Common use of Right of First Offer; Tag-Along Rights Clause in Contracts

Right of First Offer; Tag-Along Rights. (a) If, after the fourth anniversary of the Closing Date and prior to the Initial Public Offering, the Xxxx Members desire to sell (including, without limitation, to the Company pursuant to the exercise of put rights under Section 11.7, or otherwise) all or less than all the Units, Series A Preferred Units and/or Series B Convertible Preferred Units held by such Members and/or the stock and/or units of RPH owned by Xxxx Parent or its Affiliates (or any successive equity interests in successors of RPH) and/or the units of a Vestar Entity owned by VCP or its Affiliates (or any successive equity interests in successors of a Vestar Entity and/or all of the Company’s units and/or stock in Consolidated Container Company LLC (or its successor)), the Xxxx Members shall offer such Units, Series A Preferred Units and/or Series B Convertible Preferred Units and/or stock and/or units to the Suiza Member by giving written notice (the “Notice”) to the Suiza Member to such effect, enclosing the offer to sell such Units, Series A Preferred Units and/or Series B Convertible Preferred Units and/or stock and/or units to the Suiza Member, the consideration per Unit, Series A Preferred Unit and/or Series B Convertible Preferred Unit and/or stock and/or unit, and the other material terms of the offer. Upon receipt of the Notice, the Suiza Member shall have the right and option to purchase such Units, Series A Preferred Units and/or Series B Convertible Preferred Units and/or stock and/or units offered by the Xxxx Members, pro rata according to their respective As-Converted Percentage Interest or in such other proportions as they may agree upon, for cash at the purchase price per Unit, Series A Preferred Unit and/or Series B Convertible Preferred Unit and/or stock and/or unit specified in the Notice, exercisable for 30 days after receipt of the Notice. Failure of the Suiza Member to respond to such Notice within such 30-day period shall be deemed to constitute a notification to the Xxxx Member of the Suiza Member’s decision not to purchase such Units, Series A Preferred Units and/or Series B Convertible Preferred Units and/or stock and/or units under this Section 11.5(a). (b) The Suiza Member may exercise the right and option to purchase all (but not less than all) of such Units and/or Series A Preferred Units and/or Series B Convertible Preferred Units and/or stock and/or units offered by the Xxxx Members by giving written notice of exercise to the Xxxx Members within such 30-day period, specifying the date (not later than three Business Days after the date of such notice) upon which payment of the purchase price for the Units and/or Series A Preferred Units and/or Series B Convertible Preferred Units and/or stock and/or units shall be made and the identity of the Suiza Member who will purchase such Units and/or Series A Preferred Units and/or Series B Convertible Preferred Units and/or stock and/or units. The Xxxx Members shall deliver to the Suiza Member at the Company’s principal office, at least one day prior to the payment date, wire transfer instructions, and on or before the payment date specified in such notice, appropriate documentation transferring such Units and/or Series A Preferred Units and/or Series B Convertible Preferred Units and/or stock and/or units, against payment of the purchase price therefor by the Suiza Member in immediately available funds. (c) In the event that all of the Units and/or Series A Preferred Units and/or Series B Convertible Preferred Units and/or stock and/or units offered by the Xxxx Members are not purchased by the Suiza Member, subject to the Suiza Member’s rights as set forth in the remainder of this Section 11.5, during the 90 day period commencing on the expiration of the rights and options provided for in this Section 11.5, the Xxxx Members may sell the unpurchased Units and/or Series A Preferred Units and/or Series B Convertible Preferred Units and/or stock and/or units offered by the Xxxx Members to a third party for a consideration equal to or greater than 95% of the consideration specified in the Notice, free of the restrictions contained in this Section 11.5 (but subject to the other terms and conditions hereof). (d) If the Suiza Member elects not to exercise its rights to purchase Units and/or Series A Preferred Units and/or Series B Convertible Preferred Units and/or stock and/or units of the Xxxx Members under subsections (a), (b) and (c) of this Section 11.5, the Suiza Member shall have the right (but not the obligation) to participate in the Xxxx Members’ sale of Units and/or Series A Preferred Units and/or Series B Convertible Preferred Units and/or stock and/or units by requiring the Xxxx Members’ proposed transferee to purchase a number of Units from the Suiza Member as set forth in Section 11.5(e). (i) If the Suiza Member owns any Series A Preferred Units, the Suiza Member shall be permitted to require that the proposed transferee purchase from such Suiza Member exercising its tag-along rights pursuant to Section 11.5(d) above (the “Tagging Member”), either (A) in addition to the Units, Series A Preferred Units and/or Series B Convertible Preferred Units and/or stock and/or units being sold by the Xxxx Members, a number of Units not in excess of the number of As-Converted Units held by the Suiza Member up to the product (rounded up to the nearest whole number) of (x) the quotient determined by dividing (1) that portion of the As-Converted Percentage Interest of the Xxxx Members represented by the aggregate number of Units (including Converted Units), Series A Preferred Units and/or Series B Convertible Preferred Units and/or stock and/or units being sought by the Xxxx Members to be sold in the proposed transfer by (2) the As-Converted Percentage Interest of the Xxxx Members (the “Sale Percentage”) and (y) the As-Converted Percentage Interest of the Suiza Member or (B) in lieu of a number of Units (other than Converted Units, as defined below) proposed to be transferred by the Xxxx Members, a number of Units not in excess of the number of As-Converted Units held by the Suiza Member (and not in excess of the number of Units proposed to be sold to such transferee by the Xxxx Members); provided, however, to the extent that any Converted Units proposed to be sold by the Suiza Member (“Suiza Converted Units”) would displace Converted Units proposed to be sold by the Xxxx Members (“Xxxx Converted Units”), the number of Suiza Converted Units and Xxxx Converted Units to be sold shall be treated as “Units” and determined in accordance with the formula set forth in Section 11.5(e)(iii). Subject to the proviso in the immediately preceding sentence, the number of Converted Units that the Suiza Member elects to sell to the proposed transferee in accordance with alternative (B) above of this Section 11.5(e)(i) shall directly reduce, on a one-for-one basis, the number of Units to be sold by the Xxxx Members, pro rata in accordance with the number of Units proposed to be sold by each Xxxx Member, to such proposed transferee. Any Suiza Member exercising its tag-along rights pursuant to this Section 11.5(e)(i) shall convert such number of its Series A Preferred Units into the number of As-Converted Units proposed to be transferred by it (such newly issued Units, together with any Units issued to a Xxxx Member pursuant to Section 12.2(f), “Converted Units”) in accordance with the formula set forth in the definition of “As-Converted Units” immediately prior to the closing of the purchase of the Units pursuant to Section 11.5(g). (ii) In lieu of, or in addition to, the tag-along rights afforded to the Suiza Member pursuant to Section 11.5(e)(i), if the Suiza Member owns any Series A Preferred Units and the Transferring Member (as defined below) proposes to transfer Series A Preferred Units, the proposed transferee shall be required to purchase either (A) in addition to the Series A Preferred Units being sold by the Xxxx Members, a number of Series A Preferred Units from the Tagging Member up to the product (rounded up to the nearest whole number) of (x) the Sale Percentage and (y) the aggregate number of Series A Preferred Units beneficially owned on a fully diluted basis by the Suiza Member or (B) a number of Series A Preferred Units from the Suiza Member up to the product (rounded up to the nearest whole number) of (i) the quotient determined by dividing (A) the aggregate number of Series A Preferred Units beneficially owned on a fully diluted basis by the Suiza Member and sought by the Suiza Member to be included in the contemplated transfer by (B) the aggregate number of Series A Preferred Units beneficially owned (including those beneficially owned by Xxxx Parent or its Affiliate through its ownership of RPH) on a fully diluted basis by the proposed transferring Members (the “Transferring Members”) and all Tagging Members and sought by the Transferring Members and all Tagging Members to be included in the contemplated transfer, in each case as Series A Preferred Units, and (ii) the total number of Series A Preferred Units proposed to be directly or indirectly transferred to the transferee in the contemplated transfer (which includes the proportion of Series A Preferred Units owned by RPH equal to the proportion of shares of RPH proposed to be transferred). (iii) Subject to Section 11.5(e)(i), the proposed transferee shall be required to purchase either (A) in addition to the Units being sold by the Xxxx Members, a number of Units of the Tagging Member up to the product (rounded up to the nearest whole number) of (x) the Sale Percentage and (y) the aggregate number of Units beneficially owned on a fully diluted basis by the Tagging Member or (B) a number of Units of the Tagging Members up to the product (rounded up to the nearest whole number) of (i) the quotient determined by dividing (1) the aggregate number of Units (other than Converted Units to be sold in accordance with Section 11.5(e)(i) but including Converted Units to be sold in accordance with this Section 11.5(e)(iii) pursuant to Section 11.5(e)(i)) beneficially owned on a fully diluted basis by the Tagging Member and sought by the Tagging Member to be included in the contemplated transfer by (2) the aggregate number of Units (other than as aforesaid) beneficially owned (including those beneficially owned by Xxxx Parent or its Affiliate through its ownership of RPH) on a fully diluted basis by the proposed Transferring Members, including any Units displaced pursuant to Section 11.5(e)(i), and all Tagging Members and sought by the Transferring Members and all Tagging Members to be included in the contemplated transfer and (ii) the total number of Units (other than Converted Units to be sold in accordance with Section 11.5(e)(i)) proposed to be directly or indirectly transferred to the transferee in the contemplated transfer (which includes the proportion of Units owned by RPH equal to the proportion of shares of RPH proposed to be transferred). (iv) Any transfers made by the Tagging Member pursuant to this Section 11.5(e) shall be at the same price per Unit, Preferred Unit, share or unit and upon the same terms and conditions (including without limitation time of payment and form of consideration) as to be paid and given to the Transferring Members; provided that in order to be entitled to exercise its right to sell Units and/or Series A Preferred Units and/or Series B Convertible Preferred Units and/or stock and/or units to the proposed transferee pursuant to this Section 11.5, the Suiza Member must agree to make to the transferee the same representations, warranties, covenants, indemnities and agreements as the Xxxx Members agree to make in connection with the transfer of Units and/or Series A Preferred Units and/or Series B Convertible Preferred Units and/or stock and/or units proposed by the Xxxx Members (except that in the case of representations and warranties pertaining specifically to the Xxxx Members, the Suiza Member shall make the comparable representations and warranties pertaining specifically to itself). (f) In connection with a proposed sale of their Units and/or Series A Preferred Units and/or Series B Convertible Preferred Units and/or stock and/or units, the Xxxx Members shall inform the proposed transferee of the tag-along rights provided for in Section 11.5(d) and Section 11.5(e) and obtain the proposed transferee’s agreement to purchase Units and/or Series A Preferred Units and/or Series B Convertible Preferred Units and/or stock and/or units in accordance with the terms hereof. The tag-along rights provided by this Section 11.5 must be exercised by the Suiza Member within the same 30 day period following receipt of the Notice as is provided for the right and option to purchase provided in Section 11.5(a), by delivery of a written notice to the Xxxx Members indicating the Suiza Member’s desire to exercise its tag-along rights and specifying the number of Units (including Converted Units) and/or Series A Preferred Units and/or Series B Convertible Preferred Units and/or stock and/or units it desires to sell. If the proposed transferee fails to purchase Units and/or Series A Preferred Units and/or Series B Convertible Preferred Units and/or stock and/or units from the Suiza Member after properly exercising its tag-along rights, then the Xxxx Members shall not be permitted to make the proposed transfer, and any such attempted transfer shall be void and of no effect. (g) If the Suiza Member exercises its rights to tag-along under this Section 11.5, the closing of the purchase of the Units and/or Series A Preferred Units and/or Series B Convertible Preferred Units and/or stock and/or units with respect to which such rights have been exercised shall take place concurrently with the closing of the sale of the Xxxx Members’ Units and/or Series A Preferred Units and/or Series B Convertible Preferred Units and/or stock and/or units. Other than a transfer of all of the Company’s units and/or stock in Consolidated Container Company LLC (or its successor), no transfer shall occur pursuant to this Section 11.5 unless the transferee shall agree to become a party to, and be bound to the same extent as its transferor by the terms of, this Agreement pursuant to the provisions of Section 11.10. (h) For purposes of this Section 11.5(e), (f) and (g) and with respect to the Suiza Member’s tag along rights as set forth therein, “Suiza Member” shall be deemed to include any employee optionee who exercises options to acquire Units pursuant to Company option plans, provided that the exercising optionee agrees to become a party to, and be bound to the same extent as the Suiza Member by the terms of, this Agreement pursuant to the provisions of Section 11.10.

Right of First Offer; Tag-Along Rights. (a) If, after the fourth anniversary of the Closing Date and prior to the Initial Public Offering, the Xxxx Rxxx Members desire to sell (including, without limitation, to the Company pursuant to the exercise of put rights under Section 11.7, or otherwise) all or less than all the Units, Series A Preferred Units and/or Series B Convertible Preferred Units held by such Members and/or the stock and/or units of RPH owned by Xxxx Rxxx Parent or its Affiliates (or any successive equity interests in successors of RPH) and/or the units of a Vestar Entity owned by VCP or its Affiliates (or any successive equity interests in successors of a Vestar Entity and/or all of the Company’s units and/or stock in Consolidated Container Company LLC (or its successor)), the Xxxx Rxxx Members shall offer such Units, Series A Preferred Units and/or Series B Convertible Preferred Units and/or stock and/or units to the Suiza Member by giving written notice (the “Notice”) to the Suiza Member to such effect, enclosing the offer to sell such Units, Series A Preferred Units and/or Series B Convertible Preferred Units and/or stock and/or units to the Suiza Member, the consideration per Unit, Series A Preferred Unit and/or Series B Convertible Preferred Unit and/or stock and/or unit, and the other material terms of the offer. Upon receipt of the Notice, the Suiza Member shall have the right and option to purchase such Units, Series A Preferred Units and/or Series B Convertible Preferred Units and/or stock and/or units offered by the Xxxx Rxxx Members, pro rata according to their respective As-Converted Percentage Interest or in such other proportions as they may agree upon, for cash at the purchase price per Unit, Series A Preferred Unit and/or Series B Convertible Preferred Unit and/or stock and/or unit specified in the Notice, exercisable for 30 days after receipt of the Notice. Failure of the Suiza Member to respond to such Notice within such 30-day period shall be deemed to constitute a notification to the Xxxx Rxxx Member of the Suiza Member’s decision not to purchase such Units, Series A Preferred Units and/or Series B Convertible Preferred Units and/or stock and/or units under this Section 11.5(a). (b) The Suiza Member may exercise the right and option to purchase all (but not less than all) of such Units and/or Series A Preferred Units and/or Series B Convertible Preferred Units and/or stock and/or units offered by the Xxxx Rxxx Members by giving written notice of exercise to the Xxxx Rxxx Members within such 30-day period, specifying the date (not later than three Business Days after the date of such notice) upon which payment of the purchase price for the Units and/or Series A Preferred Units and/or Series B Convertible Preferred Units and/or stock and/or units shall be made and the identity of the Suiza Member who will purchase such Units and/or Series A Preferred Units and/or Series B Convertible Preferred Units and/or stock and/or units. The Xxxx Rxxx Members shall deliver to the Suiza Member at the Company’s principal office, at least one day prior to the payment date, wire transfer instructions, and on or before the payment date specified in such notice, appropriate documentation transferring such Units and/or Series A Preferred Units and/or Series B Convertible Preferred Units and/or stock and/or units, against payment of the purchase price therefor by the Suiza Member in immediately available funds. (c) In the event that all of the Units and/or Series A Preferred Units and/or Series B Convertible Preferred Units and/or stock and/or units offered by the Xxxx Rxxx Members are not purchased by the Suiza Member, subject to the Suiza Member’s rights as set forth in the remainder of this Section 11.5, during the 90 day period commencing on the expiration of the rights and options provided for in this Section 11.5, the Xxxx Rxxx Members may sell the unpurchased Units and/or Series A Preferred Units and/or Series B Convertible Preferred Units and/or stock and/or units offered by the Xxxx Rxxx Members to a third party for a consideration equal to or greater than 95% of the consideration specified in the Notice, free of the restrictions contained in this Section 11.5 (but subject to the other terms and conditions hereof). (d) If the Suiza Member elects not to exercise its rights to purchase Units and/or Series A Preferred Units and/or Series B Convertible Preferred Units and/or stock and/or units of the Xxxx Rxxx Members under subsections (a), (b) and (c) of this Section 11.5, the Suiza Member shall have the right (but not the obligation) to participate in the Xxxx Rxxx Members’ sale of Units and/or Series A Preferred Units and/or Series B Convertible Preferred Units and/or stock and/or units by requiring the Xxxx Rxxx Members’ proposed transferee to purchase a number of Units from the Suiza Member as set forth in Section 11.5(e). (e) (i) If the Suiza Member owns any Series A Preferred Units, the Suiza Member shall be permitted to require that the proposed transferee purchase from such Suiza Member exercising its tag-along rights pursuant to Section 11.5(d) above (the “Tagging Member”), either (A) in addition to the Units, Series A Preferred Units and/or Series B Convertible Preferred Units and/or stock and/or units being sold by the Xxxx Rxxx Members, a number of Units not in excess of the number of As-Converted Units held by the Suiza Member up to the product (rounded up to the nearest whole number) of (x) the quotient determined by dividing (1) that portion of the As-Converted Percentage Interest of the Xxxx Rxxx Members represented by the aggregate number of Units (including Converted Units), Series A Preferred Units and/or Series B Convertible Preferred Units and/or stock and/or units being sought by the Xxxx Rxxx Members to be sold in the proposed transfer by (2) the As-Converted Percentage Interest of the Xxxx Rxxx Members (the “Sale Percentage”) and (y) the As-Converted Percentage Interest of the Suiza Member or (B) in lieu of a number of Units (other than Converted Units, as defined below) proposed to be transferred by the Xxxx Rxxx Members, a number of Units not in excess of the number of As-Converted Units held by the Suiza Member (and not in excess of the number of Units proposed to be sold to such transferee by the Xxxx Rxxx Members); provided, however, to the extent that any Converted Units proposed to be sold by the Suiza Member (“Suiza Converted Units”) would displace Converted Units proposed to be sold by the Xxxx Rxxx Members (“Xxxx Rxxx Converted Units”), the number of Suiza Converted Units and Xxxx Rxxx Converted Units to be sold shall be treated as “Units” and determined in accordance with the formula set forth in Section 11.5(e)(iii). Subject to the proviso in the immediately preceding sentence, the number of Converted Units that the Suiza Member elects to sell to the proposed transferee in accordance with alternative (B) above of this Section 11.5(e)(i) shall directly reduce, on a one-for-one basis, the number of Units to be sold by the Xxxx Rxxx Members, pro rata in accordance with the number of Units proposed to be sold by each Xxxx Rxxx Member, to such proposed transferee. Any Suiza Member exercising its tag-along rights pursuant to this Section 11.5(e)(i) shall convert such number of its Series A Preferred Units into the number of As-Converted Units proposed to be transferred by it (such newly issued Units, together with any Units issued to a Xxxx Rxxx Member pursuant to Section 12.2(f), “Converted Units”) in accordance with the formula set forth in the definition of “As-Converted Units” immediately prior to the closing of the purchase of the Units pursuant to Section 11.5(g). (ii) In lieu of, or in addition to, the tag-along rights afforded to the Suiza Member pursuant to Section 11.5(e)(i), if the Suiza Member owns any Series A Preferred Units and the Transferring Member (as defined below) proposes to transfer Series A Preferred Units, the proposed transferee shall be required to purchase either (A) in addition to the Series A Preferred Units being sold by the Xxxx Members, a number of Series A Preferred Units from the Tagging Member up to the product (rounded up to the nearest whole number) of (x) the Sale Percentage and (y) the aggregate number of Series A Preferred Units beneficially owned on a fully diluted basis by the Suiza Member or (B) a number of Series A Preferred Units from the Suiza Member up to the product (rounded up to the nearest whole number) of (i) the quotient determined by dividing (A) the aggregate number of Series A Preferred Units beneficially owned on a fully diluted basis by the Suiza Member and sought by the Suiza Member to be included in the contemplated transfer by (B) the aggregate number of Series A Preferred Units beneficially owned (including those beneficially owned by Xxxx Parent or its Affiliate through its ownership of RPH) on a fully diluted basis by the proposed transferring Members (the “Transferring Members”) and all Tagging Members and sought by the Transferring Members and all Tagging Members to be included in the contemplated transfer, in each case as Series A Preferred Units, and (ii) the total number of Series A Preferred Units proposed to be directly or indirectly transferred to the transferee in the contemplated transfer (which includes the proportion of Series A Preferred Units owned by RPH equal to the proportion of shares of RPH proposed to be transferred). (iii) Subject to Section 11.5(e)(i), the proposed transferee shall be required to purchase either (A) in addition to the Units being sold by the Xxxx Members, a number of Units of the Tagging Member up to the product (rounded up to the nearest whole number) of (x) the Sale Percentage and (y) the aggregate number of Units beneficially owned on a fully diluted basis by the Tagging Member or (B) a number of Units of the Tagging Members up to the product (rounded up to the nearest whole number) of (i) the quotient determined by dividing (1) the aggregate number of Units (other than Converted Units to be sold in accordance with Section 11.5(e)(i) but including Converted Units to be sold in accordance with this Section 11.5(e)(iii) pursuant to Section 11.5(e)(i)) beneficially owned on a fully diluted basis by the Tagging Member and sought by the Tagging Member to be included in the contemplated transfer by (2) the aggregate number of Units (other than as aforesaid) beneficially owned (including those beneficially owned by Xxxx Parent or its Affiliate through its ownership of RPH) on a fully diluted basis by the proposed Transferring Members, including any Units displaced pursuant to Section 11.5(e)(i), and all Tagging Members and sought by the Transferring Members and all Tagging Members to be included in the contemplated transfer and (ii) the total number of Units (other than Converted Units to be sold in accordance with Section 11.5(e)(i)) proposed to be directly or indirectly transferred to the transferee in the contemplated transfer (which includes the proportion of Units owned by RPH equal to the proportion of shares of RPH proposed to be transferred). (iv) Any transfers made by the Tagging Member pursuant to this Section 11.5(e) shall be at the same price per Unit, Preferred Unit, share or unit and upon the same terms and conditions (including without limitation time of payment and form of consideration) as to be paid and given to the Transferring Members; provided that in order to be entitled to exercise its right to sell Units and/or Series A Preferred Units and/or Series B Convertible Preferred Units and/or stock and/or units to the proposed transferee pursuant to this Section 11.5, the Suiza Member must agree to make to the transferee the same representations, warranties, covenants, indemnities and agreements as the Xxxx Members agree to make in connection with the transfer of Units and/or Series A Preferred Units and/or Series B Convertible Preferred Units and/or stock and/or units proposed by the Xxxx Members (except that in the case of representations and warranties pertaining specifically to the Xxxx Members, the Suiza Member shall make the comparable representations and warranties pertaining specifically to itself). (f) In connection with a proposed sale of their Units and/or Series A Preferred Units and/or Series B Convertible Preferred Units and/or stock and/or units, the Xxxx Members shall inform the proposed transferee of the tag-along rights provided for in Section 11.5(d) and Section 11.5(e) and obtain the proposed transferee’s agreement to purchase Units and/or Series A Preferred Units and/or Series B Convertible Preferred Units and/or stock and/or units in accordance with the terms hereof. The tag-along rights provided by this Section 11.5 must be exercised by the Suiza Member within the same 30 day period following receipt of the Notice as is provided for the right and option to purchase provided in Section 11.5(a), by delivery of a written notice to the Xxxx Members indicating the Suiza Member’s desire to exercise its tag-along rights and specifying the number of Units (including Converted Units) and/or Series A Preferred Units and/or Series B Convertible Preferred Units and/or stock and/or units it desires to sell. If the proposed transferee fails to purchase Units and/or Series A Preferred Units and/or Series B Convertible Preferred Units and/or stock and/or units from the Suiza Member after properly exercising its tag-along rights, then the Xxxx Members shall not be permitted to make the proposed transfer, and any such attempted transfer shall be void and of no effect. (g) If the Suiza Member exercises its rights to tag-along under this Section 11.5, the closing of the purchase of the Units and/or Series A Preferred Units and/or Series B Convertible Preferred Units and/or stock and/or units with respect to which such rights have been exercised shall take place concurrently with the closing of the sale of the Xxxx Members’ Units and/or Series A Preferred Units and/or Series B Convertible Preferred Units and/or stock and/or units. Other than a transfer of all of the Company’s units and/or stock in Consolidated Container Company LLC (or its successor), no transfer shall occur pursuant to this Section 11.5 unless the transferee shall agree to become a party to, and be bound to the same extent as its transferor by the terms of, this Agreement pursuant to the provisions of Section 11.10. (h) For purposes of this Section 11.5(e), (f) and (g) and with respect to the Suiza Member’s tag along rights as set forth therein, “Suiza Member” shall be deemed to include any employee optionee who exercises options to acquire Units pursuant to Company option plans, provided that the exercising optionee agrees to become a party to, and be bound to the same extent as the Suiza Member by the terms of, this Agreement pursuant to the provisions of Section 11.10.

Right of First Offer; Tag-Along Rights. (a) If, after the fourth anniversary of the Closing Date and prior to the Initial Public Offering, the Xxxx Members Reid Xxxbers desire to sell (including, without limitation, to the Company pursuant to the exercise of put rights under Section 11.7, or otherwise) all or less than all the Units, Series A Preferred Units and/or Series B Convertible Preferred Units held by such Members and/or the stock and/or units of RPH owned by Xxxx Parent Vestar or its Affiliates (or any successive equity interests in successors of RPH) and/or the units of a Vestar Entity owned by VCP or its Affiliates (or any successive equity interests in successors of a Vestar Entity and/or all of the Company’s units and/or stock in Consolidated Container Company LLC (or its successor)), the Xxxx Members Reid Xxxbers shall offer such Units, Series A Preferred Units and/or Series B Convertible Preferred Units and/or stock and/or units to the Suiza Member by giving written notice (the “"Notice”") to the Suiza Member to such effect, enclosing the offer to sell such Units, Series A Preferred Units and/or Series B Convertible Preferred Units and/or stock and/or units to the Suiza Member, the consideration per Unit, Series A Preferred Unit and/or Series B Convertible Preferred Unit Units and/or stock and/or unitshare, and the other material terms of the offer. Upon receipt of the Notice, the Suiza Member shall have the right and option to purchase such Units, Series A Preferred Units and/or Series B Convertible Preferred Units and/or stock and/or units offered by the Xxxx MembersReid Xxxbers, pro rata according to their respective As-Converted Percentage Interest holdings of Units or in such other proportions as they may agree upon, for cash at the purchase price per Unit, Series A Preferred Unit and/or Series B Convertible Preferred Unit and/or stock and/or unit share specified in the Notice, exercisable for 30 days after receipt of the Notice. Failure of the Suiza Member to respond to such Notice within such 30-day period shall be deemed to constitute a notification to the Xxxx Member Reid Xxxber of the Suiza Member’s 's decision not to purchase such Units, Series A Preferred Units and/or Series B Convertible Preferred Units and/or stock and/or units under this Section 11.5(a). (b) The Suiza Member may exercise the right and option to purchase all (but not less than all) of such Units and/or Series A Preferred Units and/or Series B Convertible Preferred Units and/or stock and/or units offered by the Xxxx Members Reid Xxxbers by giving written notice of exercise to the Xxxx Members Reid Xxxbers within such 30-day period, specifying the date (not later than three Business Days after the date of such notice) upon which payment of the purchase price for the Units and/or Series A Preferred Units and/or Series B Convertible Preferred Units and/or stock and/or units shall be made and the identity of the Suiza Member who will purchase such Units and/or Series A Preferred Units and/or Series B Convertible Preferred Units and/or stock and/or unitsstock. The Xxxx Members Reid Xxxbers shall deliver to the Suiza Member at the Company’s 's principal office, at least one day prior to the payment date, wire transfer instructions, and on or before the payment date specified in such notice, appropriate documentation transferring such Units and/or Series A Preferred Units and/or Series B Convertible Preferred Units and/or stock and/or unitsstock, against payment of the purchase price therefor by the Suiza Member in immediately available funds. (c) In the event that all of the Units and/or Series A Preferred Units and/or Series B Convertible Preferred Units and/or stock and/or units offered by the Xxxx Members Reid Xxxbers are not purchased by the Suiza Member, subject to the Suiza Member’s 's rights as set forth in the remainder of this Section 11.5, during the 90 90-day period commencing on the expiration of the rights and options provided for in this Section 11.5, the Xxxx Members Reid Xxxbers may sell the unpurchased Units and/or Series A Preferred Units and/or Series B Convertible Preferred Units and/or stock and/or units offered by the Xxxx Members Reid Xxxbers to a third party for a consideration equal to or greater than 95% of the consideration specified in the Notice, free of the restrictions contained in this Section 11.5 (but subject to the other terms and conditions hereof). (d) If the Suiza Member elects not to exercise its rights to purchase Units and/or Series A Preferred Units and/or Series B Convertible Preferred Units and/or stock and/or units of the Xxxx Members Reid Xxxbers under subsections (a), (b) and (c) of this Section 11.5, the Suiza Member shall have the right (but not the obligation) to participate in the Xxxx Members’ Reid Xxxbers' sale of Units and/or Series A Preferred Units and/or Series B Convertible Preferred Units and/or stock and/or units by requiring the Xxxx Members’ Reid Xxxbers' proposed transferee to purchase a number of Units from the Suiza Member as set forth in Section 11.5(e). (i) If the Suiza Member owns any Series A Preferred Units, the Suiza Member shall be permitted to require that the proposed transferee purchase from such Suiza Member exercising its tag-along rights pursuant to Section 11.5(d) above (the “"Tagging Member”"), either (A) in addition to the Units, Series A Preferred Units and/or Series B Convertible Preferred Units and/or stock and/or units being sold by the Xxxx Members, a number of Units not in excess of the number of As-Converted Units held by the Suiza Member up to the product (rounded up to the nearest whole number) of (x) the quotient determined by dividing (1) that portion of the As-Converted Percentage Interest of the Xxxx Members represented by the aggregate number of Units (including Converted Units), Series A Preferred Units and/or Series B Convertible Preferred Units and/or stock and/or units being sought by the Xxxx Members to be sold in the proposed transfer by (2) the As-Converted Percentage Interest of the Xxxx Members (the “Sale Percentage”) and (y) the As-Converted Percentage Interest of the Suiza Member or (B) in lieu of a number of Units (other than Converted Units, as defined below) proposed to be transferred by the Xxxx MembersReid Xxxbers, a number of Units not in excess of the number of As-Converted Units held by the Suiza Member (and not in excess of the number of Units proposed to be sold to such transferee by the Xxxx MembersReid Xxxbers); provided, however, to the extent that any Converted Units proposed to be sold by the Suiza Member (“"Suiza Converted Units”") would displace Converted Units proposed to be sold by the Xxxx Members Reid Xxxbers (“Xxxx "Reid Converted Units”"), the number of Suiza Converted Units and Xxxx Converted Reid Xxxverted Units to be sold shall be treated as “"Units” " and determined in accordance with the formula set forth in Section 11.5(e)(iii). Subject to the proviso in the immediately preceding sentence, the number of Converted Units that the Suiza Member elects to sell to the proposed transferee in accordance with alternative (B) above of this Section 11.5(e)(i) shall directly reduce, on a one-for-one basis, the number of Units to be sold by the Xxxx MembersReid Xxxbers, pro rata in accordance with the number of Units proposed to be sold by each Xxxx MemberReid Xxxber, to such proposed transferee. Any Suiza Member exercising its tag-along rights pursuant to this Section 11.5(e)(i) shall convert such number of its Series A Preferred Units into the number of As-Converted Units proposed to be transferred by it (such newly issued Units, together with any Units issued to a Xxxx Reid Member pursuant to Section 12.2(f), “"Converted Units”") in accordance with the formula set forth in the definition of “"As-Converted Units” " immediately prior to the closing of the purchase of the Units pursuant to Section 11.5(g). (ii) In lieu of, or in addition to, the tag-along rights afforded to the Suiza Member pursuant to Section 11.5(e)(i), if the Suiza Member owns any Series A Preferred Units and the Transferring Member (as defined below) proposes to transfer Series A Preferred Units, the proposed transferee shall be required to purchase either (A) in addition to the Series A Preferred Units being sold by the Xxxx Members, a number of Series A Preferred Units from the Tagging Member up to the product (rounded up to the nearest whole number) of (x) the Sale Percentage and (y) the aggregate number of Series A Preferred Units beneficially owned on a fully diluted basis by the Suiza Member or (B) a number of Series A Preferred Units from the Suiza Member up to the product (rounded up to the nearest whole number) of (i) the quotient determined by dividing (A) the aggregate number of Series A Preferred Units beneficially owned on a fully diluted basis by the Suiza Member and sought by the Suiza Member to be included in the contemplated transfer by (B) the aggregate number of Series A Preferred Units beneficially owned (including those beneficially owned by Xxxx Parent Vestar or its Affiliate through its ownership of RPH) on a fully diluted basis by the proposed transferring Members (the “Transferring Members”) and all Tagging Members and sought by the Transferring Members and all Tagging Members to be included in the contemplated transfer, in each case as Series A Preferred Units, and (ii) the total number of Series A Preferred Units proposed to be directly or indirectly transferred to the transferee in the contemplated transfer (which includes the proportion of Series A Preferred Units owned by RPH equal to the proportion of shares of RPH proposed to be transferred). (iii) Subject to Section 11.5(e)(i), the proposed transferee shall be required to purchase either (A) in addition to the Units being sold by the Xxxx Members, a number of Units of the Tagging Member up to the product (rounded up to the nearest whole number) of (x) the Sale Percentage and (y) the aggregate number of Units beneficially owned on a fully diluted basis by the Tagging Member or (B) a number of Units of the Tagging Members up to the product (rounded up to the nearest whole number) of (i) the quotient determined by dividing (1) the aggregate number of Units (other than Converted Units to be sold in accordance with Section 11.5(e)(i) but including Converted Units to be sold in accordance with this Section 11.5(e)(iii) pursuant to Section 11.5(e)(i)) beneficially owned on a fully diluted basis by the Tagging Member and sought by the Tagging Member to be included in the contemplated transfer by (2) the aggregate number of Units (other than as aforesaid) beneficially owned (including those beneficially owned by Xxxx Parent or its Affiliate through its ownership of RPH) on a fully diluted basis by the proposed Transferring Members, including any Units displaced pursuant to Section 11.5(e)(i), and all Tagging Members and sought by the Transferring Members and all Tagging Members to be included in the contemplated transfer and (ii) the total number of Units (other than Converted Units to be sold in accordance with Section 11.5(e)(i)) proposed to be directly or indirectly transferred to the transferee in the contemplated transfer (which includes the proportion of Units owned by RPH equal to the proportion of shares of RPH proposed to be transferred). (iv) Any transfers made by the Tagging Member pursuant to this Section 11.5(e) shall be at the same price per Unit, Preferred Unit, share or unit and upon the same terms and conditions (including without limitation time of payment and form of consideration) as to be paid and given to the Transferring Members; provided that in order to be entitled to exercise its right to sell Units and/or Series A Preferred Units and/or Series B Convertible Preferred Units and/or stock and/or units to the proposed transferee pursuant to this Section 11.5, the Suiza Member must agree to make to the transferee the same representations, warranties, covenants, indemnities and agreements as the Xxxx Members agree to make in connection with the transfer of Units and/or Series A Preferred Units and/or Series B Convertible Preferred Units and/or stock and/or units proposed by the Xxxx Members (except that in the case of representations and warranties pertaining specifically to the Xxxx Members, the Suiza Member shall make the comparable representations and warranties pertaining specifically to itself). (f) In connection with a proposed sale of their Units and/or Series A Preferred Units and/or Series B Convertible Preferred Units and/or stock and/or units, the Xxxx Members shall inform the proposed transferee of the tag-along rights provided for in Section 11.5(d) and Section 11.5(e) and obtain the proposed transferee’s agreement to purchase Units and/or Series A Preferred Units and/or Series B Convertible Preferred Units and/or stock and/or units in accordance with the terms hereof. The tag-along rights provided by this Section 11.5 must be exercised by the Suiza Member within the same 30 day period following receipt of the Notice as is provided for the right and option to purchase provided in Section 11.5(a), by delivery of a written notice to the Xxxx Members indicating the Suiza Member’s desire to exercise its tag-along rights and specifying the number of Units (including Converted Units) and/or Series A Preferred Units and/or Series B Convertible Preferred Units and/or stock and/or units it desires to sell. If the proposed transferee fails to purchase Units and/or Series A Preferred Units and/or Series B Convertible Preferred Units and/or stock and/or units from the Suiza Member after properly exercising its tag-along rights, then the Xxxx Members shall not be permitted to make the proposed transfer, and any such attempted transfer shall be void and of no effect. (g) If the Suiza Member exercises its rights to tag-along under this Section 11.5, the closing of the purchase of the Units and/or Series A Preferred Units and/or Series B Convertible Preferred Units and/or stock and/or units with respect to which such rights have been exercised shall take place concurrently with the closing of the sale of the Xxxx Members’ Units and/or Series A Preferred Units and/or Series B Convertible Preferred Units and/or stock and/or units. Other than a transfer of all of the Company’s units and/or stock in Consolidated Container Company LLC (or its successor), no transfer shall occur pursuant to this Section 11.5 unless the transferee shall agree to become a party to, and be bound to the same extent as its transferor by the terms of, this Agreement pursuant to the provisions of Section 11.10. (h) For purposes of this Section 11.5(e), (f) and (g) and with respect to the Suiza Member’s tag along rights as set forth therein, “Suiza Member” shall be deemed to include any employee optionee who exercises options to acquire Units pursuant to Company option plans, provided that the exercising optionee agrees to become a party to, and be bound to the same extent as the Suiza Member by the terms of, this Agreement pursuant to the provisions of Section 11.10.