Common use of Right of First Offer/Refusal Clause in Contracts

Right of First Offer/Refusal. Landlord hereby grants to Tenant a right of first offer/refusal with respect to the following space (collectively, the “First Offer Space”): (i) floors two (2), three (3), four (4), five (5), six (6) and twelve (12) of the Tower, (ii) the first (1st) floor of the Tower other than suites which Landlord intends to lease for retail uses, (iii) all of the remaining space in the Annex, (iv) the Termination Premises should Tenant exercise its Termination Option under Article 34 below, and (v) any portion of the Premises Tenant elects not to lease during the Option Term under Article 31 above. The rentable square footage of all First Offer Space shall be determined pursuant to the BOMA Standard. Notwithstanding the foregoing (x) such first offer/refusal right of Tenant shall commence only following the expiration or earlier termination of the following (collectively, the “Superior Leases”): (A) any existing lease pertaining to any portion of the First Offer Space, and (B) as to any First Offer Space which is vacant as of the date of this Lease, the first lease pertaining to any portion of such First Offer Space entered into by Landlord after the date of this Lease, and (C) as to the Termination Premises and any portion of the Premises Tenant elects not to lease during the Option Term, the first lease pertaining to such space entered into by Landlord after the date Tenant surrenders such space back to Landlord, including in the case of (A), (B) and (C) any renewal or extension of such existing or future lease, but only if such renewal or extension is pursuant to an express written provision in such lease, and (y) such first offer right shall be subordinate and secondary to all rights of expansion, first refusal, first offer or similar rights (collectively, the “Superior Expansion Rights”) granted to the tenants of the Superior Leases (the rights described in items (x) and (y), above to be known collectively as “Superior Rights”). As of the date of this Lease, there are no extension or renewal options in favor of tenants currently leasing any First Offer Space and there are no Superior Expansion Rights. Tenant’s right of first offer/refusal shall be on the terms and conditions set forth in this Article 32.

Right of First Offer/Refusal. Landlord hereby grants (a) In the event that, on or after the date hereof, in the case of the One-Third Stake, and on or after the 2007 Date, in the case of any Securities beneficially owned by the Sandell Funds as of the 2007 Date (as applicable, xxx "Xxbject Securities"), Sandell decides to Tenant sell or otherwise dispose of ("Xxxxxxxr") all or any of the Subject Securities, Sandell shall promptly so notify Trian in writing (xxx "Xffer Notice"), including therein the number of Subject Securities proposed to be Transferred. If Sandell has received a bona fide third party offer (xx "Xffer") to purchase the Subject Securities and is proposing to Transfer the Subject Securities pursuant to such Offer, the terms and conditions of such Offer, including price per share (the "Offer Price"), shall be set forth in the Offer Notice. In the case where no Offer exists, the Offer Notice shall state the closing price per share on the day the Offer Notice is delivered (the "Market Price"). The Offer Notice shall be delivered on any business day not later than 4:30 p.m., New York City time. Trian shall have until noon, New York City time, on the business day following the day the Offer Notice is delivered to deliver to Sandell written notice (the "Exercise Notice") of xxxxxxxe of its right to purchase, through the Trian Funds, all or a portion of first offer/refusal the Subject Securities described in the Offer Notice. (b) If Trian shall have timely delivered to Sandell an Exercise Notice with respect to all or x xxxxxon of the following space (collectivelySubject Securities, then Trian and Sandell shall, within three business days after dexxxxxx of the “First Offer Space”): Exercise Notice, consummate the transaction with respect to such Subject Securities at a price per share equal to (i) floors two in the case where an Offer exists, the Offer Price, or (2)ii) in the case where no Offer exists, three the Market Price. (3)c) Notwithstanding the foregoing, four (4), five (5), six (6) and twelve (12) if Trian or any of the TowerTrian Funds are restricted from purchasing all or a portion of the Subject Securities identified in the Exercise Notice ("Restricted Securities") due to regulatory restrictions, Trian shall identify such restrictions in the Exercise Notice and the parties agree to execute a purchase agreement with respect to such Restricted Securities within three business days after delivery of the Exercise Notice (such date of execution, the "Signing Date"). The purchase price per share shall be determined in accordance with Section 7(b) above and the only condition to Trian's obligation to purchase such Restricted Securities shall be obtaining the necessary regulatory approval. Trian will seek to obtain such approval, including making all necessary filings and taking any other required actions in connection therewith, as expeditiously as possible. Upon the earliest of (i) the consummation of the acquisition of such Restricted Securities, (ii) the first (1st) floor of determination by Trian that it cannot acquire the Tower other than suites which Landlord intends Restricted Securities due to lease for retail uses, its inability to obtain the required regulatory approval and (iii) all the expiration of a 35-day period beginning on the Signing Date (such earliest date, the "Payment Date"), Trian shall pay Sandell an interest amount with respect to the purchase price (or deemed purchase price had the sale been consummated) at the Federal funds rate plus 0.25% for the period beginning three business days after delivery of the remaining space in Exercise Notice and ending on the AnnexPayment Date. (d) If Sandell shall not receive a timely Exercise Notice from Trian, or if Trian exercises its right under clause (iva) the Termination Premises should Tenant exercise its Termination Option under Article 34 below, and (v) any above only with respect to a portion of the Premises Tenant elects Subject Securities referred to in the Offer Notice, then, subject to clause (e) below, the Sandell Funds shall have the right to Transfer the Xxxxxxt Securities as to which Trian has not exercised its right at such times and for such purchase price as Sandell, in its sole discretion, shall determine. (e) If, with respect to lease during any Subject Securities not elected to be purchased by the Option Term under Article 31 above. The rentable square footage of all First Offer Space shall be determined Trian Funds pursuant to clause (a) above, Sandell shall fail to close the BOMA Standard. Notwithstanding the foregoing (x) Transfer of such first offer/refusal right Subject Securities as permitted above within 30 days following receipt of Tenant shall commence only an Exercise Notice or, if no Exercise Notice is delivered, 30 days following the expiration or earlier termination of the time period referred to in clause (a) above within which an Exercise Notice could have timely been delivered, then Sandell shall not be permitted to Transfer any of xxxx Xxbject Securities without again first following (collectively, the “Superior Leases”): (A) any existing lease pertaining to any portion of the First Offer Space, and (B) as to any First Offer Space which is vacant as of the date of this Lease, the first lease pertaining to any portion of such First Offer Space entered into by Landlord after the date of this Lease, and (C) as to the Termination Premises and any portion of the Premises Tenant elects not to lease during the Option Term, the first lease pertaining to such space entered into by Landlord after the date Tenant surrenders such space back to Landlord, including in the case of (A), (B) and (C) any renewal or extension of such existing or future lease, but only if such renewal or extension is pursuant to an express written provision in such lease, and (y) such first offer right shall be subordinate and secondary to all rights of expansion, first refusal, first offer or similar rights (collectively, the “Superior Expansion Rights”) granted to the tenants of the Superior Leases (the rights described in items (x) and (y), above to be known collectively as “Superior Rights”). As of the date of this Lease, there are no extension or renewal options in favor of tenants currently leasing any First Offer Space and there are no Superior Expansion Rights. Tenant’s right of first offer/refusal shall be on the terms and conditions procedures set forth in this Article 32Section 7. (f) Sandell acknowledges, on behalf of itself and the Sandell Funds, that Trian may now or hereafter posxxxx xx have access to material non-public information concerning the Company that has not been communicated to Sandell and that may or may not be known by Sandelx xxx xr at the time of any transaction contemplated by this Section 7. Sandell represents that it has such knowledge, sopxxxxxxxtion and experience in business and financial matters (including with respect to the trading in securities of public companies) so as to be capable of evaluating the merits and risks of the transactions contemplated by this Section 7, and that it understands the disadvantage to which it may be subject on account of the disparity of information as between it and Trian. Sandell acknowledges that none of Trian, the Trian Funds or any of their affiliates has made any representation or warranty concerning the Company or its condition (financial or otherwise), results of operations, business or prospects, and that it is not relying on any representation or warranty with respect to the Company or the transactions contemplated by this Section 7 except for those specifically set forth in this Section 7. In addition, Sandell acknowledges that Trian is and will be relying upon the truth of Sandell's representations, warranties and acknowlexxxxxxx xontained in this Section 7 in engaging in the transactions contemplated by this Section 7 and that Trian would not engage in such transactions or agree to the provisions set forth in this Section 7 in the absence of such representations, warranties and acknowledgments. Sandell, on behalf of itself, the Sandell Funds anx xxxxx affiliates, hereby expressly releases Trian, the Trian Funds and their affiliates from any and all liabilities arising from, waives any and all claims it may have or hereafter acquire against Trian, the Trian Funds or any of their affiliates (including pursuant to Rule 10b-5 under the Securities Exchange Act of 1934, as amended) with respect to, and agrees not to bring any suit, action or proceeding against Trian, the Trian Funds or any of their affiliates in connection with, Trian, the Trian Funds or any of their affiliates' failure to disclose any such material non-public information to Sandell or the Sandell Funds and otherwise in respxxx xx the transactions contemplated by this Section 7. (g) All notices described in this Section 7 or in Section 8 below must be delivered by facsimile and email, if to Trian, to both Chad Fauser (212-451-3256, CFAUSER@TRIANPARTNERS.COM) and the Gxxxxxx Xxxxxel xx Xxxxx (000-000-0000, SROSEN@TRIANPARTNERS.COM), with a coxx xx Xxxx Xssner (000-000-0000, XXXXXER@TRIANPARTNERS.CXX), xxx xx to Sandell, to Xxx Xxxxxxx (000-000-0000, ETS@SANDELLXXXX.XXM), with a copy to Xxxxxx Xxxxan, Xxx. (000-000-0005, FORMAN@SFA-LAW.COM). (x) Xxx xxare numbxxx xxxxxxxxed xx xxxx Xxxxxxx 0 and Section 8 below shall be appropriately adjusted in the event of any split, reverse split, combination of shares, reclassification, recapitalization or similar event relating to the Company's common stock. (i) The provisions of this Section 7 shall no longer apply following such time as the Trian Funds shall have sold, since the date hereof, Securities representing at least 500,000 shares of the Company's common stock." (b) The following Section 8 is hereby added to the Agreement:

Right of First Offer/Refusal. Tenant shall be granted a one-time Right of First Offer/Refusal on all contiguous space that is either currently available or "becomes available" (which shall mean the space is vacant and the Landlord hereby grants has taken possession) on the second (2nd) and third (3rd) floors of the Building (which area is hereinafter referred to Tenant a right as the "Right of first offer/refusal with respect to the following space (collectively, the “First Offer Space”): (i" as delineated on Exhibit "A-l" attached hereto) floors two (2)provided Tenant is not then in default hereunder beyond any applicable grace period. Landlord shall during the Term of this Lease, three (3), four (4), offer all or a portion of such space for lease to Tenant prior to offering such space for lease to any other person or entity by giving Tenant written notice of the terms and conditions on which Landlord is willing to lease such space to Tenant. Such right shall be subject to and subordinate to any other rights which may already exist and subject to the existing tenant's renewing in their current suite. Said written notice shall be sent to Tenant at the address stated in the notice provision provided in Paragraph 9 of this Sixth Amendment. Landlord shall give Tenant the opportunity to respond in writing to Landlord's notice within five (5), six (6) and twelve (12) of the Tower, (ii) the first (1st) floor of the Tower other than suites which Landlord intends to lease for retail uses, (iii) all of the remaining space in the Annex, (iv) the Termination Premises business days should Tenant exercise its Termination Option under Article 34 below, and (v) any portion be interested in leasing the Right of the Premises Tenant elects not to lease during the Option Term under Article 31 above. The rentable square footage of all First Offer Space shall be determined pursuant to the BOMA Standard. Notwithstanding the foregoing (x) such first offer/refusal right of Tenant shall commence only following the expiration or earlier termination of the following (collectively, the “Superior Leases”): (A) any existing lease pertaining to any portion of the First Offer Space, in which case Landlord shall submit a bona fide offer to Tenant to Lease the Right of First Offer Space. Tenant shall then have five (5) business days to either accept the terms of Landlord's offer, which shall be at the same terms and (B) as conditions per Tenant's existing Lease or to any decline the offer, in which case Landlord shall be free to lease the Right of First Offer Space which to a third party prospect. If Tenant refuses Landlord's offer to Lease the Right of First Offer Space, than this Paragraph 11 shall be canceled in its entirety and of no further force or effect. In the case of space that is vacant as currently available (Right of the date of this LeaseFirst Refusal Space), the first Landlord shall notify Tenant when it receives a "bona-fide" offer from a third party to lease pertaining to any all or a portion of such First Offer Space entered into by Landlord after space. Tenant shall then have five (5) business days to either accept the date terms of this LeaseLandlord's offer, and (C) as to the Termination Premises and any portion of the Premises Tenant elects not to lease during the Option Term, the first lease pertaining to such space entered into by Landlord after the date Tenant surrenders such space back to Landlord, including in the case of (A), (B) and (C) any renewal or extension of such existing or future lease, but only if such renewal or extension is pursuant to an express written provision in such lease, and (y) such first offer right which shall be subordinate and secondary to all rights of expansion, first refusal, first offer or similar rights (collectively, at the “Superior Expansion Rights”) granted to the tenants of the Superior Leases (the rights described in items (x) and (y), above to be known collectively as “Superior Rights”). As of the date of this Lease, there are no extension or renewal options in favor of tenants currently leasing any First Offer Space and there are no Superior Expansion Rights. Tenant’s right of first offer/refusal shall be on the same terms and conditions set forth per Tenant's existing Lease or to decline the offer, in this Article 32which case Landlord shall be free to lease the Right of First Refusal Space to a third party prospect at the same terms contained in the original offer. If, after ninety (90) days, Landlord does not execute a lease with the third party, the refusal right will remain in effect.

Right of First Offer/Refusal. Landlord hereby grants (a) In the event that, on or after January 1, 2007, Xxxxxxx decides to Tenant sell or otherwise dispose of (“Transfer”) all or any of those Securities beneficially owned by the Xxxxxxx Funds (the "Subject Securities"), Xxxxxxx shall promptly so notify Trian in writing (the "Offer Notice"), including therein the number of Subject Securities proposed to be Transferred. If Xxxxxxx has received a bona fide third party offer (an “Offer”) to purchase the Subject Securities and is proposing to Transfer the Subject Securities pursuant to such Offer, the terms and conditions of such Offer, including price per share (the “Offer Price”), shall be set forth in the Offer Notice. In the case where no Offer exists, the Offer Notice shall state the closing price per share on the day the Offer Notice is delivered (the “Market Price”). The Offer Notice shall be delivered on any business day not later than 4:30 p.m., New York City time. Trian shall have until noon, New York City time, on the business day following the day the Offer Notice is delivered to deliver to Xxxxxxx written notice (the "Exercise Notice") of exercise of its right to purchase, through the Trian Funds, all or a portion of first offer/refusal the Subject Securities described in the Offer Notice. (b) If Trian shall have timely delivered to Xxxxxxx an Exercise Notice with respect to all or a portion of the Subject Securities, then Trian and Xxxxxxx shall, within three business days after delivery of the Exercise Notice, consummate the transaction with respect to such Subject Securities at a price per share equal to (i) in the case where an Offer exists, the Offer Price, or (ii) in the case where no Offer exists, the Market Price. Notwithstanding the foregoing, if Trian or any of the Trian Funds are restricted from purchasing all or a portion of the Subject Securities identified in the Exercise Notice (the “Restricted Securities”) due to regulatory restrictions, Trian shall identify such restrictions in the Exercise Notice and the parties agree to execute a purchase agreement with respect to the following space Restricted Securities within three business days after delivery of the Exercise Notice (collectivelysuch date of execution, the “First Offer SpaceSigning Date”): ). The purchase price per share shall be determined as described above and the only condition to Trian’s obligation to purchase the Restricted Securities shall be obtaining the necessary regulatory approval. Trian will seek to obtain such approval, including making all necessary filings and taking any other required actions in connection therewith, as expeditiously as possible. Upon the earliest of (i) floors two (2), three (3), four (4), five (5), six (6) and twelve (12) the consummation of the Toweracquisition of such Restricted Securities, (ii) the first (1st) floor of determination by Trian that it cannot acquire the Tower other than suites which Landlord intends Restricted Securities due to lease for retail uses, its inability to obtain the required regulatory approval and (iii) all the expiration of a 35-day period beginning on the Signing Date (such earliest date, the “Payment Date”), Trian shall pay Xxxxxxx an interest amount with respect to the purchase price (or deemed purchase price had the sale been consummated) at the Federal funds rate plus 0.25% for the period beginning three business days after delivery of the remaining space in Exercise Notice and ending on the AnnexPayment Date. (c) If Xxxxxxx shall not receive a timely Exercise Notice from Trian, or if Trian exercises its right under clause (iva) the Termination Premises should Tenant exercise its Termination Option under Article 34 below, and (v) any above only with respect to a portion of the Premises Tenant elects Subject Securities referred to in the Offer Notice, then, subject to clause (d) below, the Xxxxxxx Funds shall have the right to Transfer the Subject Securities as to which Trian has not exercised its right at such times and for such purchase price as Xxxxxxx, in its sole discretion, shall determine. (d) If, with respect to lease during any Subject Securities not elected to be purchased by the Option Term under Article 31 above. The rentable square footage of all First Offer Space shall be determined Trian Funds pursuant to clause (a) above, Xxxxxxx shall fail to close the BOMA Standard. Notwithstanding the foregoing (x) Transfer of such first offer/refusal right Subject Securities as permitted above within 30 days following receipt of Tenant shall commence only an Exercise Notice or, if no Exercise Notice is delivered, 30 days following the expiration or earlier termination of the following time period referred to in clause (collectivelya) above within which an Exercise Notice could have timely been delivered, the “Superior Leases”): (A) then Xxxxxxx shall not be permitted to Transfer any existing lease pertaining to any portion of the First Offer Space, and (B) as to any First Offer Space which is vacant as of the date of this Lease, the first lease pertaining to any portion of such First Offer Space entered into by Landlord after Subject Securities without again first following the date of this Lease, and (C) as to the Termination Premises and any portion of the Premises Tenant elects not to lease during the Option Term, the first lease pertaining to such space entered into by Landlord after the date Tenant surrenders such space back to Landlord, including in the case of (A), (B) and (C) any renewal or extension of such existing or future lease, but only if such renewal or extension is pursuant to an express written provision in such lease, and (y) such first offer right shall be subordinate and secondary to all rights of expansion, first refusal, first offer or similar rights (collectively, the “Superior Expansion Rights”) granted to the tenants of the Superior Leases (the rights described in items (x) and (y), above to be known collectively as “Superior Rights”). As of the date of this Lease, there are no extension or renewal options in favor of tenants currently leasing any First Offer Space and there are no Superior Expansion Rights. Tenant’s right of first offer/refusal shall be on the terms and conditions procedures set forth in this Article 32Section 7. (e) Xxxxxxx acknowledges, on behalf of itself and the Xxxxxxx Funds, that Trian may now or hereafter possess or have access to material non-public information concerning the Company that has not been communicated to Xxxxxxx and that may or may not be known by Xxxxxxx now or at the time of any transaction contemplated by this Section 7. Xxxxxxx represents that it has such knowledge, sophistication and experience in business and financial matters (including with respect to the trading in securities of public companies) so as to be capable of evaluating the merits and risks of the transactions contemplated by this Section 7, and that it understands the disadvantage to which it may be subject on account of the disparity of information as between it and Trian. Xxxxxxx acknowledges that none of Trian, the Trian Funds or any of their affiliates has made any representation or warranty concerning the Company or its condition (financial or otherwise), results of operations, business or prospects, and that it is not relying on any representation or warranty with respect to the Company or the transactions contemplated by this Section 7 except for those specifically set forth in this Section 7. In addition, Xxxxxxx acknowledges that Trian is and will be relying upon the truth of Xxxxxxx’x representations, warranties and acknowledgments contained in this Section 7 in engaging in the transactions contemplated by this Section 7 and that Trian would not engage in such transactions or agree to the provisions set forth in this Section 7 in the absence of such representations, warranties and acknowledgments. Xxxxxxx, on behalf of itself, the Xxxxxxx Funds and their affiliates, hereby expressly releases Trian, the Trian Funds and their affiliates from any and all liabilities arising from, waives any and all claims it may have or hereafter acquire against Trian, the Trian Funds or any of their affiliates (including pursuant to Rule 10b-5 under the Securities Exchange Act of 1934, as amended) with respect to, and agrees not to bring any suit, action or proceeding against Trian, the Trian Funds or any of their affiliates in connection with, Trian, the Trian Funds or any of their affiliates’ failure to disclose any such material non-public information to Xxxxxxx or the Xxxxxxx Funds and otherwise in respect of the transactions contemplated by this Section 7. (f) All notices described in this Section 7 or in Section 8 below must be delivered by facsimile and email, if to Trian, to both Xxxx Xxxxxx (000-000-0000, xxxxxxx@xxxxxxxxxxxxx.xxx ) and the General Counsel of Trian (000-000-0000, xxxxxx@xxxxxxxxxxxxx.xxx), with a copy to Xxxx Xxxxxx (000-000-0000, xxxxxxx@xxxxxxxxxxxxx.xxx), and if to Xxxxxxx, to Xxx Xxxxxxx (000-000-0000, xxx@xxxxxxxxxxx.xxx), with a copy to Xxxxxx Xxxxxx, Esq. (000-000-0000, xxxxxx@xxx-xxx.xxx). (g) All share numbers referenced in this Section 7 and Section 8 below shall be appropriately adjusted in the event of any split, reverse split, combination of shares, reclassification, recapitalization or similar event relating to the Company’s common stock. (h) The provisions of this Section 7 shall no longer apply following such time as the Trian Funds shall have sold, since the date hereof, Securities representing at least 155,000 shares of the Company’s common stock.” (b) The following Section 8 is hereby added to the Agreement: