or Section 3 of this Agreement, the Investors shall have the right to cause the Company to purchase the Registrable Securities that were the subject of such breach (the “Repurchase Right”), as follows:
(a) In the event an Investor wishes to exercise its Repurchase Right, the Investor shall notify the Company in writing of the alleged breach of Section 2 or Section 3 and the Registrable Securities that were the subject of such breach.
(b) In the event that the Company does not remedy or cure such breach within thirty (30) days of the receipt of the written notice set out in Section 6.10.2(a) above, then the Company shall be irrevocably obligated to purchase from the Investor the Registrable Securities that were the subject of such breach. The closing of such repurchase shall take place within sixty (60) days of such notice.
(c) The purchase price for the Registrable Securities to be repurchased pursuant to the exercise of this Repurchase Right shall be equal to the average of the closing prices for the applicable Registrable Securities for the last 20 trading days prior to the day that the closing of the repurchase of such Registrable Securities is to occur hereunder.
(d) If the Company is unable to purchase all Registrable Securities required to be purchased hereunder due to legal or contractual restrictions (as evidenced by the opinion letter of outside counsel to the Company acceptable to the Investors which shall attach the relevant law, regulation and/or contract), Registrable Securities shall be repurchased (on a pro rata basis from the holders of the Registrable Securities based upon the Ordinary Share Common Stock equivalents) from time to time within thirty (30) days after such legal or contractual restriction is lifted, to the extent the Company is legally permitted to do so, and the obligations of the Company under this Section 6.10.2 will be a continuing obligation until the Company’s repurchase of all such Registrable Securities.
(e) On each date (including any subsequent purchase closing date if multiple purchases result from the application of Section 6.10.2(d)) that a purchase is to occur hereunder, the closing shall occur at the Company’s principal office. At the closing, to the extent applicable, the Investor shall deliver the Registrable Securities being sold, duly endorsed in blank, accompanied by such supporting documents as may be necessary to pass to the Company good title to the Registrable Securities, free and clear of all liens (other than restrictions under applicable securities laws). In consideration therefor, the Company shall deliver to the Investor immediately available funds equal to the aggregate purchase price as determined hereunder. If the Company fails to purchase the Registrable Securities on any closing date, it shall pay interest to each Investor for the period commencing on the date of such closing and ending on the date such purchase is made equal to the lesser of the US dollar prime rate by Citibank N.A. for such period (broker broken down to shorter periods if relevant) plus four percent (4%)) or the maximum amount permitted under applicable law.
(f) At any time prior to the sale of any Registrable Securities under this Section 6.10.2, the Investor may withdraw its notice, without impairing its right to exercise its rights pursuant to this Section 6.10.2 at a later date.
Appears in 3 contracts
Samples: Registration Rights Agreement (Middle Kingdom Alliance Corp.), Registration Rights Agreement (Middle Kingdom Alliance Corp.), Registration Rights Agreement (Middle Kingdom Alliance Corp.)
Repurchase Obligation. In The Loan and Note Servicer acknowledges that pursuant to Sections 8 and 9 of the event that Lender Registration Agreements the Company is required under certain circumstances to repurchase Securities from Lenders, to indemnify the Lenders against losses resulting from the breach by the Company of certain of its representations in the Lender Registration Agreements, or to cure such breaches its obligations of representations (any such circumstance, a “Repurchase Event”). The Loan and Note Servicer further acknowledges the Company is relying upon the Loan and Note Servicer, through the services it provides under Section 2 or Section 3 of this Agreement, to prevent the Investors occurrence of Repurchase Events. Accordingly, the Loan and Note Servicer agrees that if any Repurchase Event occurs it will at its election either (i) promptly cure such Repurchase Event, or (ii) if (A) the Company cannot satisfy its obligations to the applicable Lenders by curing such Repurchase Event, (B) such Repurchase Event is not susceptible of cure (as determined by the Loan and Note Servicer in its sole discretion), or (C) the Loan and Note Servicer elects in its sole discretion not to attempt any such cure, provide the Company with all funds it requires to repurchase the applicable Securities from the applicable Lenders at the time, and for the purchase price, specified in the applicable Lender Registration Agreement or to pay any indemnities due to such Lenders (“Repurchase Funds”). The Loan and Note Servicer will deposit in the FBO Account any Repurchase Funds due from it hereunder and promptly apply the same on the Company’s behalf to repurchase the applicable Securities or to pay the required indemnities to the applicable Holders (as applicable). The Company will promptly transfer to the Loan and Note Servicer any Security repurchased by the Company with Repurchase Funds but otherwise has no obligation to repay any Repurchase Funds that the Loan and Note Servicer may provide. Each of the Company and the Loan and Note Servicer shall have promptly notify the right other party of any Repurchase Event that comes to cause its attention; provided that (i) the Company shall not be required to provide notice to the Loan and Note Servicer of any Repurchase Event that it reasonably believes is already known to the Loan and Note Servicer, and (ii) any failure by the Company to purchase provide such notice shall not limit or otherwise affect the Registrable Securities that were the subject of such breach (the “Repurchase Right”), as follows:
(a) In the event an Investor wishes to exercise its Repurchase Right, the Investor shall notify the Company in writing of the alleged breach of Section 2 or Section 3 Loan and the Registrable Securities that were the subject of such breach.
(b) In the event that the Company does not remedy or cure such breach within thirty (30) days of the receipt of the written notice set out in Section 6.10.2(a) above, then the Company shall be irrevocably obligated to purchase from the Investor the Registrable Securities that were the subject of such breach. The closing of such Note Servicer’s repurchase shall take place within sixty (60) days of such notice.
(c) The purchase price for the Registrable Securities to be repurchased pursuant to the exercise of this Repurchase Right shall be equal to the average of the closing prices for the applicable Registrable Securities for the last 20 trading days prior to the day that the closing of the repurchase of such Registrable Securities is to occur hereunder.
(d) If the Company is unable to purchase all Registrable Securities required to be purchased hereunder due to legal or contractual restrictions (as evidenced by the opinion letter of outside counsel to the Company acceptable to the Investors which shall attach the relevant law, regulation and/or contract), Registrable Securities shall be repurchased (on a pro rata basis from the holders of the Registrable Securities based upon the Ordinary Share equivalents) from time to time within thirty (30) days after such legal or contractual restriction is lifted, to the extent the Company is legally permitted to do so, and the obligations of the Company under this Section 6.10.2 will be a continuing 5.9. The Company acknowledges that (i) the Loan and Note Servicer has no obligation until the Company’s repurchase of all such Registrable to purchase Securities.
(e) On each date (including any subsequent purchase closing date if multiple purchases result from the application of Section 6.10.2(d)) that a purchase is , and has no obligation to occur hereunder, the closing shall occur at the Company’s principal office. At the closing, to the extent applicable, the Investor shall deliver the Registrable Securities being sold, duly endorsed in blank, accompanied by such supporting documents as may be necessary to pass to provide the Company good title to with Repurchase Funds, except as stated in this Section 5.9, and that (ii) the Registrable Securities, free Loan and clear of all liens (other than restrictions under applicable securities laws). In consideration therefor, Note Servicer does not guarantee the Company shall deliver to the Investor immediately available funds equal to the aggregate purchase price as determined hereunder. If the Company fails to purchase the Registrable Securities on any closing date, it shall pay interest to each Investor for the period commencing on the date of such closing and ending on the date such purchase is made equal to the US dollar prime rate by Citibank N.A. for such period (broker down to shorter periods if relevant) plus four percent (4%).
(f) At any time prior to the sale payment of any Registrable Securities under this Section 6.10.2, the Investor may withdraw its notice, without impairing its right to exercise its rights pursuant to this Section 6.10.2 at a later dateSecurity in whole or in part.
Appears in 3 contracts
Samples: Administration Agreement (Prosper Funding LLC), Administration Agreement (Prosper Funding LLC), Administration Agreement (Prosper Funding LLC)
Repurchase Obligation. Upon termination of this Management --------------------- Services Agreement by Business Manager for cause or by Practice without cause, Business Manager shall have the right, but not the obligation, to require Practice to comply with the terms and conditions of this Section 7.4. In the event that the Company breaches its obligations under Section 2 or Section 3 of this Agreement, the Investors shall have the Business Manager exercises such right to cause the Company to purchase the Registrable Securities that were the subject of such breach (the “Repurchase Right”), as follows:
(a) In the event an Investor wishes to exercise its Repurchase Right, the Investor shall notify the Company in writing of the alleged breach of Section 2 or Section 3 and the Registrable Securities that were the subject of such breach.
(b) In the event that the Company does not remedy or cure such breach within thirty (30) days of the receipt of the by delivering written notice set out in Section 6.10.2(a) above, then the Company shall be irrevocably obligated to purchase from the Investor the Registrable Securities that were the subject of such breach. The closing of such repurchase shall take place Practice within sixty (60) days of such notice.termination, then Practice shall be required to:
(a) Purchase from Business Manager at the greater of book or fair market value the intangible assets, deferred charges and all other amounts on the books of Business Manager relating to the Management Services Agreement as adjusted, through the last day of the month most recently ended prior to the date of such termination in accordance with GAAP to reflect amortization or depreciation of the intangible assets, deferred charges or covenants;
(b) Purchase from Business Manager any real estate owned by Business Manager and used as an Office at the greater of the appraised fair market value thereof or the then book value thereof. In the event of any repurchase of real property, the appraised value shall be determined by Business Manager and Practice, each selecting a duly qualified appraiser, who in turn will agree on a third appraiser. This agreed-upon appraiser shall perform the appraisal which shall be binding on both parties. In the event either party fails to select an appraiser within fifteen (15) days of the selection of an appraiser by the other party, the appraiser selected by the other party shall make the selection of the third-party appraiser;
(c) The purchase price for Purchase at the Registrable Securities to be repurchased pursuant greater of book or fair market value all improvements, additions, or leasehold improvements that have been made by Business Manager at any Office and that relate solely to the exercise performance of Business Manager's obligations under this Repurchase Right shall be equal to the average of the closing prices for the applicable Registrable Securities for the last 20 trading days prior to the day that the closing of the repurchase of such Registrable Securities is to occur hereunder.Management Services Agreement;
(d) If Assume all debt and all contracts, payables and leases that are obligations of Business Manager and that would be characterized as an Office Expense hereunder relating to the Company is unable to purchase all Registrable Securities performance of Business Manager's obligations under this Management Services Agreement or the properties leased or subleased hereunder as an Office by Business Manager, provided, however, that Practice shall only be required to be purchased hereunder due to legal or contractual restrictions (as evidenced by the opinion letter of outside counsel to the Company acceptable to the Investors which shall attach the relevant law, regulation and/or contract), Registrable Securities shall be repurchased (on a pro rata basis from the holders assume those payables in excess of the Registrable Securities based upon accounts receivable of Practice in existence at the Ordinary Share equivalents) time this Management Services Agreement is terminated and from time to time within thirty (30) days which funds are available after such legal or contractual restriction is lifted, to the extent the Company is legally permitted to do so, and the obligations of the Company under this satisfying any previous shortfalls applied in accordance with Section 6.10.2 will be a continuing obligation until the Company’s repurchase of all such Registrable Securities.4.9 hereof; and
(e) On each date (including any subsequent purchase closing date if multiple purchases result Purchase from the application of Section 6.10.2(d)) that a purchase is to occur hereunder, the closing shall occur Business Manager at the Company’s principal office. At greater of book or fair market value all of the closingequipment listed in the Contribution and Exchange Agreement or an exhibit thereto, including all replacements and additions thereto made by Business Manager pursuant to the extent applicableperformance of its obligations under this Management Services Agreement, and all other assets, including inventory and supplies, and tangibles and intangibles, set forth on the Investor shall deliver books of Business Manager as adjusted through the Registrable Securities being sold, duly endorsed in blank, accompanied by such supporting documents as may be necessary last day of the month most recently ended prior to pass to the Company good title to the Registrable Securities, free and clear of all liens (other than restrictions under applicable securities laws). In consideration therefor, the Company shall deliver to the Investor immediately available funds equal to the aggregate purchase price as determined hereunder. If the Company fails to purchase the Registrable Securities on any closing date, it shall pay interest to each Investor for the period commencing on the date of such closing termination in accordance with GAAP to reflect operations of the Office, depreciation, amortization and ending other adjustments of assets shown on the date such purchase is made equal to the US dollar prime rate by Citibank N.A. for such period (broker down to shorter periods if relevant) plus four percent (4%)books of Business Manager.
(f) At any time prior to the sale of any Registrable Securities under this Section 6.10.2, the Investor may withdraw its notice, without impairing its right to exercise its rights pursuant to this Section 6.10.2 at a later date.
Appears in 2 contracts
Samples: Management Services Agreement (Novamed Eyecare Inc), Management Services Agreement (Novamed Eyecare Inc)
Repurchase Obligation. Upon termination of this Management --------------------- Services Agreement by Business Manager for cause or by Practice without cause, Business Manager shall have the right, but not the obligation, to require Practice to comply with the terms and conditions of this Section 7.4. In the event that the Company breaches its obligations under Section 2 or Section 3 of this Agreement, the Investors shall have the Business Manager exercises such right to cause the Company to purchase the Registrable Securities that were the subject of such breach (the “Repurchase Right”), as follows:
(a) In the event an Investor wishes to exercise its Repurchase Right, the Investor shall notify the Company in writing of the alleged breach of Section 2 or Section 3 and the Registrable Securities that were the subject of such breach.
(b) In the event that the Company does not remedy or cure such breach within thirty (30) days of the receipt of the by delivering written notice set out in Section 6.10.2(a) above, then the Company shall be irrevocably obligated to purchase from the Investor the Registrable Securities that were the subject of such breach. The closing of such repurchase shall take place Practice within sixty (60) days of such notice.termination, then Practice shall be required to:
(a) Purchase from Business Manager at the greater of book or fair market value the intangible assets, deferred charges and all other amounts on the books of Business Manager relating to the Management Services Agreement as adjusted, through the last day of the month most recently ended prior to the date of such termination in accordance with GAAP to reflect amortization or depreciation of the intangible assets, deferred charges or covenants;
(b) Purchase from Business Manager any real estate owned by Business Manager and used as an Office at the greater of the appraised fair market value thereof or the then book value thereof. In the event of any repurchase of real property, the appraised value shall be determined by Business Manager and Practice, each selecting a duly qualified appraiser, who in turn will agree on a third appraiser. This agreed-upon appraiser shall perform the appraisal which shall be binding on both parties. In the event either party fails to select an appraiser within fifteen (15) days of the selection of an appraiser by the other party, the appraiser selected by the other party shall make the selection of the third-party appraiser;
(c) The purchase price for Purchase at the Registrable Securities to be repurchased pursuant greater of book or fair market value all improvements, additions, or leasehold improvements that have been made by Business Manager at any Office and that relate solely to the exercise performance of Business Manager's obligations under this Repurchase Right shall be equal to the average of the closing prices for the applicable Registrable Securities for the last 20 trading days prior to the day that the closing of the repurchase of such Registrable Securities is to occur hereunder.Management Services Agreement;
(d) If the Company is unable to purchase Assume all Registrable Securities required to be purchased hereunder due to legal or contractual restrictions (as evidenced by the opinion letter debt and all contracts, payables and leases that are obligations of outside counsel Business Manager and that relate principally to the Company acceptable to the Investors which shall attach the relevant law, regulation and/or contract), Registrable Securities shall be repurchased (on a pro rata basis from the holders performance of the Registrable Securities based upon the Ordinary Share equivalents) from time to time within thirty (30) days after such legal or contractual restriction is lifted, to the extent the Company is legally permitted to do so, and the Business Manager's obligations of the Company under this Section 6.10.2 will be a continuing obligation until Management Services Agreement or the Company’s repurchase of all such Registrable Securities.properties leased or subleased hereunder as an Office by Business Manager; and
(e) On each date (including any subsequent purchase closing date if multiple purchases result Purchase from the application of Section 6.10.2(d)) that a purchase is to occur hereunder, the closing shall occur Business Manager at the Company’s principal office. At greater of book or fair market value all of the closingequipment listed in the Contribution and Exchange Agreement or an exhibit thereto, including all replacements and additions thereto made by Business Manager pursuant to the extent applicableperformance of its obligations under this Management Services Agreement, and all other assets, including inventory and supplies, and tangibles and intangibles, set forth on the Investor shall deliver books of Business Manager as adjusted through the Registrable Securities being sold, duly endorsed in blank, accompanied by such supporting documents as may be necessary last day of the month most recently ended prior to pass to the Company good title to the Registrable Securities, free and clear of all liens (other than restrictions under applicable securities laws). In consideration therefor, the Company shall deliver to the Investor immediately available funds equal to the aggregate purchase price as determined hereunder. If the Company fails to purchase the Registrable Securities on any closing date, it shall pay interest to each Investor for the period commencing on the date of such closing termination in accordance with GAAP to reflect operations of the Office, depreciation, amortization and ending other adjustments of assets shown on the date such purchase is made equal to books of Business Manager. In the US dollar prime rate by Citibank N.A. for such period (broker down to shorter periods if relevant) plus four percent (4%).
(f) At any time prior to the sale of any Registrable Securities under this Section 6.10.2, the Investor may withdraw its notice, without impairing its right to exercise event Business Manager exercises its rights pursuant to this Section 6.10.2 7.4, Practice shall have the obligation to purchase all, and not less than all, of the items listed in subparagraphs (a) through (e) above. In no event, however, shall this Section 7.4 be construed as enabling Practice to repurchase any assets acquired from Practice pursuant to the Contribution and Exchange Agreement, which relate directly or indirectly to the ambulatory surgical treatment center owned and operated by Practice immediately prior to the effective date of the Contribution and Exchange Agreement (the "ASC Assets"). The ASC Assets are expressly excluded from the assets enumerated in subparagraphs (a) through (e) above and Practice shall have no right to repurchase the ASC Assets under this Section 7.4 unless Business Manager shall so elect in writing, in which case Practice shall be required to repurchase the ASC Assets at the greater of the then book or fair market value. For purposes of this Article VII, "fair market value" of a later dateparticular item shall be an amount mutually agreed upon by Practice and Business Manager. If Practice and Business Manager are unable to reach agreement on such value after ten (10) days of deliberations, then such fair market value shall be determined by an independent, duly qualified appraiser mutually agreed upon by Practice and Business Manager. If Practice and Business Manager cannot agree upon an appraiser within ten (10) days, then each party shall select a duly qualified appraiser, who in turn will select a third appraiser. This agreed-upon appraiser shall perform the appraisal which shall be binding upon both parties. All expenses of such appraisal shall be borne fifty percent (50%) by Business Manager and fifty percent (50%) by Practice.
Appears in 2 contracts
Samples: Management Services Agreement (Novamed Eyecare Inc), Management Services Agreement (Novamed Eyecare Inc)
Repurchase Obligation. In The Servicer acknowledges that pursuant to Sections 8 and 9 of the event that Lender Registration Agreements the Company is required under certain circumstances to repurchase Securities from Lenders, to indemnify the Lenders against losses resulting from the breach by the Company of certain of its representations in the Lender Registration Agreements, or to cure such breaches its obligations of representations (any such circumstance, a “Repurchase Event”). The Servicer further acknowledges the Company is relying upon the Servicer, through the services it provides under Section 2 or Section 3 of this Agreement, to prevent the Investors occurrence of Repurchase Events. Accordingly, the Servicer agrees that if any Repurchase Event occurs it will at its election either (i) promptly cure such Repurchase Event, or (ii) if (A) the Company cannot satisfy its obligations to the applicable Lenders by curing such Repurchase Event, (B) such Repurchase Event is not susceptible of cure (as determined by the Servicer in its sole discretion), or (C) the Servicer elects in its sole discretion not to attempt any such cure, provide the Company with all funds it requires to repurchase the applicable Securities from the applicable Lenders at the time, and for the purchase price, specified in the applicable Lender Registration Agreement or to pay any indemnities due to such Lenders (“Repurchase Funds”). The Servicer will deposit in the FBO Account any Repurchase Funds due from it hereunder and promptly apply the same on the Company’s behalf to repurchase the applicable Securities or to pay the required indemnities to the applicable Holders (as applicable). The Company will promptly transfer to the Servicer any Security repurchased by the Company with Repurchase Funds but otherwise has no obligation to repay any Repurchase Funds that the Servicer may provide. Each of the Company and the Servicer shall have promptly notify the right other party of any Repurchase Event that comes to cause its attention; provided that (i) the Company shall not be required to provide notice to the Servicer of any Repurchase Event that it reasonably believes is already known to the Servicer, and (ii) any failure by the Company to purchase provide such notice shall not limit or otherwise affect the Registrable Securities that were the subject of such breach (the “Repurchase Right”), as follows:
(a) In the event an Investor wishes to exercise its Repurchase Right, the Investor shall notify the Company in writing of the alleged breach of Section 2 or Section 3 and the Registrable Securities that were the subject of such breach.
(b) In the event that the Company does not remedy or cure such breach within thirty (30) days of the receipt of the written notice set out in Section 6.10.2(a) above, then the Company shall be irrevocably obligated to purchase from the Investor the Registrable Securities that were the subject of such breach. The closing of such Servicer’s repurchase shall take place within sixty (60) days of such notice.
(c) The purchase price for the Registrable Securities to be repurchased pursuant to the exercise of this Repurchase Right shall be equal to the average of the closing prices for the applicable Registrable Securities for the last 20 trading days prior to the day that the closing of the repurchase of such Registrable Securities is to occur hereunder.
(d) If the Company is unable to purchase all Registrable Securities required to be purchased hereunder due to legal or contractual restrictions (as evidenced by the opinion letter of outside counsel to the Company acceptable to the Investors which shall attach the relevant law, regulation and/or contract), Registrable Securities shall be repurchased (on a pro rata basis from the holders of the Registrable Securities based upon the Ordinary Share equivalents) from time to time within thirty (30) days after such legal or contractual restriction is lifted, to the extent the Company is legally permitted to do so, and the obligations of the Company under this Section 6.10.2 will be a continuing 3.12. The Company acknowledges that (i) the Servicer has no obligation until the Company’s repurchase of all such Registrable Securities.
(e) On each date (including any subsequent to purchase closing date if multiple purchases result from the application of Section 6.10.2(d)) that a purchase is Securities or Loan Notes, and has no obligation to occur hereunder, the closing shall occur at the Company’s principal office. At the closing, to the extent applicable, the Investor shall deliver the Registrable Securities being sold, duly endorsed in blank, accompanied by such supporting documents as may be necessary to pass to provide the Company good title to with Repurchase Funds, except as stated in this Section 3.12, and that (ii) the Registrable Securities, free and clear of all liens (other than restrictions under applicable securities laws). In consideration therefor, Servicer does not guarantee the Company shall deliver to the Investor immediately available funds equal to the aggregate purchase price as determined hereunder. If the Company fails to purchase the Registrable Securities on any closing date, it shall pay interest to each Investor for the period commencing on the date of such closing and ending on the date such purchase is made equal to the US dollar prime rate by Citibank N.A. for such period (broker down to shorter periods if relevant) plus four percent (4%).
(f) At any time prior to the sale payment of any Registrable Securities under this Section 6.10.2, the Investor may withdraw its notice, without impairing its right to exercise its rights pursuant to this Section 6.10.2 at a later dateSecurity or Loan Note in whole or in part.
Appears in 2 contracts
Samples: Servicing Agreement (Prosper Funding LLC), Servicing Agreement (Prosper Funding LLC)
Repurchase Obligation. Upon termination of this Management --------------------- Services Agreement by Business Manager for cause or by Practice without cause, Business Manager shall have the right, but not the obligation, to require Practice to comply with the terms and conditions of this Section 7.4. In the event that the Company breaches its obligations under Section 2 or Section 3 of this Agreement, the Investors shall have the Business Manager exercises such right to cause the Company to purchase the Registrable Securities that were the subject of such breach (the “Repurchase Right”), as follows:
(a) In the event an Investor wishes to exercise its Repurchase Right, the Investor shall notify the Company in writing of the alleged breach of Section 2 or Section 3 and the Registrable Securities that were the subject of such breach.
(b) In the event that the Company does not remedy or cure such breach within thirty (30) days of the receipt of the by delivering written notice set out in Section 6.10.2(a) above, then the Company shall be irrevocably obligated to purchase from the Investor the Registrable Securities that were the subject of such breach. The closing of such repurchase shall take place Practice within sixty (60) days of such notice.termination, then Practice shall be required to:
(a) Purchase from Business Manager at fair market value the intangible assets, deferred charges and all other amounts on the books of Business Manager relating to the Management Services Agreement as adjusted, through the last day of the month most recently ended prior to the date of such termination in accordance with GAAP to reflect amortization or depreciation of the intangible assets, deferred charges or covenants;
(b) Purchase from Business Manager any real estate owned by Business Manager and used as an Office at the fair market value thereof. In the event of any repurchase of real property, the appraised value shall be determined by Business Manager and Practice, each selecting a duly qualified appraiser, who in turn will agree on a third appraiser. This agreed-upon appraiser shall perform the appraisal which shall be binding on both parties. In the event either party fails to select an appraiser within fifteen (15) days of the selection of an appraiser by the other party, the appraiser selected by the other party shall make the selection of the third-party appraiser;
(c) The purchase price for Purchase at the Registrable Securities to be repurchased pursuant fair market value all improvements, additions, or leasehold improvements that have been made by Business Manager at any Office and that relate solely to the exercise performance of Business Manager's obligations under this Repurchase Right shall be equal to the average of the closing prices for the applicable Registrable Securities for the last 20 trading days prior to the day that the closing of the repurchase of such Registrable Securities is to occur hereunder.Management Services Agreement;
(d) If the Company is unable to purchase Assume all Registrable Securities required to be purchased hereunder due to legal or contractual restrictions (as evidenced by the opinion letter debt and all contracts, payables and leases that are obligations of outside counsel Business Manager and that relate principally to the Company acceptable to the Investors which shall attach the relevant law, regulation and/or contract), Registrable Securities shall be repurchased (on a pro rata basis from the holders performance of the Registrable Securities based upon the Ordinary Share equivalents) from time to time within thirty (30) days after such legal or contractual restriction is lifted, to the extent the Company is legally permitted to do so, and the Business Manager's obligations of the Company under this Section 6.10.2 will be a continuing obligation until Management Services Agreement or the Company’s repurchase of all such Registrable Securities.properties leased or subleased hereunder as an Office by Business Manager; and
(e) On each date (including any subsequent purchase closing date if multiple purchases result Purchase from the application of Section 6.10.2(d)) that a purchase is to occur hereunder, the closing shall occur Business Manager at the Company’s principal office. At fair market value all of the closingequipment listed in the Contribution and Exchange Agreement or an exhibit thereto, including all replacements and additions thereto made by Business Manager pursuant to the extent applicableperformance of its obligations under this Management Services Agreement, and all other assets, including inventory and supplies, and tangibles and intangibles, set forth on the Investor shall deliver books of Business Manager as adjusted through the Registrable Securities being sold, duly endorsed in blank, accompanied by such supporting documents as may be necessary last day of the month most recently ended prior to pass to the Company good title to the Registrable Securities, free and clear of all liens (other than restrictions under applicable securities laws). In consideration therefor, the Company shall deliver to the Investor immediately available funds equal to the aggregate purchase price as determined hereunder. If the Company fails to purchase the Registrable Securities on any closing date, it shall pay interest to each Investor for the period commencing on the date of such closing termination in accordance with GAAP to reflect operations of the Office, depreciation, amortization and ending other adjustments of assets shown on the date such purchase is made equal to books of Business Manager. In the US dollar prime rate by Citibank N.A. for such period (broker down to shorter periods if relevant) plus four percent (4%).
(f) At any time prior to the sale of any Registrable Securities under this Section 6.10.2, the Investor may withdraw its notice, without impairing its right to exercise event Business Manager exercises its rights pursuant to this Section 6.10.2 7.4, Practice shall have the obligation to purchase all, and not less than all, of the items listed in subparagraphs (a) through (e) above. In no event, however, shall this Section 7.4 be construed as enabling Practice to repurchase any assets acquired by Business Manager pursuant to the Contribution and Exchange Agreement, which relate directly or indirectly to the ambulatory surgical center owned and operated by Eyes of Illinois Surgery Center, S.C. immediately prior to the Effective Date of the Contribution and Exchange Agreement (the "ASC Assets"). The ASC Assets are expressly excluded from the assets enumerated in subparagraphs (a) through (e) above and Practice shall have no right to repurchase the ASC Assets under this Section 7.4 unless Business Manager shall so elect in writing, in which case Practice shall be required to repurchase the ASC Assets at the greater of the then book or fair market value. For purposes of this Article VII, "fair market value" of a later dateparticular item shall be an amount mutually agreed upon by Practice and Business Manager. If Practice and Business Manager are unable to reach agreement on such value after ten (10) days of deliberations, then such fair market value shall be determined by an independent, duly qualified appraiser mutually agreed upon by Practice and Business Manager. If Practice and Business Manager cannot agree upon an appraiser within ten (10) days, then each party shall select a duly qualified appraiser, who in turn will select a third appraiser. This agreed-upon appraiser shall perform the appraisal which shall be binding upon both parties. All expenses of such appraisal shall be borne fifty percent (50%) by Business Manager and fifty percent (50%) by Practice.
Appears in 2 contracts
Samples: Management Services Agreement (Novamed Eyecare Inc), Management Services Agreement (Novamed Eyecare Inc)
Repurchase Obligation. In the event that the Company breaches its obligations under Section 2 or Section 3 of this Agreement, the Investors shall have the right to cause the Company to purchase the Registrable Securities that were the subject of such breach (the “Repurchase Right”), as follows:
(a) In the event an Investor wishes the Executive ceases to exercise be employed by the Company and its Repurchase RightSubsidiaries for any reason (the “Termination”), the Investor shall notify Executive Securities (whether held by the Executive or one or more of the Executive’s Permitted Transferees (as defined in the Stockholders Agreement)) will be subject to repurchase by the Company and the holders of Investor Shares pursuant to the terms and conditions set forth in writing this Section 2 (the “Repurchase Option”). The Repurchase Option for any Executive Securities shall become effective on the later of the alleged breach date the Executive has held the Executive Securities for six months or the date of Section 2 or Section 3 and the Registrable Securities that were Termination (the subject of such breach“Repurchase Date”).
(b) In If the event that Executive’s employment with the Company does not remedy or cure such breach within thirty and its Subsidiaries is (30i) days of the receipt of the written notice set out in Section 6.10.2(a) above, then terminated by the Company or any such Subsidiary without Cause or (ii) voluntarily terminated by the Executive and, at the time of such termination, Executive could not have been terminated by the Company or such Subsidiary with Cause, the purchase price for the Executive Securities shall be irrevocably obligated to the Fair Market Value thereof on the Repurchase Date. If the Executive’s employment with the Company and its Subsidiaries is terminated by the Company or any such Subsidiary for Cause, the purchase from price for the Investor Executive Securities shall be the Registrable Securities that were lower of Fair Market Value on the subject of such breach. The closing of such repurchase shall take place within sixty (60) days of such noticeRepurchase Date and Original Cost thereof.
(c) The holders of Investor Shares may elect to purchase price all or any portion of the Executive Securities by delivering written notice (the “Repurchase Notice”) to the Executive and the Company within 45 days after the Repurchase Date. The Repurchase Notice will set forth the Executive Securities to be acquired from each holder, the aggregate consideration to be paid for such Executive Securities and the time and place for the Registrable closing of the transaction. The number of Executive Securities to be repurchased pursuant by the holders of Investor Shares shall first be satisfied, to the exercise extent possible, from the Executive Securities held by the Executive at the time of this delivery of the Repurchase Right Notice. In the event that the holders of Investor Shares elect to purchase more Executive Securities than are available, then the number of Executive Securities to be purchased by each such holder that has elected to purchase more than its pro rata share of Executive Securities (based upon the number of shares of Investor Shares held by all such holders of Investor Shares that are participating in such repurchase) shall be equal reduced on a pro rata basis in proportion to the average number of the closing prices for the applicable Registrable Securities for the last 20 trading days prior Investor Shares held by all holders that have elected to the day purchase more than their pro rata share that the closing of the repurchase of are not owned by such Registrable Securities is to occur hereunderholder.
(d) If for any reason the holders of Investor Shares do not elect to purchase all of the Executive Securities pursuant to the Repurchase Option, the Company shall be required to exercise the Repurchase Option for the Executive Securities which the holders of Investor Shares have not elected to purchase (the “Available Shares”). As soon as practicable, and in any event within five (5) days after the expiration of such 45-day period, the Company shall deliver written notice (the “Supplemental Repurchase Notice”) to the Executive and each holder of Investor Shares exercising the Repurchase Option setting forth the number of Executive Securities which such holder of Investor Shares and the Company is unable purchasing, the aggregate purchase price for such Executive Securities and the time and place of the closing of the transaction.
(e) The closing of the purchase of the Executive Securities pursuant to the Repurchase Option (the “Closing”) shall take place on the date designated by the Company in the Repurchase Notice or Supplemental Repurchase Notice, which date, subject to clause (f) below, shall not be more than ten (10) days nor less than five (5) days after the delivery of such notice (but in any event shall be no earlier than ten (10) days after the final determination of Fair Market Value). Subject to clause (f) below, the Company and/or the holders of Investor Shares, as the case may be, will pay for the Executive Securities to be purchased pursuant to the Repurchase Option by delivery of a check or wire transfer of funds to the holders of the Executive Securities. The Company and the holders of Investor Shares will be entitled to receive customary representations and warranties from the sellers regarding such sale and to require all sellers’ signatures be guaranteed.
(f) Notwithstanding anything to the contrary contained in this Agreement, the Company’s exercise of the Repurchase Option shall be subject to applicable restrictions contained in applicable law and in the Company’s and its Subsidiaries’ debt and equity financing agreements. If any such restrictions prohibit the repurchase of Executive Securities hereunder which the Company is otherwise required to make or create a default thereunder, the time periods provided in this Section 2 and the Closing (with respect to the Company) shall be suspended, and the Company may make such repurchases under this Section 2 as soon as it is permitted to do so under such restrictions (and the Company shall inform the Executive of such restrictions in the Supplemental Repurchase Notice) and shall consummate such repurchase of Executive Securities promptly following the cessation of all such restrictions thereon (by giving the holder or holders of Executive Securities a new Supplemental Repurchase Notice). In addition, notwithstanding anything to the contrary contained in this Agreement, the Company shall be entitled to suspend the Closing if, and for so long as, the Board determine in its good faith judgment that the consummation of the Closing could have an adverse effect in any material respect on (i) any pending or contemplated financing, acquisition, or other transaction or development involving the Company or any of its subsidiaries or (ii) the business, financial condition or prospects of the Company and its subsidiaries taken as a whole.
(g) Notwithstanding anything to the contrary contained in this Agreement, a holder of Investor Shares can elect to terminate the exercise of its Repurchase Option in whole or in part by providing notice to the Company, the holders of Investor Shares and the Executive at least ten days prior to the Closing, in which case the other holders of Investor Shares may elect to purchase all Registrable or any portion of the newly-available Executive Securities required by delivering written notice to the Executive, the Company and the holders of Investor Shares within 5 days after the receipt of such notice that such Executive Securities are newly available. In the event that the holders of Investor Shares elect to purchase more newly-available Executive Securities than are available, then the number of newly-available Executive Securities to be purchased hereunder due by each such holder that has elected to legal or contractual restrictions purchase more than its pro rata share of newly-available Executive Securities (as evidenced based upon the number of shares of Investor Shares held by the opinion letter all such holders of outside counsel to the Company acceptable to the Investors which shall attach the relevant law, regulation and/or contract), Registrable Securities Investor Shares participating in such purchase) shall be repurchased (reduced on a pro rata basis from in proportion to the number of Investor Shares held by all holders that have elected to purchase more than their pro rata share that are not owned by such holder. If for any reason the holders of Investor Shares do not elect to purchase all of the Registrable newly-available Executive Securities based upon the Ordinary Share equivalents) from time pursuant to time within thirty (30) days after such legal or contractual restriction is liftedthis paragraph, to the extent the Company is legally permitted shall be required, subject to do so, and the obligations of the Company under this Section 6.10.2 will be a continuing obligation until the Company’s repurchase of all such Registrable Securities.
(e) On each date (including any subsequent purchase closing date if multiple purchases result from the application of Section 6.10.2(d2(f)) that a purchase is to occur hereunder, the closing shall occur at the Company’s principal office. At the closing, to exercise the extent applicable, the Investor shall deliver the Registrable Securities being sold, duly endorsed in blank, accompanied by such supporting documents as may be necessary to pass to the Company good title to the Registrable Securities, free and clear of all liens (other than restrictions under applicable securities laws). In consideration therefor, the Company shall deliver to the Investor immediately available funds equal to the aggregate purchase price as determined hereunder. If the Company fails to purchase the Registrable Securities on any closing date, it shall pay interest to each Investor Repurchase Option for the period commencing on newly-available Executive Securities which the date holders of such closing and ending on the date such purchase is made equal Investor Shares have not elected to the US dollar prime rate by Citibank N.A. for such period (broker down to shorter periods if relevant) plus four percent (4%)purchase.
(fh) At any time prior The right of the Company and the holders of Investor Shares to the sale of any Registrable repurchase Executive Securities under this Section 6.10.2, the Investor may withdraw its notice, without impairing its right to exercise its rights pursuant to this Section 6.10.2 at 2 shall terminate upon the consummation of a later datePublic Offering.
(i) Notwithstanding anything to the contrary in this Agreement, in the event the Company decides to defer the exercise of the Repurchase Option pursuant to Section 2(f), the Executive’s Option exercise period, for all unexercised Option Shares, as provided in Sections 1(a)(i)(B) and (C) shall be extended for a period equal to the time which elapses from the effective date of the Repurchase Option, for the shares for which the Company desires to defer the Repurchase Option, until the date that the Company exercises the Repurchase Option; provided, however, in no way shall any extension of the Executive’s exercise period set forth in Sections 1(a)(i)(B) and (C) delay the application of Sections 1(a)(i)(A) and (D).
Appears in 1 contract
Samples: Stock Option Agreement (CHG Healthcare Services, Inc.)
Repurchase Obligation. In (a) Upon discovery by Seller or Purchaser of (I) a breach of any representation or warranty of Seller or Guarantor set forth in Section 3.1 or 3.2 hereof that materially adversely affects the event that value of any Contract, the Company breaches its obligations collectibility of payments or proceeds under Section 2 or Section 3 with respect to any Contract, the interest of Purchaser in any Contract or the properties or rights with respect to any Contract conveyed by the Seller to the Purchaser pursuant to this Agreement, (ii) a material breach of any covenant or obligation of Seller with respect to any Contract set forth in Article 2, or (iii) a material data error with respect to a Contract caused by or resulting from the Investors boarding or servicing of the Contract prior to the applicable Closing Date, the party discovering such breach shall give prompt written notice to the other (the Purchaser agrees to use reasonable efforts to provide the Seller any such written notice within forty-five (45) days after the Purchaser shall have the right to cause the Company to purchase the Registrable Securities that were the subject learned of any such breach (the “Repurchase Right”or circumstance), as follows:
(a) In the event an Investor wishes and Seller shall be obligated to exercise its Repurchase Right, the Investor shall notify the Company in writing of the alleged breach of Section 2 or Section 3 and the Registrable Securities that were the subject of such breach.
(b) In the event that the Company does not remedy or cure such breach within thirty (30) days of the receipt of the written notice set out in Section 6.10.2(a) above, then the Company shall be irrevocably obligated to purchase from the Investor the Registrable Securities that were the subject of such breach. The closing of such repurchase shall take place within sixty (60) days of such notice.
(c) The purchase price for the Registrable Securities to be repurchased pursuant to the exercise of this Repurchase Right shall be equal to the average of the closing prices for the applicable Registrable Securities for the last 20 trading days prior to the day that the closing of the repurchase of such Registrable Securities is to occur hereunder.
(d) If the Company is unable to purchase all Registrable Securities required to be purchased hereunder due to legal or contractual restrictions (as evidenced by the opinion letter of outside counsel to the Company acceptable to the Investors which shall attach the relevant law, regulation and/or contract), Registrable Securities shall be repurchased (on a pro rata basis from the holders of the Registrable Securities based upon the Ordinary Share equivalents) from time to time material respects within thirty (30) days after its receipt of such legal notice. If such breach is not cured by Seller within such period, then, in such event, within five (5) days after Purchaser's delivery to Seller of written demand, Seller and/or Guarantor shall repurchase the related Contract by delivering to or contractual restriction is lifted, upon the order of Purchaser an amount equal to the extent Repurchase Price. In addition, within five (5) days after Purchaser's delivery to Seller of written demand, the Company is legally permitted Seller and/or the Guarantor shall repurchase, by delivering to do soor upon the order of Purchaser an amount equal to the Repurchase Price for the applicable Contract, any Contract involving an Obligor who has failed to pay since the Contract's Origination Date at least three (3) scheduled monthly payments prior to the time such Contract becomes forty-five (45) or more days delinquent. Seller and Purchaser will use their best efforts to identify and note on the obligations of applicable Closing Date Contract Schedule each Contract that may become subject to repurchase by the Company under this Section 6.10.2 will be a continuing obligation until Seller and/or the Company’s repurchase of all such Registrable SecuritiesGuarantor pursuant to the preceding sentence.
(eb) On each date (including Upon such repurchase and the payment of the Repurchase Price, the Purchaser or any subsequent purchase closing date if multiple purchases result from assignee shall execute and deliver an assignment and the application Purchaser or any subsequent assignee shall assign to Seller, all of Section 6.10.2(d)) that a purchase is to occur hereunderthe Purchaser's or any subsequent assignee's right, the closing shall occur at the Company’s principal office. At the closingtitle and interest in such repurchased Contract, without recourse, representation or warranty, except as to the extent applicableabsence of liens, charges or encumbrances created by or arising as a result of actions of the Investor shall Purchaser or any subsequent assignee, other than liens, charges or encumbrances created or arising out of this Sale Agreement. The Purchaser and any subsequent assignee agree that it will promptly execute and deliver the Registrable Securities being sold, duly endorsed in blank, accompanied by such supporting documents as and take all further action that may be necessary or appropriate, or that the Seller may reasonably request, in order to pass perfect, protect or more fully evidence the transfer of ownership of such Sold Program Contract to the Company good title Seller pursuant to the Registrable Securities, free and clear of all liens (other than restrictions under applicable securities lawsSection 3.5(a). In consideration thereforthe event Seller and Guarantor do not repurchase a Contract as required by subsection (a) above, any action taken by Purchaser to sell or liquidate the Company Contract or the related Financed Vehicle in good faith and in a commercially reasonable manner shall deliver be final and conclusively binding upon Seller in determining the amount payable by Seller to the Investor immediately available funds equal to the aggregate purchase price as determined hereunderPurchaser under Section 3.5(a) hereof. If the Company fails to purchase Purchaser shall proceed, in good faith, with the Registrable Securities on any closing date, it shall pay interest to each Investor for liquidation of a Contract or the period commencing on repossession and/or liquidation of the date of such closing and ending on the date such purchase is made equal to the US dollar prime rate by Citibank N.A. for such period (broker down to shorter periods if relevant) plus four percent (4%).
(f) At any time related Financed Vehicle prior to the sale Seller's repurchase of any Registrable Securities under this Section 6.10.2the Contract as required by subsection (a) above, then Seller shall reimburse the Investor may withdraw its noticePurchaser for reasonable out-of-pocket expenses incurred by the Purchaser in connection with such process, without impairing its right to exercise its rights which, if not included in the calculation of the Repurchase Price pursuant to this its definition as set forth in Section 6.10.2 at a later date1.1 hereof, shall be in addition to the Repurchase Price payable by Seller.
Appears in 1 contract
Samples: Sale and Purchase Agreement (National Auto Finance Co Inc)
Repurchase Obligation. In At any time on and after June 30, 1999 until 5:00 P.M., New York City time, on the event that the Company breaches its obligations under Section 2 or Section 3 of this Agreement, the Investors shall have the right Warrant Expiration Date (subject to cause the Company to purchase the Registrable Securities that were the subject of such breach (the “Repurchase Right”extension as herein provided), as follows:
(a) In the event an Investor wishes to exercise its Repurchase Right, the Investor shall notify the Company in writing of the alleged breach of Section 2 or Section 3 and the Registrable Securities that were the subject of such breach.
(b) In the event that the Company does not remedy or cure such breach within thirty (30) days of the receipt of the written notice set out in Section 6.10.2(a) above, then the Company shall be irrevocably obligated obligated, upon 60 days prior written notice to purchase the Company by the holder of this Warrant, to repurchase this Warrant from the Investor holder hereof for the Registrable Securities Warrant Repurchase Price (determined as below provided) per Stock Unit, on the terms and conditions set forth below; provided that were (i) the subject Company shall have no repurchase obligation under this Section if on or before the date of such breach. The closing proposed repurchase the Company has completed an Initial Public Offering and (ii) such repurchase obligation shall be suspended if an event of default under either the Senior Credit Agreement or the Subordinated Loan Agreement shall have occurred and be continuing or would result therefrom or at any time when, in the opinion of counsel for the Company (whose conclusions are not objected to by Milbank, Tweed, Hadley & McCloy or other reputable outside counsel for the holder of xxxx Warxxxx), the Board of Directors of the Company would be liable under Section 500 of the General Corporation Law of California in respect of such repurchase; PROVIDED that if such repurchase obligation shall take place within sixty (60) days of such notice.
(c) The purchase price for the Registrable Securities to be repurchased suspended pursuant to the exercise foregoing clause (ii), (a) the Company shall give notice of such suspension to the holder of this Warrant and (b) the holder of this Warrant may, by written notice to the Company, elect to rescind its prior notice requesting that the Company purchase this Warrant. On the Warrant Expiration Date (unless an Initial Public Offering shall have theretofore been completed by the Company), the Company shall (without any further action on the part of the Company or the holder of this Warrant) be obligated to repurchase this Warrant from the holder thereof for the Warrant Repurchase Right Price (determined as below provided) per Stock Unit, on the terms and conditions set forth below; PROVIDED that, if the obligation of the Company to repurchase this Warrant shall then be suspended by reason of a condition referred to in clause (ii) of the preceding sentence, (x) the unpaid portion of the amount that the Company would, but for such suspension, be obligated to pay to the holder of this Warrant (determined without regard to such suspension) shall bear interest, for each day during the period from and including the Warrant Expiration Date to but excluding the date on which such obligation is paid in full, at a rate per annum equal to the average sum of the closing prices Base Rate as in effect on such day PLUS 6% and (y) the Company shall give notice, in accordance with SECTION 13 hereof, to the holder of this Warrant when any such condition no longer exists. The "WARRANT REPURCHASE PRICE" for each Stock Unit shall be an amount equal to the PRODUCT OF the number of shares of Class A Stock then constituting a Stock Unit TIMES the higher of (i) the Current Market Price per share of Common Stock and (ii) the quotient of (A) the sum of (x) 5.6 times the amount of EBIDAT for the applicable Registrable Securities for the last 20 trading most recent period of 12 consecutive calendar months ending at least 31 days prior to the day that the closing of the repurchase of such Registrable Securities date upon which written notice is to occur hereunder.
(d) If the Company is unable to purchase all Registrable Securities required to be purchased hereunder due to legal or contractual restrictions (as evidenced by the opinion letter of outside counsel given to the Company acceptable to by the Investors which shall attach the relevant law, regulation and/or contract), Registrable Securities shall be repurchased (on a pro rata basis from the holders holder of this Warrant in respect of the Registrable Securities based upon exercise of such holder's rights under this Section, MINUS (y) the Ordinary Share equivalents) from time to time within thirty (30) days after such legal or contractual restriction is lifted, to the extent the Company is legally permitted to do so, and the obligations aggregate outstanding principal amount of indebtedness for money borrowed of the Company under this Section 6.10.2 will be a continuing obligation until the Company’s repurchase of all such Registrable Securities.
(e) On each date and its consolidated subsidiaries (including any subsequent purchase closing date if multiple purchases result from the application of Section 6.10.2(d)) that a purchase is without limitation indebtedness to occur hereunder, the closing shall occur at the Company’s principal office. At the closing, to the extent applicable, the Investor shall deliver the Registrable Securities being sold, duly endorsed in blank, accompanied by such supporting documents as may be necessary to pass to the Company good title to the Registrable Securities, free and clear of all liens (other than restrictions under applicable securities laws). In consideration therefor, the Company shall deliver to the Investor immediately available funds equal to the aggregate purchase price as determined hereunder. If the Company fails to purchase the Registrable Securities on any closing date, it shall pay interest to each Investor for the period commencing Three Sisters Ranch Enterprises outstanding on the date of this Warrant and evidenced by promissory notes), determined in accordance with generally accepted accounting principles, as of the last day of such closing 12-month period (the "PUT CALCULATION DATE"), PLUS (z) the amount, if any, by which the aggregate amount of cash and ending cash equivalents of the Company and its consolidated subsidiaries (determined in accordance with generally accepted accounting principles, as of the Put Calculation Date) exceeds $500,000, DIVIDED BY (B) the aggregate number of shares of Common Stock outstanding on the Put Calculation Date, on a fully diluted basis (determined in accordance with generally accepted accounting principles). Payment to the holder of this Warrant under this Section shall be made on the day 60 days after the date upon which notice of exercise is given to the Company as above provided, in immediately available funds by wire transfer to such purchase is made account as such holder shall specify in such notice, against surrender of this Warrant. For the purposes of this SECTION 5, (i) an amount equal to the US dollar prime rate exercise price of all options and warrants deemed exercised for purposes of determining the number of shares issued and outstanding on a fully diluted basis under subsection (B) of the preceding paragraph shall be deemed received and held, on the Put Calculation Date, by Citibank N.A. for such period the Company in cash and (broker down ii) proceeds to shorter periods if relevant) plus four percent be received by the holder of this Warrant in connection with any repurchase thereof shall be net of the then effective purchase price per Stock Unit (as adjusted as provided in SECTION 4%).
(f) At any time prior to the sale of any Registrable Securities under this Section 6.10.2, the Investor may withdraw its notice, without impairing its right to exercise its rights pursuant to this Section 6.10.2 at a later date.
Appears in 1 contract
Repurchase Obligation. In the event that the Company breaches its obligations under Section 2 or Section 3 of this Agreement, the Investors shall have the right to cause the Company to purchase the Registrable Securities that were the subject of such breach (the “Repurchase Right”), as follows:
(a) In the event an Investor wishes the Company refuses to exercise its Repurchase Rightaccept a bona fide Acquisition Proposal which would imply a valuation for the Common Stock in excess of $10.00 per share (such amount to be appropriately adjusted for stock splits, stock dividends, reverse splits and similar events affecting the Common Stock), the Investor shall notify Company shall, upon the Company in writing written request (the "Request") of the alleged breach holders of Section 2 or Section 3 a majority of the Common Stock held by the Investors and Brooks as a group, repurchase all shares of capital stock of the Registrable Securities that were Cxxxxxx held by the subject of Investors and Brooks at the price per share (the "Redemption Price") which the Ixxxxxxrs and Brooks would have received had such breachAcquisition Proposal been accexxxx xnd consummated.
(b) In the event that the Company does not remedy or cure such breach within thirty (30) days of the receipt of the written notice set out in Section 6.10.2(a) above, then the Company shall be irrevocably obligated to purchase from the Investor the Registrable Securities that were the subject of such breach. The closing of such a repurchase of shares pursuant to Section 5.11(a) shall take place within at the Company's principal offices on such date (the "Repurchase Date") and at such time as the Investors shall specify; provided, however, that such date shall not be less than sixty (60) days of such noticeafter the date the Request is received by the Company.
(c) The purchase price If the funds of the Company legally available for the Registrable Securities repurchase of shares pursuant to Section 5.11(a) are insufficient to repurchase all shares requested to be repurchased pursuant on the Repurchase Date, those funds which are legally available will be used to repurchase the exercise maximum possible number of this Repurchase Right shall such shares, ratably based on the number of shares held by each holder of shares to be equal to the average so repurchased. At any time thereafter when additional funds of the closing prices Company become legally available for the applicable Registrable Securities for the last 20 trading days prior to the day that the closing of the repurchase of shares, such Registrable Securities is funds will be used to occur hereunderrepurchase the balance of the shares which the Company was theretofore obligated to repurchase, ratably on the basis set forth in the immediately preceding sentence. Interest shall accrue on the Redemption Price for any shares not repurchased on the Repurchase Date at 12% per annum, commencing on the Repurchase Date.
(d) If In the event the Company is unable for whatever reason (including insufficient legally available funds) fails to purchase all Registrable Securities repurchase any shares required hereunder to be purchased hereunder due to legal or contractual restrictions (as evidenced by repurchased on the opinion letter of outside counsel to the Company acceptable to Repurchase Date, the Investors which shall attach shall, in accordance with the relevant lawStockholders Agreement, regulation and/or contract), Registrable Securities shall be repurchased (on have the right to designate a pro rata basis from the holders majority of the Registrable Securities based upon the Ordinary Share equivalents) from time to time within thirty (30) days after such legal or contractual restriction is lifted, to the extent the Company is legally permitted to do so, and the obligations members of the Company under this Section 6.10.2 will be a continuing obligation until the Company’s repurchase 's Board of all such Registrable SecuritiesDirectors.
(e) On each date (including any subsequent purchase closing date if multiple purchases result from the application of Section 6.10.2(d)) that a purchase is to occur hereunder, the closing shall occur at the Company’s principal office. At the closing, to the extent applicable, the Investor shall deliver the Registrable Securities being sold, duly endorsed in blank, accompanied by such supporting documents as may be necessary to pass to the Company good title to the Registrable Securities, free and clear of all liens (other than restrictions under applicable securities laws). In consideration therefor, the Company shall deliver to the Investor immediately available funds equal to the aggregate purchase price as determined hereunder. If the Company fails to purchase the Registrable Securities on any closing date, it shall pay interest to each Investor for the period commencing on the date of such closing and ending on the date such purchase is made equal to the US dollar prime rate by Citibank N.A. for such period (broker down to shorter periods if relevant) plus four percent (4%).
(f) At any time prior to the sale of any Registrable Securities under this Section 6.10.2, the Investor may withdraw its notice, without impairing its right to exercise its rights pursuant to this Section 6.10.2 at a later date.
Appears in 1 contract
Repurchase Obligation. In the event that the Company breaches its obligations under Section 2 or Section 3 of this Agreement, the Investors shall have the right to cause the Company to purchase the Registrable Securities that were the subject of such breach (the “Repurchase Right”), as follows:
(a) In the event an Investor wishes the Executive ceases to exercise be employed by the Company and its Repurchase RightSubsidiaries for any reason (the “Termination”), the Investor shall notify Executive Securities (whether held by the Executive or one or more of the Executive’s Permitted Transferees (as defined in the Stockholders Agreement)) will be subject to repurchase by the Company and the holders of Investor Shares pursuant to the terms and conditions set forth in writing of the alleged breach of this Section 2 or Section 3 and (the Registrable Securities that were the subject of such breach“Repurchase Option”).
(b) In If the event that Executive’s employment with the Company does not remedy or cure such breach within thirty and its Subsidiaries is (30i) days of the receipt of the written notice set out in Section 6.10.2(a) above, then terminated by the Company or any such Subsidiary without Cause or (ii) voluntarily terminated by the Executive and, at the time of such termination, Executive could not have been terminated by the Company or such Subsidiary with Cause, the purchase price for the Executive Securities shall be irrevocably obligated to the Fair Market Value thereof on the date of cessation of employment. If the Executive’s employment with the Company and its Subsidiaries is terminated by the Company or any such Subsidiary for Cause, the purchase from price for the Investor Executive Securities shall be the Registrable Securities that were lower of Fair Market Value on the subject date of such breach. The closing cessation of such repurchase shall take place within sixty (60) days of such noticeemployment and Original Cost thereof.
(c) The holders of Investors Shares may elect to purchase price all or any portion of the Executive Securities by delivering written notice (the “Repurchase Notice”) to the Executive and the Company within 45 days after the Termination. The Repurchase Notice will set forth the Executive Securities to be acquired from each holder, the aggregate consideration to be paid for such Executive Securities and the time and place for the Registrable closing of the transaction. The number of Executive Securities to be repurchased pursuant by the holders of Investor Shares shall first be satisfied, to the exercise extent possible, from the Executive Securities held by the Executive at the time of this delivery of the Repurchase Right Notice. In the event that the holders of Investors Shares elect to purchase more Executive Securities than are available, then the number of Executive Securities to be purchased by each such holder that has elected to purchase more than its pro rata share of Executive Securities (based upon the number of shares of Investors Shares held by all such holders of Investor Shares that are participating in such repurchase) shall be equal reduced on a pro rata basis in proportion to the average number of the closing prices for the applicable Registrable Securities for the last 20 trading days prior Investor Shares held by all holders that have elected to the day purchase more than their pro rata share that the closing of the repurchase of are not owned by such Registrable Securities is to occur hereunderholder.
(d) If for any reason the holders of Investor Shares does not elect to purchase all of the Executive Securities pursuant to the Repurchase Option, the Company shall be required to exercise the Repurchase Option for the Executive Securities which the holders of Investor Shares has not elected to purchase (the “Available Shares”). As soon as practicable, and in any event within five (5) days after the expiration of such 45-day period, the Company shall deliver written notice (the “Supplemental Repurchase Notice”) to the Executive and each holder of Investor Shares exercising the Repurchase Option setting forth the number of Executive Securities which such holder of Investor Shares and the Company is unable purchasing, the aggregate purchase price for such Executive Securities and the time and place of the closing of the transaction.
(e) The closing of the purchase of the Executive Securities pursuant to the Repurchase Option (the “Closing”) shall take place on the date designated by the Company in the Repurchase Notice or Supplemental Repurchase Notice, which date, subject to clause (f) below, shall not be more than 15 days nor less than five (5) days after the delivery of such notice (but in any event shall be no earlier than ten (10) days after the final determination of Fair Market Value). Subject to clause (f) below, the Company and/or the holders of Investor Shares, as the case may be, will pay for the Executive Securities to be purchased pursuant to the Repurchase Option by delivery of a check or wire transfer of funds to the holders of the Executive Securities. The Company and the holders of Investor Shares will be entitled to receive customary representations and warranties from the sellers regarding such sale and to require all sellers’ signatures be guaranteed.
(f) Notwithstanding anything to the contrary contained in this Agreement, the Company’s exercise of the Repurchase Option shall be subject to applicable restrictions contained in applicable law and in the Company’s and its Subsidiaries’ debt and equity financing agreements. If any such restrictions prohibit the repurchase of Executive Securities hereunder which the Company is otherwise required to make or create a default thereunder, the time periods provided in this Section 2 and the Closing (with respect to the Company) shall be suspended, and the Company may make such repurchases under this Section 2 as soon as it is permitted to do so under such restrictions (and the Company shall inform the Executive of such restrictions in the Supplemental Repurchase Notice) and shall consummate such repurchase of Executive Securities promptly following the cessation of all such restrictions thereon (by giving the holder or holders of Executive Securities a new Supplemental Repurchase Notice). In addition, notwithstanding anything to the contrary contained in this Agreement, the Company shall be entitled to suspend the Closing if, and for so long as, the Board determines in its good faith judgment that the consummation of the Closing could have an adverse effect in any material respect on (i) any pending or contemplated financing, acquisition or other transaction or development involving the Company or any of its subsidiaries or (ii) the business, financial condition or prospects of the Company and its subsidiaries taken as a whole.
(g) Notwithstanding anything to the contrary contained in this Agreement, a holder of Investor Shares can elect to terminate the exercise of its Repurchase Option in whole or in part by providing notice to the Company, the holder of Investor Shares and the Executive at least ten days prior to the Closing, in which case the other holders of Investor Shares may elect to purchase all Registrable or any portion of the newly-available Executive Securities required by delivering written notice to the Executive, the Company and the holders of Investor Shares within 5 days after the receipt of such notice that such Executive Securities are newly available. In the event that the holders of Investors Shares elect to purchase more newly-available Executive Securities than are available, then the number of newly-available Executive Securities to be purchased hereunder due by each such holder that has elected to legal or contractual restrictions purchase more than its pro rata share of newly-available Executive Securities (as evidenced based upon the number of shares of Investors Shares held by the opinion letter all such holders of outside counsel to the Company acceptable to the Investors which shall attach the relevant law, regulation and/or contract), Registrable Securities Investor Shares participating in such purchase) shall be repurchased (reduced on a pro rata basis from in proportion to the number of Investor Shares held by all holders that have elected to purchase more than their pro rata share that are not owned by such holder. If for any reason the holders of the Registrable Securities based upon the Ordinary Share equivalents) from time Investor Shares does not elect to time within thirty (30) days after such legal or contractual restriction is lifted, to the extent the Company is legally permitted to do so, and the obligations purchase all of the Company under newly-available Executive Securities pursuant to this Section 6.10.2 will be a continuing obligation until the Company’s repurchase of all such Registrable Securities.
(e) On each date (including any subsequent purchase closing date if multiple purchases result from the application of Section 6.10.2(d)) that a purchase is to occur hereunder, the closing shall occur at the Company’s principal office. At the closing, to the extent applicable, the Investor shall deliver the Registrable Securities being sold, duly endorsed in blank, accompanied by such supporting documents as may be necessary to pass to the Company good title to the Registrable Securities, free and clear of all liens (other than restrictions under applicable securities laws). In consideration thereforparagraph, the Company shall deliver be required to exercise the Investor immediately available funds equal to the aggregate purchase price as determined hereunder. If the Company fails to purchase the Registrable Securities on any closing date, it shall pay interest to each Investor Repurchase Option for the period commencing on newly-available Executive Securities which the date holders of such closing and ending on the date such purchase is made equal Investor Shares has not elected to the US dollar prime rate by Citibank N.A. for such period (broker down to shorter periods if relevant) plus four percent (4%)purchase.
(f) At any time prior to the sale of any Registrable Securities under this Section 6.10.2, the Investor may withdraw its notice, without impairing its right to exercise its rights pursuant to this Section 6.10.2 at a later date.
Appears in 1 contract
Samples: Stock Option Agreement (CHG Healthcare Services, Inc.)
Repurchase Obligation. In the event that the Company breaches its obligations under Section 2 or Section 3 of this Agreement, the Investors shall have the right to cause the Company to purchase the Registrable Securities that were the subject of such breach (the “Repurchase Right”), as follows:
(a) In the event an Investor wishes the Executive ceases to exercise be employed by the Company and its Repurchase RightSubsidiaries for any reason (the “Termination”), the Investor shall notify Executive Securities (whether held by the Executive or one or more of the Executive’s Permitted Transferees (as defined in the Stockholders Agreement)) will be subject to repurchase by the Company and the holders of Investor Shares pursuant to the terms and conditions set forth in writing this Section 2 (the “Repurchase Option”). The Repurchase Option for any Executive Securities shall become effective on the later of the alleged breach date the Executive has held the Executive Securities for six months or the date of Section 2 or Section 3 and the Registrable Securities that were Termination (the subject of such breach“Repurchase Date”).
(b) In If the event that Executive’s employment with the Company does not remedy or cure such breach within thirty and its Subsidiaries is (30i) days of the receipt of the written notice set out in Section 6.10.2(a) above, then terminated by the Company or any such Subsidiary without Cause or (ii) voluntarily terminated by the Executive and, at the time of such termination, Executive could not have been terminated by the Company or such Subsidiary with Cause, the purchase price for the Executive Securities shall be irrevocably obligated to the Fair Market Value thereof on the Repurchase Date. If the Executive’s employment with the Company and its Subsidiaries is terminated by the Company or any such Subsidiary for Cause, the purchase from price for the Investor Executive Securities shall be the Registrable Securities that were lower of Fair Market Value on the subject of such breach. The closing of such repurchase shall take place within sixty (60) days of such noticeRepurchase Date and Original Cost thereof.
(c) The holders of Investor Shares may elect to purchase price all or any portion of the Executive Securities by delivering written notice (the “Repurchase Notice”) to the Executive and the Company within 45 days after the Repurchase Date. The Repurchase Notice will set forth the Executive Securities to be acquired from each holder, the aggregate consideration to be paid for such Executive Securities and the time and place for the Registrable closing of the transaction. The number of Executive Securities to be repurchased pursuant by the holders of Investor Shares shall first be satisfied, to the exercise extent possible, from the Executive Securities held by the Executive at the time of this delivery of the Repurchase Right Notice. In the event that the holders of Investor Shares elect to purchase more Executive Securities than are available, then the number of Executive Securities to be purchased by each such holder that has elected to purchase more than its pro rata share of Executive Securities (based upon the number of shares of Investor Shares held by all such holders of Investor Shares that are participating in such repurchase) shall be equal reduced on a pro rata basis in proportion to the average number of the closing prices for the applicable Registrable Securities for the last 20 trading days prior Investor Shares held by all holders that have elected to the day purchase more than their pro rata share that the closing of the repurchase of are not owned by such Registrable Securities is to occur hereunderholder.
(d) If for any reason the holders of Investor Shares do not elect to purchase all of the Executive Securities pursuant to the Repurchase Option, the Company shall be required to exercise the Repurchase Option for the Executive Securities which the holders of Investor Shares have not elected to purchase (the “Available Shares”). As soon as practicable, and in any event within five (5) days after the expiration of such 45-day period, the Company shall deliver written notice (the “Supplemental Repurchase Notice”) to the Executive and each holder of Investor Shares exercising the Repurchase Option setting forth the number of Executive Securities which such holder of Investor Shares and the Company is unable purchasing, the aggregate purchase price for such Executive Securities and the time and place of the closing of the transaction.
(e) The closing of the purchase of the Executive Securities pursuant to the Repurchase Option (the “Closing”) shall take place on the date designated by the Company in the Repurchase Notice or Supplemental Repurchase Notice, which date, subject to clause (f) below, shall not be more than ten (10) days not less than five (5) days after the delivery of such notice (but in any event shall be no earlier than ten (10) days after the final determination of Fair Market Value). Subject to clause (f) below, the Company and/or the holders of Investor Shares, as the case may be, will pay for the Executive Securities to be purchased pursuant to the Repurchase Option by delivery of a check or wire transfer of funds to the holders of the Executive Securities. The Company and the holders of Investor Shares will be entitled to receive customary representations and warranties from the sellers regarding such sale and to require all sellers’ signatures be guaranteed.
(f) Notwithstanding anything to the contrary contained in this Agreement, the Company’s exercise of the Repurchase Option shall be subject to applicable restrictions contained in applicable law and in the Company’s and its Subsidiaries’ debt and equity financing agreements. If any such restrictions prohibit the repurchase of Executive Securities hereunder which the Company is otherwise required to make or create a default thereunder, the time periods provided in this Section 2 and the Closing (with respect to the Company) shall be suspended, and the Company may make such repurchases under this Section 2 as soon as it is permitted to do so under such restrictions (and the Company shall inform the Executive of such restrictions in the Supplemental Repurchase Notice) and shall consummate such repurchase of Executive Securities promptly following the cessation of all such restrictions thereon (by giving the holder or holders of Executive Securities a new Supplemental Repurchase Notice). In addition, notwithstanding anything to the contrary contained in this Agreement, the Company shall be entitled to suspend the Closing if, and for so long as, the Board determines in its good faith judgment that the consummation of the Closing could have an adverse effect in any material respect on (i) any pending or contemplated financing, acquisition, or other transaction or development involving the Company or any of its subsidiaries or (ii) the business, financial condition or prospects of the Company and its subsidiaries taken as a whole.
(g) Notwithstanding anything to the contrary contained in this Agreement, a holder of Investor Shares can elect to terminate the exercise of its Repurchase Option in whole or in part by providing notice to the Company, the holders of Investor Shares and the Executive at least ten days prior to the Closing, in which case the other holders of Investor Shares may elect to purchase all Registrable or any portion of the newly-available Executive Securities required by delivering written notice to the Executive, the Company and the holders of Investor Shares within 5 days after the receipt of such notice that such Executive Securities are newly available. In the event that the holders of Investor Shares elect to purchase more newly-available Executive Securities than are available, then the number of newly-available Executive Securities to be purchased hereunder due by each such holder that has elected to legal or contractual restrictions purchase more than its pro rata share of newly-available Executive Securities (as evidenced based upon the number of shares of Investor Shares held by the opinion letter all such holders of outside counsel to the Company acceptable to the Investors which shall attach the relevant law, regulation and/or contract), Registrable Securities Investor Shares participating in such purchase) shall be repurchased (reduced on a pro rata basis from in proportion to the number of Investor Shares held by all holders that have elected to purchase more than their pro rata share that are not owned by such holder. If for any reason the holders of Investor Shares do not elect to purchase all of the Registrable newly-available Executive Securities based upon the Ordinary Share equivalents) from time pursuant to time within thirty (30) days after such legal or contractual restriction is liftedthis paragraph, to the extent the Company is legally permitted shall be required, subject to do so, and the obligations of the Company under this Section 6.10.2 will be a continuing obligation until the Company’s repurchase of all such Registrable Securities.
(e) On each date (including any subsequent purchase closing date if multiple purchases result from the application of Section 6.10.2(d2(f)) that a purchase is to occur hereunder, the closing shall occur at the Company’s principal office. At the closing, to exercise the extent applicable, the Investor shall deliver the Registrable Securities being sold, duly endorsed in blank, accompanied by such supporting documents as may be necessary to pass to the Company good title to the Registrable Securities, free and clear of all liens (other than restrictions under applicable securities laws). In consideration therefor, the Company shall deliver to the Investor immediately available funds equal to the aggregate purchase price as determined hereunder. If the Company fails to purchase the Registrable Securities on any closing date, it shall pay interest to each Investor Repurchase Option for the period commencing on newly-available Executive Securities which the date holders of such closing and ending on the date such purchase is made equal Investor Shares have not elected to the US dollar prime rate by Citibank N.A. for such period (broker down to shorter periods if relevant) plus four percent (4%)purchase.
(fh) At any time prior The right of the Company and the holders of Investor Shares to the sale of any Registrable repurchase Executive Securities under this Section 6.10.2, the Investor may withdraw its notice, without impairing its right to exercise its rights pursuant to this Section 6.10.2 at 2 shall terminate upon the consummation of a later datePublic Offering.
(i) Notwithstanding anything to the contrary in this Agreement, in the event the Company decides to defer the exercise of the Repurchase Option pursuant to Section 2(f), the Executive’s Option exercise period, for all unexercised Option Shares, as provided in Sections 1(a)(i)(B) and (C) shall be extended for a period equal to the time which elapses from the effective date of the Repurchase Option, for the shares for which the Company desires to defer the Repurchase Option, until the date that the Company exercises the Repurchase Option; provided, however, in no way shall any extension of the Executive’s exercise period set forth in Sections 1(a)(i)(B) and (C) delay the application of Sections 1(a)(i)(A) and (D).
Appears in 1 contract
Samples: Stock Option Agreement (CHG Healthcare Services, Inc.)
Repurchase Obligation. In Subject to Section 8(b) hereof, Seller shall repurchase from the event that Company, at the Repurchase Price defined immediately below, any Contract sold by Seller to the Company breaches on the first Settlement Date occurring following the last day of the immediately preceding Calculation Period in which Seller becomes aware or receives written notice from the Company or the Collateral Agent that such Contract is a "Defective Contract"; provided, however, that with respect to any Contract incorrectly described on the Contract Schedule only with respect to its obligations under Principal Balance on the relevant Cut-Off Date, which Seller would otherwise be required to repurchase pursuant to this Section 2 8(a), Seller may, in lieu of repurchasing such Contract, pay to the Company on the Business Day next preceding the relevant Notice Settlement Date, cash in an amount sufficient to cure such deficiency or Section 3 discrepancy. For purposes of this Agreement, Section 8(a) the Investors term "Repurchase Price" shall have the right to cause the Company to purchase the Registrable Securities that were the subject of such breach (the “Repurchase Right”), as follows:
(a) In the event mean an Investor wishes to exercise its Repurchase Right, the Investor shall notify the Company in writing of the alleged breach of Section 2 or Section 3 and the Registrable Securities that were the subject of such breach.
(b) In the event that the Company does not remedy or cure such breach within thirty (30) days of the receipt of the written notice set out in Section 6.10.2(a) above, then the Company shall be irrevocably obligated to purchase from the Investor the Registrable Securities that were the subject of such breach. The closing of such repurchase shall take place within sixty (60) days of such notice.
(c) The purchase price for the Registrable Securities to be repurchased pursuant to the exercise of this Repurchase Right shall be amount equal to the average product of (x) a factor of .97 multiplied by (y) the remaining Principal Balance outstanding on such Contract as of the closing prices for opening of business on the applicable Registrable Securities for the last 20 trading days latest Determination Date to occur prior to the day that the closing of Settlement Date on which the repurchase of such Registrable Securities is to occur be effected hereunder.
, together with accrued and unpaid interest thereon at the Contract Rate from the earlier of (di) If the Company is unable last due date as to purchase all Registrable Securities required to be purchased hereunder due to legal which the Obligor paid interest under such Contract or contractual restrictions (as evidenced by the opinion letter of outside counsel ii) such Determination Date, to the Settlement Date on which such repurchase is made. The Company acceptable hereby directs the Seller, for so long as the Credit Agreement is in effect, to make such payment on its behalf to the Investors which shall attach the relevant law, regulation and/or contract), Registrable Securities shall be repurchased (on a pro rata basis from the holders of the Registrable Securities based upon the Ordinary Share equivalentsCollection Account pursuant to Section 7(b) from time hereof. The following defects with respect to time within thirty (30) days after such legal or contractual restriction is lifteddocuments in any Contract File, to the extent they do not impair the Company is legally permitted to do so, and the obligations validity or enforceability of the Company subject document under this applicable law, shall not be deemed to constitute a breach of the representations and warranties contained in Section 6.10.2 will be 7(b): misspellings of or omissions of initials in names; name changes from divorce or marriage; discrepancies as to payment dates in a continuing obligation until the Company’s repurchase Contract of all such Registrable Securities.
(e) On each date (including any subsequent purchase closing date if multiple purchases result from the application no more than 30 days; discrepancies as to Payments of Section 6.10.2(d)) that a purchase is no more than $5.00; discrepancies as to occur hereunder, the closing shall occur at the Company’s principal office. At the closing, to the extent applicable, the Investor shall deliver the Registrable Securities being sold, duly endorsed in blank, accompanied by such supporting documents as may be necessary to pass to the Company good title to the Registrable Securities, free and clear origination dates of all liens (not more than 30 days; inclusion of additional parties other than restrictions under applicable securities laws). In consideration therefor, the Company shall deliver to primary Obligor not listed in the Investor immediately available funds equal to Servicer's records or in the aggregate purchase price as determined hereunder. If the Company fails to purchase the Registrable Securities on any closing date, it shall pay interest to each Investor for the period commencing on the date Contract Schedule and non-substantive typographical errors and other non-substantive minor errors of such closing and ending on the date such purchase is made equal to the US dollar prime rate by Citibank N.A. for such period (broker down to shorter periods if relevant) plus four percent (4%)a clerical or administrative nature.
(f) At any time prior to the sale of any Registrable Securities under this Section 6.10.2, the Investor may withdraw its notice, without impairing its right to exercise its rights pursuant to this Section 6.10.2 at a later date.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Fairfield Communities Inc)
Repurchase Obligation. In At any time on and after August 1, 2001 until 5:00 P.M., Chicago, Illinois time, on the event that the Company breaches its obligations under Section 2 or Section 3 of this Agreement, the Investors shall have the right Warrant Expiration Date (subject to cause the Company to purchase the Registrable Securities that were the subject of such breach (the “Repurchase Right”extension as herein provided), as follows:
(a) In the event an Investor wishes to exercise its Repurchase Right, the Investor shall notify the Company in writing of the alleged breach of Section 2 or Section 3 and the Registrable Securities that were the subject of such breach.
(b) In the event that the Company does not remedy or cure such breach within thirty (30) days of the receipt of the written notice set out in Section 6.10.2(a) above, then the Company shall be irrevocably obligated obligated, upon 60 days prior written notice to purchase the Company by the holder of this Warrant, to repurchase this Warrant from the Investor holder hereof for the Registrable Securities Warrant Repurchase Price (determined as below provided) per Stock Unit, on the terms and conditions set forth below; provided that were (i) the subject Company shall have no repurchase obligation under this Section if on or before the date of such breach. The closing proposed repurchase the Company has completed an Initial Public Offering and (ii) such repurchase obligation shall be deemed suspended if an event of default under the Subordinated Loan Agreement shall have occurred and be continuing or would result therefrom or at any time when, in the opinion of counsel for the Company (whose conclusions are not objected to by reputable outside counsel for the holder of this Warrant), the Board of Directors of the Company would be liable under Section 500 of the General Corporation Law of California in respect of such repurchase; provided that if such repurchase obligation shall take place within sixty (60) days of such notice.
(c) The purchase price for the Registrable Securities to be repurchased suspended pursuant to the exercise foregoing clause (ii), (a) the Company shall give notice of such suspension to the holder of this Repurchase Right shall be equal Warrant and (b) the holder of this Warrant may, by written notice to the average of the closing prices for the applicable Registrable Securities for the last 20 trading days Company, elect to rescind its prior to the day notice requesting that the closing of Company purchase this Warrant. On the repurchase of such Registrable Securities is to occur hereunder.
Warrant Expiration Date (d) If the Company is unable to purchase all Registrable Securities required to be purchased hereunder due to legal or contractual restrictions (as evidenced unless an Initial Public Offering shall have theretofore been completed by the opinion letter of outside counsel to the Company acceptable to the Investors which shall attach the relevant law, regulation and/or contractCompany), Registrable Securities shall be repurchased (on a pro rata basis from the holders of the Registrable Securities based upon the Ordinary Share equivalents) from time to time within thirty (30) days after such legal or contractual restriction is lifted, to the extent the Company is legally permitted to do so, and the obligations of the Company under this Section 6.10.2 will be a continuing obligation until the Company’s repurchase of all such Registrable Securities.
(e) On each date (including any subsequent purchase closing date if multiple purchases result from the application of Section 6.10.2(d)) that a purchase is to occur hereunder, the closing shall occur at the Company’s principal office. At the closing, to the extent applicable, the Investor shall deliver the Registrable Securities being sold, duly endorsed in blank, accompanied by such supporting documents as may be necessary to pass to the Company good title to the Registrable Securities, free and clear of all liens (other than restrictions under applicable securities laws). In consideration therefor, the Company shall deliver (without any further action on the part of the Company or the holder of this Warrant) be obligated to repurchase this Warrant from the holder thereof for the Warrant Repurchase Price (determined as below provided) per Stock Unit, on the terms and conditions set forth below; provided that, if the obligation of the Company to repurchase this Warrant shall then be suspended by reason of a condition referred to in clause (ii) of the preceding sentence, (x) the unpaid portion of the amount that the Company would, but for such suspension, be obligated to pay to the Investor immediately available funds holder of this Warrant (determined without regard to such suspension) shall bear interest, for each day during the period from and including the Warrant Expiration Date to but excluding the date on which such obligation is paid in full, at a rate per annum equal to the aggregate purchase price sum of the Base Rate as determined hereunder. If in effect on such day plus 6% and (y) the Company fails to purchase the Registrable Securities on any closing dateshall give notice, it shall pay interest to each Investor for the period commencing on the date of such closing and ending on the date such purchase is made equal in accordance with SECTION 13 hereof, to the US dollar prime rate by Citibank N.A. for holder of this Warrant when any such period (broker down to shorter periods if relevant) plus four percent (4%).
(f) At any time prior to the sale of any Registrable Securities under this Section 6.10.2, the Investor may withdraw its notice, without impairing its right to exercise its rights pursuant to this Section 6.10.2 at a later date.condition no longer exists. The "
Appears in 1 contract
Repurchase Obligation. In the event that the Company breaches its obligations under Section 2 or Section 3 of this Agreement, the Investors shall have the right to cause the Company to purchase the Registrable Securities that were the subject of such breach (the “Repurchase Right”), as follows:
(a) In the event an Investor wishes the Executive ceases to exercise be employed by the Company and its Repurchase RightSubsidiaries for any reason (the “Termination”), the Investor shall notify Executive Securities (whether held by the Executive or one or more of the Executive’s Permitted Transferees (as defined in the Stockholders Agreement)) will be subject to repurchase by the Company and the holders of Investor Shares pursuant to the terms and conditions set forth in writing this Section 2 (the “Repurchase Option”). The Repurchase Option for any Executive Securities shall become effective on the later of the alleged breach date the Executive has held the Executive Securities for six months or the date of Section 2 or Section 3 and the Registrable Securities that were Termination (the subject of such breach“Repurchase Date”).
(b) In If the event that Executive’s employment with the Company does not remedy or cure such breach within thirty and its Subsidiaries is (30i) days of the receipt of the written notice set out in Section 6.10.2(a) above, then terminated by the Company or any such Subsidiary without Cause or (ii) voluntarily terminated by the Executive and, at the time of such termination, Executive could not have been terminated by the Company or such Subsidiary with Cause, the purchase price for the Executive Securities shall be irrevocably obligated to the Fair Market Value thereof on the Repurchase Date. If the Executive’s employment with the Company and its Subsidiaries is terminated by the Company or any such Subsidiary for Cause, the purchase from price for the Investor Executive Securities shall be the Registrable Securities that were lower of Fair Market Value on the subject of such breach. The closing of such repurchase shall take place within sixty (60) days of such noticeRepurchase Date and Original Cost thereof.
(c) The holders of Investor Shares may elect to purchase price all or any portion of the Executive Securities by delivering written notice (the “Repurchase Notice”) to the Executive and the Company within 45 days after the Repurchase Date. The Repurchase Notice will set forth the Executive Securities to be acquired from each holder, the aggregate consideration to be paid for such Executive Securities and the time and place for the Registrable closing of the transaction. The number of Executive Securities to be repurchased pursuant by the holders of Investor Shares shall first be satisfied, to the exercise extent possible, from the Executive Securities held by the Executive at the time of this delivery of the Repurchase Right Notice. In the event that the holders of Investor Shares elect to purchase more Executive Securities than are available, then the number of Executive Securities to be purchased by each such holder that has elected to purchase more than its pro rata share of Executive Securities (based upon the number of shares of Investor Shares held by all such holders of Investor Shares that are participating in such repurchase) shall be equal reduced on a pro rata basis in proportion to the average number of the closing prices for the applicable Registrable Securities for the last 20 trading days prior Investor Shares held by all holders that have elected to the day purchase more than their pro rata share that the closing of the repurchase of are not owned by such Registrable Securities is to occur hereunderholder.
(d) If for any reason the holders of Investor Shares do not elect to purchase all of the Executive Securities pursuant to the Repurchase Option, the Company shall be required to exercise the Repurchase Option for the Executive Securities which the holders of Investor Shares have not elected to purchase (the “Available Shares”). As soon as practicable, and in any event within five (5) days after the expiration of such 45-day period, the Company shall deliver written notice (the “Supplemental Repurchase Notice”) to the Executive and each holder of Investor Shares exercising the Repurchase Option setting forth the number of Executive Securities which such holder of Investor Shares and the Company is unable purchasing, the aggregate purchase price for such Executive Securities and the time and place of the closing of the transaction.
(e) The closing of the purchase of the Executive Securities pursuant to the Repurchase Option (the “Closing”) shall take place on the date designated by the Company in the Repurchase Notice or Supplemental Repurchase Notice, which date, subject to clause (f) below, shall not be more than ten (10) days nor less than five (5) days after the delivery of such notice (but in any event shall be no earlier than ten (10) days after the final determination of Fair Market Value). Subject to clause (f) below, the Company and/or the holders of Investor Shares, as the case may be, will pay for the Executive Securities to be purchased pursuant to the Repurchase Option by delivery of a check or wire transfer of funds to the holders of the Executive Securities. The Company and the holders of Investor Shares will be entitled to receive customary representations and warranties from the sellers regarding such sale and to require all sellers’ signatures be guaranteed.
(f) Notwithstanding anything to the contrary contained in this Agreement, the Company’s exercise of the Repurchase Option shall be subject to applicable restrictions contained in applicable law and in the Company’s and its Subsidiaries’ debt and equity financing agreements. If any such restrictions prohibit the repurchase of Executive Securities hereunder which the Company is otherwise required to make or create a default thereunder, the time periods provided in this Section 2 and the Closing (with respect to the Company) shall be suspended, and the Company may make such repurchases under this Section 2 as soon as it is permitted to do so under such restrictions (and the Company shall inform the Executive of such restrictions in the Supplemental Repurchase Notice) and shall consummate such repurchase of Executive Securities promptly following the cessation of all such restrictions thereon (by giving the holder or holders of Executive Securities a new Supplemental Repurchase Notice). In addition, notwithstanding anything to the contrary contained in this Agreement, the Company shall be entitled to suspend the Closing if, and for so long as, the Board determines in its good faith judgment that the consummation of the Closing could have an adverse effect in any material respect on (i) any pending or contemplated financing, acquisition, or other transaction or development involving the Company or any of its subsidiaries or (ii) the business, financial condition or prospects of the Company and its subsidiaries taken as a whole.
(g) Notwithstanding anything to the contrary contained in this Agreement, a holder of Investor Shares can elect to terminate the exercise of its Repurchase Option in whole or in part by providing notice to the Company, the holders of Investor Shares and the Executive at least ten days prior to the Closing, in which case the other holders of Investor Shares may elect to purchase all Registrable or any portion of the newly-available Executive Securities required by delivering written notice to the Executive, the Company and the holders of Investor Shares within 5 days after the receipt of such notice that such Executive Securities are newly available. In the event that the holders of Investor Shares elect to purchase more newly-available Executive Securities than are available, then the number of newly-available Executive Securities to be purchased hereunder due by each such holder that has elected to legal or contractual restrictions purchase more than its pro rata share of newly-available Executive Securities (as evidenced based upon the number of shares of Investor Shares held by the opinion letter all such holders of outside counsel to the Company acceptable to the Investors which shall attach the relevant law, regulation and/or contract), Registrable Securities Investor Shares participating in such purchase) shall be repurchased (reduced on a pro rata basis from in proportion to the number of Investor Shares held by all holders that have elected to purchase more than their pro rata share that are not owned by such holder. If for any reason the holders of Investor Shares do not elect to purchase all of the Registrable newly-available Executive Securities based upon the Ordinary Share equivalents) from time pursuant to time within thirty (30) days after such legal or contractual restriction is liftedthis paragraph, to the extent the Company is legally permitted shall be required, subject to do so, and the obligations of the Company under this Section 6.10.2 will be a continuing obligation until the Company’s repurchase of all such Registrable Securities.
(e) On each date (including any subsequent purchase closing date if multiple purchases result from the application of Section 6.10.2(d2(f)) that a purchase is to occur hereunder, the closing shall occur at the Company’s principal office. At the closing, to exercise the extent applicable, the Investor shall deliver the Registrable Securities being sold, duly endorsed in blank, accompanied by such supporting documents as may be necessary to pass to the Company good title to the Registrable Securities, free and clear of all liens (other than restrictions under applicable securities laws). In consideration therefor, the Company shall deliver to the Investor immediately available funds equal to the aggregate purchase price as determined hereunder. If the Company fails to purchase the Registrable Securities on any closing date, it shall pay interest to each Investor Repurchase Option for the period commencing on newly-available Executive Securities which the date holders of such closing and ending on the date such purchase is made equal Investor Shares have not elected to the US dollar prime rate by Citibank N.A. for such period (broker down to shorter periods if relevant) plus four percent (4%)purchase.
(fh) At any time prior The right of the Company and the holders of Investor Shares to the sale of any Registrable repurchase Executive Securities under this Section 6.10.2, the Investor may withdraw its notice, without impairing its right to exercise its rights pursuant to this Section 6.10.2 at 2 shall terminate upon the consummation of a later datePublic Offering.
(i) Notwithstanding anything to the contrary in this Agreement, in the event the Company decides to defer the exercise of the Repurchase Option pursuant to Section 2(f), the Executive’s Option exercise period, for all unexercised Option Shares, as provided in Sections 1(a)(i)(B) and (C) shall be extended for a period equal to the time which elapses from the effective date of the Repurchase Option, for the shares for which the Company desires to defer the Repurchase Option, until the date that the Company exercises the Repurchase Option; provided, however, in no way shall any extension of the Executive’s exercise period set forth in Sections 1(a)(i)(B) and (C) delay the application of Sections 1(a)(i)(A) and (D).
Appears in 1 contract
Samples: Stock Option Agreement (CHG Healthcare Services, Inc.)
Repurchase Obligation. In the event that the Company breaches its obligations under Section 2 or Section 3 of this Agreement, the Investors shall have the right to cause the Company to purchase the Registrable Securities that were the subject of such breach (the “Repurchase Right”), as follows:
(a) In the event an Investor wishes the Executive ceases to exercise be employed by the Company and its Repurchase RightSubsidiaries for any reason (the “Termination”), the Investor shall notify Executive Securities (whether held by the Executive or one or more of the Executive’s Permitted Transferees (as defined in the Stockholders Agreement)) will be subject to repurchase by the Company and the holders of Investor Shares pursuant to the terms and conditions set forth in writing this Section 2 (the “Repurchase Option”), The Repurchase Option for any Executive Securities shall become effective on the later of the alleged breach date the Executive has held the Executive Securities for six months or the date of Section 2 or Section 3 and the Registrable Securities that were Termination (the subject of such breach“Repurchase Date”).
(b) In If the event that Executive’s employment with the Company does not remedy or cure such breach within thirty and its Subsidiaries is (30i) days of the receipt of the written notice set out in Section 6.10.2(a) above, then terminated by the Company or any such Subsidiary without Cause or (ii) voluntarily terminated by the Executive and, at the time of such termination, Executive could not have been terminated by the Company or such Subsidiary with Cause, the purchase price for the Executive Securities shall be irrevocably obligated to the Fair Market Value thereof on the Repurchase Date. If the Executive’s employment with the Company and its Subsidiaries is terminated by the Company or any such Subsidiary for Cause, the purchase from price for the Investor Executive Securities shall be the Registrable Securities that were lower of Fair Market Value on the subject of such breach. The closing of such repurchase shall take place within sixty (60) days of such noticeRepurchase Date and Original Cost thereof.
(c) The holders of Investor Shares may elect to purchase price all or any portion of the Executive Securities by delivering written notice (the “Repurchase Notice”) to the Executive and the Company within 45 days after the Repurchase Date. The Repurchase Notice will set forth the Executive Securities to be acquired from each holder, the aggregate consideration to be paid for such Executive Securities and the time and place for the Registrable closing of the transaction. The number of Executive Securities to be repurchased pursuant by the holders of Investor Shares shall first be satisfied, to the exercise extent possible, from the Executive Securities held by the Executive at the time of this delivery of the Repurchase Right Notice. In the event that the holders of Investor Shares elect to purchase more Executive Securities than are available, then the number of Executive Securities to be purchased by each such holder that has elected to purchase more than its pro rata share of Executive Securities (based upon the number of shares of Investor Shares held by all such holders of Investor Shares that are participating in such repurchase) shall be equal reduced on a pro rata basis in proportion to the average number of the closing prices for the applicable Registrable Securities for the last 20 trading days prior Investor Shares held by all holders that have elected to the day purchase more than their pro rata share that the closing of the repurchase of are not owned by such Registrable Securities is to occur hereunderholder.
(d) If for any reason the holders of Investor Shares do not elect to purchase all of the Executive Securities pursuant to the Repurchase Option, the Company shall be required to exercise the Repurchase Option for the Executive Securities which the holders of Investor Shares have not elected to purchase (the “Available Shares”). As soon as practicable, and in any event within five (5) days after the expiration of such 45-day period, the Company shall deliver written notice (the “Supplemental Repurchase Notice”) to the Executive and each holder of Investor Shares exercising the Repurchase Option setting forth the number of Executive Securities which such holder of Investor Shares and the Company is unable purchasing, the aggregate purchase price for such Executive Securities and the time and place of the closing of the transaction.
(e) The closing of the purchase of the Executive Securities pursuant to the Repurchase Option (the “Closing”) shall take place on the date designated by the Company in the Repurchase Notice or Supplemental Repurchase Notice, which date, subject to clause (f) below, shall not be more than ten (10) days nor less than five (5) days after the delivery of such notice (but in any event shall be no earlier than ten (10) days after the final determination of Fair Market Value). Subject to clause (f) below, the Company and/or the holders of Investor Shares, as the case may be, will pay for the Executive Securities to be purchased pursuant to the Repurchase Option by delivery of a check or wire transfer of funds to the holders of the Executive Securities. The Company and the holders of Investor Shares will be entitled to receive customary representations and warranties from the sellers regarding such sale and to require all sellers’ signatures be guaranteed.
(f) Notwithstanding anything to the contrary contained in this Agreement, the Company’s exercise of the Repurchase Option shall be subject to applicable restrictions contained in applicable law and in the Company’s and its Subsidiaries’ debt and equity financing agreements. If any such restrictions prohibit the repurchase of Executive Securities hereunder which the Company is otherwise required to make or create a default thereunder, the time periods provided in this Section 2 and the Closing (with respect to the Company) shall be suspended, and the Company may make such repurchases under this Section 2 as soon as it is permitted to do so under such restrictions (and the Company shall inform the Executive of such restrictions in the Supplemental Repurchase Notice) and shall consummate such repurchase of Executive Securities promptly following the cessation of all such restrictions thereon (by giving the holder or holders of Executive Securities a new Supplemental Repurchase Notice). In addition, notwithstanding anything to the contrary contained in this Agreement, the Company shall be entitled to suspend the Closing if, and for so long as, the Board determines in its good faith judgment that the consummation of the Closing could have an adverse effect in any material respect on (i) any pending or contemplated financing, acquisition, or other transaction or development involving the Company or any of its subsidiaries or (ii) the business, financial condition or prospects of the Company and its subsidiaries taken as a whole.
(g) Notwithstanding anything to the contrary contained in this Agreement, a holder of Investor Shares can elect to terminate the exercise of its Repurchase Option in whole or in part by providing notice to the Company, the holders of Investor Shares and the Executive at least ten days prior to the Closing, in which case the other holders of Investor Shares may elect to purchase all Registrable or any portion of the newly-available Executive Securities required by delivering written notice to the Executive, the Company and the holders of Investor Shares within 5 days after the receipt of such notice that such Executive Securities are newly available. In the event that the holders of Investor Shares elect to purchase more newly-available Executive Securities than are available, then the number of newly-available Executive Securities to be purchased hereunder due by each such holder that has elected to legal or contractual restrictions purchase more than its pro rata share of newly-available Executive Securities (as evidenced based upon the number of shares of Investor Shares held by the opinion letter all such holders of outside counsel to the Company acceptable to the Investors which shall attach the relevant law, regulation and/or contract), Registrable Securities Investor Shares participating in such purchase) shall be repurchased (reduced on a pro rata basis from in proportion to the number of Investor Shares held by all holders that have elected to purchase more than their pro rata share that are not owned by such holder. If for any reason the holders of Investor Shares do not elect to purchase all of the Registrable newly-available Executive Securities based upon the Ordinary Share equivalents) from time pursuant to time within thirty (30) days after such legal or contractual restriction is liftedthis paragraph, to the extent the Company is legally permitted shall be required, subject to do so, and the obligations of the Company under this Section 6.10.2 will be a continuing obligation until the Company’s repurchase of all such Registrable Securities.
(e) On each date (including any subsequent purchase closing date if multiple purchases result from the application of Section 6.10.2(d2(f)) that a purchase is to occur hereunder, the closing shall occur at the Company’s principal office. At the closing, to exercise the extent applicable, the Investor shall deliver the Registrable Securities being sold, duly endorsed in blank, accompanied by such supporting documents as may be necessary to pass to the Company good title to the Registrable Securities, free and clear of all liens (other than restrictions under applicable securities laws). In consideration therefor, the Company shall deliver to the Investor immediately available funds equal to the aggregate purchase price as determined hereunder. If the Company fails to purchase the Registrable Securities on any closing date, it shall pay interest to each Investor Repurchase Option for the period commencing on newly-available Executive Securities which the date holders of such closing and ending on the date such purchase is made equal Investor Shares have not elected to the US dollar prime rate by Citibank N.A. for such period (broker down to shorter periods if relevant) plus four percent (4%)purchase.
(fh) At any time prior The right of the Company and the holders of Investor Shares to the sale of any Registrable repurchase Executive Securities under this Section 6.10.2, the Investor may withdraw its notice, without impairing its right to exercise its rights pursuant to this Section 6.10.2 at 2 shall terminate upon the consummation of a later datePublic Offering.
(i) Notwithstanding anything to the contrary in this Agreement, in the event the Company decides to defer the exercise of the Repurchase Option pursuant to Section 2(f), the Executive’s Option exercise period, for all unexercised Option Shares, as provided in Sections l(a)(i)(B) and (C) shall be extended for a period equal to the time which elapses from the effective date of the Repurchase Option, for the shares for which the Company desires to defer the Repurchase Option, until the date that the Company exercises the Repurchase Option; provided, however, in no way shall any extension of the Executive’s exercise period set forth in Sections l(a)(i)(B) and (C) delay the application of Sections l(a)(i)(A) and (D).
Appears in 1 contract
Samples: Stock Option Agreement (CHG Healthcare Services, Inc.)
Repurchase Obligation. In the event that the Company breaches its obligations under Section 2 or Section 3 of this Agreement, the Investors shall have the right to cause the Company to purchase the Registrable Securities that were the subject of such breach (the “Repurchase Right”), as follows:
(a) In the event an Investor wishes the Executive ceases to exercise be employed by the Company and its Repurchase RightSubsidiaries for any reason (the “Termination”), the Investor shall notify Executive Securities (whether held by the Executive or one or more of the Executive’s Permitted Transferees (as defined in the Stockholders Agreement)) will be subject to repurchase by the Company and the holders of Investor Shares pursuant to the terms and conditions set forth in writing of the alleged breach of this Section 2 or Section 3 and (the Registrable Securities that were the subject of such breach“Repurchase Option”).
(b) In If the event that Executive’s employment with the Company does not remedy or cure such breach within thirty and its Subsidiaries is (30i) days of the receipt of the written notice set out in Section 6.10.2(a) above, then terminated by the Company or any such Subsidiary without Cause or (ii) voluntarily terminated by the Executive and, at the time of such termination, Executive could not have been terminated by the Company or such Subsidiary with Cause, the purchase price for the Executive Securities shall be irrevocably obligated to the Fair Market Value thereof on the date of cessation of employment. If the Executive’s employment with the Company and its Subsidiaries is terminated by the Company or any such Subsidiary for Cause, the purchase from price for the Investor Executive Securities shall be the Registrable Securities that were lower of Fair Market Value on the subject date of such breach. The closing cessation of such repurchase shall take place within sixty (60) days of such noticeemployment and Original Cost thereof.
(c) The holders of Investors Shares may elect to purchase price all or any portion of the Executive Securities by delivering written notice (the “Repurchase Notice”) to the Executive and the Company within 45 days after the Termination. The Repurchase Notice will set forth the Executive Securities to be acquired from each holder, the aggregate consideration to be paid for such Executive Securities and the time and place for the Registrable closing of the transaction. The number of Executive Securities to be repurchased pursuant by the holders of Investor Shares shall first be satisfied, to the exercise extent possible, from the Executive Securities held by the Executive at the time of this delivery of the Repurchase Right Notice. In the event that the holders of Investors Shares elect to purchase more Executive Securities than are available, then the number of Executive Securities to be purchased by each such holder that has elected to purchase more than its pro rata share of Executive Securities (based upon the number of shares of Investors Shares held by all such holders of Investor Shares that are participating in such repurchase) shall be equal reduced on a pro rata basis in proportion to the average number of the closing prices for the applicable Registrable Securities for the last 20 trading days prior Investor Shares held by all holders that have elected to the day purchase more than their pro rata share that the closing of the repurchase of are not owned by such Registrable Securities is to occur hereunderholder.
(d) If for any reason the holders of Investor Shares does not elect to purchase all of the Executive Securities pursuant to the Repurchase Option, the Company shall be required to exercise the Repurchase Option for the Executive Securities which the holders of Investor Shares has not elected to purchase (the “Available Shares”). As soon as practicable, and in any event within five (5) days after the expiration of such 45-day period, the Company shall deliver written notice (the “Supplemental Repurchase Notice”) to the Executive and each holder of Investor Shares exercising the Repurchase Option setting forth the number of Executive Securities which such holder of Investor Shares and the Company is unable purchasing, the aggregate purchase price for such Executive Securities and the time and place of the closing of the transaction.
(e) The closing of the purchase of the Executive Securities pursuant to the Repurchase Option (the “Closing”) shall take place on the date designated by the Company in the Repurchase Notice or Supplemental Repurchase Notice, which date, subject to clause (f) below, shall not be more than 15 days nor less than five (5) days after the delivery of such notice (but in any event shall be no earlier than ten (10) days after the final determination of Fair Market Value). Subject to clause (f) below, the Company and/or the holders of Investor Shares, as the case may be, will pay for the Executive Securities to be purchased pursuant to the Repurchase Option by delivery of a check or wire transfer of funds to the holders of the Executive Securities. The Company and the holders of Investor Shares will be entitled to receive customary representations and warranties from the sellers regarding such sale and to require all sellers’ signatures be guaranteed.
(f) Notwithstanding anything to the contrary contained in this Agreement, the Company’s exercise of the Repurchase Option shall be subject to applicable restrictions contained in applicable law and in the Company’s and its Subsidiaries’ debt and equity financing agreements. If any such restrictions prohibit the repurchase of Executive Securities hereunder which the Company is otherwise required to make or create a default thereunder, the time periods provided in this Section 2 and the Closing (with respect to the Company) shall be suspended, and the Company may make such repurchases under this Section 2 as soon as it is permitted to do so under such restrictions (and the Company shall inform the Executive of such restrictions in the Supplemental Repurchase Notice) and shall consummate such repurchase of Executive Securities promptly following the cessation of all such restrictions thereon (by giving the holder or holders of Executive Securities a new Supplemental Repurchase Notice). In addition, notwithstanding anything to the contrary contained in this Agreement, the Company shall be entitled to suspend the Closing if, and for so long as, the Board determines in its good faith judgment that the consummation of the Closing could have an adverse effect in any material respect on (i) any pending or contemplated financing, acquisition, or other transaction or development involving the Company or any of its subsidiaries or (ii) the business, financial condition or prospects of the Company and its subsidiaries taken as a whole.
(g) Notwithstanding anything to the contrary contained in this Agreement, a holder of Investor Shares can elect to terminate the exercise of its Repurchase Option in whole or in part by providing notice to the Company, the holder of Investor Shares and the Executive at least ten days prior to the Closing, in which case the other holders of Investor Shares may elect to purchase all Registrable or any portion of the newly-available Executive Securities required by delivering written notice to the Executive, the Company and the holders of Investor Shares within 5 days after the receipt of such notice that such Executive Securities are newly available. In the event that the holders of Investors Shares elect to purchase more newly-available Executive Securities than are available, then the number of newly-available Executive Securities to be purchased hereunder due by each such holder that has elected to legal or contractual restrictions purchase more than its pro rata share of newly-available Executive Securities (as evidenced based upon the number of shares of Investors Shares held by the opinion letter all such holders of outside counsel to the Company acceptable to the Investors which shall attach the relevant law, regulation and/or contract), Registrable Securities Investor Shares participating in such purchase) shall be repurchased (reduced on a pro rata basis from in proportion to the number of Investor Shares held by all holders that have elected to purchase more than their pro rata share that are not owned by such holder. If for any reason the holders of the Registrable Securities based upon the Ordinary Share equivalents) from time Investor Shares does not elect to time within thirty (30) days after such legal or contractual restriction is lifted, to the extent the Company is legally permitted to do so, and the obligations purchase all of the Company under newly-available Executive Securities pursuant to this Section 6.10.2 will be a continuing obligation until the Company’s repurchase of all such Registrable Securities.
(e) On each date (including any subsequent purchase closing date if multiple purchases result from the application of Section 6.10.2(d)) that a purchase is to occur hereunder, the closing shall occur at the Company’s principal office. At the closing, to the extent applicable, the Investor shall deliver the Registrable Securities being sold, duly endorsed in blank, accompanied by such supporting documents as may be necessary to pass to the Company good title to the Registrable Securities, free and clear of all liens (other than restrictions under applicable securities laws). In consideration thereforparagraph, the Company shall deliver be required to exercise the Investor immediately available funds equal to the aggregate purchase price as determined hereunder. If the Company fails to purchase the Registrable Securities on any closing date, it shall pay interest to each Investor Repurchase Option for the period commencing on newly-available Executive Securities which the date holders of such closing and ending on the date such purchase is made equal Investor Shares has not elected to the US dollar prime rate by Citibank N.A. for such period (broker down to shorter periods if relevant) plus four percent (4%)purchase.
(f) At any time prior to the sale of any Registrable Securities under this Section 6.10.2, the Investor may withdraw its notice, without impairing its right to exercise its rights pursuant to this Section 6.10.2 at a later date.
Appears in 1 contract
Samples: Stock Option Agreement (CHG Healthcare Services, Inc.)
