Right of First Offer. For so long as Purchaser holds any Shares, if the Purchaser joins in a partnership, limited partnership, syndicate, or otherwise acts in concert or alone for the purpose of disposing of more than 5% of the Shares (as adjusted for stock splits or similar events after the date hereof) to a single person or transferee or any group of affiliated persons or transferees but specifically excluding any hedging or similar transactions, the Purchaser shall give the Company the opportunity to purchase such stock, in the following manner: (a) The Purchaser shall give notice (the "Transfer Notice") to the Company in writing of such intention, specifying the number and kind of securities proposed to be sold or transferred, the proposed price per share therefor (the "Transfer Price") and the other material terms, upon which such disposition is proposed to be made, including the names of the proposed purchasers or transferees if such persons have been identified. (b) The Company shall have the right, exercisable by written notice given by the Company to the Purchaser within ten calendar days of receipt of the Transfer Notice to purchase all of the shares specified in such Transfer Notice upon the terms specified in such Transfer Notice. Notwithstanding the foregoing, the Company shall have twenty-five calendar days from the receipt of the Transfer Notice (regardless of the date of the Transfer Notice) to notify Purchaser of the Company's election to purchase the shares pursuant to this Section 7.2 if the Company shall furnish a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 shall not constitute such an event). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have the right to pay for such shares specified in the Transfer Notice: (a) the same amount in cash, if the consideration to be paid consists of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that set forth in the Transfer Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement of the Company and the Purchaser. (c) If the Company (or its assignees) does not exercise its right of first offer hereunder within the time specified for such exercise, the Seller(s) shall be free, during the period of 120 days following the date of the Transfer Notice, to sell the shares specified in such Transfer Notice for such consideration and on such other material terms as shall be no more favorable to the purchaser of the shares than the terms specified in such Transfer Notice. (d) The provisions of this Section 7.2 shall terminate upon the earlier to occur of: (i) such time as 3Com Corporation distributes its shares of the Company's Common Stock to the shareholders of 3Com Corporation or (ii) one year following the Closing Date.
Appears in 3 contracts
Samples: Common Stock Purchase Agreement (Palm Inc), Common Stock Purchase Agreement (Palm Inc), Common Stock Purchase Agreement (Palm Inc)
Right of First Offer. For so long as Purchaser holds any Shares, if the Purchaser joins (i) If Novartis notifies Alnylam in a partnership, limited partnership, syndicate, or otherwise acts in concert or alone for the purpose of disposing of more than 5% writing within [**] after receipt of the Shares Alnylam Opportunity Notice (as adjusted for stock splits or similar events after the date hereof) to a single person or transferee or any group of affiliated persons or transferees but specifically excluding any hedging or similar transactions"Alnylam Opportunity Response Period"; such notice, the Purchaser shall give "Alnylam Opportunity Response") that it wishes to Discover, Develop or Commercialize the Company the opportunity to purchase RNAi Compounds or RNAi Products under such stockAlnylam Program, in the following mannerthen:
(aA) The Purchaser if such Alnylam Program is directed to a product with respect to which the applicable Regulatory Authority in the United States or one of the Major Market Countries has not accepted a bona fide IND filing (a "Pre-IND Alnylam Program"), then such Alnylam Program and related RNAi Compound, product and Targets shall give notice thereafter be included under this Agreement with each being treated as an "Active Program," "Discovered RNAi Compound," "Collaboration Product," and "Selected Targets" (provided that such Targets shall not be treated as Selected Targets or Supplemental Targets for the "Transfer Notice"purposes of calculating the Selected Target Threshold or Supplemental Target Threshold respectively) respectively; provided, however, that without prejudice to the Company in writing binding nature of such intention, specifying the number and kind of securities proposed to be sold or transferred, the proposed price per share therefor (the "Transfer Price") and the other material terms, upon which such disposition is proposed to be made, including the names of the proposed purchasers or transferees if such persons have been identified.
(b) The Company shall have the right, exercisable by written notice given by the Company to the Purchaser within ten calendar days of receipt of the Transfer Notice to purchase all of the shares specified in such Transfer Notice upon the terms specified in such Transfer Notice. Notwithstanding the foregoing, the Company Parties [**] to agree upon [**], provided that in no event shall such [**] be less than the [**], which [**] shall include all [**] (determined in accordance with the [**] under this Agreement) for the [**] involved in such Alnylam Program, all [**] with respect to such Alnylam Program, the Infrastructure Fees which would have twenty-five calendar days from been payable by Novartis pursuant to Section 4.3(c) if the receipt Alnylam Program had been an Active Program, and all milestones which would have been payable by Novartis pursuant to Section 4.4(c) if the Alnylam Program had been an Active Program; or
(B) if such Alnylam Program is directed to a product with respect to which the applicable Regulatory Authority in the United States or one of the Transfer Notice Major Market Countries has accepted a bona fide IND filed by Alnylam (regardless a "Post-IND Alnylam Program"), the Parties shall use commercially reasonable efforts to negotiate and execute a definitive agreement to reflect the rights and obligations of each Party with respect to such RNAi Compound (an "Alnylam Program Agreement") within [**] after the date of Novartis received the Transfer Notice) to notify Purchaser of the Company's election to purchase the shares pursuant to this Section 7.2 if the Company shall furnish a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 shall not constitute such an event). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Alnylam Opportunity Notice. The Company Alnylam Program Agreement shall include (i) non-financial terms which are substantially similar to the terms set forth herein applicable to "Active Programs," "Discovered RNAi Compounds" and Purchaser "Collaboration Products," (provided that any Targets covered by such Alnylam Program shall use their best not be treated as Selected Targets or Supplemental Targets for the purposes of calculating the Selected Target Threshold or Supplemental Target Threshold, respectively) and (ii) appropriate financial consideration after giving effect to the maturity of Alnylam's Discovery, Development and Commercialization activities up through and including the Alnylam Opportunity Notice. During the period in which the Parties are using commercially reasonable efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company negotiate and execute an Alnylam Program Agreement, Alnylam shall have the right to pay for such shares specified in the Transfer Notice: (a) the same amount in cash, if the give reasonable consideration to be paid consists of cashany Novartis input on any agreements that Alnylam desires to enter into with any Research Institution with respect to such Alnylam Program. During the Alnylam Opportunity Response Period, or Alnylam shall provide, at Novartis's reasonable request, information (b) to but not the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that set forth in the Transfer Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement identity of the Company and the PurchaserRNAi Compounds involved) that would be relevant in making a decision about whether or not to participate in such Alnylam Program.
(cii) If If: (A) Novartis indicates during the Company Alnylam Opportunity Response Period that it has no interest in a Pre-IND Alnylam Program; or (B) with respect to Post-IND Alnylam Programs, Novartis and Alnylam are unable, after using commercially reasonable efforts, to enter into an Alnylam Program Agreement within [**] after the date Novartis received the Alnylam Opportunity Notice, then Alnylam and its Affiliates shall for a period of [**] thereafter be free, without any further obligation to Novartis, to enter into an agreement with a Third Party seeking to Discover, Develop or Commercialize, or to license any Third Party to Discover, Develop and Commercialize, any RNAi Compounds and RNAi Products pursuant to such Alnylam Program on terms no more favorable, overall, to such Third Party than those offered to Novartis under Section 2.6(c)(i).
(iii) If: (A) Novartis indicates during the Alnylam Opportunity Response Period that it has no interest in a Post-IND Alnylam Program; or (B) Novartis fails to provide Alnylam an Alnylam Opportunity Response prior to the expiration of the Alnylam Opportunity Response Period with respect to either a Pre-IND Alnylam Program or a Post-IND Alnylam Program, then Alnylam and its assignees) does not exercise its right of first offer hereunder within the time specified for such exercise, the Seller(s) Affiliates shall be free, during the period of 120 days following the date of the Transfer Noticewithout any further obligation to Novartis, to sell the shares specified in enter into an agreement with a Third Party seeking to Discover, Develop or Commercialize, or to license any Third Party to Discover, Develop and Commercialize, any RNAi Compounds and RNAi Products pursuant to such Transfer Notice for such consideration and on such other material terms as shall be no more favorable to the purchaser of the shares than the terms specified in such Transfer NoticeAlnylam Program.
(d) The provisions of this Section 7.2 shall terminate upon the earlier to occur of: (i) such time as 3Com Corporation distributes its shares of the Company's Common Stock to the shareholders of 3Com Corporation or (ii) one year following the Closing Date.
Appears in 3 contracts
Samples: Research Collaboration and License Agreement (Alnylam Pharmaceuticals, Inc.), Research Collaboration and License Agreement (Alnylam Pharmaceuticals, Inc.), Research Collaboration and License Agreement (Alnylam Pharmaceuticals, Inc.)
Right of First Offer. For so long as Purchaser holds any SharesSubject to the terms and conditions specified in this Section 4.1, if the Purchaser joins in a partnership, limited partnership, syndicate, or otherwise acts in concert or alone for the purpose of disposing of more than 5% of the Shares (as adjusted for stock splits or similar events after the date hereof) to a single person or transferee or any group of affiliated persons or transferees but specifically excluding any hedging or similar transactions, the Purchaser shall give the Company the opportunity to purchase such stockand applicable securities laws, in the event the Company proposes to offer or sell any New Securities, the Company shall make an offering of such New Securities to each Holder in accordance with the following manner:provisions of this Section 4.1. A Holder shall be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and Affiliates in such proportions as it deems appropriate.
(a) The Purchaser Company shall give notice deliver a notice, in accordance with the provisions of Section 6.5 hereof, (the "Transfer “Offer Notice"”) to each of the Company in writing Holders stating (i) its bona fide intention to offer such New Securities, (ii) the number of such intention, specifying the number and kind of securities proposed New Securities to be sold or transferredoffered, and (iii) the proposed price per share therefor (the "Transfer Price") and the other material terms, if any, upon which it proposes to offer such disposition is proposed to be made, including the names of the proposed purchasers or transferees if such persons have been identifiedNew Securities.
(b) The Company shall have the right, exercisable by By written notice given notification received by the Company to the Purchaser Company, within ten twenty (20) calendar days of receipt after mailing of the Transfer Notice Offer Notice, each of the Holders, if such Holder is an “accredited investor” as such term is defined in Rule 501 of Regulation D promulgated under the Securities Act, may elect to purchase all of or obtain, at the shares specified in such Transfer Notice upon price and on the terms specified in the Offer Notice, up to that portion of such Transfer NoticeNew Securities which equals the proportion that the number of shares of Common Stock issued or issuable upon conversion of the Preferred Stock then held by such Holder bears to the total number of shares of Common Stock of the Company then outstanding (assuming full conversion and exercise of all then-outstanding convertible or exercisable securities). Notwithstanding At the foregoingexpiration of the twenty day period, the Company shall have twentypromptly, in writing, inform each Holder that elects to purchase all the shares available to it (each, a “Fully-five calendar days from Exercising Party”) of any other Holder’s failure to do likewise. During the ten (10) day period commencing after receipt of the Transfer Notice (regardless such information, each Fully-Exercising Party shall be entitled to obtain that portion of the date New Securities for which Holders were entitled to subscribe but which were not subscribed for by the Holders which is equal to the proportion that the number of shares of Common Stock issued or issuable upon conversion of Preferred Stock then held, by such Fully-Exercising Party bears to the total number of shares of Common Stock issued or issuable upon conversion of the Transfer Notice) to notify Purchaser of the Company's election Preferred Stock then held, by all Fully-Exercising Parties who wish to purchase the shares pursuant to this Section 7.2 if the Company shall furnish a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 shall not constitute such an event). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have the right to pay for such shares specified in the Transfer Notice: (a) the same amount in cash, if the consideration to be paid consists of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that set forth in the Transfer Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement of the Company and the Purchaserunsubscribed shares.
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or obtained as provided in Section 4.1(b) hereof, the Company (or its assignees) does not exercise its right of first offer hereunder within the time specified for such exercise, the Seller(s) shall be freemay, during the ninety (90) day period of 120 days following the date expiration of the Transfer Noticeperiod provided in Section 4.1(b) hereof, offer the remaining unsubscribed portion of such New Securities (collectively, the “Refused Securities”) to sell the shares specified in such Transfer Notice for such consideration any Person or Persons at a price not less than, and on such other material upon terms as shall be no more favorable than those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the purchaser of the shares than the terms specified Holders in such Transfer Noticeaccordance with this Section 4.1.
(d) The provisions right of first offer in this Section 7.2 4.1 shall terminate upon not be applicable to any offer or sale of New Securities which are Exempted Securities (as such term is defined in the earlier to occur of: Restated Certificate).
(e) The right of first offer set forth in this Section 4.1 may not be assigned or transferred except that (i) such time as 3Com Corporation distributes its shares right is assignable by each Holder to any Affiliate of the Company's Common Stock to the shareholders of 3Com Corporation or such Holder, and (ii) one year following the Closing Datesuch right is assignable by any Holder to any other Holder.
Appears in 3 contracts
Samples: Investor Rights Agreement, Investor Rights Agreement (Carbon Black, Inc.), Investor Rights Agreement (Carbon Black, Inc.)
Right of First Offer. For so long as Purchaser holds any SharesThe Company agrees that, if during the Purchaser joins period beginning on the date hereof and terminating on the first anniversary of the date of the Last Closing, the Company will not, without the prior written consent of each Subscriber (which shall be deemed given for the warrants to purchase Common Stock issued or to be issued to the Placement Agent in a partnership, limited partnership, syndicateconsideration of its services in connection with this Agreement and the transactions contemplated hereby) issue or sell, or otherwise acts in concert agree to issue or alone for the purpose of disposing of more than 5% sell any equity or debt securities of the Shares (as adjusted for stock splits or similar events after the date hereof) to a single person or transferee Company or any group of affiliated persons its subsidiaries (or transferees but specifically excluding any hedging security convertible into or similar transactionsexercisable or exchangeable, the Purchaser shall give directly or indirectly, for equity or debt securities of the Company the opportunity to purchase such stock, in the following manner:
or any of its subsidiaries) (a) The Purchaser shall give notice (the "Transfer NoticeFuture Offerings") unless the Company shall have first delivered to each Subscriber at least thirty (30) business days prior to the Company in writing closing of such intentionFuture Offering, specifying the number and kind of securities proposed to be sold or transferred, written notice describing the proposed price per share therefor (the "Transfer Price") and the other material terms, upon which such disposition is proposed to be madeFuture Offering, including the names terms and conditions thereof, and providing each Subscriber and its affiliates an option during the twenty (20) business day period following delivery of such notice to purchase up to the full amount of the proposed purchasers or transferees if securities being offered in the Future Offering on the same terms as contemplated by such persons have been identified.
Future Offering (b) The Company shall have the right, exercisable by written notice given by limitations referred to in this sentence are collectively referred to as the Company to the Purchaser within ten calendar days of receipt of the Transfer Notice to purchase all of the shares specified in such Transfer Notice upon the terms specified in such Transfer Notice"Capital Raising Limitations"). Notwithstanding the foregoing, if the Subscriber chooses not to participate in any Future Offerings, then any debt or equity security issued as a result of the Future Offerings which, combined with this Offering, in the aggregate, exceed five million dollars ($5,000,00.0 U.S.), will be ineligible for sale and/or conversion, as the case may be, until the date which is twelve (12) months after the Last Closing. The Capital Raising Limitations shall not apply to any transaction involving issuances of securities in connection with a merger, consolidation, acquisition or sale of assets, or in connection with any strategic partnership or joint venture (the primary purpose of which is not to raise equity capital), or in connection with the disposition or acquisition of a business, product or license by the Company or exercise of options by employees, consultants or directors. The Capital Raising Limitations also shall have twenty-five calendar days from not apply to (a) the receipt issuance of securities pursuant to an underwritten public offering, (b) the Transfer Notice (regardless issuance of the date of the Transfer Notice) to notify Purchaser securities upon exercise or conversion of the Company's election to purchase the shares pursuant to this Section 7.2 if the Company shall furnish a certificate signed by the President options, warrants or Chief Executive Officer other convertible securities outstanding as of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 shall not constitute such an event). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have the right to pay for such shares specified in the Transfer Notice: (a) the same amount in cash, if the consideration to be paid consists of cash, date hereof or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that set forth in the Transfer Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement of the Company and the Purchaser.
(c) If the grant of additional options or warrants, or the issuance of additional securities, under any Company (stock option or its assignees) does not exercise its right of first offer hereunder within restricted stock plan for the time specified for such exercise, the Seller(s) shall be free, during the period of 120 days following the date of the Transfer Notice, to sell the shares specified in such Transfer Notice for such consideration and on such other material terms as shall be no more favorable to the purchaser of the shares than the terms specified in such Transfer Notice.
(d) The provisions of this Section 7.2 shall terminate upon the earlier to occur of: (i) such time as 3Com Corporation distributes its shares benefit of the Company's Common Stock to the shareholders of 3Com Corporation employees, directors or (ii) one year following the Closing Dateconsultants.
Appears in 3 contracts
Samples: Subscription Agreement (Medcare Technologies Inc), Subscription Agreement (Medcare Technologies Inc), Subscription Agreement (Medcare Technologies Inc)
Right of First Offer. For so long as Purchaser holds If the holder of any SharesEquity Interest in the Duke Member or the holder of any Equity Interest in the COP Member desires to Transfer all or any part of such Equity Interest to a Person other than a wholly owned Subsidiary of the Parent of such Member, then prior to effecting or making such Transfer, the Duke Member (if the Purchaser joins subject Equity Interest is in a partnership, limited partnership, syndicate, the Duke Member) or otherwise acts the COP Member (if the subject Equity Interest is in concert or alone for the purpose of disposing of more than 5% COP Member) (the “Transfer Member”) shall notify in writing the other Member (the “Non-Transfer Member”) of the Shares (as adjusted for stock splits or similar events after the date hereof) to a single person or transferee or any group of affiliated persons or transferees but specifically excluding any hedging or similar transactions, the Purchaser shall give the Company the opportunity to purchase such stock, in the following manner:
(a) The Purchaser shall give notice (the "Transfer Notice") to the Company in writing of such intention, specifying the number terms and kind of securities proposed to be sold or transferred, the proposed price per share therefor (the "Transfer Price") and the other material terms, conditions upon which such disposition Transfer is proposed to be made, including the names of the proposed purchasers or transferees if such persons have been identified.
effected (b) which notice shall be herein referred to as a “Transfer Notice” and shall include all material price and non-price terms and conditions). The Company Non-Transfer Member shall have the right, exercisable by written notice given by right to cause a wholly owned Subsidiary of its Parent (the Company “Subject Subsidiary”) to acquire all (but not less than all) of the Purchaser within ten calendar days of receipt Equity Interest that is the subject of the Transfer Notice on the same terms and conditions as are set forth in the Transfer Notice. The Non-Transfer Member shall have 30 days following delivery of the Transfer Notice during which to notify the Transfer Member whether or not it desires to exercise such right of first offer. If the Non-Transfer Member does not respond during the applicable period set forth above for exercising its purchase right under this Section 5.2, such Non-Transfer Member shall be deemed to have waived such right. If the Non-Transfer Member elects to cause the Subject Subsidiary to purchase all, but not less than all, of the Equity Interest that is the subject of the Transfer Notice, the closing of such purchase shall occur at the principal place of business of the Company on the tenth day following the first date on which all applicable conditions precedent have been satisfied or waived (but in no event shall such closing take place later than the date that is 60 days (subject to extension for regulatory approvals, but in no event more than 180 days) following the date on which the Non-Transfer Member agrees to cause the Subject Subsidiary to purchase all of the shares specified in such Transfer Notice upon Equity Interest that is the terms specified in such Transfer Notice. Notwithstanding the foregoing, the Company shall have twenty-five calendar days from the receipt of the Transfer Notice (regardless of the date subject of the Transfer Notice). The Transfer Member agrees, and the Non-Transfer Member agrees to cause the Subject Subsidiary, to use commercially reasonable efforts to cause any applicable conditions precedent to be satisfied as expeditiously as possible. At the closing, (a) to notify Purchaser the Transfer Member shall cause the holder of the Company's election Equity Interest to purchase execute and deliver to the shares pursuant Subject Subsidiary (i) an assignment of the Equity Interest described in the Transfer Notice, in form and substance reasonably acceptable to this Section 7.2 if the Company shall furnish a certificate signed Subject Subsidiary, and (ii) any other instruments reasonably requested by the President or Chief Executive Officer Subject Subsidiary to give effect to the purchase; and (b) the Non-Transfer Member shall cause the Subject Subsidiary to deliver to the holder of such Equity Interest the Company within ten calendar days of receipt of purchase price specified in the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 shall not constitute such an event). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have the right to pay for such shares immediately available funds or other consideration as specified in the Transfer Notice: . If the Non-Transfer Member does not elect to cause the Subject Subsidiary to purchase the Equity Interest pursuant to this Section 5.2, or having elected to so purchase such Equity Interest fails to do so within the time period required by this Section 5.2, the holder of such Equity Interest shall be free for a period of 180 days after the expiration of the offer period referred to above or the date of such failure, as applicable, to enter into a definitive written agreement with an unaffiliated third party regarding the Transfer of such Equity Interest on terms and conditions that satisfy the following criteria:
(a1) the same amount in cash, if the of consideration to be paid consists of cash, or (b) to by the extent that purchasing party may not be less than the consideration to set forth in the Transfer Notice;
(2) the form of consideration may not be paid does not consist of cash, consideration per share equivalent to materially different from that set forth in the Transfer Notice, or an except to the extent any change in the form of consideration makes the terms of the transaction less favorable from the purchaser’s standpoint; and
(3) the terms and conditions set forth in such definitive written agreement, when considered together with the form and amount of cash having equivalent valueconsideration to be paid by such purchasing party, may not render the terms of such transaction, taken as a whole, materially inferior (to the holder of such Equity Interest from an economic standpoint) to those set forth in the Transfer Notice (it being agreed that the granting by the holder of such Equity Interest of representations, warranties and indemnities with respect to the business or properties of the Company, as determined applicable, or any of its subsidiaries that are different from or in good faith by mutual agreement of the Company and the Purchaser.
(c) If the Company (or its assignees) does not exercise its right of first offer hereunder within the time specified for addition to any such exercise, the Seller(s) shall be free, during the period of 120 days following the date of provisions referenced in the Transfer Notice, Notice shall not be considered to sell the shares specified in such Transfer Notice for such consideration and on such other material terms as shall be no more favorable to the purchaser for purposes of this clause (3)). If such a definitive written agreement is entered into with an unaffiliated third party within such time period, the shares than holder of such Equity Interest shall be free for a period of 270 days following the execution of such definitive written agreement to consummate the Transfer of such Equity Interest in accordance with the terms specified in thereof. If such Transfer Notice.
(d) The provisions is not consummated within such time period in accordance with the terms of such definitive written agreement, the requirements of this Section 7.2 5.2 shall terminate upon apply anew to any further efforts by the earlier holder of such Equity Interest to occur of: (i) Transfer such time as 3Com Corporation distributes its shares of the Company's Common Stock to the shareholders of 3Com Corporation or (ii) one year following the Closing DateEquity Interest.
Appears in 3 contracts
Samples: Limited Liability Company Agreement (Phillips 66), Limited Liability Company Agreement (Spectra Energy Corp.), Limited Liability Company Agreement (Duke Energy Corp)
Right of First Offer. For so long as Purchaser holds any Shares, if the Purchaser joins in a partnership, limited partnership, syndicate, or otherwise acts in concert or alone for the purpose of disposing of more than 5% of the Shares (as adjusted for stock splits or similar events after the date hereof) to a single person or transferee or any group of affiliated persons or transferees but specifically excluding any hedging or similar transactions, the Purchaser shall give the Company the opportunity to purchase such stock, in the following manner:
(a) The Purchaser In the event that any member wishes to Transfer after the third (3rd) anniversary of the Closing or a New Member wishes to Transfer in accordance with Section 2(i) (such member or New Member, a “Transferor”), in one transaction or a series of related transactions, shares to any person, such Transferor, prior to any such Transfer, shall give deliver to the Company and the non-Transferring members (collectively, the “ROFO Recipients”) written notice (the "Transfer “Offer Notice"”) stating (i) such Transferor’s intention to the Company in writing of effect such intention, specifying a Transfer; (ii) the number and kind of securities shares proposed to be sold or transferred, transferred by the Transferor (the “Transferred Shares”); and (iii) the material terms and conditions of such sale (including the per share purchase price (the “Offer Price”)); and (iv) the proposed price per share therefor (effective date of the "Transfer Price") sale. The failure to provide an Offer Notice shall not relieve such Transferor’s obligations and shall not limit the rights of the Company and the other material terms, upon which such disposition is proposed to be made, including the names of the proposed purchasers or transferees if such persons have been identifiednon-Transferring shareholders under this Section 5.
(b) The Company shall For a period often (10) Business Days (the “Initial Exercise Period”) after the last date on which the Offer Notice is deemed to have the right, exercisable by written notice given by the Company to the Purchaser within ten calendar days of receipt of the Transfer Notice to purchase all of the shares specified in such Transfer Notice upon the terms specified in such Transfer Notice. Notwithstanding the foregoing, the Company shall have twenty-five calendar days from the receipt of the Transfer Notice (regardless of the date of the Transfer Notice) to notify Purchaser of the Company's election to purchase the shares pursuant to this Section 7.2 if the Company shall furnish a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental been delivered to the Company and its stockholders to decide whether to elect to purchase the Shares within non-Transferring members, the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 shall not constitute such an event). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have the right to pay for such shares purchase up to all of the Transferred Shares on the same terms and conditions as specified in the Transfer Notice: (a) the same amount in cash, if the consideration to be paid consists of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that Offer Notice and as set forth in the Transfer Noticethis Section 5. In order to exercise its right hereunder, or an amount of cash having equivalent value, as determined in good faith by mutual agreement of the Company and must deliver written notice to such Transferor within the PurchaserInitial Exercise Period.
(c) If Subject to the limitations of this Section 5(c), if the Company declines to purchase all of the Transferred Shares, then the non-Transferring members shall have the right on a pro-rata basis (assuming the conversion of all Preference Shares) to elect to purchase, during the Initial Exercise Period, up to all of the Transferred Shares after giving effect to those Transferred Shares elected to be purchased by the Company (or its assignees) does not the “Remaining ROFO Shares”), on the same terms and conditions as specified in the Offer Notice and as set forth in this Section 5. In order to exercise its right of first offer hereunder rights hereunder, such non-Transferring member must provide written notice delivered to the Transferor within the time specified for Initial Exercise Period. To the extent the aggregate number of shares that the non-Transferring members desire to purchase (as evidenced in the written notices delivered to such exerciseTransferor) exceeds the Remaining ROFO Shares, the Seller(s) each non-Transferring member so exercising shall be freeentitled to purchase the lesser of (x) the number of Remaining ROFO Shares it so elected to purchase and (y) its pro rata share of the Remaining ROFO Shares, during which shall be equal to that number of the period Remaining ROFO Shares equal to the product obtained by multiplying (x) the number of 120 days following Remaining ROFO Shares by (y) a fraction, (i) the numerator of which shall be the number of Ordinary Shares held by such non-Transferring member on the date of the Transfer Notice, to sell Offer Notice and (ii) the shares specified in such Transfer Notice for such consideration and on such other material terms as denominator of which shall be no more favorable to the purchaser number of Ordinary Shares held on the date of the shares than Offer Notice by the terms specified non-Transferring member exercising their rights to purchase under this Section 5 (assuming the conversion of all Preference Shares into Ordinary Shares in such Transfer Noticeeach of the numerator and the denominator).
(d) The provisions of this Section 7.2 shall terminate upon Upon the earlier to occur of: of (i) such time as 3Com Corporation distributes its shares the expiration of the Company's Common Stock to the shareholders of 3Com Corporation Initial Exercise Period or (ii) one year the time when such Transferor has received written confirmation from the Company or all of the non-Transferring members (if the Company is not purchasing all of the Transferred Shares) regarding its exercise of its right of first offer, the Company and the non-Transferring Members shall be deemed to have made its election with respect to the Transferred Shares. If the Company and/or the non-Transferring members, after following the Closing Dateprocedures set forth in Section 5(b) and Section 5(c), elected to acquire all of the Transferred Shares, then within five (5) days after the expiration of the Initial Exercise Period, such Transferor shall give written notice to the Company and each non-Transferring member specifying the number of Transferred Shares that will be purchased by the Company pursuant to Section 5(b) and, if applicable, the number of Transferred Shares that will be purchased by each non-Transferring members pursuant to Section 5(c) (the “ROFO Confirmation Notice”). For purposes of clarity, if the Company and/or the non-Transferring members did not elect to acquire all of the Transferred Shares, then the Company and the non-Transferring members shall not have any right to purchase any Transferred Shares pursuant to this Section 5 and the Transferor shall be free to sell all Transferred Shares to a third party that otherwise meets the requirements of this Article II (including, if applicable, Section 2(i)).
(e) The purchase price for the Transferred Shares to be purchased by the Company and/or by the non-Transferring members exercising its rights of first offer under this Section 5 will be the Offer Price, in cash, and will be payable as set forth in Section 5(f).
(f) The Company and the non-Transferring members exercising their rights of first offer under this Section 5 shall effect the purchase of all of the Transferred Shares, including the payment of the purchase price, within twenty (20) Business Days after the delivery of the ROFO Confirmation Notice (the “Right of First Offer Closing”). Payment of the purchase price will be made, at the option of the Transferor, (i) in cash (by check), (ii) by wire transfer or (iii) by cancellation of all or a portion of any outstanding indebtedness of such Transferor to the Company or the non-Transferring members, as the case may be, or (iv) by any combination of the foregoing. At such Right of First Offer Closing, such Transferor shall deliver to either the Company or, if the Company does not elect to purchase all of the Transferred Shares pursuant to Section 5(b), each non-Transferring member exercising its right of first offer, one or more certificates, properly endorsed for transfer, representing such Transferred Shares so purchased.
(g) This Section Sshall not apply to (i) clauses (a), (b), (c), (d), (f), (g) and (h) of Section 2 (Permitted Transfers) or (ii) Transfers in connection with (A) the consummation of a Company Sale or (B) a liquidation, winding-up or dissolution of the Company.
Appears in 3 contracts
Samples: Subscription Agreement (Michael Kors Holdings LTD), Restructuring Agreement (Michael Kors Holdings LTD), Shareholders Agreement (Michael Kors Holdings LTD)
Right of First Offer. For so long as Purchaser holds any SharesThe Company agrees that, if during the Purchaser joins period beginning on the date hereof and terminating on the first anniversary of the date of the Last Closing, the Company will not, without the prior written consent of each Subscriber (which shall be deemed given for the warrants to purchase Common Stock issued or to be issued to the Placement Agent in a partnership, limited partnership, syndicateconsideration of its services in connection with this Agreement and the transactions contemplated hereby) issue or sell, or otherwise acts in concert agree to issue or alone for the purpose of disposing of more than 5% sell any equity or debt securities of the Shares (as adjusted for stock splits or similar events after the date hereof) to a single person or transferee Company or any group of affiliated persons its subsidiaries (or transferees but specifically excluding any hedging security convertible into or similar transactionsexercisable or exchangeable, the Purchaser shall give directly or indirectly, for equity or debt securities of the Company the opportunity to purchase such stock, in the following manner:
or any of its subsidiaries) (a) The Purchaser shall give notice (the "Transfer NoticeFuture Offerings") unless the Company shall have first delivered to each Subscriber at least thirty (30) business days prior to the Company in writing closing of such intentionFuture Offering, specifying the number and kind of securities proposed to be sold or transferred, written notice describing the proposed price per share therefor (the "Transfer Price") and the other material terms, upon which such disposition is proposed to be madeFuture Offering, including the names terms and conditions thereof, and providing each Subscriber and its affiliates an option during the twenty (20) business day period following delivery of such notice to purchase up to the full amount of the proposed purchasers or transferees if securities being offered in the Future Offering on the same terms as contemplated by such persons have been identified.
Future Offering (b) The Company shall have the right, exercisable by written notice given by limitations referred to in this sentence are collectively referred to as the Company to the Purchaser within ten calendar days of receipt of the Transfer Notice to purchase all of the shares specified in such Transfer Notice upon the terms specified in such Transfer Notice"Capital Raising Limitations"). Notwithstanding the foregoing, if the Subscriber chooses not to participate in any Future Offerings, then any debt or equity security issued as a result of the Future Offerings which, combined with this Offering, in the aggregate, exceed five million dollars ($5,000,00.0 U.S.), will be ineligible for sale and/or conversion, as the case may be, until the date which is twelve (12) months after the Last Closing. The Capital Raising Limitations shall not apply to any transaction involving issuances of securities in connection with a merger, consolidation, acquisition or sale of assets, or in connection with any strategic partnership or joint venture (the primary purpose of which is not to raise equity capital), or in connection with the disposition or acquisition of a business, product or license by the Company or exercise of options by employees, consultants or directors. The Capital Raising Limitations also shall have twenty-five calendar days from not apply to (a) the receipt issuance of securities pursuant to an underwritten public offering, (b) the Transfer Notice (regardless issuance of the date of the Transfer Notice) to notify Purchaser securities upon exercise or conversion of the Company's election to purchase the shares pursuant to this Section 7.2 if the Company shall furnish a certificate signed by the President options, warrants or Chief Executive Officer other convertible securities outstanding as of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 shall not constitute such an event). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have the right to pay for such shares specified in the Transfer Notice: (a) the same amount in cash, if the consideration to be paid consists of cash, date hereof or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that set forth in the Transfer Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement of the Company and the Purchaser.
(c) If the grant of additional options or warrants, or the issuance of additional securities, under any Company (stock option or its assignees) does not exercise its right of first offer hereunder within restricted stock plan for the time specified for such exercise, the Seller(s) shall be free, during the period of 120 days following the date of the Transfer Notice, to sell the shares specified in such Transfer Notice for such consideration and on such other material terms as shall be no more favorable to the purchaser of the shares than the terms specified in such Transfer Notice.
(d) The provisions of this Section 7.2 shall terminate upon the earlier to occur of: (i) such time as 3Com Corporation distributes its shares benefit of the Company's Common employees, directors or consultants. 5.7 FINANCIAL 10-K STATEMENTS, ETC. AND CURRENT REPORTS ON FORM 8-K. The Company shall provide Subscriber with copies of its annual reports on Form 10-K, quarterly reports on Form 10-Q and current reports on form 8-K for as long as the Preferred Stock to the shareholders of 3Com Corporation or (ii) one year following the Closing Datemay remain outstanding.
Appears in 3 contracts
Samples: Subscription Agreement (Medcare Technologies Inc), Subscription Agreement (Medcare Technologies Inc), Subscription Agreement (Medcare Technologies Inc)
Right of First Offer. For so long as Purchaser holds any Shares, if the Purchaser joins in a partnership, limited partnership, syndicate, or otherwise acts in concert or alone for the purpose of disposing of more than 5% of the Shares (as adjusted for stock splits or similar events after the date hereof) to a single person or transferee or any group of affiliated persons or transferees but specifically excluding any hedging or similar transactions, the Purchaser shall give the Company the opportunity to purchase such stock, in the following manner:
(a) The Purchaser shall give notice In the event that Signal desires to propose to the Company to Transfer to a Person all or substantially all of the then outstanding Stock and/or substantially all of the stock and/or equity interests of the Company, which includes more than fifty percent (50%) of the Stock owned or held by Signal (the "Transfer Section 5 Offer"), Signal shall deliver a written notice to Trident and the Founding Stockholders with respect to such Section 5 Offer, which shall be irrevocable for a period of 10 days. Trident and the Founding Stockholders shall have the right to offer (the "Section 5 Purchase Offer") to purchase that number of shares of Stock owned or held by Signal included in the Section 5 Offer in any written notice delivered to Signal within said 10-day period. Signal shall have the right to condition its acceptance of the Section 5 Purchase Offer, and Trident and the Founding Stockholders shall consent to such conditions, on only the following: (i) approval by Signal of the Section 5 Purchase Offer and (ii) execution of all agreements and documents in connection with the transactions contemplated by the Section 5 Purchase Offer within 60 Business Days after Signal's delivery of written notice to Trident and the Founding Stockholders ("Section 5 Offer Acceptance Notice") to accepting the Company in writing of such intention, specifying the number and kind of securities proposed to be sold or transferred, the proposed price per share therefor (the "Transfer Price") and the other material terms, upon which such disposition is proposed to be made, including the names of the proposed purchasers or transferees if such persons have been identifiedSection 5 Purchase Offer.
(b) The Company shall have the right, exercisable by written notice given by the Company Notwithstanding anything contained herein to the Purchaser within ten calendar days of receipt of contrary, if either Trident and/or the Transfer Notice to purchase all of the shares specified in such Transfer Notice upon the terms specified in such Transfer Notice. Notwithstanding the foregoing, the Company Founding Stockholders shall not have twenty-five calendar days from the receipt of the Transfer Notice (regardless of the date of the Transfer Notice) to notify Purchaser of the Company's election to purchase the shares made a Section 5 Purchase Offer pursuant to this Section 7.2 if 5 and/or (x) Trident and the Company Founding Stockholders or (y) Trident or the Founding Stockholders shall furnish not have received a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Section 5 Offer Acceptance Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that 5(a), the mere election of Purchaser to sell such Shares in a transaction triggering the terms and provisions of this Section 7.2 5 shall not constitute such an event). The purchase be of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have the right to pay for such shares specified in the Transfer Notice: (a) the same amount in cashno further effect, if the consideration to be paid consists of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that set forth in the Transfer Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement of the Company and the Purchaser.
(c) If the Company (or its assignees) does not exercise its right of first offer hereunder within the time specified for such exercise, the Seller(s) shall be free, during the period of 120 days following the date of the Transfer Notice, to sell the shares specified in such Transfer Notice for such consideration terms and on such other material terms as shall be no more favorable to the purchaser of the shares than the terms specified in such Transfer Notice.
(d) The provisions of this Section 7.2 6 shall terminate upon the earlier apply to occur of: (i) such time as 3Com Corporation distributes its shares of the Company's Common Stock to the shareholders of 3Com Corporation or (ii) one year following the Closing Dateany subsequent Section 5 Offer.
Appears in 2 contracts
Samples: Stockholders Agreement (Trident Telecom Partners LLC), Stockholders Agreement (Fibernet Telecom Group Inc\)
Right of First Offer. For so long as Purchaser holds any Shares, if the Purchaser joins in a partnership, limited partnership, syndicate, or otherwise acts in concert or alone for the purpose of disposing of more than 5% of the Shares (as adjusted for stock splits or similar events after the date hereof) to a single person or transferee or any group of affiliated persons or transferees but specifically excluding any hedging or similar transactions, the Purchaser shall give the Company the opportunity to purchase such stock, in the following manner:
(a) The Purchaser If after February 20, 2000 hereof any Stockholder (other than a Stockholder of the type described in the last sentence of this Section 6(a)) wishes to transfer any Common Stock and/or Preferred Stock held by it to an unaffiliated third party pursuant to the second paragraph of Section 7, then such Stockholder shall give deliver a written notice of its desire to so transfer (a "Notice of Intention"), accompanied by a copy of a proposal relating to such transfer, to CHPIII and Holdings, setting forth such Stockholder's desire to make such transfer, the number of shares of Common Stock and/or Preferred Stock proposed to be transferred (the "Transfer Notice") to the Company in writing of such intention, specifying the number and kind of securities proposed to be sold or transferred, the proposed price per share therefor (the "Transfer PriceOffered Shares") and the other material terms, upon price (the "Offer Price") at which such disposition is proposed Stockholder proposes to be madetransfer such stock. For purposes of this Section 6, including the names of the proposed purchasers or transferees if such persons have been identifiedreferences to "Stockholder" exclude all Management Stockholders.
(b) The Company shall have the right, exercisable by written notice given by the Company to the Purchaser within ten calendar days of Upon receipt of the Transfer Notice to purchase all of the shares specified in such Transfer Notice upon the terms specified in such Transfer Notice. Notwithstanding the foregoingIntention, the Company shall have twenty-five calendar days from the receipt of the Transfer Notice (regardless of the date of the Transfer Notice) to notify Purchaser of the Company's election to purchase the shares pursuant to this Section 7.2 if the Company shall furnish a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 shall not constitute such an event). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company CHP shall have the right to pay for such shares purchase at the price specified in the Transfer Notice: Notice of Intention, all or, subject to Section 6(d), any portion of the Offered Shares, exercisable by the delivery of notice to such Stockholder (a) the same amount in cash"Notice of Exercise"), with a copy to Holdings, within 20 days from the date of receipt of the Notice of Intention. In the event CHP elects not to exercise its right to purchase the Offered Shares (or if CHP fails to provide the consideration to be paid consists Notice of cashExercise within such 20-day period), or (b) to Holdings may exercise the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that right set forth in this Section 6 to purchase the Transfer NoticeOffered Shares by providing a Notice of Exercise within 30 days after the date of its receipt of the Notice of Intention. The right of CHP and Holdings pursuant to this Section 6 shall terminate if not exercised within 20 days, in the case of CHP, or an amount 30 days, in the case of cash having equivalent valueHoldings, as determined in good faith by mutual agreement after receipt of the Company and the PurchaserNotice of Intention.
(c) If In the Company (event CHP or Holdings exercises its assignees) does rights to purchase all or, subject to Section 6(d), a portion of the Offered Shares, then such Stockholder must sell the Offered Shares to CHP or Holdings, as applicable, after not exercise its right of first offer hereunder within the time specified for such exercise, the Seller(s) shall be free, during the period of 120 less than 30 days following and not more than 60 days from the date of the Transfer Notice, to sell the shares specified in such Transfer Notice for such consideration and on such other material terms as shall be no more favorable to the purchaser delivery of the shares than the terms specified in Notice of Exercise received by such Transfer NoticeStockholder.
(d) The Notwithstanding the foregoing provisions of this Section 7.2 6, unless such Stockholder shall terminate have consented to the purchase of less than all of the Offered Shares, neither CHP nor Holdings may purchase any Offered Shares unless all of the Offered Shares are to be purchased.
(e) If the Notice of Intention has been duly given and CHP and Holdings elect not to exercise their rights or wish to exercise their rights only as to a portion of the Offered Shares (without the consent of such Stockholder), then such Stockholder shall have the right for a period of up to 180 days from the expiration of the 30 day period commencing on the date of delivery of the Notice of Intention (unless such Stockholder is notified prior to such date by both CHP and Holdings that neither intends to exercise its rights under this Section 6) to sell the Offered Shares to any such third party for a price not less than the Offer Price and on the same terms and conditions as provided in the Notice of Intention; provided, that upon the earlier consummation of such sale, such third party is required to occur of: exercise (i) such time as 3Com Corporation distributes its shares an Instrument of Accession in the Company's Common Stock to form of Exhibit B hereto and thereby become a party to, and be bound by the shareholders of 3Com Corporation or terms and provisions of, this Agreement and (ii) one year following an appropriate supplement to the Closing DateVoting Agreement or the Voting Trust Agreement, as applicable, and thereby become a party to, and be bound by the terms and provisions of, the Voting Agreement or the Voting Trust Agreement, as applicable.
(f) In the event CHP and Holdings do not exercise their rights under this Section 6 to purchase the Offered Shares and such Stockholder shall not have sold the Offered Shares to such third party within such 180-day period, then such Stockholder shall not be permitted to give another Notice of Intention for a period of 90 days from the last day of such 180-day period.
Appears in 2 contracts
Samples: Stockholders Agreement (Universal Compression Holdings Inc), Stockholders Agreement (Universal Compression Inc)
Right of First Offer. For so long as Purchaser holds Prior to any Shares, if the Purchaser joins in Transfer by a partnership, limited partnership, syndicate, Member of all or otherwise acts in concert or alone for the purpose any portion of disposing of more its Equity Interests other than 5% of the Shares (as adjusted for stock splits or similar events after the date hereofx) to a single person Permitted Transferee of such Member or transferee or any group (y) in connection with an Approved Sale, such Transferor Member must first comply with the provisions of affiliated persons or transferees but specifically excluding any hedging or similar transactions, the Purchaser shall give the Company the opportunity to purchase such stock, in the following manner:this Section 9.3.
(a) The Purchaser Transferor shall give first deliver to the other Member (the “Offeree”) and the Company a written notice (the "Transfer “Offer Notice"”) to that sets forth (i) the Company in writing amount of such intention, specifying the number and kind of securities Equity Interests proposed to be sold or transferred, the proposed price per share therefor Transferred (the "Transfer “Subject Interest”), (ii) the Common Percentage Interest represented by the Subject Interest, (iii) the amount that the Transferor proposes to be paid in cash for the Subject Interest (the “Offer Price"”) and the other manner of payment therefor and (iv) the material termsterms and conditions of such proposed Transfer, upon which terms and conditions shall be reasonable (a bona fide offer) for such disposition is a proposed Transfer. The Offer Notice shall constitute an irrevocable offer by the Transferor to be made, including sell to the names of Offeree the proposed purchasers or transferees if such persons have been identifiedSubject Interest for cash at the Offer Price on the terms set forth in the Offer Notice.
(b) The Company Offeree shall have until the right, exercisable by written notice given by tenth (10th) Business Day following the delivery of the Offer Notice (the “Offer Period”) in which to notify the Transferor and the Company in writing that it accepts such offer as to the Purchaser within ten calendar days of receipt all (but not less than all) of the Transfer Notice Subject Interest offered to purchase all of such Offeree for the shares specified in such Transfer Notice upon Offer Price and on the terms specified in such Transfer Notice. Notwithstanding the foregoing, the Company shall have twenty-five calendar days from the receipt of the Transfer Notice (regardless of the date of the Transfer Notice) to notify Purchaser of the Company's election to purchase the shares pursuant to this Section 7.2 if the Company shall furnish a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 shall not constitute such an event). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have the right to pay for such shares specified in the Transfer Notice: (a) the same amount in cash, if the consideration to be paid consists of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that conditions set forth in the Transfer Offer Notice; provided, or an amount of cash having equivalent valuethat the Offeree may, as determined in good faith by mutual agreement of at any time, provide written notice to the Transferor and the Company that it will not will not exercise, and waives, its rights under this Section 9.3 (and failure to deliver such written notice of acceptance to the Transferor and the PurchaserCompany prior to the expiration of such ten (10)-Business Day period will constitute a waiver of such Offeree’s rights under this Section 9.3 with respect to such proposed Transfer).
(c) If the Offeree accepts such offer with respect to all (but not less than all) of the Subject Interest, a closing of the purchase of such Subject Interest shall take place at the principal office of the Company at 10:00 A.M. on the tenth (10th) Business Day after the date on which the Offeree notifies the Transferor that it accepts such offer unless the Transferor and the Offeree mutually agree on a different place or its assignees) does not exercise its right of first offer hereunder within the time specified for such exercise, the Seller(s) time. The Offer Price shall be free, during payable in accordance with the period of 120 days following the date payment terms of the Transfer Notice, to sell the shares specified in such Transfer Notice for such consideration and on such other material terms as shall be no more favorable to the purchaser of the shares than the terms specified in such Transfer Offer Notice.
(d) The If the Offeree does not timely elect to purchase all (but not less than all) of the Subject Interest for the Offer Price prior to expiration of the Offer Period, the Transferor shall have the right, subject to the other provisions of this Article 9, after complying with the terms and conditions of Section 7.2 shall terminate upon 9.5, to sell the earlier to occur of: Subject Interest for a period of sixty (60) calendar days (i) such time as 3Com Corporation distributes its shares of at a price that is equal to or greater than the Company's Common Stock to the shareholders of 3Com Corporation or Offer Price and (ii) one year following otherwise on other terms and conditions other than price (taken as a whole) no more favorable to the Closing DateTransferees thereof than those offered to the Offerees in the Offer Notice. If the Transferor does not Transfer the Subject Interest before the end of such sixty (60)-calendar day period, such Transferor may not sell any Subject Interest without repeating the foregoing procedures of this Section 9.3.
Appears in 2 contracts
Samples: Limited Liability Company Agreement, Limited Liability Company Agreement (SEACOR Marine Holdings Inc.)
Right of First Offer. For so long 4.1 The Investor shall have the right to purchase from the Company an amount of any additional shares of Capital Stock that the Company may propose to issue and sell equal to the Investor Ownership Percentage calculated as Purchaser holds any Shares, if the Purchaser joins in a partnership, limited partnership, syndicate, or otherwise acts in concert or alone for the purpose of disposing of more than 5% of the Shares date of delivery of the Notice of Issuance (as adjusted for stock splits or similar events after defined below) (the date hereof“ROFO Percentage”) to a single person or transferee or the extent such additional shares of Capital Stock are actually issued.
4.2 In the event the Company proposes to undertake an issuance of any group shares of affiliated persons or transferees but specifically excluding any hedging or similar transactionsCapital Stock, the Purchaser it shall give the Company the opportunity to purchase such stock, in the following manner:
(a) The Purchaser shall give Investor a written notice (the "Transfer Notice") to the Company in writing of such its intention, specifying describing the number and kind of securities proposed to be sold or transferred, the proposed price per share therefor (the "Transfer Price") and the other material terms, upon which such disposition is proposed to be made, including the names of the proposed purchasers or transferees if such persons have been identified.
(b) The Company shall have the right, exercisable by written notice given by the Company to the Purchaser within ten calendar days of receipt of the Transfer Notice to purchase all type of the shares specified in to be issued and the price and terms upon which the Company proposes to issue such Transfer shares (a “Notice of Issuance”). The Investor shall have twenty-one (21) days from the date of delivery of a Notice of Issuance to the Investor to agree to purchase a portion of such shares equal to the ROFO Percentage (calculated as of the date of delivery of such Notice of Issuance), for the price and upon the terms specified in the Notice of Issuance. On or prior to the expiration of such Transfer Notice. Notwithstanding the foregoingtwenty-one (21) day period, the Company Investor shall have twenty-five calendar days from the receipt of the Transfer Notice (regardless of the date of the Transfer Notice) to notify Purchaser of the Company's election to purchase the shares pursuant to this Section 7.2 if the Company shall furnish deliver a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental written notice to the Company and its stockholders to decide whether to elect to purchase stating the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 shall not constitute such an event). The purchase quantity of the shares to be purchased by the Investor (the “Investor Response”), which written notice shall be binding on the Company must be completed within 60 calendar days from and such Investor subject only to the receipt completion of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts issuance of the shares described in connection therewith. the applicable Notice of Issuance.
4.3 The Company shall have one hundred and twenty (120) days following the earlier of (i) the expiration of the twenty-one (21) day period described in Section 4.2 and (ii) the delivery of the Investor Response to sell or enter into an agreement to sell the shares with respect to which the Investor’ right to pay for such shares purchase was not exercised, at a price and upon terms no more favorable than those specified in the Transfer Notice: (a) the same amount in cash, if the consideration to be paid consists Notice of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that set forth in the Transfer Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement of the Company and the Purchaser.
(c) Issuance. If the Company (or its assignees) does not exercise its sell such shares or enter into an agreement to sell such shares within such one hundred and twenty (120) day period, then the Company shall not thereafter issue or sell any shares without first offering such shares to the Investor in the manner provided in Section 4.2.
4.4 The right of first offer hereunder within the time specified for such exercise, the Seller(s) shall be free, during the period of 120 days following the date of the Transfer Notice, to sell the shares specified set forth in such Transfer Notice for such consideration and on such other material terms as shall be no more favorable to the purchaser of the shares than the terms specified in such Transfer Notice.
(d) The provisions of this Section 7.2 4 shall terminate upon expire at any time the earlier Investor ceases to occur of: (i) such time as 3Com Corporation distributes its shares of maintain the Company's Common Stock to the shareholders of 3Com Corporation or (ii) one year following the Closing DatePreferred Threshold.
Appears in 2 contracts
Samples: Investor Rights Agreement (Starr International Co Inc), Investor Rights Agreement (China MediaExpress Holdings, Inc.)
Right of First Offer. For so long as Purchaser holds 12.2.1. If an Ordinary Shareholder intends to Transfer (in this Article, the “Offeror”) any Shares, if of its Equity Securities in the Purchaser joins in a partnership, limited partnership, syndicate, or otherwise acts in concert or alone for the purpose of disposing of more than 5% of the Shares (as adjusted for stock splits or similar events after the date hereof) Company to a single person or transferee or any group transferor which is not a Permitted Transferee of affiliated persons or transferees but specifically excluding any hedging or similar transactionssuch Shareholder (in this Article, the Purchaser “Offered Shares”), it shall give first offer (in this Article, the Company the opportunity to purchase “Offer”) such stock, in the following manner:
(a) The Purchaser shall give notice (the "Transfer Notice") Offered Shares to the Company other Ordinary Shareholder(s), excluding the Minority Shareholder(s) (in writing of such intention, specifying the number and kind of securities proposed to be sold or transferredthis Article, the “Offerees”), by delivering a notice thereto setting forth the terms and conditions to such proposed price per share therefor Transfer (in this Article, the "Transfer Price") and the other material terms, upon which such disposition is proposed to be made“Notice”), including the names price per Offered Share, the number of Offered Shares, the proposed purchasers or transferees payment terms and other applicable terms, if such persons have been identified.
any. The Offerees may accept the Offer by delivering, within a thirty (b30) The Company shall have day period from the right, exercisable by written notice given by the Company to the Purchaser within ten calendar days date of receipt of the Transfer Notice (in this Article, the “Response Period”), an acceptance notice agreeing to the Offer and setting forth the maximum number of Offered Shares such Offeree undertakes to purchase under the terms of the Notice (in this Article, the “Acceptance Notice”). Such Acceptance Notice shall be deemed unconditional and irrevocable. A failure to accept the Offer in writing within said 30-day period shall be deemed a waiver of such right of first offer in respect of such Offer.
12.2.2. If the Acceptance Notices, in the aggregate, are in respect of all of, or more than all of, the Offered Shares, then the accepting Offerees shall acquire the Offered Shares, on the terms aforementioned, in proportion to their respective ownership of the outstanding shares of the Company, provided that no accepting Offerees shall be entitled to acquire under the provisions of this Article more than the number of Offered Shares initially accepted by such Offeree, and upon the allocation to it of the full number of Offered Shares so accepted, it shall be disregarded in any subsequent computations and allocations hereunder. Any shares remaining after the computation of such respective entitlements shall be re-allocated among the accepting Offerees (other than those to be disregarded as aforesaid), in the same manner, until one hundred percent (100%) of the Offered Shares have been allocated as aforesaid. The accepting Offerees shall then be obligated to transfer the consideration for their respective share in the Offered Shares, and consummate the purchase of such Offered Shares on the terms and conditions set forth in the Notice, within sixty (60) days after the expiration of the Response Period. The Offeror shall deliver the Offered Shares to the accepting Offerees, free and clear of any Security Interest other than those created by these Articles and the Shareholders Agreement.
12.2.3. If the Acceptance Notices, in the aggregate, are in respect of less than all of the Offered Shares, or if the Offerees do not respond at all to the Offer within the said 30-day period, then the Offeror may sell and transfer all the Offered Shares to a third party, at the price and on the terms and conditions as specified in the Notice or at a greater price and on terms and conditions not more advantageous to such third party, within one hundred and eighty (180) days after the expiration of the Response Period or after the actual day when all the Offerees gave notice of their refusal to purchase all of the shares specified in such Transfer Notice upon the terms specified in such Transfer Notice. Notwithstanding the foregoing, the Company shall have twenty-five calendar days from the receipt Offered Shares (or their acceptance of less than all of the Transfer Notice (regardless of Offered Shares), whichever is the date of earlier. If the Transfer Offeror does not sell and transfer such Offered Shares to a third party within the aforesaid 180-day period, or it wishes to sell or transfer the Offered Shares on terms and conditions more favorable to a transferee than those stated in the Notice) , it shall again offer the Offered Shares first to notify Purchaser of the Company's election to purchase the shares pursuant to this Section 7.2 if the Company shall furnish a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating thatOfferee(s), in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering accordance with the provisions of this Section 7.2 Article 12.2.
12.2.4. This Article 12.2 shall also apply to the sale of Equity Securities by a receiver, liquidator, trustee in bankruptcy, administrator of an estate, executor of a will, etc.
12.2.5. This Article 12.2 shall expire upon the consummation of an IPO. This Article 12.2 shall not constitute such an event). The purchase apply in case of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts a drag along pursuant to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have the right to pay for such shares specified in the Transfer Notice: (a) the same amount in cash, if the consideration to be paid consists of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that set forth in the Transfer Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement of the Company and the PurchaserArticle 12.4.
(c) If the Company (or its assignees) does not exercise its right of first offer hereunder within the time specified for such exercise, the Seller(s) shall be free, during the period of 120 days following the date of the Transfer Notice, to sell the shares specified in such Transfer Notice for such consideration and on such other material terms as shall be no more favorable to the purchaser of the shares than the terms specified in such Transfer Notice.
(d) The provisions of this Section 7.2 shall terminate upon the earlier to occur of: (i) such time as 3Com Corporation distributes its shares of the Company's Common Stock to the shareholders of 3Com Corporation or (ii) one year following the Closing Date.
Appears in 2 contracts
Samples: Articles of Association (Oddity Tech LTD), Articles of Association (Oddity Tech LTD)
Right of First Offer. For Notwithstanding anything to the contrary contained herein, at any time, a Member may Transfer all or any portion of its Interest, subject to compliance by such Member with the requirements of this Section 10.3(b); provided, that such Member shall not be required to comply with the requirements of the next following sentence, including clauses (i) through (v) thereof, in connection with a Transfer to an Affiliate of such Member. Such Member (the “Selling Member”) must first offer such Interest (the “Offered Interest”) to the Managing Member or its designated Affiliate (each, an “Offeree Member”) pursuant to the following procedures:
(i) the Selling Member shall provide notice (the “Offer Notice”) to the Company, the Managing Member and the Offeree Members of its offer to sell, assign or transfer the Offered Interest and the price (the “Offer Price”) and terms under which it is prepared to do so long as Purchaser holds (the “Offer Terms”);
(ii) each Offeree Member shall have thirty (30) days from the date of deemed receipt of the Offer Notice (such period, the “Acceptance Notice Period”) to elect to purchase all or any Sharesportion of the Offered Interest at the Offer Price and under the Offer Terms by providing notice to the Company, the Managing Member and the Selling Member (the “Acceptance Notice”);
(iii) the purchase by any Offeree Member of the Offered Interest or any portion thereof shall take place within five (5) Business Days of the date of deemed receipt of the Acceptance Notice;
(iv) if the Purchaser joins aggregate amount of Interests under the Acceptance Notices is less than the Offered Interest during the Acceptance Notice Period, the Selling Member may, in its discretion, for a partnership, limited partnership, syndicate, or otherwise acts in concert or alone for period of one hundred and eighty (180) days following the purpose of disposing of more than 5% end of the Shares Acceptance Notice Period, sell, assign or transfer all or any portion of the Offered Interest (including such portion as adjusted for stock splits or similar events after the date Offeree Members may have elected to purchase pursuant to Section 10.3(b)(ii) hereof) to a single person third party at a price that equals or transferee or any group of affiliated persons or transferees but specifically excluding any hedging or similar transactions, exceeds the Purchaser shall give the Company the opportunity to purchase such stock, in the following manner:
(a) The Purchaser shall give notice (the "Transfer Notice") to the Company in writing of such intention, specifying the number Initial Offer Price and kind of securities proposed to be sold or transferred, the proposed price per share therefor (the "Transfer Price") and the other material terms, upon which such disposition is proposed to be made, including the names of the proposed purchasers or transferees if such persons have been identified.
(b) The Company shall have the right, exercisable by written notice given by the Company to the Purchaser within ten calendar days of receipt of the Transfer Notice to purchase all of the shares specified in such Transfer Notice upon the terms specified in such Transfer Notice. Notwithstanding the foregoing, the Company shall have twenty-five calendar days from the receipt of the Transfer Notice (regardless of the date of the Transfer Notice) to notify Purchaser of the Company's election to purchase the shares pursuant to this Section 7.2 if the Company shall furnish a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 shall not constitute such an event). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required otherwise on their respective parts in connection therewith. The Company shall have the right to pay for such shares specified in the Transfer Notice: (a) the same amount in cash, if the consideration to be paid consists of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that set forth in the Transfer Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement of the Company and the Purchaser.
(c) If the Company (or its assignees) does not exercise its right of first offer hereunder within the time specified for such exercise, the Seller(s) shall be free, during the period of 120 days following the date of the Transfer Notice, to sell the shares specified in such Transfer Notice for such consideration and on such other material terms as shall be substantially no more favorable terms to the purchaser of the shares such third party than the terms specified in such Transfer Notice.initial Offer Terms; and
(dv) The provisions for the avoidance of doubt, this Section 7.2 10.3(b) shall terminate upon the earlier not be applicable to occur of: (i) such time as 3Com Corporation distributes its shares a sale, assignment or transfer of the Company's Common Stock to the shareholders of 3Com Corporation or (ii) one year following the Closing DateInterests by a Member in accordance with Section 10.3(a)(ii).
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Brookfield Asset Management Inc.), Limited Liability Company Agreement (Brookfield Asset Management Inc.)
Right of First Offer. For so long as Purchaser holds (a If a Member or Economic Interest Owner (collectively the "Selling Member") desires to sell all or any Shares, if portion of its Economic Interest (excepting the Purchaser joins in a partnership, limited partnership, syndicate, or otherwise acts in concert or alone for the purpose of disposing of more than 5% transfer of the Shares (as adjusted for stock splits Economic Interest of a Bankrupt Member or similar events after the date hereof) to a single person or transferee or any group of affiliated persons or transferees but specifically excluding any hedging or similar transactionsEconomic Interest Owner, which shall be governed by Sections 12.4 and 12.5 below), the Purchaser Selling Member shall give the Company the opportunity to purchase such stock, in the following manner:
(a) The Purchaser shall give notice (the "Transfer Notice") written notification to the Company in writing remaining Members, by certified mail or personal delivery, of its intention to so transfer such intention, specifying the number and kind of securities proposed to Economic Interest. The notice shall be sold or transferred, the proposed price per share therefor (the "Transfer Price") and the other material terms, upon which such disposition is proposed to be made, including the names accompanied by a description of the proposed purchasers or transferees if such persons have been identified.
(b) The Company shall have the right, exercisable by written notice given by the Company to the Purchaser within ten calendar days of receipt amount of the Transfer Notice Selling Member's Economic Interest which it desires to purchase sell or transfer, described as a percentage interest of all of the shares specified in such Transfer Notice upon the terms specified in such Transfer Notice. Notwithstanding the foregoing, the Company shall have twenty-five calendar days from the receipt of the Transfer Notice (regardless of the date of the Transfer Notice) to notify Purchaser of the Company's election to purchase the shares pursuant to this Section 7.2 if the Company shall furnish a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management Economic Interests of the Company, it would be detrimental to and a cash price at which the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser Selling Member is willing to sell such Shares in a transaction triggering the provisions portion of this Section 7.2 shall not constitute such an event)its Economic Interest. The purchase Members which elect to exercise this right of first offer (the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company "Purchasing Members") shall have the right to pay for purchase on a pro rata basis determined with reference to the relationship of each respective Purchasing Member's Percentage Interest to the total Percentage Interests of all of the Purchasing Members, unless a different allocation is agreed upon by such shares specified Members, all (but not less than all) of the Economic Interest proposed to be sold by the Selling Member by giving written notification to the Selling Member of their intention to do so within forty-five (45) days after receiving the Selling Member's written notice. The failure of the Purchasing Members to so notify the Selling Member of their desire to exercise this right of first offer within said forty-five (45) day period shall result in the Transfer Notice: termination of the right of first offer and the Selling Member shall be entitled to consummate the sale of its Economic Interest in the Company subject of such notice to any Person at any time within one hundred eighty (a180) days after such forty-five (45) day period upon such terms as the same amount in cash, if Selling Member dictates and at a price which is not less than the consideration to be paid consists of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that cash price set forth in such notice. If the Selling Member fails to consummate a sale of its Economic Interest subject of such notice at or above stated cash price within such one hundred eighty (180) day period, then it must again comply with all of the terms and provisions of this Section 10.2 before transferring any portion of such Economic Interest.
(b If the Purchasing Members give written notice to the Selling Member of their desire to exercise a right of first offer as provided above, the Purchasing Members shall have the right to designate the time, date and place of closing, provided that the date of closing shall be within sixty (60) days after the date of the Purchasing Members' notice of their exercise of the right of first offer. At the closing of such purchase, the Purchasing Members shall pay in cash or cash equivalents the entire purchase price for such Economic Interest.
(c In the event of the Transfer Noticeof a Selling Member's Economic Interest in the Company, and as a condition to recognizing the effectiveness and binding nature of any such Transfer, the Manager may require the Selling Member and the purchaser, donee or successor-in-interest of such Economic Interest, as the case may be, to execute, acknowledge, and deliver to the Manager such instruments of transfer, assignment, and assumption and such other certificates, representations, and documents, and to perform all the other acts that the Manager may deem necessary or desirable to:
(i) Constitute such purchaser, donee or successor-in-interest as an owner of an Economic Interest in the Company;
(ii) Confirm that the Person desiring to acquire an Economic Interest in the Company has accepted, assumed, and agreed to be subject and bound by all of the terms, obligations and conditions of this LLC Agreement, as the same may have been further amended;
(iii) Preserve the Company after the completion of such Transfer under the laws of each jurisdiction in which the Company is qualified, organized, or does business;
(iv) Maintain the status of the Company as a partnership for federal and state income tax purposes; and/or
(v) Assure compliance with any and all applicable state and federal laws including securities laws and regulations.
(d Any purchaser, donee or successor-in- interest of an amount Economic Interest shall be required to make additional Capital Contributions to the same extent as its predecessor in interest would have been required to make.
(e Any Transfer of cash having equivalent valuean Economic Interest in the Company shall be deemed effective as of the last day of the calendar month in which all the requirements of this Article 10 are complied with. The Selling Member agrees, upon request of the Management Committee, to execute such certificates or other documents and perform such other acts as determined may be reasonably requested by the Management Committee from time to time in good faith by mutual agreement of connection with such Transfer.
(f The Selling Member hereby indemnifies the Company and the Purchaserremaining Members against any and all loss, damage, or expense (including, without limitation, attorneys' fees and tax liabilities or loss of tax benefits) arising directly or indirectly from any transfer or purported transfer in violation of this Article 10.
(c) g If the Company (or Selling Member fails to comply with any of the terms and conditions set forth above, including, without limitation assignment of its assignees) does not Economic Interest to the Purchasing Members pursuant to their exercise its of the right of first offer hereunder within as provided above, then such Purchasing Members may enforce the time specified Selling Member's obligation by an action for such exercise, the Seller(s) shall be free, during the period of 120 days following the date of the Transfer Notice, to sell the shares specified in such Transfer Notice for such consideration and on such other material terms as shall be no more favorable to the purchaser of the shares than the terms specified in such Transfer Noticespecific performance.
(d) The provisions of this Section 7.2 shall terminate upon the earlier to occur of: (i) such time as 3Com Corporation distributes its shares of the Company's Common Stock to the shareholders of 3Com Corporation or (ii) one year following the Closing Date.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Great Plains Energy Inc), Limited Liability Company Agreement (Great Plains Energy Inc)
Right of First Offer. For so long as Purchaser holds any Shares, if (a) Following the Purchaser joins in a partnership, limited partnership, syndicate, or otherwise acts in concert or alone for the purpose one (1)-year anniversary of disposing of more than 5% of the Shares (as adjusted for stock splits or similar events after the date hereof, any Member may Transfer all or any portion of its Membership Rights to any Person; provided, other than in connection with a Transfer consequent upon the exercise of rights set forth in Section 9.2 hereof, upon any such proposed Transfer of Membership Rights by a Member (any such Member, a “Transferring Member”), each other Member (a “Non-Transferring Member”) shall have a right of first offer over such Membership Rights, which shall be exercised in the manner set forth in this Section 9.3; provided further, that Members shall not be permitted to Transfer all or or any portion of their Membership Rights at any time to a single person Person that is, or transferee or any group is an Affiliate of, a competitor (as determined by the Board) of affiliated persons or transferees but specifically excluding any hedging or similar transactions, the Purchaser shall give business of the Company without the opportunity to purchase such stock, in the following manner:
(a) The Purchaser shall give notice (the "Transfer Notice") to the Company in writing prior approval of such intention, specifying the number and kind of securities proposed to be sold or transferred, the proposed price per share therefor (the "Transfer Price") and the each other material terms, upon which such disposition is proposed to be made, including the names of the proposed purchasers or transferees if such persons have been identifiedMember.
(b) The Transferring Member shall provide Company shall have the right, exercisable by and each Non-Transferring Member with a written notice given by the Company (a “Proposed Transfer Notice”) of its desire to the Purchaser within ten calendar days of receipt of the Transfer such Membership Rights. The Proposed Transfer Notice shall specify the Membership Rights such Transferring Member wishes to purchase all of the shares specified in such Transfer Notice upon the terms specified in such Transfer Notice. Notwithstanding the foregoing, the Company shall have twenty-five calendar days from the receipt of the Transfer Notice (regardless of the date of the Transfer Notice) to notify Purchaser of the Company's election to purchase the shares pursuant to this Section 7.2 if the Company shall furnish a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 shall not constitute such an event). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have the right to pay for such shares specified in the Transfer Notice: (a) the same amount in cash, if the consideration to be paid consists of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that set forth in the Transfer Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement of the Company and the PurchaserTransfer.
(c) If Each Non-Transferring Member shall have a period of twenty (20) Days following the Company receipt of the Proposed Transfer Notice to offer irrevocably to purchase such Membership Rights for cash consideration (or an “Offer”) by delivering to the Transferring Member a written notice stating its assignees) does not exercise desire to purchase such Membership Rights, its right of first offer hereunder within the time specified proposed cash purchase price for such exercise, the Seller(s) shall be free, during the period of 120 days following the date of the Transfer Notice, to sell the shares specified in such Transfer Notice for such consideration Units and on such any other material terms as shall be no more favorable to the purchaser and conditions of the shares than the terms specified in such Transfer Noticeits proposed purchase.
(d) In the event that the Transferring Member elects to accept an Offer (provided, that the Transferring Member may only accept the highest Offer, and, if more than one Offer is the same, the Transferring Member must accept such Offers on a pro rata basis), the Transferring Member and the Non-Transferring Member(s) whose Offer is accepted shall take such action as may be necessary to enter into a definitive agreement, which will include the terms of the Offer, within sixty (60) Days of the date of acceptance by the Transferring Member(s). The provisions Transferring Member(s) will provide representations, warranties, covenants and indemnities in its individual capacity in connection with such transaction, and such representations, warranties, covenants and indemnifications shall be limited to customary fundamental representations and warranties in transactions of this type.
(e) If no Offer is made, the Transferring Member may Transfer the Membership Rights to any Person within sixty (60) Days following such twenty (20)-Day period specified in Section 7.2 9.3(c) above.
(f) The closing for any transaction pursuant to this Section 9.3 shall terminate upon be in accordance with the earlier to occur of: (i) such time terms of Section 9.2.4, as 3Com Corporation distributes its shares of the Company's Common Stock to the shareholders of 3Com Corporation or (ii) one year following the Closing Dateapplicable.
Appears in 2 contracts
Samples: Operating Agreement (Global Green Solutions Inc.), Operating Agreement (Valcent Products Inc.)
Right of First Offer. For so long as Purchaser holds any Shares, if 7.1 Subject to the Purchaser joins terms and conditions specified in a partnership, limited partnership, syndicate, or otherwise acts in concert or alone for the purpose of disposing of more than 5% of the Shares (as adjusted for stock splits or similar events after the date hereof) to a single person or transferee or any group of affiliated persons or transferees but specifically excluding any hedging or similar transactions, the Purchaser shall give the Company the opportunity to purchase such stockthis Section 7, in the event a Holder (a “Selling Holder”) proposes to offer or sell any Strategic Shares in a Private Sale, such Holder shall first offer such Strategic Shares to the Issuer in accordance with the following manner:provisions of this Section 7. The Issuer shall be entitled to apportion or assign the right of first offer hereby granted it among itself and any other Person(s) in such proportions as it deems appropriate.
(a) 7.2 The Purchaser Selling Holder shall give notice deliver a notice, in accordance with the provisions of Section 9.4 hereof (the "Transfer “Offer Notice") ”), to the Company Issuer certifying (i) its bona fide intention to offer such Strategic Shares in writing a Private Sale, (ii) the number of such intention, specifying the number and kind of securities proposed Strategic Shares to be sold or transferredoffered, and (iii) the proposed price per share therefor (the "Transfer Price") and the other material terms, if any, upon which it proposes to offer such disposition is proposed to be made, including Strategic Shares.
7.3 As soon as reasonably practicable but in no event later than twenty-five (25) days following the names Issuer’s receipt of the proposed purchasers or transferees if such persons have been identified.
Offer Notice (b) The Company the “Offer Period”), the Issuer shall have the right, exercisable by written notice given by but not the Company to the Purchaser within ten calendar days of receipt of the Transfer Notice obligation, to purchase all or any part of the shares specified Strategic Shares referred to in such Transfer the Offer Notice upon on the terms specified in set forth therein (the “Purchase Right”). The Issuer may exercise the Purchase Right by providing written notice of such Transfer Notice. Notwithstanding the foregoing, the Company shall have twenty-five calendar days from the receipt of the Transfer Notice (regardless of the date of the Transfer Notice) to notify Purchaser of the Company's election to purchase the shares pursuant to this Section 7.2 if the Company shall furnish a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental exercise to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares Selling Holder in a transaction triggering accordance with the provisions of this Section 7.2 shall not constitute such an event). The purchase of 9.4 hereof at any time during the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts Offer Period.
7.4 If all Strategic Shares referred to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have the right to pay for such shares specified in the Transfer Notice: (a) the same amount in cash, if the consideration Offer Notice are not elected to be paid consists of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that set forth purchased as provided in the Transfer Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement of the Company and the Purchaser.
(c) If the Company (or its assignees) does not exercise its right of first offer hereunder within the time specified for such exerciseSection 7.3, the Seller(s) shall be freeSelling Holder may, during the sixty (60) day period of 120 days following the date expiration of Offer Period, offer the Transfer Noticeremaining portion of such Strategic Shares to any Person or Persons at a price not less than, to sell the shares specified in such Transfer Notice for such consideration and on such other material upon terms as shall be no more favorable to the purchaser offeree than, those specified in the Offer Notice. If the Selling Holder does not enter into an agreement for the sale of the shares than Strategic Shares within such period, or if such agreement is not consummated within sixty (60) days of the terms specified execution thereof, the Purchase Right provided hereunder shall be deemed to be revived and such Strategic Shares shall not be offered unless first re-offered to the Issuer in such Transfer Notice.
(d) The provisions of accordance with this Section 7.2 shall terminate upon the earlier to occur of: (i) such time as 3Com Corporation distributes its shares of the Company's Common Stock to the shareholders of 3Com Corporation or (ii) one year following the Closing Date7.
Appears in 2 contracts
Samples: Strategic Investors’ Agreement (Citic Capital Mb Investment LTD), Strategic Investors’ Agreement (Asiainfo Holdings Inc)
Right of First Offer. For so long as Purchaser holds any Shares, if the Purchaser joins in a partnership, limited partnership, syndicate, or otherwise acts in concert or alone for the purpose of disposing of more than 5% of the Shares (as adjusted for stock splits or similar events after the date hereof) to a single person or transferee or any group of affiliated persons or transferees but specifically excluding any hedging or similar transactions, the Purchaser shall give the Company the opportunity to purchase such stock, in the following manner:
(a) The If any Purchaser desires to sell, convey or transfer (a "Transfer"; and -------- any such Purchaser desiring to so sell, convey or transfer being a "Transferor") ---------- any Capital Stock of the Company or any portion thereof to any Person other than an Affiliate of the Transferor, the Transferor shall give written notice (a "Notice of Intent") to the other Purchasers (such entities being the "Other ---------------- ----- Parties")
(i) stating that the Transferor desires to make such Transfer, and ------- (ii) setting forth the amount of the Capital Stock of the Company proposed to be transferred (any such Capital Stock proposed to be so transferred being the "Offered Securities"). ------------------
(b) Each of the Other Parties may, within fifteen (15) days of receipt of the Notice of Intent, deliver or cause to be delivered a written notice (the "Transfer Offer Notice") to the Company in writing of Transferor stating (i) that it offers to purchase the ------------ Offered Securities and the cash price that it proposes to pay for such intention, specifying the number and kind of securities proposed to be sold or transferred, the proposed price per share therefor Offered Securities (the "Transfer Offer Price"), and (ii) and the other material terms, upon which that such disposition offer is proposed to be made, including the names of the proposed purchasers or transferees if such persons have been identified.irrevocable. -----------
(bc) The Company shall have irrevocable offer to purchase the rightOffered Securities contained in any Offer Notice will remain open for a period of fifteen (15) days from delivery to the Transferor of such Offer Notice. Within such fifteen (15) day period, exercisable the Transferor may elect to accept such offer (in whole or in part) by delivering to such Other Party written notice given by of its irrevocable election to accept such offer (the Company "Notice of Acceptance"). If Transferor accepts such -------------------- offer, (i) such Other Party shall deliver to the Purchaser Transferor, within ten calendar thirty (30) days of receipt of the Transfer Notice to of Acceptance, a written notice identifying the source of financing for such purchase all by such Other Party, and (ii) the closing of the shares purchase and sale contemplated by the Notice of Acceptance shall occur on or before the forty-fifth (45th) Business Day following delivery of the Notice of Acceptance or on such date and at such time and place as mutually agreed by such Other Party and Transferor (the "Transfer Closing"). At the Transfer Closing, such Other Party ---------------- will deliver to Transferor the cash purchase price of such Offered Securities, against delivery by Transferor of the Offered Securities being so purchased together with reasonably appropriate transfer documentation and representations related thereto.
(d) If Transferor does not deliver a Notice of Acceptance to the Company within the fifteen (15) day period specified in Section 3.01(c) above, such --------------- Other Party's offer to Transferor will be deemed to have been rejected and Transferor will, subject to Sections 3.02 and 3.03 below, be free to Transfer ------------- ---- (or enter into a written agreement to Transfer) such Offered Securities to the Company or one or more third parties within one-hundred twenty (120) days of the expiration of such fifteen (15) day period on terms acceptable to Transferor.
(e) If such Other Party fails to deliver an Offer Notice upon within the terms fifteen (15) day period specified in Section 3.01(b) above, then Transferor may (subject --------------- to Sections 3.02 and 3.03 below), within a period of one hundred twenty (120) ------------- ---- days following the expiration of such fifteen (15) day period, Transfer Notice. Notwithstanding (or enter into a written agreement to Transfer) all Offered Securities to one or more third parties, on terms acceptable to Transferor.
(f) If Transferor shall not have Transferred or entered into a written agreement to Transfer the foregoingOffered Securities to one or more third parties prior to the expiration of the one hundred twenty (120) day period specified in Section 3.01(d) or (e) above, as applicable, the Company right of first offer under this --------------- ---
Section 3.01 shall have twenty-five calendar days from again apply in connection with any subsequent Transfer by ------------ such Purchaser.
(g) If Transferor delivers a timely Notice of Acceptance in compliance Section 3.01(c) above and the receipt of the Transfer Notice (regardless of the date of the Transfer Notice) to notify Purchaser of the Company's election applicable Other Party fails to purchase the shares --------------- Offered Securities by the close of business on the date set for the Transfer Closing, the right of first offer under this Section 3.01 shall not apply to any ------------ subsequent Transfer by such Purchaser of Capital Stock of the Company (or any portion thereof that is the subject of such Notice of Acceptance).
(h) Each Other Party shall keep confidential the terms of any proposed Transfer contained in any Notice of Intent or Offer Notice, except as otherwise required by law or as necessary to finance the purchase of the Offered Securities subject to such proposed Transfer.
(i) All rights of any Other Party pursuant to this Section 7.2 if 3.01 shall ------------ survive the Company shall furnish a certificate signed by the President or Chief Executive Officer exercise of the Company within ten calendar days any Warrant.
(j) None of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 shall not constitute such an event). The purchase 3.01 will apply to any sale by a ------------ Holder of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have the right to pay for such shares specified in the Transfer Notice: (a) the same amount in cash, if the consideration to be paid consists of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that set forth in the Transfer Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement Capital Stock of the Company and the Purchaser.
(c) If the Company (or its assignees) does not exercise its right of first offer hereunder within the time specified for such exercisein a Qualified Public Offering, the Seller(s) shall be free, during the period of 120 days following the date of the Transfer Notice, so long as all Holders have had an opportunity to sell the shares specified participate in such Transfer Notice for such consideration and on such other material terms as shall be no more favorable to offering in accordance with the purchaser of registration rights granted by the shares than the terms specified in such Transfer NoticePurchase Agreement.
(d) The provisions of this Section 7.2 shall terminate upon the earlier to occur of: (i) such time as 3Com Corporation distributes its shares of the Company's Common Stock to the shareholders of 3Com Corporation or (ii) one year following the Closing Date.
Appears in 2 contracts
Samples: Shareholders Agreement (Fresh America Corp), Shareholder Agreement (Fresh America Corp)
Right of First Offer. For so long as Purchaser holds any SharesSubject to the proviso of the first sentence of Section 10.7(a), if Landlord proposes to offer the Purchaser joins in Sites and the Phase II Sites for sale, other than (a) pursuant to a partnership, limited partnership, syndicateTheme Park Related Transfer, or otherwise acts as permitted under Section 10.8 or (b) in concert connection with the sale or alone for transfer of any other real property or other assets owned by Landlord or its Affiliates that are reasonably related to the Sites and the Phase II Sites, provided that, with respect to a sale or transfer described in the preceding clause (b), (i) the primary purpose of disposing of more than 5% such sale is not the sale of the Shares Sites and the Phase II Sites, (ii) the circumvention of the obligations of Landlord set forth in this Section 10.11 is not a purpose of such sale or (iii) such transaction is not in the form of a sale of securities which have the effect of avoiding the right of first refusal in this Section 10.11, such as adjusted for tracking stock splits or similar events after security, then Landlord shall first offer the date hereof) Sites and the Phase II Sites to a single person or transferee or any group of affiliated persons or transferees but specifically excluding any hedging or similar transactions, the Purchaser shall give the Company the opportunity to purchase such stock, Tenant in accordance with the following mannerprovisions:
(a) The Purchaser Landlord shall give deliver a notice to Tenant stating (i) its bona fide intention to offer the "Transfer Notice") to the Company in writing of such intention, specifying the number and kind of securities proposed to be sold or transferred, the proposed price per share therefor (the "Transfer Price") Sites and the other material terms, Phase II Sites for sale and (ii) the price and terms upon which such disposition is proposed it proposes to be made, including offer the names of Sites and the proposed purchasers or transferees if such persons have been identifiedPhase II Sites.
(b) The Company shall have the right, exercisable by written notice given by the Company to the Purchaser within ten calendar Within sixty (60) days of after receipt of the Transfer Notice such notice, Tenant may elect to purchase all of the shares specified in such Transfer Notice upon Sites and the Phase II Sites, at the price and on the terms specified in such Transfer Noticenotice, upon delivery by Tenant to Landlord of a written notice of such election. Notwithstanding If Tenant elects to purchase the foregoingSites and the Phase II Sites within such sixty (60) day period, the Company Tenant shall have twenty-complete such purchase within ninety (90) days after receipt of such notice; provided, however, that such purchase shall not take place until five calendar (5) business days from after the receipt of the Transfer Notice (regardless of the date of the Transfer Notice) to notify Purchaser of the Company's election to purchase the shares pursuant to this Section 7.2 if the Company shall furnish a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 shall not constitute such an event). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any all government approvals required on their respective parts in connection therewith. The Company shall have the right to pay for such shares specified in the Transfer Notice: (a) the same amount in cashby all applicable Legal Requirements, if the consideration to be paid consists of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that set forth in the Transfer Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement of the Company and the Purchaserany.
(c) If the Company (or its assignees) Tenant does not exercise its right of first offer hereunder within elect to purchase the time specified for such exerciseSites and the Phase II Sites, the Seller(s) shall be freeLandlord may, during the ninety (90) day period following the expiration of 120 the sixty (60) day period provided in Section 10.11(b), offer the Sites and the Phase II Sites to any third party (other than a Tenant Competitor); provided, that, if the economic terms reached with any such third party are more favorable to such third party by more than 5%, or the non-economic terms are more favorable to such third party in any material respect, from those initially presented to Tenant pursuant hereto with respect to the Sites and the Phase II Sites, the Sites and the Phase II Sites shall be reoffered to Tenant in accordance with Sections 10.11(a) and (b) and this Section 10.11(c) based on such revised terms; and, provided, further, that, if Landlord does not sell the Sites and the Phase II Sites to such third party within one hundred eighty (180) days, subject to extension for the duration of a Force Majeure Event or in connection with obtaining a required governmental consent, so long as Landlord is diligently pursuing obtaining such consent, but in no event longer than 365 days following after the offer to such third party, the right provided under this Section 10.11 shall be deemed to be revived and the Sites and the Phase II Sites shall not be sold unless first reoffered to Tenant in accordance herewith. It shall be a condition to any such sale to any third party that such third party assume all of Landlord’s obligations under this Lease by a written instrument, in recordable form, delivered to Tenant on the date of the Transfer Notice, to sell the shares specified in closing of such Transfer Notice for such consideration and on such other material terms as shall be no more favorable to the purchaser of the shares than the terms specified in such Transfer Noticesale.
(d) The provisions of this Section 7.2 shall terminate upon the earlier to occur of: (i) such time as 3Com Corporation distributes its shares of the Company's Common Stock to the shareholders of 3Com Corporation or (ii) one year following the Closing Date.
Appears in 2 contracts
Samples: Ground Lease, Ground Lease (Universal City Travel Partners)
Right of First Offer. For so long as Purchaser holds any Sharesthe Members are Trinity and the BDC or their respective Permitted Affiliate Transferees, if each Member hereby unconditionally and irrevocably grants to the Purchaser joins in other Member or its designee a partnership, limited partnership, syndicate, or otherwise acts in concert or alone for the purpose right of disposing of more than 5% of the Shares (as adjusted for stock splits or similar events after the date hereof) to a single person or transferee or any group of affiliated persons or transferees but specifically excluding any hedging or similar transactions, the Purchaser shall give the Company the opportunity first offer to purchase or designate a third party to purchase all, but not less than all, of any Membership Interest that such stockother Member may propose to Transfer to another Person, except for Permitted Affiliate Transfers, at the valuation most recently approved in the following manner:accordance with Section 10.5.
(ai) The Purchaser shall give Member proposing to make a Transfer that would be subject to this Section 8.1(g) must deliver written notice of its intention to Transfer such interest (the "Transfer Notice"“Notice of Intent”) to the Company in writing other Member not later than thirty (30) days prior to the proposed closing date of such intention, specifying Transfer. Such Notice of Intent shall contain the number material terms and kind of securities proposed to be sold or transferred, the proposed price per share therefor (the "Transfer Price") and the other material terms, upon which such disposition is proposed to be made, including the names conditions of the proposed purchasers or transferees Transfer and shall identify the proposed transferee of such interest, if such persons have been identifiedknown.
(bii) The Company Member receiving the Notice of Intent shall have the right, exercisable by written notice given by for a period of fifteen (15) business days from the Company to the Purchaser within ten calendar days date of receipt of the Transfer Notice of Intent (the “Acceptance Period”), to purchase all of accept the shares specified Membership Interest or to designate a third-party purchaser to accept such Membership Interest at the valuation most recently approved in such Transfer Notice upon accordance with Section 10.5 and on the terms specified in such Transfer Notice. Notwithstanding the foregoing, the Company shall have twenty-five calendar days from the receipt of the Transfer Notice (regardless of the date of the Transfer Notice) to notify Purchaser of the Company's election to purchase the shares pursuant to this Section 7.2 if the Company shall furnish a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating that, stated in the good faith judgment Notice of the management of the Company, it would Intent. Such acceptance shall be detrimental made by delivering a written notice to the Company selling Member and its stockholders to decide whether to elect to purchase the Shares Fund within the ten day period provided for pursuant Acceptance Period stating that it elects to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 shall not constitute such an event). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have the right to pay for such shares specified in the Transfer Notice: (a) the same amount in cash, if the consideration to be paid consists of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that set forth in the Transfer Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement of the Company and the Purchaser.
(c) If the Company (or its assignees) does not exercise its right of first offer hereunder within and, if applicable, providing the time specified for identity of any Person that the non-transferring Member designates as the purchaser.
(iii) Following expiration of the Acceptance Period without the Member receiving the Notice of Intent having during the Acceptance Period accepted the Membership Interest or designated a third-party purchaser to accept such exerciseMembership Interest in accordance with the immediately-preceding subparagraph (ii), the Seller(s) selling Member shall be free, during the period of 120 days following the date of the Transfer Notice, free to sell its Membership Interest in the shares specified Fund to a third party in such a Transfer (which third party shall be the party identified in the Notice for such consideration of Intent, if known by the selling Member) that otherwise meets the requirements of this Section 8.1 on terms and conditions it deems acceptable (but at a price not less than the price and on such other material terms as shall be no not more favorable to the purchaser thereof than the price and terms stated in the Notice of Intent); provided that such sale takes place within sixty (60) days after the expiration of the shares than Acceptance Period (the “Sale Period”). To the extent the selling Member Transfers its interest in the Fund during the Sale Period, the selling Member shall promptly notify the Fund, and the Fund shall promptly notify the other Member, as to the terms specified in of such Transfer Notice.
(dand the name of the owner(s) The provisions to whom the interest was Transferred. If no such sale occurs during the Sale Period, any attempted Transfer of such interest shall again be subject to the right of first offer set forth in this Section 8.1(g) and the procedures of this Section 7.2 8.1(g) shall terminate upon the earlier to occur of: (i) such time as 3Com Corporation distributes its shares of the Company's Common Stock to the shareholders of 3Com Corporation or (ii) one year following the Closing Datebe repeated de novo.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Capitala Finance Corp.), Limited Liability Company Agreement (Capitala Finance Corp.)
Right of First Offer. For so long as Purchaser holds If a Duke Shareholder or a Philxxxx Xxxreholder (each, a "Shareholder") desires to Transfer all or any Shares, if the Purchaser joins in portion of its Corporation Interest (other than pursuant to a partnership, limited partnership, syndicate, or otherwise acts in concert or alone for the purpose of disposing of more than 5% of the Shares (as adjusted for stock splits or similar events after the date hereofregistered public offering) to a single person Person other than an Affiliate, then prior to effecting or transferee or any group of affiliated persons or transferees but specifically excluding any hedging or similar transactionsmaking such Transfer, the Purchaser Person desiring to make such Transfer (a "Transferring Entity") shall give notify in writing the Company other Party or Parties that are not Affiliates of the opportunity Transferring Entity (whether one or more, the "Non-Transferring Entity") of the terms and conditions upon which it proposes to purchase effect such stock, in the following manner:
Transfer (a) The Purchaser which notice shall give notice (the be herein referred to as a "Transfer Notice") to the Company in writing of such intention, specifying the number " and kind of securities proposed to be sold or transferred, the proposed shall include all material price per share therefor (the "Transfer Price") and the other material terms, upon which such disposition is proposed to be made, including the names of the proposed purchasers or transferees if such persons have been identified.
(b) non-price terms and conditions). The Company Non-Transferring Entity shall have the right, exercisable by written notice given by right to acquire all (but not less than all) of the Company to Corporation Interest that is the Purchaser within ten calendar days of receipt subject of the Transfer Notice on the same terms and conditions as are set forth in the Transfer Notice. The Non-Transferring Entity shall have 30 days following delivery of the Transfer Notice during which to notify the Transferring Entity whether or not it desires to exercise its right of first offer. If the Non-Transferring Entity does not respond during the applicable period set forth above for exercising its purchasing right under this Section 4.1, such Non-Transferring Entity shall be deemed to have waived such right. If the Non-Transferring Entity elects to purchase all, but not less than all, of the Corporation Interest that is the subject of the Transfer Notice, the closing of such purchase shall occur at the principal place of business of the Corporation on the tenth day following the first date on which all applicable conditions precedent have been satisfied or waived (but in no event shall such closing take place later than the date that is 60 days (subject to extension for regulatory approvals, but in no event more than 180 days) following the date on which the Non-Transferring Entity agrees to purchase all of the shares specified in such Transfer Notice upon Corporation Interest that is the terms specified in such Transfer Notice. Notwithstanding the foregoing, the Company shall have twenty-five calendar days from the receipt of the Transfer Notice (regardless of the date subject of the Transfer Notice). The Transferring Entity and the purchasing Non-Transferring Entity agree to use commercially reasonable efforts to cause any applicable conditions precedent to be satisfied as expeditiously as possible. At the closing, (a) the Transferring Entity shall execute and deliver to notify Purchaser the purchasing Non-Transferring Entity (or, at the option of the Company's election Non-Transferring Entity, to purchase an Affiliate of the shares pursuant to this Section 7.2 if the Company shall furnish a certificate signed Non-Transferring Entity designated by the President or Chief Executive Officer Non-Transferring Entity not less than five days prior to the closing) (i) an assignment of the Company within ten calendar days of receipt of Corporation Interest described in the Transfer Notice, in form and substance reasonably acceptable to the purchasing Non-Transferring Entity (or such Affiliate) and (ii) any other instruments reasonably requested by the purchasing Non-Transferring Entity to give effect to the purchase; and (b) the purchasing Non-Transferring Entity shall deliver to the Transferring Entity the purchase price specified in the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 shall not constitute such an event). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have the right to pay for such shares immediately available funds or other consideration as specified in the Transfer Notice: . If the Non-Transferring Entity does not elect to purchase the Corporation Interest pursuant to this Section 4.1, or having elected to so purchase such Corporation Interests fails to do so within the time period required by this Section 4.1, the Transferring Entity shall be free for a period of 180 days after the expiration of the offer period referred to above or the date of such failure, as applicable, to enter into a definitive written agreement with an unaffiliated third party regarding the Transfer of its Corporation Interest on terms and conditions that satisfy the following criteria:
(a1) the same amount in cash, if the of consideration to be paid consists of cash, or (b) to by the extent that purchasing party may not be less than the consideration to set forth in the Transfer Notice;
(2) the form of consideration may not be paid does not consist of cash, consideration per share equivalent to materially different from that set forth in the Transfer Notice, or an except to the extent any change in the form of consideration makes the terms of the transaction less favorable from the purchaser's standpoint; and
(3) the terms and conditions set forth in such definitive written agreement, when considered together with the form and amount of cash having equivalent valueconsideration to be paid by such purchasing party, may not render the terms of such transaction, taken as a whole, materially inferior (to the Transferring Entity from an economic standpoint) to those set forth in the Transfer Notice (it being agreed that the granting by the Transferring Entity of representations, warranties and indemnities with respect to the business or properties of the Corporation, as determined applicable, or any of its subsidiaries that are different from or in good faith by mutual agreement of the Company and the Purchaser.
(c) If the Company (or its assignees) does not exercise its right of first offer hereunder within the time specified for addition to any such exercise, the Seller(s) shall be free, during the period of 120 days following the date of provisions referenced in the Transfer Notice, Notice shall not be considered to sell the shares specified in such Transfer Notice for such consideration and on such other material terms as shall be no more favorable to the purchaser for purposes of this clause (3)). If such a definitive written agreement is entered into with an unaffiliated third party within such time period, the shares than Transferring Entity shall be free for a period of 270 days following the execution of such definitive written agreement to consummate the Transfer of its Corporation Interest in accordance with the terms specified in thereof. If such Transfer Notice.
(d) The provisions is not consummated within such time period in accordance with the terms of such definitive written agreement, the requirements of this Section 7.2 4.1 shall terminate upon apply anew to any further efforts by the earlier Transferring Entity to occur of: (i) such time as 3Com Transfer its Corporation distributes its shares of the Company's Common Stock to the shareholders of 3Com Corporation or (ii) one year following the Closing DateInterest.
Appears in 2 contracts
Samples: Shareholders Agreement (Duke Energy Field Services Corp), Shareholders Agreement (Duke Energy Field Services Corp)
Right of First Offer. For so long as Purchaser holds 5.4.1 Subject to Clause 5.5, any Shares, if the Purchaser joins in a partnership, limited partnership, syndicate, Investor (an “Offering Holder”) who desires to transfer any Share or otherwise acts in concert or alone for the purpose of disposing of more than 5% of the Shares (as adjusted for stock splits or similar events after the date hereof“Offered Shares”) to a single person or transferee or any group of affiliated persons or transferees but specifically excluding any hedging or similar transactions, the Purchaser shall give the Company the opportunity to purchase such stock, in the following manner:
(a) The Purchaser shall give notice (the "Transfer Notice") to the Company and the other Shareholders (the “Non-Transferring Shareholders”) a notice in writing of such intentiondesire (an “Offering Notice”), specifying which notice shall include a description of the Offered Shares, including, without limitation, the number and kind of securities proposed Shares to be sold or transferred.
5.4.2 Each of the Company and the Non-Transferring Shareholders shall have a right, within thirty (30) days after delivery of the Offering Notice, to make an offer in writing (a “Purchase Offer”) to purchase all, but not less than all, of the Offered Shares. Any Purchase Offer shall set forth the consideration and the material terms and conditions upon which the party making the Purchase Offer proposes to acquire the Offered Shares. Within fifteen (15) days of receiving a timely Purchase Offer, the proposed price per share therefor (Offering Holder shall accept or decline the "Transfer Price") Purchase Offer in writing, and prior to expiration of such 15-day period, the Purchase Offer shall not be rescinded.
5.4.3 If the Offering Holder shall accept a Purchase Offer, then the Offering Holder and the other material termsparty making such Purchase Offer shall use their good faith efforts to conclude, upon which such disposition is proposed to be made, including the names of the proposed purchasers or transferees if such persons have been identified.
within ninety (b90) The Company shall have the right, exercisable by written notice given by the Company to the Purchaser within ten calendar days of receipt of the Transfer Notice to purchase all of the shares specified in such Transfer Notice upon the terms specified in such Transfer Notice. Notwithstanding the foregoing, the Company shall have twenty-five calendar days from the receipt of the Transfer Notice (regardless of after the date of the Transfer Offering Notice) to notify Purchaser , a sale between them of the Company's election to purchase the shares Offered Shares pursuant to this Section 7.2 if the Company shall furnish a certificate signed by the President or Chief Executive Officer terms and conditions of the Company within ten calendar days of receipt Purchase Offer. If the Offering Holder and the party making the Purchase Offer have not timely concluded the sale of the Transfer Notice stating thatOffered Shares within such 90 day period, in the good faith judgment Purchase Offer shall be deemed to have been rescinded, and neither the party making such Purchase Offer or the Offering Holder shall have any further obligation to consummate a sale of the management of the Company, it would be detrimental Offered Shares pursuant to the Company terms and conditions of such Purchase Offer.
5.4.4 In respect of any Offering Notice for Offered Shares, following the Release (as defined below) of such Offered Shares from the right of first offer contained in this Clause 5.4, the Offering Holder may either withdraw its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser intention to sell such the Offered Shares in or, for a transaction triggering the provisions period of this Section 7.2 shall not constitute such an event). The purchase of the shares by the Company must be completed within 60 calendar 120 days from the receipt date of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company Release, the Offering Holder shall have the right to pay conclude a binding sale and purchase agreement with a third party to purchase the Offered Shares; provided that the terms and conditions of any sale of the Offered Shares to a third party including, without limitation, the consideration for such shares specified in the Transfer Notice: (a) the same amount in cash, if the consideration to sale shall be paid consists of cash, or (b) more favourable to the extent that Offering Holder than the consideration to be paid does not consist of cash, consideration per share equivalent to that set forth terms and conditions contained in the Transfer Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement of the Company and the Purchaser.
(c) any timely Purchase Offer. If the Company (or its assignees) does Offering Holder has not concluded a binding sale and purchase agreement for the Offered Shares within such 120-day period, the Offering Holder shall not further be entitled to enter into a binding agreement to transfer the Offered Shares to any third party without first again permitting the other parties hereto to exercise its their right of first offer hereunder within the time specified for such exercise, the Seller(s) shall be free, during the period under this Clause 5.4. In respect of 120 days following the date of the Transfer Notice, to sell the shares specified in such Transfer any Offering Notice for such consideration and on such other material terms as Offered Shares, “Release” shall be no more favorable to the purchaser of the shares than the terms specified in such Transfer Notice.
(d) The provisions of this Section 7.2 shall terminate upon mean the earlier to occur of: of (i) such time as 3Com Corporation distributes its shares of the Company's Common Stock to date that the shareholders of 3Com Corporation or 30-day period for making Purchase Offers hereunder shall expire without the Offering Holder having received a Purchase Offer, (ii) one year following the Closing Datedate that the Offering Holder shall have declined to accept all timely Purchase Offers, or (iii) the date that any Purchase Offer accepted by the Offering Holder may subsequently be rescinded pursuant to Clause 5.4.3.
Appears in 2 contracts
Samples: Shareholder Agreement, Shareholder Agreement (Cathay Industrial Biotech Ltd.)
Right of First Offer. For so long as Purchaser holds If, (i) at any Shares, if time during the Purchaser joins in a partnership, limited partnership, syndicateSchein -------------------- Representation Period, or otherwise acts in concert or alone for the purpose of disposing of (ii) at any time that Schein owns more than 550% of the equity shares purchased by Schein pursuant to the Stock Purchase Agreement, Schein wishes to sell during any three-month period more than 100,000 Shares (as adjusted for stock splits or similar events after the date hereof) to a single person or transferee or any group of non-affiliated persons or transferees but specifically excluding any hedging or similar transactions, the Purchaser shall give the Company the opportunity to purchase such stock, in the following mannerthird party:
(a) The Purchaser in a private sale, Schein shall give promptly deliver a written notice (the a "Transfer Schein Offer Notice") to Cheminor and the Company in writing of such intention, specifying Principal Shareholders containing an offer to sell to Cheminor and the number and kind of securities proposed Principal Shareholders all (but not fewer than all) the Shares Schein wishes to be sold or transferred, the proposed price per share therefor sell (the "Transfer PriceSchein Offered Shares") and on the other material termssame terms as Schein wishes to sell such Schein Offered Shares. At any time within 30 days after the Schein Offer Notice is given, upon which Cheminor may, on behalf of itself, the Principal Shareholders, any nominees of Cheminor or any Principal Shareholders or any of them notify Schein in writing (an "Acceptance Notice") that such disposition is proposed to be madePrincipal Shareholders, including any such nominees, or any of them (the names of the proposed purchasers or transferees if such persons have been identified.
(b"Buyers") The Company shall have the right, exercisable by written notice given by the Company to the Purchaser within ten calendar days of receipt of the Transfer Notice to purchase all of the shares specified in such Transfer Notice upon (but not fewer than all) Schein Offered Shares on the terms specified in such Transfer the Schein Offer Notice. Notwithstanding If Schein receives an Acceptance Notice within that 30-day period, Schein and the foregoingBuyers shall consummate the transaction within 10 days after the Acceptance Notice is given. If Schein does not receive an Acceptance Notice within that 30-day period, the Company shall have twenty-five calendar days from the receipt of the Transfer Notice (regardless of the date of the Transfer Notice) to notify Purchaser of the Company's election to purchase the shares pursuant to this Section 7.2 if the Company shall furnish a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 shall not constitute such an event). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company Schein shall have the right to pay for such shares specified in the Transfer Notice: sell all (abut not fewer than all) the same amount in cash, if Schein Offered Shares to any person or entity at a price equal to or greater than the consideration to be paid consists of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that price set forth in the Transfer Schein Offer Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement of the Company and the Purchaser.
(c) If the Company (or its assignees) does not exercise its right of first offer hereunder within the time specified for such exercise, the Seller(s) shall be free, during the period of 120 days following the date of the Transfer Notice, to sell the shares specified in such Transfer Notice for such consideration and on such other material terms as shall be no more are not in any material respect less favorable to Schein than those set forth in the purchaser Schein Offer Notice. If a sale is not consummated within 60 days following the expiration of the shares than 30-day period referred to above, the terms specified in such Transfer Notice.
(d) The provisions of Schein Offered Shares shall again be subject to this Section 7.2 shall terminate upon the earlier to occur of: (i) such time as 3Com Corporation distributes its shares of the Company's Common Stock to the shareholders of 3Com Corporation or (ii) one year following the Closing Date5.
Appears in 2 contracts
Samples: Shareholders Agreement (Schein Pharmaceutical Inc), Shareholders Agreement (Danbury Pharmacal Puerto Rico Inc)
Right of First Offer. For so long as Purchaser holds (a) If the Company or any Shares, if the Purchaser joins in a partnership, limited partnership, syndicate, of its Subsidiaries proposes to Transfer (i) any one or otherwise acts in concert or alone for the purpose of disposing of more than 5% of the Shares Auctioned PCS Licenses (as adjusted for stock splits or similar events after any portion thereof) either separately or together with the date hereofassets used to operate the applicable Auctioned PCS Systems (collectively, the "Subject PCS System Assets") to a single person or transferee or any group of affiliated persons or transferees but specifically excluding any hedging or similar transactions, the Purchaser shall give Person that is not the Company or one of its wholly-owned Subsidiaries or (ii) the opportunity capital stock or equity securities of a Subsidiary which directly or indirectly owns Subject PCS System Assets to purchase such stock, in a Person that is not the following manner:
(a) The Purchaser shall give notice Company or a wholly-owned Subsidiary of the Company (the "Transfer NoticePCS System Stock") to the Company ), it shall offer in writing of such intentionto sell to AWS the Subject PCS System Assets or PCS System Stock, specifying as the number case may be, on the terms and kind of securities proposed to be sold or transferred, the proposed price per share therefor (the "Transfer Price") and the other material terms, upon which such disposition is proposed to be made, including the names of the proposed purchasers or transferees if such persons have been identifiedconditions set forth in this Section 2.1.
(b) The Company Person intending to Transfer the Subject PCS System Assets or the PCS System Stock, as the case may be, pursuant to this Section 2.1 (the "Transferor") shall, prior to entering into any commitment or agreement in respect thereof, offer in writing (the "Offer") to sell the Subject PCS System Assets or the PCS System Stock, as the case may be, to AWS for cash, which Offer shall have specify the rightprice for the Subject PCS System Assets or the PCS System Stock, exercisable by written as the case may be, and the contractual terms and conditions of the proposed Transfer. If AWS wishes to accept the Offer, it shall give notice given by the Company in writing of its acceptance to the Purchaser Transferor (the "Acceptance Notice") within ten calendar 30 days following the date of receipt of the Transfer Offer (the "Expiration Date") and AWS shall file the appropriate application for the FCC's consent to the assignment or change in control within 14 days after giving the Acceptance Notice to purchase all of (the shares specified in such Transfer Notice upon the terms specified in such Transfer Notice. Notwithstanding the foregoing, "Filing Period") provided that the Company shall have twenty-five calendar reasonably cooperate with AWS in connection with the preparation of such application, and AWS or its designee (the "AWS Transferee") shall purchase the Subject PCS System Assets or the PCS System Stock, as the case may be, on the terms set forth in the Offer within 90 days after giving the Acceptance Notice or such longer period not to exceed 180 days from the receipt giving of the Transfer Acceptance Notice to the Transferor as is needed to obtain FCC approval (regardless such longer period, the "Extended Period"). Absent the giving of the date Acceptance Notice by the Expiration Date or the filing for FCC approval by the expiration of the Transfer Notice) to notify Purchaser Filing Period, or if the closing of the Company's election purchase of the Subject PCS System Assets or the PCS System Stock, as the case may be, does not take place within the required 90-day period or the Extended Period, as the case may be, the Transferor shall be free to Transfer the Subject PCS System Assets or the PCS System Stock, as the case may be, to any Person (a "Transferee") for a period of 240 days following the Expiration Date; provided, however, that the purchase price must not be less than, and the shares other terms and conditions upon which the Transferee purchases the Subject PCS System Assets or the PCS System Stock, as the case may be, must be no more favorable in the aggregate to the Transferee than the purchase price and other material terms and conditions set forth in the Offer; provided, further, however, that the purchase price payable by the Transferee does not have to be payable in cash. If the Subject PCS System Assets or the PCS System Stock, as the case may be, are not sold pursuant to this Section 7.2 if the Company shall furnish a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 2.1(b) within such 240-day period, AWS's right of first offer shall not constitute such an event)revive. The purchase In the event the AWS Transferee is a Person other than AWS, all obligations of the shares AWS Transferee shall be unconditionally guaranteed by AWS. In the Company must be completed within 60 calendar days from event the receipt of AWS Transferee defaults in its obligation to purchase the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have Subject PCS System Assets or the right to pay for such shares specified in PCS System Stock, as the Transfer Notice: (a) case may be, the same amount in cashSubject PCS System Assets or the PCS System Stock, if as the consideration to be paid consists of cashcase may be, or (b) that were subject to the extent that Offer shall no longer be subject to the consideration to be paid does not consist provisions of cash, consideration per share equivalent to that set forth in the Transfer Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement of the Company and the PurchaserSection 2.1.
(c) If Notwithstanding anything to the Company (or its assignees) does not exercise its right of first offer hereunder within the time specified for such exercisecontrary set forth in this Agreement, the Seller(s) shall be free, during the period of 120 days following the date of the Transfer Notice, to sell the shares specified in such Transfer Notice for such consideration and on such other material terms as shall be no more favorable to the purchaser of the shares than the terms specified in such Transfer Notice.
(d) The provisions of this Section 7.2 2.1 shall terminate upon the earlier not apply to occur of: (i) such time as 3Com Corporation distributes its shares any Transfer by the Company of all or substantially all of the Company's Common Stock to the shareholders assets (whether by merger, consolidation, sale of 3Com Corporation securities or otherwise), (ii) one year any Transfer by the Company and/or its Subsidiaries of any Subject PCS System Assets or PCS System Stock, as the case may be, which, if the AWS Transferee purchased such Subject PCS System Assets or PCS System Stock, as the case may be, pursuant to this Section 2.1, would result in an FCC Conflict which may not be cured by such AWS Transferee within a reasonable period of time following its election to purchase the Closing DateSubject PCS System Assets or PCS System Stock but in no event longer than the Extended Period or (iii) any Transfer by the Company and/or its Subsidiaries of any Subject PCS System Assets or PCS System Stock, as the case may be, in which the Subject PCS System Assets or, in the case of a Transfer of PCS System Stock, the Auctioned PCS Licenses and/or Auctioned PCS Systems owned directly or indirectly by the Subsidiary of the Company whose PCS System Stock is being Transferred, are not subject to any Operating Agreement.
Appears in 2 contracts
Samples: PCS Transfer Rights Agreement (Dobson Communications Corp), PCS Transfer Rights Agreement (At&t Corp)
Right of First Offer. For so long as Purchaser holds any SharesNotwithstanding the consent requirements of Section 11.1 (but subject to the other provisions thereof), if the Purchaser joins in a partnership, limited partnership, syndicate, or otherwise acts in concert or alone for the purpose of disposing of more than 5% of the Shares CDI may Transfer its interest (as adjusted for stock splits or similar events after the date hereof) to a single person or transferee or any group portion thereof) in compliance with the following procedures:
11.2.1 If CDI (the "Selling Member") proposes to Transfer all or any portion of affiliated persons or transferees but specifically excluding any hedging or similar transactions, the Purchaser shall give its interest in the Company the opportunity to purchase any Person other than an Affiliate of CDI, such stock, in the following manner:
(a) The Purchaser Selling Member shall give notice of its intent to make such Transfer (the "Transfer Notice") to the Company in writing Manager. The Transfer Notice shall set forth (i) the portion of such intention, specifying the number and kind of securities proposed Selling Member's interest to be sold or transferred, the proposed price per share therefor Transferred (the "Transfer PriceOffered Interest") and (ii) if known to the other Selling Member, the identity of the prospective Transferee and the material terms, upon which such disposition is proposed to be made, including the names terms of the proposed purchasers or transferees if such persons have been identifiedTransfer to the prospective Transferee.
(b) 11.2.2 The Company Manager shall have the right, exercisable by written notice given by but not the Company obligation, to deliver to the Purchaser within Selling Member, before the close of the ten calendar days of receipt (10) day period after the delivery of the Transfer Notice to the Manager (such period, the "Offer Period"), a written offer (an "Offer") to purchase the Offered Interest. An Offer shall set forth all of the shares specified material terms and conditions of the proposed purchase of the Offered Interest. The Manager's rights to make the Offer and to purchase the Offered Interest pursuant thereto shall be assignable by the Manager to such one (1) or more Persons as the Manager determines to be appropriate (subject to compliance by the Manager with the provisions of Section 11.1 as if such rights were an interest in such Transfer Notice upon the terms specified in such Transfer NoticeCompany). Notwithstanding During the foregoingOffer Period, the Company Selling Member shall not solicit proposals or offers from, or engage in discussions with, other parties regarding the sale of the Offered Interest.
11.2.3 The Selling Member shall have twenty-five calendar days from no obligation to accept an Offer by the receipt Manager (or its assignee). Any closing of the Transfer Notice (regardless purchase of the date Offered Interest by the Manager (or its assignee), however, shall take place on such date, and at such time and place, as the Selling Member and the Manager (or its assignee) shall agree upon. At such closing, the Manager (or its assignee) shall make such deliveries in payment for the Offered Interest as are contemplated by the Offer, and the Selling Member shall deliver such executed documentation (including, without limitation, any required consents) to the Manager (or its assignee) as may be required to effect the Transfer of the Offered Interest to the Manager (or its assignee) and the admission of the Manager (or its assignee) as a substituted Member with respect to the Offered Interest. All of the foregoing deliveries shall be deemed to be made simultaneously and none shall be deemed completed until all have been completed.
11.2.4 If the Manager (or its assignee) does not purchase the Offered Interest in accordance with Section 11.2.3, then, subject to Section 11.1, the Selling Member shall be entitled to Transfer the Offered Interest to a third party Transferee at any time during the one hundred fifty (150) day period after the delivery of the Transfer Notice. If the Offered Interest (or any portion thereof) to notify Purchaser has not been Transferred within such one hundred fifty (150) day period, no Transfer of any portion of the Company's election to purchase Offered Interest shall be effective unless the shares pursuant to this Section 7.2 if the Company shall furnish a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering Selling Member has again complied with the provisions of this Section 7.2 shall not constitute such an event)11 as to the Offered Interest. The purchase As a condition to the effectiveness of any Transfer of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts Offered Interest to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have the right a third party Transferee pursuant to pay for such shares specified in the Transfer Notice: (a) the same amount in cash, if the consideration to be paid consists of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that set forth in the Transfer Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement of the Company and the Purchaser.
(c) If the Company (or its assignees) does not exercise its right of first offer hereunder within the time specified for such exercise, the Seller(s) shall be free, during the period of 120 days following the date of the Transfer Notice, to sell the shares specified in such Transfer Notice for such consideration and on such other material terms as shall be no more favorable to the purchaser of the shares than the terms specified in such Transfer Notice.
(d) The provisions of this Section 7.2 shall terminate upon the earlier to occur of: 11.2.4, (i) such time Transferee shall (a) execute and deliver such documents and agreements as 3Com Corporation distributes its shares the Manager reasonably determines to be appropriate to effect such Transferee's agreement to be bound by the terms and conditions of this Agreement and (b) take such other actions as the Manager may reasonably determine to be necessary to effect the admission of such Transferee to the Company, to qualify the Company to conduct business or to preserve the limited liability status of the Company's Common Stock to the shareholders of 3Com Corporation or Members, and (ii) one year following the Closing DateSelling Member and the Transferee shall execute and deliver such documents and agreements, and take such other actions, as the Manager may reasonably require to ensure that the funding of such Selling Member's Capital Commitment has been adequately provided for (including, without limitation, through the use of the Escrow Account).
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Comdisco Holding Co Inc), Limited Liability Company Agreement (Comdisco Holding Co Inc)
Right of First Offer. For so long as Purchaser holds any SharesIn the event (i) the Owner Participant desires to directly or indirectly sell, lease, convey or otherwise transfer some or all of its Lessor Membership Interest (other than to an Affiliate of the Owner Participant or while a Lease Event of Default is continuing) or (ii) the Owner Lessor desires (or the Owner Participant desires to cause Owner Lessor) directly or indirectly to sell, lease, convey or otherwise transfer some or all of the Owner Lessor's Interest, in each case prior to the expiration of the Facility Lease Term then, if the Purchaser joins in and only if as a partnership, limited partnership, syndicate, result of such proposed sale or otherwise acts in concert or alone for the purpose of disposing of more sales less than 550.1% of (i) the Shares ownership interests of the Owner Lessor and each Other Owner Lessor (as adjusted for stock splits or similar events after the date hereof) to a single person or transferee or any group of affiliated persons or transferees but specifically excluding any hedging or similar transactionstogether, the Purchaser "TOTAL OWNER LESSOR INTERESTS") or (ii) the Owner Lessor's Interest and the Other Owner Lessor's Interests (together, the "TOTAL FACILITY OWNERSHIP INTERESTS") would be held by GECC or Persons who are Affiliates of GECC, then the Owner Participant or the Owner Lessor, as the case may be, must first offer to sell such Lessor Membership Interest or such Owner Lessor's Interest, as the case may be, to Xxxxx City on the terms and conditions set forth in this SECTION 14.1. Such offer shall give be made to the Company the opportunity to purchase such stock, Facility Lessee in the following manner:
(a) The Purchaser form of a proposed term sheet, which proposed term sheet shall give notice (include an outline of the "Transfer Notice") to price and of all of the Company in writing of such intention, specifying the number and kind of securities proposed to be sold or transferred, the proposed price per share therefor (the "Transfer Price") and the other material terms, conditions and provisions upon which the Owner Participant or the Owner Lessor, as the case may be, would be willing to transfer such disposition is Lessor Membership Interest or such Owner Lessor's Interest, as the case may be, or any part thereof. Xxxxx City will thereafter have the right within a period of thirty (30) days from and after the receipt by the Facility Lessee of such proposed term sheet to be madenotify the Owner Participant or Owner Lessor, including as the names case may be, of its irrevocable intent to exercise its right to purchase all, but not less than all, of the proposed purchasers Lessor Membership Interests or transferees if Owner Lessor's Interest being offered hereunder. If the Facility Lessee elects to exercise the right provided in the preceding sentence, it shall within 60 days of such persons have been identified.
notice purchase, and the Owner Participant or Owner Lessor, as the case may be, shall sell, the Lessor Membership Interest or the Owner Lessor's Interest, as the case may be, on the same terms and conditions as the offer giving rise to such right (b) The Company except that the Owner Participant shall have the right, exercisable by written notice given by the Company not be required to make any representations to the Purchaser Facility Lessee with respect to matters regarding the Facility (even though such representations are being made to a potential third party purchaser) other than a warranty as to the absence of Owner Participant Liens). If the Facility Lessee does not give such notice to the Owner Participant or Owner Lessor, as the case may be, within ten calendar the thirty (30) day period or does not purchase the Lessor Membership Interest or the Owner Lessor's Interest, as the case may be, within 60 days of receipt such notice, the Owner Participant or Owner Lessor, as the case may be, will be free to so sell, lease, convey or otherwise transfer such Lessor Membership Interest or such Owner Lessor's Interest, as the case may be, or a portion thereof, at a price no less than the price set forth in the proposed term sheet and on terms and conditions, taken as a whole, that, other than in an immaterial respect, are no less favorable to the Owner Participant or Owner Lessor, as the case may be, than the terms and conditions set forth in the proposed term sheet. In the event that the terms or conditions are revised in any way that the price is reduced or any
1. It is understood and agreed among the parties hereto that the transaction contemplated by this SECTION 14.1 shall not effect a merger of the Transfer Notice to purchase all of Facility Lessee's leasehold interest in the shares specified Facility and its ownership or subleasehold interest in such Transfer Notice upon the terms specified in such Transfer NoticeFacility Site with the Owner Lessor's Interest. Notwithstanding the foregoing, if, concurrently with the Company shall have twenty-five calendar days from Owner Participant's offer to sell its Lessor Membership Interest or the receipt of the Transfer Notice (regardless of the date of the Transfer Notice) Owner Lessor's offer to notify Purchaser of the Companysell its Owner Lessor's election to purchase the shares Interest pursuant to this Section 7.2 if the Company shall furnish a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the CompanySECTION 14.1, it would be detrimental to the Company and or one of its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser Affiliates offers to sell such Shares any interest in a transaction triggering an Other Owner Lessor who has entered into any Other Facility Participation Agreement, then the provisions of this Section 7.2 Facility Lessee shall not constitute such an event). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have the right to pay for such shares specified in the Transfer Notice: (a) the same amount in cash, if the consideration to be paid consists of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that set forth in the Transfer Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement of the Company and the Purchaser.
(c) If the Company (or its assignees) does not exercise its right purchase rights under this SECTION 14.1 only if, concurrently therewith, it exercises its purchase rights under SECTION 14.1 of first offer hereunder within the time specified for each such exercise, the Seller(s) shall be free, during the period of 120 days following the date of the Transfer Notice, to sell the shares specified in such Transfer Notice for such consideration and on such other material terms as shall be no more favorable to the purchaser of the shares than the terms specified in such Transfer NoticeOther Facility Participation Agreement.
(d) The provisions of this Section 7.2 shall terminate upon the earlier to occur of: (i) such time as 3Com Corporation distributes its shares of the Company's Common Stock to the shareholders of 3Com Corporation or (ii) one year following the Closing Date.
Appears in 2 contracts
Samples: Participation Agreement (Eme Homer City Generation Lp), Participation Agreement (Eme Homer City Generation Lp)
Right of First Offer. For so long as Purchaser holds (a) In the event that the Board determines to sell any Shares, if the Purchaser joins in a partnership, limited partnership, syndicate, or otherwise acts in concert or alone for the purpose of disposing of more than 5% of the Shares (as adjusted for stock splits vessels owned by any of its Subsidiaries or similar events after the date hereof) equity securities or other interests in any of its Subsidiaries that own any such vessels to a single person Third Party (any such sale, a "Ship Sale") and Zoullas objected to such Ship Sale (such objection to be evidenced by a negative vote or transferee or any group of affiliated persons or transferees but specifically excluding any hedging or similar transactions, a no vote by Zoullas (in the Purchaser shall give the Company event Zoullas did not have the opportunity to purchase such stock, vote) in the following manner:
(a) The Purchaser meeting of the Board in which the decision to proceed with a potential Ship Sale was ratified by the Board in accordance with the terms of this Agreement), the Company shall give promptly send to Zoullas a notice (the "Transfer ROFO Notice") setting forth its intentions with respect to a Ship Sale and offering Zoullas the right (the "ROFO") to make an offer to purchase the vessel described in the ROFO Notice. Within seven (7) days of receipt of a ROFO Notice, Zoullas shall notify the Board that he either (i) wishes to exercise his ROFO with respect to the Ship Sale described in the ROFO Notice or (ii) does not intend to exercise such ROFO. The failure to notify the Board within such seven (7) day period shall be deemed to be a notice that Zoullas does not intend to exercise his ROFO with respect to such Ship Sale. In the event Zoullas elects to exercise his ROFO with respect to the Ship Sale described in the ROFO Notice, Zoullas must, within fourteen (14) days of his receipt of the ROFO Notice (i) execute a definitive agreement with respect to such Ship Sale that is at a price acceptable to the Company and on other terms and conditions reasonably satisfactory to the Company; and (ii) make a customary deposit and provide credible evidence (as determined by the Board in writing its reasonable judgment) of having financing necessary to consummate such intentionShip Sale. If Zoullas fails to comply with the requirements of the immediately preceding sentence (which failure shall include, specifying for the number and kind avoidance of securities proposed to be sold or transferreddoubt, the proposed price per share therefor (not being acceptable to the "Transfer Price") Company or the Company not being reasonably satisfied with the other terms and conditions of the definitive agreement delivered by Zoullas with respect to such Ship Sale), the Company shall have no further obligations to Zoullas with respect to such Ship Sale and the other material terms, upon which Company may consummate such disposition is proposed to be made, including the names of the proposed purchasers or transferees if such persons have been identifiedShip Sale with a Third Party.
(b) The Company shall have the right, exercisable by written notice given by the Company Notwithstanding anything to the Purchaser within ten calendar days contrary contained in paragraph (a) of receipt of the Transfer Notice to purchase all of the shares specified in such Transfer Notice upon the terms specified in such Transfer Notice. Notwithstanding the foregoingthis Section 13.12, the Company shall have twenty-five calendar days from not be required to send a ROFO Notice and xxxxx Xxxxxxx a ROFO with respect to any Ship Sale if (i) the receipt of the Transfer Notice (regardless of the date of the Transfer Notice) to notify Purchaser of the Company's election to purchase the shares pursuant to this Section 7.2 if Board determines in good faith that the Company shall furnish in undergoing financial difficulties at the time of such proposed Ship Sale, (ii) Zoullas is no longer a certificate signed by the President or Chief Executive Officer Member of the Company within ten calendar days at the time of receipt of the Transfer Notice stating that, such proposed Ship Sale or (iii) Zoullas has previously successfully exercised a ROFO with respect to any other Ship Sale (provided that in the good faith judgment event Zoullas exercises a ROFO but fails to consummate the Ship Sale that was contemplated by the ROFO Notice by reason of Zoullas' failure to obtain the management financing necessary to consummate such Ship Sale, the exercise of the Company, it would such ROFO shall be detrimental deemed to be a "successful exercise" for purposes of this clause (iii)).
(c) Notwithstanding anything to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering contrary, the provisions of this Section 7.2 13.12 shall not constitute such an event). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company terminate, and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company no party shall have the right to pay for such shares specified in the Transfer Notice: (a) the same amount in cash, if the consideration to be paid consists of cash, rights or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that set forth in the Transfer Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement of the Company and the Purchaser.
(c) If the Company (or its assignees) does not exercise its right of first offer hereunder within the time specified for such exercise, the Seller(s) shall be free, during the period of 120 days following the date of the Transfer Notice, to sell the shares specified in such Transfer Notice for such consideration and on such other material terms as shall be no more favorable to the purchaser of the shares than the terms specified in such Transfer Notice.
(d) The provisions of obligations under this Section 7.2 shall terminate 13.12, upon the earlier to occur of: (i) such time as 3Com Corporation distributes its shares of the Company's Common Stock to the shareholders of 3Com Corporation or (ii) one year and following the Closing Datean IPO.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Eagle Bulk Shipping Inc.), Limited Liability Company Agreement (Eagle Bulk Shipping Inc.)
Right of First Offer. For so long as Purchaser holds After the one-year anniversary of the Closing Date, subject to the proviso in Section 2.2, prior to Transferring any Shares, if Purchaser and or its Affiliates proposing to effect such Transfer (the Purchaser joins “Transferring Party”) shall give FBR TRS a right of first offer to purchase such Shares as described in this paragraph (a):
(i) The Transferring Party shall give written notice (a partnership“ROFO Notice”), limited partnershipto FBR TRS stating such Transferring Party’s intention to effect a Transfer, syndicatethe number of Shares subject to such proposed Transfer, the price (including the form of consideration) at which, and any other terms the Transferring Party wishes to specify on which, such Transferring Party proposes to offer such Shares for Transfer (the “First Offer Price”).
(ii) Upon receipt of the ROFO Notice, FBR TRS (or otherwise acts an Affiliate designated by it in concert or alone for accordance with Section 5.7) may make an irrevocable election, by giving written notice within ten (10) Business Days from receipt of the purpose of disposing of more ROFO Notice, to purchase all, but not less than 5% all, of the Shares subject to such ROFO Notice at the First Offer Price and otherwise on terms and conditions substantially similar to the terms and conditions described in the ROFO Notice. If FBR TRS (as adjusted for stock splits or similar events after the date hereof) to a single person or transferee or any group of affiliated persons or transferees but specifically excluding any hedging or similar transactionssuch Affiliate) fails to so notify the Transferring Party within such ten (10) Business Day period, the Purchaser FBR TRS (and its Affiliates) shall give the Company the opportunity be deemed to have irrevocably waived their right to elect to purchase such stock, in the following manner:
Shares (a) The Purchaser shall give notice (the "Transfer Notice") to the Company in writing of unless such intention, specifying the number and kind of securities proposed to be sold or transferred, the proposed price per share therefor (the "Transfer Price") Shares are not Transferred and the other material terms, upon which such disposition last sentence of clause (iv) below is proposed to be made, including the names of the proposed purchasers or transferees if such persons have been identifiedapplicable).
(biii) The Company shall have the right, exercisable by written notice given by the Company to the Purchaser within ten calendar days of receipt of the Transfer Notice If FBR TRS (or such Affiliate) elects to purchase all of such Shares, FBR TRS (or such Affiliate) and the shares Transferring Party shall use their commercially reasonable efforts to consummate such transaction as promptly as practicable (but in no event more than fourteen (14) days after the delivery of such election notice, provided that, if the Transfer is subject to regulatory approval, and if definitive documentation with respect to such purchase has been executed within fourteen (14) days, such fourteen (14) day period will be extended until the expiration of five (5) Business Days after all such approvals will have been received, but in no event will such period be extended for more than an additional ninety (90) days).
(iv) If FBR TRS or an Affiliate does not elect to purchase all of such Shares pursuant to this paragraph (a) or if, having made such election, FBR TRS or an Affiliate does not complete such purchase within the applicable time period specified in such Transfer Notice upon paragraph (iii), then the terms specified in such Transfer Notice. Notwithstanding the foregoing, the Company Transferring Party shall have twenty-five calendar be free for a period of 120 days from the date that is ten (10) Business Days following receipt of the Transfer ROFO Notice (regardless provided that, if the Transfer is subject to regulatory approval, such 120-day period will be extended until the expiration of five (5) Business Days after all such approvals will have been received, but in no event will such period be extended for more than an additional 120 days) to Transfer such Shares to a transferee for consideration having a value not less than the First Offer Price; provided that any such definitive agreement is on terms in the aggregate no less favorable to the Transferring Party than contained in the ROFO Notice. Subject to any confidentiality obligations of the Transferring Party, the Transferring Party shall provide FBR TRS a substantially final draft of such definitive agreement (or, if the Transferring Party is prohibited from providing such draft, a summary of the material terms and conditions thereof) at least two (2) Business Days prior to entering into such agreement and in any event prior to such Transfer. In the event that the Transferring Party has not entered into such a definitive agreement with the period referred to in the preceding sentence, or has so entered into such an agreement but has not consummated the sale of such Shares within nine months from the date of such definitive agreement, then the provisions of this paragraph (a) shall again apply, and such Transferring Party shall not Transfer Notice) or offer to notify Purchaser of the Company's election to purchase the shares pursuant to Transfer such Shares without again complying with this Section 7.2 if the Company shall furnish a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating thatparagraph (a), in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders extent applicable.
(v) Notwithstanding anything herein to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering contrary, the provisions of this Section 7.2 shall 2.3(a) will not constitute such an event). The purchase apply to any Transfer of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have the right to pay for such shares specified in the Transfer Notice: (a) the same amount in cash, if the consideration to be paid consists of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that set forth in the Transfer Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement of the Company and the Purchaser.
(c) If the Company (or its assignees) does not exercise its right of first offer hereunder within the time specified for such exercise, the Seller(s) shall be free, during the period of 120 days following the date of the Transfer Notice, to sell the shares specified in such Transfer Notice for such consideration and on such other material terms as shall be no more favorable to the purchaser of the shares than the terms specified in such Transfer Notice.
(d) The provisions of this Section 7.2 shall terminate upon the earlier to occur of: Shares (i) such time as 3Com Corporation distributes its shares of the Company's Common Stock that is subject to the shareholders of 3Com Corporation Section 2.3(b) or (ii) one year following that is referred to in the Closing Dateproviso to Section 2.2.
Appears in 2 contracts
Samples: Governance Agreement (Friedman Billings Ramsey Group Inc), Governance Agreement (FBR Capital Markets Corp)
Right of First Offer. For so long as Purchaser holds (A) The Bank hereby irrevocably and unconditionally undertakes to the Beneficiary that in the event that the Bank enforces its pledge over, and wishes to Sell, any or all of the Pledged Shares, if it shall not Sell any such Pledged Shares before giving the Purchaser joins in a partnershipBeneficiary, limited partnership, syndicate, or otherwise acts in concert or alone for provided the purpose of disposing of more than 5Beneficiary at the time owns at least 10% of the Shares (as adjusted for stock splits or similar events after the date hereof) to Shares, a single person or transferee or any group right of affiliated persons or transferees but specifically excluding any hedging or similar transactions, the Purchaser shall give the Company the opportunity to purchase such stock, in first offer on the following mannerterms:
(ai) The Purchaser Bank shall give provide the Beneficiary with a written notice (the "Transfer “Offer Notice"”) to the Company in writing of such intention, specifying the number and kind of securities proposed to be sold or transferred, the proposed price per share therefor (the "Transfer Price") and the other material terms, upon which such disposition is proposed to be made, including the names of the proposed purchasers or transferees if such persons have been identified.
(b) The Company shall have the right, exercisable by written notice given by the Company to the Purchaser within ten calendar days of receipt of the Transfer Notice to purchase all of the shares specified in such Transfer Notice upon the terms specified in such Transfer Notice. Notwithstanding the foregoing, the Company shall have twenty-five calendar days from the receipt of the Transfer Notice (regardless of the date of the Transfer Notice) to notify Purchaser of the Company's election to purchase the shares pursuant to this Section 7.2 if the Company shall furnish a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 shall not constitute such an event). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have the right to pay for such shares specified in the Transfer Noticeintended Sale stating: (a) the same amount in cash, if number of the consideration to be paid consists of cash, or Pledged Shares (“Offered Shares”); and (b) its price expectations per Pledged Share (the “Offer Price”) which shall not be more than the volume weighted average market price over the last 30 trading days on the Istanbul Stock Exchange prior to the extent that date of delivery of the consideration Offer Notice. Within 15 Business Days of receipt of the Offer Notice from the Bank, the Beneficiary may send a written notice if it wishes to be paid does buy all of the Offered Shares (but not consist less than all) on such terms (the “Acceptance Notice”) to the Bank. Upon receipt of cash, consideration per share equivalent to that set forth in the Transfer Acceptance Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement the Bank shall Sell all of the Company and Offered Shares to the PurchaserBeneficiary on such terms within 120 Business Days from the date of the Acceptance Notice (this period only being subject to extension as may be reasonably necessary to obtain required governmental or regulatory approvals).
(cii) If the Company (or its assignees) does Beneficiary fails to respond to the Offer Notice within the relevant period stipulated above or, at any time during this process, it informs the Bank that it elects not to exercise its right of first offer hereunder within the time specified for such exercise, the Seller(s) shall be free, during the period of 120 days following the date of the Transfer Notice, to sell the shares specified in such Transfer Notice for such consideration and on such other material terms as shall be no more favorable with respect to the purchaser of Offered Shares (any such event being referred to as a “No Action Event”), then the shares Bank will be permitted to Sell all (but not less than all) the terms specified in such Transfer NoticeOffered Shares to any third person at any consideration.
(d) The provisions of this Section 7.2 shall terminate upon the earlier to occur of: (i) such time as 3Com Corporation distributes its shares of the Company's Common Stock to the shareholders of 3Com Corporation or (ii) one year following the Closing Date.
Appears in 2 contracts
Samples: Shareholders' Agreement, Shareholders Agreement (Banco Bilbao Vizcaya Argentaria, S.A.)
Right of First Offer. For so long as Purchaser holds any Shares, if the Purchaser joins in a partnership, limited partnership, syndicate, or otherwise acts in concert or alone for the purpose of disposing of more than 5% of the Shares (as adjusted for stock splits or similar events after the date hereof) to a single person or transferee or any group of affiliated persons or transferees but specifically excluding any hedging or similar transactions, the Purchaser shall give the Company the opportunity to purchase such stock, in the following manner:
(a) The Purchaser Notwithstanding anything herein to the contrary, and subject to the terms and conditions specified in this Section 10.15, unless any Event of Default occurs and is continuing at the time of such Transfer, the Issuer shall give notice have a right of first offer with respect to any sale, assignment, exchange or other transfer, whether involuntarily or voluntarily (each, a “Transfer”), of all or any part of this Note by the Initial Holder or any of its Affiliates (the "Transfer Notice"Initial Holder and any such Affiliate, each a “Transferor”) other than to the Company in writing of such intention, specifying the number and kind of securities proposed to be sold or transferred, the proposed price per share therefor (the "Transfer Price") and the other material terms, upon which such disposition is proposed to be made, including the names of the proposed purchasers or transferees if such persons have been identifieda Permitted Transferee.
(b) If a Transferor proposes to Transfer this Note, the Transferor shall first make an offer of this Note to the Issuer in accordance with the following provisions:
(i) The Company Transferor shall have deliver a notice (the right“RFO Notice”) to the Issuer stating (i) the Transferor’s bona fide intention to Transfer this Note and (ii) the price and terms upon which it proposes to Transfer this Note.
(ii) Within thirty (30) calendar days after delivery of the RFO Notice, exercisable by the Issuer may elect, upon written notice given by the Company to the Purchaser within ten calendar days of receipt of Transferor, to purchase, at the Transfer Notice to purchase all of the shares specified in such Transfer Notice upon price and on the terms specified in the RFO Notice, this Note. If the Issuer elects to purchase this Note, such Transfer Notice. Notwithstanding the foregoing, the Company purchase shall have twenty-five calendar days be completed promptly following such notice from the receipt Issuer to the Transferor.
(iii) If the Issuer does not notify the Transferor of the Transfer Notice (regardless of the date of the Transfer Notice) to notify Purchaser of the Company's its election to purchase the shares pursuant to this Note in accordance with Section 7.2 if the Company shall furnish a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 shall not constitute such an event10.15(b)(ii). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have the right to pay for such shares specified in the Transfer Notice: (a) the same amount in cash, if the consideration to be paid consists of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that set forth in the Transfer Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement of the Company and the Purchaser.
(c) If the Company (or its assignees) does not exercise its right of first offer hereunder within the time specified for such exercise, the Seller(s) shall be freeTransferor may, during the ninety (90) day period of 120 days following the date expiration of the thirty (30)-day period provided in Section 10.15(b)(ii) hereof, Transfer Noticethis Note to any person or persons at a price not less than, to sell the shares specified in such Transfer Notice for such consideration and on such other material upon terms as shall be no more favorable to the purchaser of the shares than the terms offeree than, those specified in the RFO Notice. If the Transferor does not Transfer this Note within such Transfer Notice.
(d) The provisions of period, the right provided hereunder shall be deemed to be revived and this Note shall not be Transferred unless first reoffered to the Issuer in accordance with this Section 7.2 shall terminate upon the earlier to occur of: (i) such time as 3Com Corporation distributes its shares of the Company's Common Stock to the shareholders of 3Com Corporation or (ii) one year following the Closing Date10.15.
Appears in 2 contracts
Samples: Equity Purchase Agreement (ARC Properties Operating Partnership, L.P.), Equity Purchase Agreement (RCS Capital Corp)
Right of First Offer. For so long as Purchaser holds any Shares, if the Purchaser joins in a partnership, limited partnership, syndicate, or otherwise acts in concert or alone for the purpose of disposing of more than 5% of the Shares (as adjusted for stock splits or similar events after the date hereof) to a single person or transferee or any group of affiliated persons or transferees but specifically excluding any hedging or similar transactions, the Purchaser shall give the Company the opportunity to purchase such stock, in the following manner:
(a) The Purchaser shall give notice If a Member proposes to Transfer (each, a "Proposed Transfer") any of its Membership Interests (the "Transfer NoticeOffered Interests") to any Person (each, a "Third Party") other than to a Permitted Transferee, such Member (the "Proposing Member") shall submit a written notice (a "Notice of Proposed Transfer") to the Company other Members (the "Remaining Members") describing the material terms and conditions of the Proposed Transfer in writing of such intentionreasonable detail, specifying the number and kind of securities proposed to be sold or transferredincluding, without limitation, the proposed purchase price per share therefor (which shall be for cash only) (the "Transfer Offer Price") and the other material terms, upon which such disposition is proposed to be made, including the names of the proposed purchasers or transferees if such persons have been identified).
(b) Upon receipt of the Notice of Proposed Transfer, each of the Remaining Members shall have the primary right, but not the obligation, for a period (the "Primary Option Period") of ten (10) Business Days following receipt of the Notice of Proposed Transfer, to elect to purchase at the Offer Price a portion of the Offered Interests equal to such Remaining Member's pro rata portion which portion shall be equal to a fraction the numerator of which is the Membership Interests owned by the Remaining Members electing to purchase Offered Interests and the denominator of which is the total Membership Interests as of the date of the Notice of Proposed Transfer owned by all of the Members (other than the Proposing Member), on the same terms and conditions as are set forth in the Notice of Proposed Transfer. Each Remaining Member shall also have a secondary right, on the same terms as are set forth in the Notice of Proposed Transfer, for a period of ten (10) Business Days from the expiration of the Primary Option Period, to purchase any or all of the remaining portion of the Offered Interests not purchased by any other Remaining Member in the exercise of his or its primary right. If, however, there is more than one Remaining Member desiring to exercise secondary rights to purchase any such remaining Offered Interests and they do not agree on the number of such Offered Interests to be purchased by each within five (5) Business Days from the expiration of the Primary Option Period, then each such Remaining Member shall be entitled to purchase such proportion of those Offered Interests which remain undisposed of as the Membership Interests owned by such Remaining Member bears to the total Membership Interests held by all of the Members desiring to purchase such Offered Interests. The primary and secondary rights of the Remaining Members set forth herein are exercisable in each case by delivery of one notice to the Company and the Proposing Member (a "Notice of Exercise") within the time periods specified herein, which Notice of Exercise shall specify a time and place of closing, which closing shall Occur not less than thirty (30) days and not more than sixty (60) days from the date of delivery of the Notice of Exercise.
(c) In the event that the Remaining Members exercise their rights to purchase all but not less than all of the Offered Interests in accordance with Section 4.3(b), then the Proposing Member must sell the Offered Interests elected to be purchased by the Remaining Members to such Remaining Members at the closing specified in Section 4.3(b) hereof. The Proposing Member shall notify each such Remaining Member of the portion of Offered Interests to be sold to such Remaining Members. At such closing, the Proposing Member shall, and hereby covenants to, Transfer the Offered Interests to such Remaining Members free and clear of any and all liens, mortgages, pledges, security interests or other restrictions or encumbrances against payment of the Offer Price in accordance with the notices specified in Sections 4.3(a) and (b) hereof.
(d) If (i) all notices required to be given pursuant to Sections 4.3(a) and (b) hereof have been duly given and (ii) all of the Offered Interests are not purchased by the Remaining Members in accordance with Sections 4.3(b) and (c) hereof, then the Proposing Member shall have the right, exercisable by written for a period of ninety (90) days from the earlier of (i) the expiration of the last applicable option period pursuant to Section 4.3 (b) hereof with respect to such Notice of Proposed Transfer and (ii) the date on which such Proposing Member receives notice given by from all of the Company Remaining Members that they will not exercise the options granted pursuant to Sections 4.3(b) and (c) hereof to sell, subject to Section 4.4 hereof, to any Third Party the Offered Interests at a price not less than the Offer Price and on terms and conditions as favorable as offered to the Purchaser within ten calendar days of receipt of Remaining Members.
(e) In the Transfer Notice event that the Remaining Members do not exercise their options to purchase all of the shares specified Offered Interests, and the Proposing Member shall not have sold the Offered Interests as to which such options shall not have been exercised, to a Third Party for any reason before the expiration, as applicable, of the ninety (90)-day period described in Section 4.3(d) hereof, or such Proposing Member withdraws the Notice of Proposed Transfer, then such Proposing Member shall not give another Notice of Proposed Transfer Notice upon the terms specified in such Transfer Notice. Notwithstanding the foregoing, the Company shall have twenty-five calendar pursuant to Section 4.3(a) hereof for a period of one hundred twenty (120) days from the receipt last day of the Transfer Notice such ninety (regardless of the date of the Transfer Notice) to notify Purchaser of the Company's election to purchase the shares pursuant to this Section 7.2 if the Company shall furnish a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 shall not constitute such an event). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have the right to pay for such shares specified in the Transfer Notice: (a) the same amount in cash, if the consideration to be paid consists of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that set forth in the Transfer Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement of the Company and the Purchaser90)-day period.
(cf) If the Company (or its assignees) any Member does not exercise its right of first offer hereunder within the time specified for such exercise, the Seller(s) shall be free, during the period of 120 days following the date purchase any of the Transfer Notice, Offered Interests under this Section 4.3 but wishes to sell the shares specified in Membership Interests under Section 4.4 hereof, such Transfer Member must deliver a Tag-Along Notice for pursuant to Section 4.4(b) hereof simultaneously with declining such consideration and on such other material terms as shall be no more favorable Member's right to the purchaser of the shares than the terms specified in such Transfer Notice.
(d) The provisions of purchase under this Section 7.2 shall terminate upon the earlier to occur of: (i) such time as 3Com Corporation distributes its shares of the Company's Common Stock to the shareholders of 3Com Corporation or (ii) one year following the Closing Date4.3 hereof.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Fortress Registered Investment Trust), Limited Liability Company Agreement (Fortress Brookdale Acquisition LLC)
Right of First Offer. For so long as Purchaser holds any Shares, if the Purchaser joins in a partnership, limited partnership, syndicate, or otherwise acts in concert or alone for the purpose of disposing of more than 5% of the Shares (as adjusted for stock splits or similar events after the date hereof) to a single person or transferee or any group of affiliated persons or transferees but specifically excluding any hedging or similar transactions, the Purchaser shall give the Company the opportunity to purchase such stock, in the following manner:
(a) The Purchaser Prior to consummating any Asset Purchase, Asset Sale, or Joint Venture (a “Transaction”), Manager shall give written notice to Lessee of such Transaction, including a reasonable description of the material terms thereof (the "Transfer “Transaction Notice") to the Company in writing of such intention, specifying the number and kind of securities proposed to be sold or transferred, the proposed price per share therefor (the "Transfer Price") and the other material terms, upon which such disposition is proposed to be made, including the names of the proposed purchasers or transferees if such persons have been identified.
(b) The Company ”). Lessee shall have the right, exercisable by written notice given by the Company to the Purchaser within ten calendar fifteen (15) days of after receipt of the Transfer Transaction Notice (the “Exercise Period”) to elect, (A) in the case of an Asset Sale by Manager, to purchase all not less than one hundred percent (100%) of the shares specified Target Asset on substantially the same terms and conditions set forth in the applicable Transaction Notice, or (B) in the case of a Joint Venture, to participate with Manager in such Transfer Notice upon Joint Venture in equal shares or interests, subject to substantially the same terms and conditions applicable to Manager in such Joint Venture, and/or to participate as any JV Counterparty therein on substantially the same terms as set forth in such Transaction Notice. If prior to the end of the Exercise Period, Lessee elects to participate in such Transaction as provided in the previous sentence, then Manager and Lessee shall negotiate the terms specified of a definitive agreement(s) governing the Transaction for not greater than forty-five (45) days following the end of the Exercise Period (the “Negotiation Period”); provided, however, that the Negotiation Period shall be extended for the length of time necessary to account for any delays in executing any definitive agreement caused by circumstances outside the reasonable control of Lessee, including, without limitation, delays caused by or attributable to Manager, any third party or any government rule or regulation. If following the expiration of the Negotiation Period, no definitive agreement has been executed with respect to the Transaction, Manager shall be entitled, without Lessee’s participation, to consummate the Transaction with a third party on substantially the same terms and conditions set forth in the Transaction Notice for a period of one (1) year following the expiration of the Negotiation Period. If such Transfer Notice. Notwithstanding the foregoingTransaction is not consummated within such one (1) year period, the Company shall have twenty-five calendar days from the receipt rights of the Transfer Notice (regardless of the date of the Transfer Notice) to notify Purchaser of the Company's election to purchase the shares Lessee pursuant to this Section 7.2 if the Company 13.2 shall furnish a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental reinstated with respect to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions Transaction. For purposes of this Section 7.2 13.2, “Lessee” shall not constitute such an event)include any Affiliate thereof. The purchase For purposes of this Section 13.2, the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company following terms shall have the right to pay for such shares specified in the Transfer Notice: (a) the same amount in cash, if the consideration to be paid consists of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that respective meanings set forth in the Transfer Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement of the Company and the Purchaser.
(c) If the Company (or its assignees) does not exercise its right of first offer hereunder within the time specified for such exercise, the Seller(s) shall be free, during the period of 120 days following the date of the Transfer Notice, to sell the shares specified in such Transfer Notice for such consideration and on such other material terms as shall be no more favorable to the purchaser of the shares than the terms specified in such Transfer Notice.
(d) The provisions of this Section 7.2 shall terminate upon the earlier to occur of: (i) such time as 3Com Corporation distributes its shares of the Company's Common Stock to the shareholders of 3Com Corporation or (ii) one year following the Closing Date.below:
Appears in 2 contracts
Samples: Management Agreement, Management Agreement (Capital Lodging)
Right of First Offer. For so long as Purchaser holds Subject to the provisions of this Section 4.8, any Shares, if the Purchaser joins in transfer by a partnership, limited partnership, syndicate, or otherwise acts in concert or alone for the purpose Limited Partner of disposing of more than 5% of the Shares (as adjusted for stock splits or similar events after the date hereof) to a single person or transferee Class B Units or any group transfer by a Limited Partner (other than the Public Company) in connection with a Change in Control, except for a transfer made pursuant to Article XVI or a transfer to an Affiliate of affiliated persons or transferees but specifically excluding any hedging or similar transactionssuch Limited Partner, the Purchaser shall give the Company the opportunity be subject to purchase such stock, in the following manner:procedures.
(a) The Purchaser If a Limited Partner (other than the Public Company) desires to transfer all or a portion of its Class B Units to a Third Party or undergo a Change in Control (such Third Party acquirer, the “Transferee” and such Limited Partner, the “Transferor”), the Transferor shall give notice to each other Limited Partner holding Class B Units (the "Transfer Notice") to the Company in writing of such intentioneach, specifying the number and kind of securities proposed to be sold or transferred, the proposed price per share therefor (the "Transfer Price"a “ROFO Partner”) and the General Partner written notice (a “ROFO Notice”) setting forth (i) the Transferor’s desire to effect such transfer or undergo such Change in Control, (ii) the Class B Units to be transferred (or, in the case of a Change in Control, the entirety of the Transferor’s Limited Partner Interest) (the “Offered Interest”), and (iii) the cash consideration and other material terms, terms upon which such disposition is proposed the Transferor proposes to be made, including transfer the names of Offered Interest to the proposed purchasers or transferees if such persons have been identifiedTransferee.
(b) The Company Each ROFO Partner shall have the right, exercisable but not the obligation, to elect to make an offer to the Transferor to acquire the entirety of the Offered Interest for the cash consideration and on the other material terms set forth in the ROFO Notice. Any such offer made by written notice given a ROFO Partner shall (i) be made in writing, (ii) be made within 45 days after such ROFO Partner’s receipt of the ROFO Notice, and (iii) constitute a binding offer by such ROFO Partner to the Transferor to transfer to such ROFO Partner the entirety of the Offered Interest at the price and upon the terms specified in the ROFO Notice (a “ROFO Offer”). Should only one ROFO Partner deliver a ROFO Offer that complies with the foregoing provisions of this Section 4.8(b), the Transferor shall be deemed to have accepted such ROFO Offer and shall transfer all (but not less than all) of the Offered Interest to such ROFO Partner for the cash consideration and on the other material terms set forth in the ROFO Notice. Should more than one ROFO Partner deliver a ROFO Offer that complies with the foregoing provisions of this Section 4.8(b), the Transferor shall (A) be deemed to have accepted each such ROFO Offer and (B) transfer to each such ROFO Partner such ROFO Partner’s Proportionate Share of the Offered Interest (1) for an amount equal to such ROFO Partner’s Proportionate Share of the cash consideration set forth in the ROFO Notice, and (2) upon the other material terms set forth in the ROFO Notice (with only such changes to such other terms as are necessary to reflect the split of the Offered Interest to more than one ROFO Partner).
(c) Any failure by a ROFO Partner to deliver a ROFO Offer within the 45-day period specified in Section 4.8(b) shall be deemed an election by such ROFO Partner not to attempt to acquire the Offered Interest.
(d) If each ROFO Partner affirmatively elects not to make a ROFO Offer to acquire the Offered Interest and/or is deemed to have elected not to acquire the Offered Interest pursuant to Section 4.8(c), then the Transferor will be free to transfer all (but not less than all) of the Offered Interest to a Transferee or undergo the desired Change in Control, as applicable; provided, that such transfer(s) or Change in Control is consummated (i) within 180 days following the end of the 45-day period that each ROFO Partner had to make a ROFO Offer, and (ii) for consideration (whether cash and/or property) that is greater in value (including the fair market value (as determined in accordance with Section 4.8(e)) of any property taken in lieu of cash) than the cash consideration specified in the applicable ROFO Notice. If the Transferor does not affect such transfer(s) or Change in Control within such 180-day period, the transfer of the Offered Interest (or applicable Change in Control) shall again become subject to the right of first offer set forth in this Section 4.8.
(e) The “fair market value” of any property taken in lieu of cash for purposes of Section 4.8(b) is, as determined by the Company Transferor, the price at which a willing seller would sell, and a willing buyer would buy, such property, free and clear of all encumbrances, in an arms’ length transaction for cash without time constraints and without being under any compulsion to buy or sell; provided, however, that if any ROFO Partner disputes the Purchaser Transferor’s determination of such price, then the fair market value of such property will be determined by an independent expert unanimously selected by the ROFO Partner(s) and the Transferor or, if such Partners are unable to agree upon an expert within ten calendar days after the Transferor’s receipt of a dispute notice from a ROFO Partner, then upon the request of either the Transferor or any ROFO Partner, the Houston, Texas office of the American Arbitration Association shall appoint such independent expert, provided that such independent expert shall be a nationally recognized investment banking firm. All communications between any Partner and the independent expert shall be conducted in writing, with copies sent simultaneously to each other Partner participating in the independent expert proceeding in the same manner, or at a meeting to which representatives of all Partners participating in the independent expert proceeding have been invited and of which such Partners have been provided at least five Business Days’ notice. Within 30 days after the independent expert’s acceptance of its appointment, the Partners participating in such proceeding shall provide the independent expert with a report containing their proposal for the resolution of the matter and the reasons therefor, accompanied by all relevant supporting information and data (excluding any information or data protected by attorney-client privilege). Within 30 days of receipt of the Transfer Notice above-described materials and after receipt of additional information or data as may be reasonably required by the independent expert, the independent expert shall select the proposal or solution or value which it finds more consistent with the terms of this Agreement. The independent expert may not propose alternate positions or award damages, interest or penalties to purchase all any Partners with respect to any matter. The independent expert’s decision shall be final and binding on the Partners. The fees and costs of the shares specified in such Transfer Notice upon the terms specified in such Transfer Notice. Notwithstanding the foregoing, the Company independent expert shall have twenty-five calendar days from the receipt of the Transfer Notice (regardless of the date of the Transfer Notice) to notify Purchaser of the Company's election to purchase the shares pursuant to this Section 7.2 if the Company shall furnish a certificate signed be paid by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating that, Partners participating in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares proceeding in a transaction triggering the provisions of this Section 7.2 shall not constitute such an event). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use accordance with their best efforts to secure during such period any approvals required on their relative respective parts in connection therewith. The Company shall have the right to pay for such shares specified Percentage Interests in the Transfer Notice: (a) the same amount in cash, if the consideration to be paid consists of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that set forth in the Transfer Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement of the Company and the PurchaserPartnership.
(c) If the Company (or its assignees) does not exercise its right of first offer hereunder within the time specified for such exercise, the Seller(s) shall be free, during the period of 120 days following the date of the Transfer Notice, to sell the shares specified in such Transfer Notice for such consideration and on such other material terms as shall be no more favorable to the purchaser of the shares than the terms specified in such Transfer Notice.
(d) The provisions of this Section 7.2 shall terminate upon the earlier to occur of: (i) such time as 3Com Corporation distributes its shares of the Company's Common Stock to the shareholders of 3Com Corporation or (ii) one year following the Closing Date.
Appears in 2 contracts
Samples: Agreement of Limited Partnership (Hess Midstream Partners LP), Partnership Restructuring Agreement (Hess Midstream Partners LP)
Right of First Offer. For so long as Purchaser holds any SharesSubject to the terms and conditions specified in -------------------- this Section 3.1, if the Purchaser joins in Company hereby grants to each Holder, a partnership, limited partnership, syndicate, or otherwise acts in concert or alone for right of first offer with respect to future sales by the purpose Company of disposing of more than 5% of the Shares its New Securities (as adjusted for stock splits or similar events defined in Section 3.1(d)(i)) after the date hereof) to a single person or transferee or any group . For purposes of affiliated persons or transferees but specifically excluding any hedging or similar transactionsthis Section 3.1, the Purchaser term Holder includes any partners, shareholders or affiliates of the Holder. The Holder shall give be entitled to apportion the Company the opportunity to purchase right of first offer hereby granted among itself and its partners, shareholders and affiliates in such stock, in the following manner:proportions as it deems appropriate.
(a) The Purchaser In the event the Company proposes to issue New Securities, it shall give each Holder written notice (the "Transfer Notice") of its intention stating: (i) a description of the New Securities it proposes to the Company in writing of such intentionissue, specifying (ii) the number and kind of securities proposed shares of New Securities it proposes to be sold or transferredoffer, (iii) the proposed price per share therefor at which, and other terms on which, it proposes to offer such New Securities, and (iv) the "Transfer Price") and number of shares that the other material termsHolder has the right to purchase under this Section 3.1, upon which such disposition is proposed to be made, including based on the names of the proposed purchasers or transferees if such persons have been identifiedHolder's Percentage (as defined in Section 3.1(d)(ii)).
(b) Within 30 days after the Notice is given (in accordance with Section 5.3), the Holder may elect to purchase, at the price specified in the Notice, up to the number of shares of the New Securities proposed to be issued equal to the Holder's Percentage. An election to purchase shall be made in writing and must be given to the Company within such 30-day period (in accordance with Section 5.3). The Company shall have closing of the right, exercisable by written notice given sale of New Securities by the Company to the Purchaser within ten calendar days participating Holder upon exercise of receipt its rights under this Section 3.1 shall take place simultaneously with the closing of the Transfer Notice sale of New Securities to purchase all of the shares specified in such Transfer Notice upon the terms specified in such Transfer Notice. Notwithstanding the foregoing, the Company shall have twenty-five calendar days from the receipt of the Transfer Notice (regardless of the date of the Transfer Notice) to notify Purchaser of the Company's election to purchase the shares pursuant to this Section 7.2 if the Company shall furnish a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 shall not constitute such an event). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have the right to pay for such shares specified in the Transfer Notice: (a) the same amount in cash, if the consideration to be paid consists of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that set forth in the Transfer Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement of the Company and the Purchaserthird parties.
(c) If The Company shall have 90 days after the Company (or its assignees) does not exercise its last date on which the Holder's right of first offer hereunder within lapsed to enter into an agreement (pursuant to which the time specified for such exercise, the Seller(s) sale of New Securities covered thereby shall be freeclosed, during if at all, within 45 days from the period of 120 days following the date of the Transfer Notice, execution thereof) to sell the shares specified in such Transfer Notice for such consideration New Securities which the Holder did not elect to purchase under this Section 3.1, at or above the price and on such other material upon terms as shall be no not materially more favorable to the purchaser purchasers of the shares such securities than the terms specified in the initial Notice given in connection with such Transfer Noticesale. In the event the Company has not entered into an agreement to sell the New Securities within such 90 day period (or sold and issued New Securities in accordance with the foregoing within 45 days from the date of such agreement), the Company shall not thereafter issue or sell any New Securities without first offering such New Securities to the Holder in the manner provided in this Section 3.1.
(d) The provisions of this Section 7.2 shall terminate upon the earlier to occur of: (i) "New Securities" shall mean any shares of, or securities convertible into or exercisable for any shares of, any class of the Company's capital stock; provided that "New Securities" does not include: (A) securities issued pursuant to the acquisition of another business entity by the Company by merger, purchase of substantially all of the assets of such time as 3Com Corporation distributes its entity, or other reorganization whereby the Company owns not less than a majority of the voting power of such entity; (B) shares of the Company's Common Stock, options or warrants to purchase shares of the Company's Common Stock, and the shares of Common Stock issuable upon exercise of such options or warrants, issued pursuant to any arrangement approved by the Board of Directors to employees, officers and directors of, or consultants, advisors or other Persons performing services for, the Company; (C) shares of the Company's Common Stock or warrants or options for the purchase of shares of the Company's Common Stock issued by the Company to a commercial bank or equipment lessor in connection with any loan or lease financing transaction approved by the Board of Directors of the Company; (D) shares of the Company's Common Stock issued to a corporate partner in a transaction approved by the Board of Directors of the Company in which there is a substantial commercial aspect to the shareholders transactions and in which there is no other financial investor involved; (E) shares of 3Com Corporation the Company's Common Stock issued in connection with any stock split, stock dividend or recapitalization of the Company; (F) shares of the Company's Common Stock issued upon exercise of warrants, options or convertible securities if the issuance of such warrants, options or convertible securities was a result of the exercise of the right of first offer granted under this Section 3.1 or was subject to the right of first offer granted under this Section 3.1; or (iiG) one year following shares of Common Stock issued in the Closing DateQualified IPO.
Appears in 2 contracts
Samples: Investor Rights Agreement (Network Access Solutions Corp), Investor Rights Agreement (Network Access Solutions Corp)
Right of First Offer. For so long as Purchaser holds Prior to making any Shares, if the Purchaser joins offer to Transfer any Voting Securities pursuant to clause (iii) of Section 3.2(b) or any offer to Transfer (in a partnership, limited partnership, syndicate, one transaction or otherwise acts in concert or alone for the purpose series of disposing of more related transactions) less than 5100% of the Shares Voting Securities Beneficially Owned at such time by TD and its Affiliates pursuant to Section 3.2(c), TD and/or its Affiliates proposing to effect such Transfer (as adjusted for stock splits or similar events after the date hereof) to a single person or transferee or any group of affiliated persons or transferees but specifically excluding any hedging or similar transactionscollectively, the Purchaser “Transferring Party”) shall give the Company the opportunity to purchase such stock, Voting Securities in the following manner:
(a) The Purchaser Transferring Party shall give written notice (the "a “Transfer Notice") ”), to the Company in writing of stating such intentionTransferring Party’s intention to effect such a Transfer, specifying the number of and kind description of securities proposed the Voting Securities subject to be sold or transferredsuch Transfer, the proposed price per share therefor and terms on which such Transferring Party proposes to offer such Voting Securities for Transfer (the "Transfer “First Offer Price"”) and the other material terms, terms upon which such disposition Transfer is proposed to be made, including the names of the proposed purchasers or transferees if such persons have been identified.
(b) The Company shall have the right, exercisable by written notice given by the Company to the Purchaser within ten calendar days of Upon receipt of the Transfer Notice Notice, the Company will have an irrevocable option to purchase all of the shares specified in Voting Securities subject to such Transfer Notice upon at the First Offer Price and otherwise on the terms specified and conditions described in such Transfer Notice. Notwithstanding the foregoing, the Company shall have twenty-five calendar days from the receipt of the Transfer Notice (regardless of the date of the Transfer Notice) to notify Purchaser of the Company's election to purchase the shares pursuant to this Section 7.2 if the Company shall furnish a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 shall not constitute such an event). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have the right to pay for such shares specified in shall, within 5 Business Days from receipt of the Transfer Notice: (a) the same amount in cash, indicate if the consideration to be paid consists it accepts such offer by sending irrevocable written notice of cash, or (b) any such acceptance to the extent that Transferring Party, and the consideration Company shall then be obligated to be paid does not consist of cash, consideration per share equivalent to that purchase all such Voting Securities on the terms and conditions set forth in the Transfer Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement of the Company and the Purchaser.
(c) If the Company (or its assignees) does not exercise its right elects to purchase all of first offer hereunder within the time specified for such exerciseVoting Securities, the Seller(s) Company and the Transferring Party shall be freelegally obligated to consummate such transaction and shall use their commercially reasonable efforts to consummate such transaction as promptly as practicable but in any event within 5 Business Days following the delivery of such election notice or, during if later, 5 Business Days after receipt of all required regulatory approvals (but in no event more than 90 days after the delivery of such election notice). In the event that the number of Voting Securities to be purchased by the Company in connection with its exercise of its rights pursuant to this Section 3.3 in any twelve-month period would exceed 4.9% of 120 days following the total number of outstanding Voting Securities at the date of the Transfer NoticeNotice (or, to sell if more than one Transfer Notice has been given, the shares specified in date of the last of such Transfer Notice for such consideration and on such other material terms as shall be no more favorable Notices), the Company may, at its option, designate any Person to purchase the purchaser of the shares than the terms specified in Voting Securities subject to such Transfer Notice; provided that if the closing of the purchase of the Voting Securities by any such designee is delayed by reason of the need by such designee to obtain required regulatory approvals beyond the date on which the Company could have consummated such purchase pursuant to the first sentence of this Section 3.3(c), the purchase price for such Voting Securities shall also include interest on the First Offer Price for the Voting Securities subject to the Transfer Notice at the Prime Rate from the date on which the Company would have been legally permitted to consummate such purchase to but excluding the date that the designee actually purchases the shares.
(d) The If the Company does not elect to purchase all of such Voting Securities pursuant to this Section 3.3 (or if, having made such election, does not complete such purchase within the applicable time period specified in Section 3.3(c)), then the Transferring Party shall be free for a period of 90 days from the date the election notice was due to be received from the Company to enter into definitive agreements to Transfer such Voting Securities to a transferee for consideration having a value not less than 95% of the First Offer Price; provided that any such definitive agreement provides for the consummation of such Transfer to take place within nine months from the date of such definitive agreement and is otherwise on terms not more favorable to the transferee in any material respect than were contained in the Transfer Notice. In the event that the Transferring Party has not entered into such a definitive agreement with such 90-day period, or has so entered into such an agreement but has not consummated the sale of such Voting Securities within nine months from the date of such definitive agreement, then the provisions of this Section 7.2 3.3 shall terminate upon the earlier again apply, and such Transferring Party shall not Transfer or offer to occur of: (i) Transfer such time as 3Com Corporation distributes its shares of the Company's Common Stock Voting Securities not so Transferred without again complying with this Section 3.3, to the shareholders of 3Com Corporation or (ii) one year following the Closing Dateextent applicable.
Appears in 2 contracts
Samples: Shareholder Agreement (Banknorth Group Inc/Me), Shareholder Agreement (Toronto Dominion Bank)
Right of First Offer. For so long as Purchaser holds any Shares, if the Purchaser joins in a partnership, limited partnership, syndicate, or otherwise acts in concert or alone for the purpose of disposing of more than 5% of the Shares (as adjusted for stock splits or similar events after the date hereof) to a single person or transferee or any group of affiliated persons or transferees but specifically excluding any hedging or similar transactions, the Purchaser shall give the Company the opportunity to purchase such stock, in the following manner:
(a) The Purchaser Subject to the terms and conditions of Section 8.3, if any Member (in such capacity, a “Seller”) proposes to Transfer (the “Offer”) all or any part of such Member’s equity interests in the Company (other than in respect of the Redemption), the Seller shall give written notice (the "Transfer “Proposed Sale Notice"”) to the Company, each Major Holder (other than the Seller) (in such capacity, the “Offerees”), which Proposed Sale Notice shall (i) identify the type and amount of the equity interests in the Company in writing (the “Offered Units”) which such Seller desires to sell, (ii) describe the terms and conditions of such intentionOffer, specifying the number and kind of securities proposed to be sold or transferredincluding, without limitation, the proposed purchase price per share therefor for such Offered Units, and (iii) contain an irrevocable offer to sell the "Transfer Price") Offered Units the Offeree at the purchase price contained in, and on the other material termssame terms and conditions of, upon which such disposition is proposed to be made, including the names of the proposed purchasers or transferees if such persons have been identifiedProposed Sale Notice.
(b) The Company shall have the right, exercisable by written notice given by If the Company to the Purchaser within ten calendar days of receipt of the Transfer Notice desires to purchase all or any portion of the shares specified in such Transfer Notice upon the terms specified in such Transfer Notice. Notwithstanding the foregoingOffered Units, the Company shall have twenty-five calendar days from communicate in writing (the receipt of the Transfer Notice (regardless of the date of the Transfer “Company Offer Notice”) to notify Purchaser of the Company's its election to purchase to the shares pursuant to this Section 7.2 if Seller and each Major Holder no later than thirty (30) days after transmittal of the Company shall furnish a certificate signed Proposed Sale Notice by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental Seller to the Company and its stockholders to decide whether to elect (the “Company Offer Period”), which Company Offer Notice shall state the number of Offered Units the Company desires to purchase and shall be given to the Shares Seller within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 shall not constitute such an event). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have the right to pay for such shares specified in the Transfer Notice: (a) the same amount in cash, if the consideration to be paid consists of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that set forth in the Transfer Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement of the Company and the PurchaserOffer Period.
(c) If the Company elects to purchase less than all of the Offered Units, the Offerees shall have the right to purchase all or any portion of the Offered Units not offered to be acquired by the Company, and each Offeree (or each, a “Participating Offeree”) shall communicate in writing its assigneeselection to purchase such remaining Units to the Seller no later than thirty (30) days after transmittal of the Company Offer Notice by the Company (the “Offeree Offer Period”), which communication shall state the number of Offered Units that such Participating Offeree desires to purchase and shall be given to the Seller within the Offeree Offer Period. Each Offeree shall have the right to purchase up to that number of Offered Units not elected to be acquired by the Company which equals the product obtained by multiplying (i) the aggregate number of Offered Units not elected to be purchased by the Company by (ii) a fraction, the numerator of which is the number of Common Units at the time owned by such Offeree and the denominator of which is the number of Common Units at the time owned by all Offerees (in each case, calculated on a Fully Diluted Basis). If an Offeree does not exercise his, her or its right of first offer hereunder within the time specified for such exerciserefusal, the Seller(s) Offered Units that could otherwise be allocated to such non-exercising Offeree shall be free, during allocated to each Participating Offeree on a pro rata basis based on the period number of 120 days following the date of the Transfer Notice, to sell the shares specified in Common Units then owned by such Transfer Notice for such consideration and Participating Offeree (calculated on such other material terms as shall be no more favorable to the purchaser of the shares than the terms specified in such Transfer Noticea Fully Diluted Basis).
(d) The Sales of the Offered Units pursuant to this Section 8.5 shall be made at the offices of the Company on the thirtieth (30th) day following the last day of the Offeree Offer Period (or if such day is not a business day, then on the next succeeding business day), unless otherwise agreed to by the Seller and the Offeree. Such sales shall be affected by the Seller’s delivery to the Company and/or the Participating Offeree of a certificate or certificates, if any, evidencing the Offered Units to be purchased, duly endorsed for Transfer to the Company and/or the Participating Offeree, as applicable, against payment to the Seller of the purchase price therefor by the Company or the Participating Offeree, as applicable.
(e) If neither the Company nor the Offerees offer to purchase in the aggregate all of the Offered Units (the “Remaining Offered Units”), then, subject to the provisions of Section 8.6, if applicable, the Remaining Offered Units may be Transferred by the Seller to any Person (the “Proposed Transferee”) at any time within ninety (90) days following the last day of the Offeree Offer Period at a purchase price not less than, and on terms and conditions no less favorable to the Seller than, the purchase price contained in, and the terms and conditions of, the Proposed Sale Notice. Any Offered Units not sold within such ninety (90) day period shall, thereafter, be subject to the requirement of a prior Offer pursuant to this Section 7.2 8.5.
(f) Upon the Transfer of any Units pursuant to this Section 8.5, the Board shall be authorized to amend Exhibit A attached hereto to reflect such Transfer.
(g) This Section 8.5 shall not apply to any Transfer (i) pursuant to an Initial Public Offering, (ii) in a SPAC Transaction, (iii) in a Sale of the Company, (iv) to a Permitted Transferee pursuant to Section 8.3, (v) pursuant to Section 8.6, (vi) pursuant to Section 8.9, (vii) made pursuant to the Redemption or (viii) made pursuant to the Blocker Sales. This Section 8.5 shall terminate upon the earlier to occur of: (i) such time as 3Com Corporation distributes its shares consummation of the Company's Common Stock to the shareholders of 3Com Corporation or (ii) one year following the Closing Datean Initial Public Offering.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Walgreens Boots Alliance, Inc.), Limited Liability Company Agreement (Walgreens Boots Alliance, Inc.)
Right of First Offer. For so long as Purchaser holds any Shares, if the Purchaser joins in a partnership, limited partnership, syndicate, or otherwise acts in concert or alone for the purpose of disposing of more than 5% of the Shares (as adjusted for stock splits or similar events after the date hereof) to a single person or transferee or any group of affiliated persons or transferees but specifically excluding any hedging or similar transactions, the Purchaser shall give the Company the opportunity to purchase such stock, in the following manner:
(a) The Purchaser Prior to the earlier of (i) a Qualified Public Offering, (ii) the occurrence of a Change in Control and (iii) five years from the Commencement Date, any Transfer of Stock by Stockholder (other than a Permitted Transfer) shall give notice be subject to a right of first offer pursuant to, and Stockholder must first comply with the provisions of, this Section 4. In the event Stockholder proposes to Transfer any Stock (the "Transfer Notice") “Offer”), then Stockholder shall furnish to the Company in writing Parent a written notice of such intention, specifying the number and kind of securities proposed to be sold or transferred, the proposed price per share therefor Transfer (the "Transfer Price") and the other material terms, upon which such disposition is proposed to be made, including the names of the proposed purchasers or transferees if such persons have been identifiedan “Offer Notice”).
(b) The Company Offer Notice shall have include:
(i) (A) the rightnumber of shares of Stock proposed to be Transferred by Stockholder (the “Offered Stock”), exercisable by written notice given by (B) the Company per Offered Stock purchase price in cash at which Stockholder is prepared to Transfer such Offered Stock (the Purchaser within ten calendar days of receipt of the Transfer Notice to purchase “Offer Price”) and (C) all of the shares specified in such Transfer Notice upon the other material terms specified in such Transfer Notice. Notwithstanding the foregoingand conditions, the Company shall have twenty-five calendar days from the receipt of the Transfer Notice (regardless of the date of the Transfer Notice) to notify Purchaser of the Company's election to purchase the shares pursuant to this Section 7.2 if the Company shall furnish a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating thatany, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 connection with such proposed Transfer; and
(it being understood that the mere election of Purchaser ii) an irrevocable offer to sell such Shares in a transaction triggering the provisions of this Section 7.2 shall not constitute such an event). The purchase of Offered Stock to Parent or its assignee or designee at the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have the right to pay for such shares specified in the Transfer Notice: (a) the same amount in cash, if the consideration to be paid consists of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that set forth in the Transfer Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement of the Company and the PurchaserOffer Price.
(c) If Parent wishes to purchase the Company (or its assignees) does not exercise Offered Stock pursuant to its right of first offer hereunder offer, it must elect to purchase for cash at the Offer Price all (but not less than all) of the Offered Stock within the time specified for such exercise, the Seller(stwenty (20) shall be free, during the period of 120 days Business Days following the date of delivery of the Transfer Offer Notice (the “Option Period”) by delivering an irrevocable notice (the “Purchase Notice”) to Stockholder indicating its desire to exercise its rights under this Section 4. If Parent does not deliver a Purchase Notice in compliance with the above requirements, including the time period, it shall be deemed to have waived all of its rights with respect to the offer contained in the Offer Notice. After receipt of the Purchase Notice, the parties shall negotiate in good faith to sell the shares specified in enter into an agreement with respect to such Transfer Notice for such consideration and on such other material terms as fifteen (15) Business Days. Parent shall be no more favorable have the right to assign its rights under this Section 4 in respect of any Offer to the purchaser of the shares than the terms specified in such Transfer NoticeCompany, any Affiliate or any other designee.
(d) The provisions If at the end of the 15 Business Day period referred to in Section 4(c) above, the parties have not reached agreement with respect to such Transfer, Stockholder may not later than one hundred and twenty (120) days after the date of the Offer Notice, as such period may be extended to obtain any required regulatory approvals, Transfer all (but not less than all) of the Offered Stock to any other Person on terms no less favorable to Stockholder than those set forth in the Offer Notice, including at a purchase price in cash equal to or greater than the Offer Price, and, if any other material terms and conditions are identified in the Offer Notice, on those terms and conditions (or those terms and conditions modified in a manner which are no less favorable to Stockholder), without any further obligation to Parent pursuant to this Section 7.2 shall terminate upon 4. If, at the earlier end of such period, as such period may be extended to occur of: (i) such time as 3Com Corporation distributes its shares obtain any required regulatory approvals, Stockholder has not completed the Transfer of the Company's Common Offered Stock in accordance with the foregoing, the obligations to the shareholders of 3Com Corporation or (ii) one year following the Closing DateParent pursuant to this Section 4 shall again be in effect with respect to such Stock.
Appears in 2 contracts
Samples: Stockholder Agreement (Energy Future Holdings Corp /TX/), Stockholder Agreement (Energy Future Holdings Corp /TX/)
Right of First Offer. For so long as Purchaser holds (i) If at any Shares, if the Purchaser joins in a partnership, limited partnership, syndicate, or otherwise acts in concert or alone for the purpose of disposing of more than 5% of the Shares (as adjusted for stock splits or similar events time after the date hereofFlip Point a Member desires to transfer any of its Membership Interest (other than a transfer which would be considered a Permitted Disposition hereunder), such Member (the “Disposing Member”) shall first give written notice (a “Disposition Notice”) to a single person or transferee or any group of affiliated persons or transferees but specifically excluding any hedging or similar transactions, the Purchaser shall give the Company the opportunity to purchase such stock, in the following manner:
(a) The Purchaser shall give notice (the "Transfer Notice") that effect to the Company in writing of such intention, specifying and each other Member containing (i) the number and kind of securities Membership Interests proposed to be sold or transferred, the proposed price per share therefor transferred (the "Transfer Price"“Offered Interest”), and (ii) the purchase price and the all other material terms, upon terms (the “First Offer Price”) which such disposition is proposed the Disposing Member proposes to be made, including paid for the names of the proposed purchasers or transferees if such persons have been identifiedOffered Interest.
(bii) The Company shall have the right, exercisable by written notice given by the Company to the Purchaser within ten calendar a period of fourteen (14) days of following receipt of the Transfer Disposition Notice (the “Company Response Period”) to accept the offer made in the Disposition Notice to purchase all or a portion of the Offered Interest at the First Offer Price by delivering written notice of acceptance to the Disposing Member and each other Member. The Company’s decision to accept or reject the offer to purchase all or a portion of the Offered Interest shall be made by the Management Committee, without the participation of the Disposing Member. If the Company does not elect to purchase all of the shares Offered Interest within the Company Response Period, the other Members shall have a period of seven (7) days immediately following the Company Response Period (the “Members Response Period”) to accept, on a pro rata basis and by written notice to the Disposing Member, the offer made in the Disposition Notice to purchase all or the remainder of the Offered Interest.
(iii) If the Company elects to purchase all or a portion of the Offered Interest, the closing of the sale of the Offered Interest (or the relevant portion thereof) shall, subject to Section 3.03(b)(v), be held at the Company’s principal office on a date to be specified in such Transfer Notice upon by the terms specified in such Transfer NoticeCompany which is not less than ten (10) days nor more than sixty (60) days after the end of the Company Response Period. Notwithstanding At the foregoingclosing, the Company shall deliver the consideration in accordance with the terms of the offer set forth in the Disposition Notice, and the Disposing Member shall transfer the Offered Interest (or the relevant portion thereof) to the Company, free and clear of all liens, claims and encumbrances.
(iv) If any of the other Members elects to purchase all or the remaining portion of the Offered Interest, the closing of the sale of the Offered Interest (or the relevant portion thereof) shall, subject to Section 3.03(b)(v), be held at the Company’s principal office on a date to be agreed and specified by such other Members, which date shall not be less than ten (10) days nor more than sixty (60) days after the end of the Members Response Period. At the closing, such other Members shall deliver the consideration in accordance with the terms of the offer set forth in the Disposition Notice and the Disposing Member shall deliver the Offered Interest (or the relevant portion thereof) to such other Members in accordance with their rights to share pro rata in such purchase, duly endorsed for transfer, free and clear of all liens, claims and encumbrances.
(v) If, at the end of the Members Response Period, the Company and Members together have twentynot elected to purchase all of the Offered Interest, then (i) the election of all parties pursuant to Section 3.03(b)(ii), 3.03(b)(iii), and 3.03(b)(iv) shall be null and void, and (ii) subject to Sections 3.03(c) and 3.03(d), the Disposing Member shall be entitled for a period of forty-five calendar days from (45) days, beginning the receipt day after the expiration of the Transfer Notice (regardless Members Response Period, to enter into a definitive agreement to sell all of the date Offered Interest at a price not lower than the First Offer Price (or for noncash consideration with a fair market value, as determined by the Management Committee in its reasonable discretion after consultation with the Disposing Member, at least equal to, together with any cash consideration, the First Offer Price) and on terms not more favorable to the transferee than were contained in the Disposition Notice, which sale shall be closed no later than ninety (90) days after the expiration of the Transfer Notice) to notify Purchaser of the Company's election to purchase the shares Members Response Period. Promptly after any sale pursuant to this Section 7.2 if 3.03(b), the Disposing Member shall notify the Company of the consummation thereof and shall furnish a certificate signed by the President or Chief Executive Officer such evidence of the Company within ten calendar days completion of receipt such sale and of the Transfer Notice stating that, in terms thereof as the good faith judgment Company may request.
(vi) If the Disposing Member has not entered into a definitive agreement to sell the Offered Interests within forty-five (45) days following the expiration of the management Members Response Period or completed the sale of the CompanyOffered Interest within ninety (90) days following the expiration of the Members Response Period, it would the Disposing Member shall no longer be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser permitted to sell any of such Shares in a transaction triggering Offered Interest without again fully complying with the provisions of this Section 7.2 shall not constitute such an event). The purchase 3.03(b) and any other provision of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have the right to pay for such shares specified in the Transfer Notice: (a) the same amount in cash, if the consideration to be paid consists of cash, or (b) this Agreement related to the extent that the consideration to be paid does not consist transfer of cash, consideration per share equivalent to that set forth in the Transfer Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement of the Company and the Purchasera Membership Interest.
(c) If the Company (or its assignees) does not exercise its right of first offer hereunder within the time specified for such exercise, the Seller(s) shall be free, during the period of 120 days following the date of the Transfer Notice, to sell the shares specified in such Transfer Notice for such consideration and on such other material terms as shall be no more favorable to the purchaser of the shares than the terms specified in such Transfer Notice.
(d) The provisions of this Section 7.2 shall terminate upon the earlier to occur of: (i) such time as 3Com Corporation distributes its shares of the Company's Common Stock to the shareholders of 3Com Corporation or (ii) one year following the Closing Date.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (GDT TEK, Inc.), Limited Liability Company Agreement (Composite Technology Corp)
Right of First Offer. For so long as Purchaser holds any Shares, if the Purchaser joins in a partnership, limited partnership, syndicate, or otherwise acts in concert or alone for the purpose of disposing of more than 5% of the Shares (as adjusted for stock splits or similar events after the date hereof) to a single person or transferee or any group of affiliated persons or transferees but specifically excluding any hedging or similar transactions, the Purchaser shall give the Company the opportunity to purchase such stock, in the following manner:
(a) The Purchaser If any Offeree or any Investor (such party, a “Transferring Shareholder”) wishes to transfer in a single transaction or a series of related transactions Class B Ordinary Shares, Class A Ordinary Shares or American Depositary Shares representing Class A Ordinary Shares, as the case may be, in each case representing 10% or more of the total issued and outstanding share capital of the Company (on a fully diluted basis and treating the Offerees collectively) in a private placement, such Transferring Shareholder shall give send written notice (the "“Transfer Notice"”) to each other party hereto holding shares of Capital Stock of the Company in writing (the “Non-Transferring Shareholders”), which notice shall state (i) (if known) the name of such intentionthe proposed transferee (the “Transferee”), specifying (ii) the number and kind of securities Class B Ordinary Shares, Class A Ordinary Shares or American Depositary Shares representing Class A Ordinary Shares, as the case may be, proposed to be sold or transferredtransferred (the “Offered Shares”), (iii) the proposed price per share therefor for the Offered Shares (the "Transfer “Offered Price"”) and (iv) the other material terms, upon which such disposition is proposed to be made, including the names expected date of consummation of the proposed purchasers or transferees if such persons have been identifiedtransfer.
(b) The Company For a period of ten (10) days after delivery of a Transfer Notice (the “Offered Period”), each Non-Transferring Shareholder shall have the right, exercisable by delivering a written notice given of exercise (an “Acceptance Notice”), to purchase in aggregate all, but not less than all, of the Offered Shares at a cash purchase price per share not less than the Offered Price. The Offerees and the Investors, as the case may be, shall also have the right to designate their respective Affiliates to purchase part or all of the Offered Shares. An Acceptance Notice shall be irrevocable and shall constitute a binding agreement by the Company Non-Transferring Shareholder who have delivered such Acceptance Notice (the “Exercising Shareholders”) to purchase the Offered Shares on the terms and conditions set forth in such Acceptance Notice. In the event more than one Non-Transferring Shareholder shall deliver an Acceptance Notice to the Purchaser Transferring Shareholder within ten calendar days of receipt the Offered Period, the number of the Transfer Offered Shares subject to each such binding agreement shall be proportionate to the relative percentage ownership of each Exercising Shareholder or on such other basis as such Exercising Shareholders shall agree. In the definitive agreements to be entered into among the Transferring Shareholder and the Exercising Shareholder(s) (or any of its or their Affiliates) for the sale of the Offered Shares (if any), the Transferring Shareholder shall only represent and warrant to the Exercising Shareholder(s) (or any of its or their Affiliates) as to the title of the Offered Shares. The failure by any Non-Transferring Shareholder to give an Acceptance Notice within the Offer Period shall be deemed to be a waiver of its rights under this Section 2.3.
(c) Unless the Non-Transferring Shareholders (on behalf of themselves and their respective Affiliates) elect to purchase all of the shares specified in such Transfer Notice upon the terms specified in such Transfer Notice. Notwithstanding the foregoingOffered Shares under Section 2.3(b), the Company shall have twenty-five calendar days from the receipt Transferring Shareholder may transfer all of the Transfer Notice (regardless Offered Shares at a price per share not less than the Offered Price within 12 months after the giving of the date of the Transfer Notice) to notify Purchaser of the Company's election to purchase the shares pursuant to this Section 7.2 if the Company shall furnish a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 shall not constitute such an event). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have the right to pay for such shares specified in the Transfer Notice: (a) the same amount in cash, if the consideration to be paid consists of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that set forth in the Transfer Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement of the Company and the Purchaser.
(c) If the Company (or its assignees) does not exercise its right of first offer hereunder within the time specified for such exercise, the Seller(s) shall be free, during the period of 120 days following the date of the Transfer Notice, to sell the shares specified in such Transfer Notice for such consideration and on such other material terms as shall be no more favorable to the purchaser of the shares than the terms specified in such Transfer Notice.
(d) The provisions closing of any purchase of Offered Shares by the Exercising Shareholder(s) (or any of its or their Affiliates) shall be held at the principal office of the Company at 10 a.m. local time on the fifteenth day after the giving of the Transfer Notice. At such closing, the Transferring Shareholder shall deliver certificates representing the Offered Shares, accompanied by duly executed instruments of transfer. The Exercising Shareholder(s) (or any of its or their Affiliates) shall deliver at such closing payment in full of the cash purchase price for the Offered Shares. At such closing, all of the parties to the transaction and the Company shall execute such additional documents as may be necessary or appropriate to effect the sale of the Offered Shares to the Exercising Shareholder(s) (or any of its or their Affiliates).
(e) Notwithstanding anything to the contrary set forth in this Section 7.2 2.3, this Section 2.3 shall terminate upon the earlier not be applicable to occur of: any Dispositions of shares of Capital Stock (i) such time as 3Com Corporation distributes its shares under Rule 144 or pursuant to any public offering, (ii) through a broker, dealer or other market maker making a market in Capital Stock, (iii) through the facilities of the New York Stock Exchange or any other securities exchange or quotation system on which share of Capital Stock are quoted, listed or traded, (iv) to an Affiliate of the Transferring Shareholder or, in the case of the Investors, in a distribution to ultimate investors of any Investor or (v) in a sale of the Company's Common Stock to the shareholders of 3Com Corporation or (ii) one year following the Closing Date.
Appears in 2 contracts
Samples: Investor's Rights Agreement (Apax Europe VI-1 LP), Investor's Rights Agreement (SouFun Holdings LTD)
Right of First Offer. For so long as Purchaser holds any SharesNotwithstanding the consent requirements of Section 11.1 (but subject to the other provisions thereof), if the Purchaser joins in a partnership, limited partnership, syndicate, or otherwise acts in concert or alone for the purpose of disposing of more than 5% of the Shares Class A Member may Transfer its interest (as adjusted for stock splits or similar events after the date hereof) to a single person or transferee or any group portion thereof) in compliance with the following procedures:
11.2.1 If a Class A Member (a "Selling Member") proposes to Transfer all or any portion of affiliated persons or transferees but specifically excluding any hedging or similar transactions, the Purchaser shall give its interest in the Company the opportunity to purchase any Person other than an Affiliate of CDI, such stock, in the following manner:
(a) The Purchaser Selling Member shall give notice of its intent to make such Transfer (the "Transfer Notice") to the Company in writing Manager. The Transfer Notice shall set forth (i) the portion of such intention, specifying the number and kind of securities proposed Selling Member's interest to be sold or transferred, the proposed price per share therefor Transferred (the "Transfer PriceOffered Interest") and (ii) if known to the other Selling Member, the identity of the prospective Transferee and the material terms, upon which such disposition is proposed to be made, including the names terms of the proposed purchasers or transferees if such persons have been identifiedTransfer to the prospective Transferee.
(b) 11.2.2 The Company Manager shall have the right, exercisable by written notice given by but not the Company obligation, to deliver to the Purchaser within Selling Member, before the close of the ten calendar days of receipt (10) day period after the delivery of the Transfer Notice to the Manager (such period, the "Offer Period"), a written offer (an "Offer") to purchase the Offered Interest. An Offer shall set forth all of the shares specified material terms and conditions of the proposed purchase of the Offered Interest. The Manager's rights to make the Offer and to purchase the Offered Interest pursuant thereto shall be assignable by the Manager to such one (1) or more Persons as the Manager determines to be appropriate (subject to compliance by the Manager with the provisions of Section 11.1 as if such rights were an interest in such Transfer Notice upon the terms specified in such Transfer NoticeCompany). Notwithstanding During the foregoingOffer Period, the Company Selling Member shall not solicit proposals or offers from, or engage in discussions with, other parties regarding the sale of the Offered Interest.
11.2.3 The Selling Member shall have twenty-five calendar days from no obligation to accept an Offer by the receipt Manager (or its assignee). Any closing of the Transfer Notice (regardless purchase of the date Offered Interest by the Manager (or its assignee), however, shall take place on such date, and at such time and place, as the Selling Member and the Manager (or its assignee) shall agree upon. At such closing, the Manager (or its assignee) shall make such deliveries in payment for the Offered Interest as are contemplated by the Offer, and the Selling Member shall deliver such executed documentation (including, without limitation, any required consents) to the Manager (or its assignee) as may be required to effect the Transfer of the Offered Interest to the Manager (or its assignee) and the admission of the Manager (or its assignee) as a substituted Member with respect to the Offered Interest. All of the foregoing deliveries shall be deemed to be made simultaneously and none shall be deemed completed until all have been completed.
11.2.4 If the Manager (or its assignee) does not purchase the Offered Interest in accordance with Section 11.2.3, then, subject to Section 11.1, the Selling Member shall be entitled to Transfer the Offered Interest to a third party Transferee at any time during the one hundred fifty (150) day period after the delivery of the Transfer Notice. If the Offered Interest (or any portion thereof) to notify Purchaser has not been Transferred within such one hundred fifty (150) day period, no Transfer of any portion of the Company's election to purchase Offered Interest shall be effective unless the shares pursuant to this Section 7.2 if the Company shall furnish a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering Selling Member has again complied with the provisions of this Section 7.2 shall not constitute such an event)11 as to the Offered Interest. The purchase As a condition to the effectiveness of any Transfer of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts Offered Interest to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have the right a third party Transferee pursuant to pay for such shares specified in the Transfer Notice: (a) the same amount in cash, if the consideration to be paid consists of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that set forth in the Transfer Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement of the Company and the Purchaser.
(c) If the Company (or its assignees) does not exercise its right of first offer hereunder within the time specified for such exercise, the Seller(s) shall be free, during the period of 120 days following the date of the Transfer Notice, to sell the shares specified in such Transfer Notice for such consideration and on such other material terms as shall be no more favorable to the purchaser of the shares than the terms specified in such Transfer Notice.
(d) The provisions of this Section 7.2 shall terminate upon the earlier to occur of: 11.2.4, (i) such time Transferee shall (a) execute and deliver such documents and agreements as 3Com Corporation distributes its shares the Manager reasonably determines to be appropriate to effect such Transferee's agreement to be bound by the terms and conditions of this Agreement and (b) take such other actions as the Manager may reasonably determine to be necessary to effect the admission of such Transferee to the Company, to qualify the Company to conduct business or to preserve the limited liability status of the Company's Common Stock to the shareholders of 3Com Corporation or Members, and (ii) one year following the Closing DateSelling Member and the Transferee shall execute and deliver such documents and agreements, and take such other actions, as the Manager may reasonably require to ensure that all of the obligations of the Selling Member to the Company and Fund B (including, without limitation, the obligation of the Selling Member to fund its commitment to Fund B with the escrow established pursuant to Section 7.5) will be satisfied in accordance with their terms.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Comdisco Holding Co Inc), Limited Liability Company Agreement (Comdisco Holding Co Inc)
Right of First Offer. For so long as Purchaser holds Notwithstanding anything to the contrary contained herein (but still subject to Section 10.3(c), (d) and (e) hereof), at any Sharestime after the Standstill Period, if a Member may Transfer all or any portion of its Interest, subject to compliance by such Member with the Purchaser joins in a partnershiprequirements of this Section 10.1(b); provided, limited partnership, syndicate, or otherwise acts in concert or alone for that such Member shall not be required to comply with the purpose of disposing of more than 5% requirements of the Shares next following sentence, including clauses (as adjusted for stock splits or similar events after i) through (vi) thereof, in connection with a Transfer to an Affiliate of such Member. Such Member (the date hereof“Selling Member”) must first offer such Interest (the “Offered Interest”) to a single person or transferee or any group of affiliated persons or transferees but specifically excluding any hedging or similar transactions, the Purchaser shall give remaining Consortium Members (the Company the opportunity “Offeree Members”) pursuant to purchase such stock, in the following mannerprocedures:
(ai) The Purchaser the Selling Member shall give provide notice (the "Transfer Notice") to the Company in writing of such intention, specifying the number and kind of securities proposed to be sold or transferred, the proposed price per share therefor (the "Transfer Price") and the other material terms, upon which such disposition is proposed to be made, including the names of the proposed purchasers or transferees if such persons have been identified.
(b) The Company shall have the right, exercisable by written notice given by the Company to the Purchaser within ten calendar days of receipt of the Transfer Notice to purchase all of the shares specified in such Transfer Notice upon the terms specified in such Transfer Notice. Notwithstanding the foregoing, the Company shall have twenty-five calendar days from the receipt of the Transfer Notice (regardless of the date of the Transfer Notice) to notify Purchaser of the Company's election to purchase the shares pursuant to this Section 7.2 if the Company shall furnish a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental the Managing Member and the Offeree Members of its desire to potentially sell, assign or transfer its Interest (the Company and its stockholders to decide whether to elect to purchase the Shares within “Potential Transfer Notice”);
(ii) at any time during the ten (10) day period provided for pursuant to this Section 7.2 beginning thirty (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 shall not constitute such an event). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have the right to pay for such shares specified in the Transfer Notice: (a30) the same amount in cash, if the consideration to be paid consists of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that set forth in the Transfer Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement of the Company and the Purchaser.
(c) If the Company (or its assignees) does not exercise its right of first offer hereunder within the time specified for such exercise, the Seller(s) shall be free, during the period of 120 days following the date of deemed receipt of the Potential Transfer Notice, the Selling Member may give notice (the “Offer Notice”) to sell the shares specified Company, the Managing Member and the Offeree Members of its offer to sell, assign or transfer the Offered Interest and the price (the “Offer Price”) and terms under which it is prepared to do so (the “Offer Terms”);
(iii) each Offeree Member shall have fifteen (15) days from the date of deemed receipt of the Offer Notice (such period, the “Acceptance Notice Period”) to elect to purchase all or any portion of the Offered Interest at the Offer Price and under the Offer Terms by providing notice to the Company, the Managing Member and the Selling Member (the “Acceptance Notice”);
(iv) the purchase by any Offeree Member of the Offered Interest or any portion thereof shall take place within five (5) Business Days of the date of deemed receipt of the Acceptance Notice;
(v) if the aggregate amount of Interests that the Offeree Members elect to purchase under the Acceptance Notices is in excess of the Offered Interest, the portion of the Offered Interest which each Offeree Member providing an Acceptance Notice shall acquire shall be determined by allocating the Offered Interest among the Offeree Members as follows:
(1) first, to each Offeree Member the lesser of (A) the portion of the Offered Interest indicated in its Acceptance Notice to the extent it has not been allocated to such Transfer Notice for such consideration Offeree Member on a previous application of this Section 10.1(b)(v)(1) and (B) its pro rata share (determined based on such other material terms Offeree Member’s Commitment as shall be a proportion of the aggregate Commitments of all Offeree Members providing an Acceptance Notice) of the Offered Interest which has not been allocated on a previous application of this Section 10.1(b)(v)(1); and (2) second, by repeating the allocation process in Section 10.1(b)(v)(1) until all of the Offered Interest has been allocated;
(vi) if the aggregate amount of Interests under the Acceptance Notices is less than the Offered Interest, the Selling Member may, in its discretion, for a period of 90 days following the end of the Acceptance Notice Period, sell, assign or transfer all or any portion of the Offered Interest (including such portion as the Offeree Members may have elected to purchase pursuant to Section 10.1(b)(iii) hereof) to a third party at a price that equals or exceeds the Offer Price and otherwise on substantially no more favorable terms to the purchaser of the shares such third party than the terms specified in such Transfer Notice.Offer Terms; and
(dvii) The provisions for the avoidance of doubt, this Section 7.2 10.1(b) shall terminate upon the earlier not be applicable to occur of: (i) such time as 3Com Corporation distributes a sale, assignment or transfer of Interests by BAM or its shares of the Company's Common Stock to the shareholders of 3Com Corporation wholly-owned Affiliates in accordance with Section 10.7 hereof or (ii) one year following the Closing Dateby a Member in accordance with Section 10.8.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Brookfield Retail Holdings LLC), Limited Liability Company Agreement (Brookfield Retail Holdings LLC)
Right of First Offer. For so long as Purchaser holds any Shares, if the Purchaser joins in a partnership, limited partnership, syndicate, or otherwise acts in concert or alone for the purpose of disposing of more than 5% of the Shares (as adjusted for stock splits or similar events after the date hereof) to a single person or transferee or any group of affiliated persons or transferees but specifically excluding any hedging or similar transactions, the Purchaser shall give the Company the opportunity to purchase such stock, in the following manner:
(a) The Purchaser shall give notice Except in the case of a Transfer to a Permitted Transferee pursuant to Section 9.2, prior to the Transfer of Membership Interests, the Member(s) proposing to Transfer all or any portion of its Membership Interest (the "“Offering Member”) must deliver a Transfer Notice") Notice to the Company in writing other Member(s) who is not an Affiliate of such intention, specifying the number and kind Offering Member at least sixty (60) Days but no more than ninety (90) Days prior to the proposed Transfer. The other Member(s) who is not an Affiliate of securities the Offering Member shall have the option to purchase (or to designate a third party to purchase) all of the Membership Interests proposed to be sold or transferred, Transferred for the proposed cash purchase price per share therefor (set forth in the "Transfer Price") Notice and pursuant to the other material terms, upon which such disposition terms and conditions set forth in this Agreement. The other Member(s) who is proposed to be made, including the names not an Affiliate of the proposed purchasers Offering Member shall have sixty (60) Days from receipt of the Transfer Notice in which to exercise its option to purchase (or transferees if such persons have been identifiedto designate a third party to purchase) all of the Membership Interests pursuant to this Section 9.3(a) by providing written notice of exercise of the option to the Offering Member and to the Company.
(b) The Company shall have In the right, exercisable by written notice given by event that at the Company to the Purchaser within ten calendar days of receipt end of the Transfer Notice sixty (60) Day period contemplated by Section 9.3(a), the other Member(s) who is not an Affiliate of the Offering Member have not elected to purchase (or to designate a third party to purchase) all of the shares specified in such Transfer Notice upon Membership Interests proposed to be Transferred, then the terms specified in such Transfer Notice. Notwithstanding Offering Member shall be free to consummate the foregoing, the Company shall have twenty-five calendar days from the receipt of the Transfer Notice (regardless of the date of the Transfer Notice) to notify Purchaser of the Company's election to purchase the shares pursuant to this Section 7.2 if the Company shall furnish a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 shall not constitute such an event). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have the right to pay for such shares specified described in the Transfer Notice: , provided, that within sixty (a60) Days after the same amount end of the sixty (60) Day period contemplated by Section 9.3(a), a definitive agreement is executed for the sale of such Membership Interests, and the terms and conditions (including price) in cash, if the consideration to be paid consists of cash, or (b) such agreement are no more favorable to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that purchaser than those set forth in the Transfer Notice. In the event a Member exercises the option to purchase (or to designate a third party to purchase) under Section 9.3(a), but such Member (or an amount its designee, if applicable) fails to tender the required consideration at the closing, in addition to being entitled to complete the proposed transaction, the Offering Member shall have all rights and remedies against the other Member (and its designee, if applicable) available for breach of cash having equivalent value, as determined in good faith by mutual agreement of the Company and the Purchasercontract.
(c) The parties shall use their reasonable efforts to close any purchase under Section 9.3 as promptly as possible after (i) the other Members provide written notice of the exercise of their option under Section 9.3(a) or (ii) the Offering Member executes a definitive agreement as contemplated by Section 9.3(b), as applicable. At the closing, the Offering Member shall deliver to the purchaser an executed assignment of the subject Membership Interest satisfactory in form to counsel for the Company, and the purchaser shall deliver the purchase price in cash or immediately available funds. The Offering Member and the purchaser each shall execute and deliver such other documents as may reasonably be requested by the other. If the Company closing of any purchase by the other Members (or its assigneestheir designee, if applicable) under Section 9.3(a) does not exercise its right of first offer hereunder occur within the time specified for such exercise, the Seller(s) shall be free, during the period of 120 days following the date one year of the Transfer Noticeexpiration of the sixty (60) Day period contemplated by Section 9.3(a), then the right to close on the purchase shall lapse and the Offering Member may sell the shares specified Membership Interests proposed to be Transferred in such Transfer Notice for such consideration accordance with Section 9.3(b) (on terms and on such other material terms as shall be conditions (including price) no more favorable to the purchaser of than those set forth in the shares than the terms specified in such Transfer Notice) as if the other Members had elected not to purchase the Offering Member’s interests.
(d) The provisions of this Section 7.2 shall terminate upon the earlier to occur of: (i) such time as 3Com Corporation distributes its shares of the Company's Common Stock to the shareholders of 3Com Corporation or (ii) one year following the Closing Date.
Appears in 2 contracts
Samples: Operating Agreement (Constellation Energy Group Inc), Operating Agreement (Constellation Energy Group Inc)
Right of First Offer. For so long as Purchaser holds any Shares, if the Purchaser joins in a partnership, limited partnership, syndicate, or otherwise acts in concert or alone for the purpose of disposing of more than 5% of the Shares (as adjusted for stock splits or similar events after the date hereof) to a single person or transferee or any group of affiliated persons or transferees but specifically excluding any hedging or similar transactions, the Purchaser shall give the Company the opportunity to purchase such stock, in the following manner:
(a) The Purchaser If any Investor (a “Transferor”) desires to Transfer for value any Company Securities, to any Person, the Transferor shall give written notice (the "Transfer “Transferor’s Notice"”) to each other Investor, other than Defaulting Investors (the Company in writing “Option Holders”) of such intention, specifying proposed Transfer. The Transferor’s Notice shall (i) specify the number and kind type of securities proposed Company Securities to be sold or transferred, the proposed price per share therefor (the "Transfer Price") consideration to be received therefor, and the other material terms, upon terms on which such disposition is proposed the Transferor proposes to be made, including Transfer the names of Company Securities and (ii) contain the proposed purchasers or transferees if such persons have been identifiedoffer described in Section 4.02(b).
(b) The Transferor shall offer to sell (the “Option”) such Company shall have Securities to the rightOption Holders at the same price per share, exercisable for the consideration and on the other terms and conditions specified in the Transferor’s Notice. The Option Holders may purchase the Company Securities so offered in the proportions upon which they mutually agree, or, if they are unable to agree upon an allocation of such Company Securities among themselves, then in the proportion that the number of shares of Fully-Diluted Common Stock owned by each Option Holder who desires to participate in the purchase of such shares pursuant to the Option bears to the aggregate number of shares of Fully-Diluted Common Stock owned by all Option Holders who desire to participate in the purchase of such Company Securities pursuant to the Option. The Option may be accepted by one or more of such Option Holders by written notice given by the Company delivered to the Purchaser Transferor within ten calendar twenty (20) days of after receipt of the Transfer Notice to purchase all of the shares specified in such Transfer Notice upon the terms specified in such Transfer Transferor’s Notice. Notwithstanding If the foregoingOption is accepted in a manner such that all shares covered by the Transferor’s Notice are to be purchased by the Option Holders, the Transferor shall Transfer all such Company shall have twenty-five calendar days from the receipt Securities free of the Transfer Notice all liens and encumbrances (regardless of the date of the Transfer Notice) to notify Purchaser of the Company's election to purchase the shares pursuant to other than restrictions imposed by this Section 7.2 if the Company shall furnish a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 shall not constitute such an event). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have the right to pay for such shares specified in the Transfer Notice: (a) the same amount in cash, if the consideration to be paid consists of cash, or (bStockholders Agreement) to the extent that respective purchasers thereof within fifteen (15) days after the date such offer is accepted by the Option Holders against delivery by the purchaser of the consideration payable to be paid does not consist of cash, consideration per share equivalent to that the Transferor as set forth in the Transfer Transferor’s Notice; provided, or an amount of cash having equivalent valuehowever, as determined in good faith by mutual agreement of that if any requisite regulatory approvals have not yet been obtained, such date shall be extended to the Company and date that is five (5) days after the Purchaserdate such approvals are obtained.
(c) If Unless, through exercise of the Option, all the shares proposed to be transferred in the Transferor’s Notice are to be acquired by one or more Option Holders, the Transferor may either (i) Transfer the Company Securities subscribed for by the Option Holders at the purchase price stated in the Transferor’s Notice to the Option Holders or (ii) Transfer all or its assigneesany portion of the Company Securities, subject, if applicable, to Section 4.03, to any other Person at a purchase price no less than the purchase price set forth in the Transferor’s Notice and on terms no less favorable to the Transferor; provided, however, that such Transfer shall occur no later than ninety (90) does not exercise its right of first offer hereunder within the time specified for such exercise, the Seller(s) shall be free, during the period of 120 days following after the date of the Transfer Transferor’s Notice, to sell the shares specified in . If such Transfer Notice for does not occur within such consideration and on such other material terms as ninety (90) day period, then the Company Securities shall be no more favorable re-offered to the purchaser of the shares than Option Holders under this Section 4.02 prior to any subsequent Transfer pursuant to the terms specified in such Transfer Noticeof this Section 4.02.
(d) The provisions of this This Section 7.2 4.02 shall terminate upon the earlier not be applicable to occur of: (i) a Transfer by an Investor if such time as 3Com Corporation distributes Investor exercises its shares of the Company's Common Stock to the shareholders of 3Com Corporation or (ii) one year following the Closing Daterights under Section 4.04.
Appears in 2 contracts
Samples: Stockholders Agreement (NewStar Financial, Inc.), Stockholders' Agreement (Corsair Capital LLC)
Right of First Offer. For so So long as Purchaser holds any Sharesno Liquidation Event of Default or Limited Liquidation Event of Default by the Company has occurred and is continuing under the Indenture at the time of transfer, if the Purchaser joins in a partnership, limited partnership, syndicate, Holder proposes to transfer all or otherwise acts in concert or alone for part of this Warrant (the purpose of disposing of more than 5% of the Shares (as adjusted for stock splits or similar events after the date hereof“Offered Warrant”) to a single person or transferee or any group who is not an affiliate of affiliated persons or transferees but specifically excluding any hedging or similar transactionsthe Holder at the time of transfer (an “Independent Third Party”), the Purchaser Holder shall give first provide to the Company the an opportunity to purchase such stock, offer to acquire and retire the Offered Warrant in accordance with this Section 25. The Holder shall first provide written notice of the following manner:
proposed transfer (a) The Purchaser shall give notice (without the "Transfer Notice"prior solicitation or discussion of offers from or with any Independent Third Party) to the Company in writing Company. Following receipt of such intentionnotice, specifying the number and kind Company will have an exclusive ten (10)-day period during which to make an offer to acquire all of securities the Offered Warrant proposed to be sold transferred. If the Holder determines not to accept an offer, if any, from the Company, or transferredif the Company does not make an offer, the proposed price per share therefor (Holder may thereafter transfer the "Transfer Price") and the other material terms, upon which such disposition is Offered Warrant proposed to be made, including the names of the proposed purchasers or transferees if such persons have been identified.
(b) The Company shall have the right, exercisable by written notice given by the Company transferred to an Independent Third Party at a price at least equal to the Purchaser within ten calendar days of receipt of the Transfer Notice to purchase all of the shares specified in such Transfer Notice upon the terms specified in such Transfer Notice. Notwithstanding the foregoing, the Company shall have twenty-five calendar days from the receipt of the Transfer Notice (regardless of the date of the Transfer Notice) to notify Purchaser of the Company's election to purchase the shares pursuant to this Section 7.2 if the Company shall furnish a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 shall not constitute such an event). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have the right to pay for such shares specified in the Transfer Notice: (a) the same amount in cashprice, if the consideration to be paid consists of cashany, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that set forth in the Transfer Notice, or an amount of cash having equivalent value, as determined in good faith offered by mutual agreement of the Company and the Purchaser.
(c) If the Company (or its assignees) if no such price was offered by the Company, at a price to be determined by the Holder). If the Holder does not exercise its right effectuate such transfer within ninety (90) days after the expiration of such ten (10)-day period, it must again first offer hereunder within comply with this Section 25 prior to effectuating any such transfer of the Offered Warrant. For the avoidance of doubt, this Section 25 shall have no force or effect if a Liquidation Event of default or Limited Liquidation Event of Default has occurred and is continuing under the Indenture at the time specified for such exercise, the Seller(s) shall be free, during Holder provides written notice to the period of 120 days following the date Company of the Transfer Notice, to sell the shares specified in such Transfer Notice for such consideration and on such other material terms as shall be no more favorable to the purchaser transfer of the shares than the terms specified in such Transfer Notice.
(d) The provisions all or part of this Section 7.2 shall terminate upon the earlier to occur of: (i) such time as 3Com Corporation distributes its shares of the Company's Common Stock to the shareholders of 3Com Corporation or (ii) one year following the Closing DateWarrant.
Appears in 2 contracts
Samples: Warrant Agreement (HyreCar Inc.), Warrant Agreement (HyreCar Inc.)
Right of First Offer. For so long as Purchaser holds any SharesNotwithstanding the consent requirements of Section 11.1 (but subject to the other provisions thereof), if the Purchaser joins in a partnership, limited partnership, syndicate, or otherwise acts in concert or alone for the purpose of disposing of more than 5% of the Shares Class A Member may Transfer its interest (as adjusted for stock splits or similar events after the date hereof) to a single person or transferee or any group portion thereof) in compliance with the following procedures:
11.2.1 If a Class A Member (a “Selling Member”) proposes to Transfer all or any portion of affiliated persons or transferees but specifically excluding any hedging or similar transactions, the Purchaser shall give its interest in the Company the opportunity to purchase any Person other than an Affiliate of CDI, such stock, in the following manner:
(a) The Purchaser Selling Member shall give notice of its intent to make such Transfer (the "“Transfer Notice"”) to the Company in writing Manager. The Transfer Notice shall set forth (i) the portion of such intention, specifying the number and kind of securities proposed Selling Member’s interest to be sold or transferredTransferred (the “Offered Interest”) and (ii) if known to the Selling Member, the proposed price per share therefor (identity of the "Transfer Price") prospective Transferee and the other material terms, upon which such disposition is proposed to be made, including the names terms of the proposed purchasers or transferees if such persons have been identifiedTransfer to the prospective Transferee.
(b) 11.2.2 The Company Manager shall have the right, exercisable by written notice given by but not the Company obligation, to deliver to the Purchaser within Selling Member, before the close of the ten calendar days of receipt (10) day period after the delivery of the Transfer Notice to the Manager (such period, the “Offer Period”), a written offer (an “Offer”) to purchase the Offered Interest. An Offer shall set forth all of the shares specified material terms and conditions of the proposed purchase of the Offered Interest. The Manager’s rights to make the Offer and to purchase the Offered Interest pursuant thereto shall be assignable by the Manager to such one (1) or more Persons as the Manager determines to be appropriate (subject to compliance by the Manager with the provisions of Section 11.1 as if such rights were an interest in such Transfer Notice upon the terms specified in such Transfer NoticeCompany). Notwithstanding During the foregoingOffer Period, the Company Selling Member shall not solicit proposals or offers from, or engage in discussions with, other parties regarding the sale of the Offered Interest.
11.2.3 The Selling Member shall have twenty-five calendar days from no obligation to accept an Offer by the receipt Manager (or its assignee). Any closing of the Transfer Notice (regardless purchase of the date Offered Interest by the Manager (or its assignee), however, shall take place on such date, and at such time and place, as the Selling Member and the Manager (or its assignee) shall agree upon. At such closing, the Manager (or its assignee) shall make such deliveries in payment for the Offered Interest as are contemplated by the Offer, and the Selling Member shall deliver such executed documentation (including, without limitation, any required consents) to the Manager (or its assignee) as may be required to effect the Transfer of the Offered Interest to the Manager (or its assignee) and the admission of the Manager (or its assignee) as a substituted Member with respect to the Offered Interest. All of the foregoing deliveries shall be deemed to be made simultaneously and none shall be deemed completed until all have been completed.
11.2.4 If the Manager (or its assignee) does not purchase the Offered Interest in accordance with Section 11.2.3, then, subject to Section 11.1, the Selling Member shall be entitled to Transfer the Offered Interest to a third party Transferee at any time during the one hundred fifty (150) day period after the delivery of the Transfer Notice. If the Offered Interest (or any portion thereof) to notify Purchaser has not been Transferred within such one hundred fifty (150) day period, no Transfer of any portion of the Company's election to purchase Offered Interest shall be effective unless the shares pursuant to this Section 7.2 if the Company shall furnish a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering Selling Member has again complied with the provisions of this Section 7.2 shall not constitute such an event)11 as to the Offered Interest. The purchase As a condition to the effectiveness of any Transfer of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts Offered Interest to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have the right a third party Transferee pursuant to pay for such shares specified in the Transfer Notice: (a) the same amount in cash, if the consideration to be paid consists of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that set forth in the Transfer Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement of the Company and the Purchaser.
(c) If the Company (or its assignees) does not exercise its right of first offer hereunder within the time specified for such exercise, the Seller(s) shall be free, during the period of 120 days following the date of the Transfer Notice, to sell the shares specified in such Transfer Notice for such consideration and on such other material terms as shall be no more favorable to the purchaser of the shares than the terms specified in such Transfer Notice.
(d) The provisions of this Section 7.2 shall terminate upon the earlier to occur of: 11.2.4, (i) such time Transferee shall (a) execute and deliver such documents and agreements as 3Com Corporation distributes its shares the Manager reasonably determines to be appropriate to effect such Transferee’s agreement to be bound by the terms and conditions of this Agreement and (b) take such other actions as the Manager may reasonably determine to be necessary to effect the admission of such Transferee to the Company, to qualify the Company to conduct business or to preserve the limited liability status of the Company's Common Stock to the shareholders of 3Com Corporation or Members, and (ii) one year following the Closing DateSelling Member and the Transferee shall execute and deliver such documents and agreements, and take such other actions, as the Manager may reasonably require to ensure that all of the obligations of the Selling Member to the Company and Fund B (including, without limitation, the obligation of the Selling Member to fund its commitment to Fund B with the escrow established pursuant to Section 7.5) will be satisfied in accordance with their terms.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Comdisco Holding Co Inc), Limited Liability Company Agreement (Comdisco Holding Co Inc)
Right of First Offer. For so long as Purchaser holds any Shares, if the Purchaser joins in a partnership, limited partnership, syndicate, or otherwise acts in concert or alone for the purpose of disposing of more than 5% of the Shares (as adjusted for stock splits or similar events after the date hereof) to a single person or transferee or any group of affiliated persons or transferees but specifically excluding any hedging or similar transactions, the Purchaser shall give the Company the opportunity to purchase such stock, in the following manner:
(a) The Purchaser For purposes of this Section 6.06, (i) XXXX and its Affiliates that own Units shall give notice be treated as one party and a reference to XXXX in this Section 6.06 shall mean XXXX and its Affiliates that own Units, and (the "Transfer Notice"ii) NHI and its Affiliates that own Units shall be treated as one party and a reference to NHI in this Section 6.06 shall mean NHI and its Affiliates that own Units. XXXX shall cause all of its Affiliates to act in accordance with this Section 6.06, and NHI shall cause all of its Affiliates (as applicable) to the Company act in writing of such intention, specifying the number and kind of securities proposed to be sold or transferred, the proposed price per share therefor (the "Transfer Price") and the other material terms, upon which such disposition is proposed to be made, including the names of the proposed purchasers or transferees if such persons have been identifiedaccordance with this Section 6.06.
(b) At any time (i) prior to the fifth (5th) anniversary of the date hereof with regard to a Transfer of Units with respect to which a Member may not unreasonably withhold its Consent pursuant to Section 6.01(a), or (ii) after the fifth (5th) anniversary with regard to any Transfer of Units, if XXXX or XXX (the “Selling Member”) desires to Transfer (or cause its Affiliate to Transfer) all or any portion of its Units to a purchaser that is not an Affiliate of XXXX or NHI in a single, arm’s length transaction, or in a series of related arm’s length transactions through the sale of Units, or a merger, consolidation or other similar corporate reorganization of the Company (the “Proposed Sale” and the Units that are the subject of such Proposed Sale are the “Proposed Units”), the Selling Member shall notify the other Member (the “Offeree Member”) in writing of its intentions to sell (the “Initial Sale Notice”). The Company Initial Sale Notice shall contain general information on the proposed sale. The parties shall have sixty (60) days to discuss the rightproposed sale (such sixty (60) day period beginning upon receipt by the Offeree Member of the Initial Sale Notice defined as the “Proposed Sale Discussion Period”). If, exercisable by after the Proposed Sale Discussion Period, the Selling Member still desires to proceed with the Proposed Sale, then Selling Member shall provide a formal written notice given by (the Company “Proposed Sale Notice”) to the Purchaser Offeree Member within ten calendar thirty (30) days after the end of the Proposed Sale Discussion Period. The Proposed Sale Notice shall specify the proposed sale price of the Proposed Units and the material terms and conditions of such Proposed Sale (the “Proposed Sale Terms”). If applicable, the Proposed Sale Notice may also constitute the Drag-Along Notice provided for in Section 6.07 or the Tag-Along Notice provided for by Section 6.08 if it includes all information required by such sections.
(c) Within thirty (30) days after receipt of the Transfer Proposed Sale Notice (such period beginning upon Offeree Member’s receipt of the Proposed Sale Notice and ending on the thirtieth (30th) day thereafter being known as the “Proposed Sale Notice Period”), the Offeree Member may elect to purchase all of the shares specified in such Transfer Notice Proposed Units from the Selling Member upon the same terms specified and conditions as those set forth in the Proposed Sale Notice by delivering a written notice (the “Purchase Notice”) of such Transfer Noticeelection to the Selling Member. Notwithstanding If the foregoing, the Company shall have twenty-five calendar days from the receipt of the Transfer Notice (regardless of the date of the Transfer Notice) to notify Purchaser of the Company's election Offeree Member elects to purchase the shares pursuant to this Section 7.2 if Proposed Units, then the Company closing of such Transfer shall furnish a certificate signed take place at such time and place as specified in the Purchase Notice, which date shall not be more than one hundred twenty (120) days after delivery of the Purchase Notice by the President or Chief Executive Officer Offeree Member, subject to extension of up to an additional one hundred fifty (150) days if necessary in order to obtain any third party Consents required to consummate the Proposed Sale. At the closing, the Selling Member shall deliver such customary transfer documents as the Offeree Member may reasonably request to Transfer the Proposed Units to be sold by such Selling Member, against delivery of the Company within ten calendar days of receipt of applicable consideration.
(d) If the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to Offeree Member does not timely elect to purchase the Shares Selling Member’s Proposed Units or timely elects to purchase the Proposed Units but fails to close the purchase in the time frame described in Section 6.06(c), then the Selling Member may proceed with the Proposed Sale without the Consent of any Member or Manager, provided that (i) (A) if the Offeree Member did not timely elect to purchase the Selling Member’s Proposed Units, such Proposed Sale is consummated within one hundred twenty (120) days following the end of the Proposed Sale Notice Period, subject to extension of up to an additional one hundred fifty (150) days if necessary in order to obtain any third party Consents required to consummate the Proposed Sale, or (B) if the Offeree Member elects to purchase the Proposed Units but fails to close the purchase of the Proposed Units within the ten day period provided for pursuant time frame described in Section 6.06(c), such Proposed Sale is consummated within one hundred twenty (120) days following the last possible date that the Offeree Member could have consummated the Proposed Sale in accordance with Section 6.06(c), subject to this Section 7.2 extension of up to an additional one hundred fifty (150) days if necessary in order to obtain any third party Consents required to consummate the Proposed Sale, and (ii) the actual sale terms are substantially consistent with the Proposed Sale Terms (it being understood acknowledged and agreed that the mere election sale price of Purchaser the Proposed Units must be equal to sell such Shares or greater than ninety-eight percent (98%) of the sale price of the Proposed Units as specified in a transaction triggering the provisions of this Section 7.2 shall not constitute such an eventProposed Sale Notice). The If the Offeree Member does not timely elect to purchase of the shares by Selling Member’s Proposed Units, and the Company must be completed Proposed Sale is not consummated within 60 calendar days from the receipt of time frame and on the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company terms described above, the Offeree Member shall have the right to pay for such shares specified in require that the Transfer Notice: (a) Selling Member thereafter again comply with this Section 6.06, however if the Selling Member provides the Offeree Member a subsequent Proposed Sale Notice on the same amount in cash, if the consideration to be paid consists of cash, or (b) more favorable terms to the extent that Offeree Member within one hundred eighty (180) days from the consideration to be paid does not consist of cash, consideration per share equivalent to that set forth in the Transfer original Proposed Sale Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement the Offeree Member must respond to the subsequent Proposed Sale Notice within ten (10) Business Days after receipt of the Company and the Purchaser.
(c) If the Company (or its assignees) does not exercise its right of first offer hereunder within the time specified for such exercise, the Seller(s) shall be free, during the period of 120 days following the date of the Transfer Notice, to sell the shares specified in such Transfer Notice for such consideration and on such other material terms as shall be no more favorable to the purchaser of the shares than the terms specified in such Transfer subsequent Proposed Sale Notice.
(de) The provisions of If any Member shall default in its obligations under this Section 7.2 shall terminate upon 6.06, then the earlier to occur of: (i) other Member may seek specific performance of such time as 3Com Corporation distributes its shares of the Company's Common Stock Member’s obligations under this Section 6.06 or pursue any other remedies at law or in equity. In addition, to the shareholders extent any Member fails to take any required action in connection with this Section 6.06, each Member hereby grants the other Member power of 3Com Corporation or (iiattorney to take such action on such Member’s behalf. The power of attorney granted pursuant to this Section 6.06(e) one year following the Closing Dateis a special power of attorney coupled with an interest and is irrevocable.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (NorthStar Healthcare Income, Inc.), Limited Liability Company Agreement (Griffin-American Healthcare REIT III, Inc.)
Right of First Offer. For so long as Purchaser holds any Shares, if the Purchaser joins in a partnership, limited partnership, syndicate, or otherwise acts in concert or alone for the purpose of disposing of more than 5% of the Shares (as adjusted for stock splits or similar events after the date hereof) to a single person or transferee or any group of affiliated persons or transferees but specifically excluding any hedging or similar transactions, the Purchaser shall give the Company the opportunity to purchase such stock, in the following manner:
(a) The Purchaser Subject to Section 3.1, if any Party or its Affiliates desires to Transfer to a Third Party all or any portion of such person’s Participating Interest in the Subject Assets or more than thirty percent (30%) of the net revenue interest ZaZa owns in the Subject Assets as of the Closing Date through the granting (individually or together with all other grants) of any overriding royalty interest, production payment or net profits interest (the “Transferring Person”), the Transferring Person shall give to Quantum (if a ZaZa Person is the Transferring Person) or ZaZa (if Quantum or one of its Affiliates is the Transferring Person) (such non-Transferring Party, the “Non-Transferring Party”) written notice (“ROFO Notice”) stating such Transferring Person’s desire to effect such Transfer, the "Transfer Notice") to the Company in writing of such intention, specifying the number and kind of securities proposed Participating Interest to be sold or transferredTransferred (or, if applicable, the proposed price per share therefor overriding royalty interest, production payment or net profits interest to be granted) (the "Transfer Price"“Offered Interest”) and the other material terms, upon terms and conditions on which such disposition is proposed Transferring Person proposes to Transfer or grant the Offered Interest; provided, however, that if the consideration set forth in such ROFO Notice contemplates any non-cash consideration, the Non-Transferring Party shall be madeentitled to pay in lieu of such non-cash consideration, including cash in an amount equal to the names fair market value of such non-cash consideration (as determined by the Parties in good faith) unless the Transferring Person and the Non-Transferring Party agree to some other form of consideration. The Non-Transferring Party shall have the right but not the obligation to elect to acquire such Offered Interest on the terms and conditions set forth in the ROFO Notice. The ROFO Notice shall constitute a binding offer (the “ROFO Offer”) by the Transferring Person to Transfer or grant to the Non-Transferring Party the Offered Interest at the price and upon the terms specified in the ROFO Notice, and such offer shall be irrevocable for 30 days following receipt by the Non-Transferring Party. The Non-Transferring Party may accept such ROFO Offer and acquire all but not less than all of the proposed purchasers or transferees if Offered Interest by giving written notice of the same to the Transferring Person within such persons have been identified30-day period. The failure by the Non-Transferring Party to so notify the Transferring Person within such 30-day period shall be deemed a waiver of the right of first offer described hereunder and a rejection of the ROFO Offer.
(b) The Company If the Non-Transferring Party accepts the ROFO Offer, then the Transferring Person and the Non-Transferring Party shall have cooperate together to consummate the right, exercisable by written notice given by Transfer or grant of the Company Offered Interest to the Purchaser Non-Transferring Party within ten calendar 30 days of receipt following the acceptance of the Transfer Notice to purchase all of the shares specified in such Transfer Notice upon the terms specified in such Transfer Notice. Notwithstanding the foregoing, the Company shall have twenty-five calendar days from the receipt of the Transfer Notice (regardless of the date of the Transfer Notice) to notify Purchaser of the Company's election to purchase the shares pursuant to this Section 7.2 if the Company shall furnish a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 shall not constitute such an event). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have the right to pay for such shares specified in the Transfer Notice: (a) the same amount in cash, if the consideration to be paid consists of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that set forth in the Transfer Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement of the Company and the PurchaserROFO Offer.
(c) If the Company Non-Transferring Party (or its assigneesi) does not exercise its accept the ROFO Offer or (ii) fails to consummate the purchase of the Offered Interest within the 30-day period and such failure is not the result of any material delay or fault by the Transferring Person to consummate such purchase, then the Transferring Person may Transfer or grant all but not less than all of the Offered Interest at any time within 180 days following the end of the 30-day period that the Non-Transferring Party had to accept the ROFO Offer (subject to extension to the extent necessary to pursue any required regulatory or equity holder approvals, including to allow for the expiration or termination of all waiting periods under the HSR Act). Any such Transfer or grant shall be at a price not less than the price set forth in the ROFO Notice and on such other terms and conditions not more favorable in any material respect to the acquiring party than those specified in the ROFO Notice; provided, however, that if clause (ii) above is applicable, the Transferring Person may Transfer or grant the Offered Interest on such terms and conditions as such Transferring Person determines, which may be more favorable to the transferee than those specified in the ROFO Notice. If the Transferring Person does not affect such Transfer or grant within such 180-day period, the Transfer or grant of the Offered Interest shall again become subject to the right of first offer hereunder within set forth in this Section 3.3. For the time specified for such exerciseavoidance of doubt, the Seller(s) shall inclusion of customary representations and warranties, indemnification and escrow provisions in any transaction documentation for a Transfer to a Third Party will not be free, during the period of 120 days following the date of the Transfer Notice, deemed to sell the shares specified in such Transfer Notice for such consideration constitute terms and on such other material terms as shall be no conditions more favorable to the purchaser of the shares than the terms specified in such Transfer NoticeThird Party.
(d) The provisions of Notwithstanding anything to the contrary in this Section 7.2 shall terminate upon the earlier 3.3, no Party may exercise its right to occur of: (i) such time as 3Com Corporation distributes its shares purchase any portion of the Company's Common Stock to the shareholders of 3Com Corporation or (ii) one year following the Closing DateOffered Interest if such Party is then a Defaulting Party.
Appears in 2 contracts
Samples: Development Agreement (ZaZa Energy Corp), Development Agreement (ZaZa Energy Corp)
Right of First Offer. For so long as Purchaser holds In the event that any Shares, if Wafra Participation Entity (the Purchaser joins in a partnership, limited partnership, syndicate, “Offering Wafra Participation Entity”) proposes to Transfer all or otherwise acts in concert or alone for the purpose of disposing of more than 5% any portion of the Shares Ownership Interests owned by it to any third party purchaser pursuant to Section 7(a)(i) the Offering Wafra Participation Entity shall first make an offering of such Ownership Interests to DBOC (as adjusted for stock splits or similar events after together with any Controlled Affiliates of DBOC that DBOC designates to exercise its rights under this Section 7(c) (the date hereof“Offered Party”)) to a single person or transferee or any group of affiliated persons or transferees but specifically excluding any hedging or similar transactions, in accordance with the Purchaser shall give the Company the opportunity to purchase such stock, in the following mannerfollowing:
(ai) The Purchaser Offering Wafra Participation Entity shall give notice (the "Transfer “Offer Notice"”) to the Company in writing Offered Party, stating (i) its bona fide intention to offer such Ownership Interests, (ii) a description and the number of such intentionOwnership Interests to be offered (the “Offered Interests”), specifying and (iii) the number price and kind any material terms and conditions upon which it proposes to offer such Offered Interests, including a list of securities proposed Transferees, it being agreed that for so long as the Offering Wafra Participation Entity may sell the Offered Interests to a Transferee without again complying with the right of first offer set forth herein, the Digital Colony Companies will be prohibited from issuing or selling Ownership Interests to any proposed Transferees notified to DBOC.
(ii) By written notification (the “Acceptance Notice”) to the Offering Wafra Participation Entity, within thirty (30) days after the Offer Notice is received, the Offered Party may elect to purchase, at the price and on the terms specified in the Offer Notice, all of the Offered Interests proposed to be sold or transferredTransferred by the Offering Wafra Participation Entity. If the Offered Party does not deliver an Acceptance Notice within thirty (30) days after the Offer Notice is received, the proposed price per share therefor (Offered Party shall be deemed to have waived its right to participate in the "Transfer Price"right of first offer described in this Section 7(c) and the Offering Wafra Participation Entity may Transfer the Offered Interests in accordance with the terms of Section 7(c)(iii). Upon the timely delivery of an Acceptance Notice by the Offered Party pursuant to this Section 7(c)(ii), the Offering Wafra Participation Entity and the Offered Party shall be legally obligated to consummate the sale contemplated thereby within thirty (30) days of the date of the Acceptance Notice (as it may be extended by up to an additional one hundred twenty (120) days as necessary for the expiration of regulatory waiting periods and to obtain regulatory approvals); provided, further, that the Offering Wafra Participation Entity shall only be required to give customary representations and warranties with respect to such Wafra Participation Entity’s due organization, authority to enter into applicable Transfer documentation, non-contravention of applicable Laws and material agreements or required approvals of any Governmental Authority (in respect of which a Wafra Entity is a party), and free and clear title of the relevant Ownership Interests.
(iii) If the Offered Interests referred to in the Offer Notice are not elected to be purchased or acquired as provided in Section 7(c)(ii), the Offering Wafra Participation Entity may, during the one hundred twenty (120) day period following the expiration of such thirty (30) day period provided in Section 7(c)(ii), offer and sell such Offered Interests to any third party at a price not less than 100% of, and upon other material termsterms not materially more favorable to the offeree taken as a whole than, upon those specified in the Offer Notice. If the Offering Wafra Participation Entity does not consummate the sale of the Offered Interests within such period (as it may be extended by up to an additional one hundred twenty (120) days as necessary for the expiration of regulatory waiting periods and to obtain regulatory approvals), the right of first offer provided hereunder shall be deemed to be revived and such Offered Interests shall not be offered unless first reoffered to the Offered Parties in accordance with this Section 7(c). Notwithstanding the foregoing, at least fourteen (14) days (the “Sale Notice Period”) prior to the desired consummation date of a proposed Transfer pursuant to this Section 7(c)(iii), the Wafra Representative shall deliver a notice to DBOC which shall, to the extent not included in or accompanying the Offer Notice relating to such disposition proposed Transfer (i) identify the cash purchase price at which the proposed Transfer is proposed to be made, (ii) identify the prospective Transferee, (iii) identify the proposed signing date and the proposed closing date of such prospective Transfer, (iv) be accompanied by the substantially final proposed purchase agreement and forms of all other agreements (to the extent available) to be entered into by the Offering Wafra Participation Entity in connection with such Transfer and (v) identify all other material terms and conditions of such Transfer (including with respect to the names timing of the proposed purchasers or transferees if such persons have been identified.
(b) The Company shall have the right, exercisable by written notice given by the Company to the Purchaser within ten calendar days of receipt payment of the Transfer Notice to purchase all of the shares specified in such Transfer Notice upon the terms specified in such Transfer Notice. Notwithstanding the foregoing, the Company shall have twenty-five calendar days from the receipt of the Transfer Notice price) (regardless of the date of the Transfer Notice) to notify Purchaser of the Company's election to purchase the shares any notice delivered pursuant to this Section 7.2 if 7(c)(iii) (a “Sale Notice”)). If the Company shall furnish a certificate signed by prospective Transferee is an Unapproved Third Party, the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 Offering Wafra Participation Entity shall not constitute consummate such an event). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the proposed Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have the right to pay for such shares specified in the Transfer Notice: (a) the same amount in cash, if the consideration to be paid consists of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that set forth in the Transfer Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement of the Company and the Purchaserwithout Digital Colony Consent.
(c) If the Company (or its assignees) does not exercise its right of first offer hereunder within the time specified for such exercise, the Seller(s) shall be free, during the period of 120 days following the date of the Transfer Notice, to sell the shares specified in such Transfer Notice for such consideration and on such other material terms as shall be no more favorable to the purchaser of the shares than the terms specified in such Transfer Notice.
(d) The provisions of this Section 7.2 shall terminate upon the earlier to occur of: (i) such time as 3Com Corporation distributes its shares of the Company's Common Stock to the shareholders of 3Com Corporation or (ii) one year following the Closing Date.
Appears in 2 contracts
Samples: Carried Interest Participation Agreement (DigitalBridge Group, Inc.), Purchase and Sale Agreement (DigitalBridge Group, Inc.)
Right of First Offer. For so long as Purchaser holds Notwithstanding anything to the contrary contained herein (but still subject to Section 10.3(c), (d) and (e) hereof), at any Sharestime after the Standstill Period, if a Partner may Transfer all or any portion of its Interest, subject to compliance by such Partner with the Purchaser joins in a partnershiprequirements of this Section 10.1(b); provided, limited partnership, syndicate, or otherwise acts in concert or alone for that such Partner shall not be required to comply with the purpose of disposing of more than 5% requirements of the Shares next following sentence, including clauses (as adjusted for stock splits or similar events after i) through (vi) thereof, in connection with a Transfer to an Affiliate of such Partner. Such Partner (the date hereof“Selling Member”) must first offer such Interest (the “Offered Interest”) to a single person or transferee or any group of affiliated persons or transferees but specifically excluding any hedging or similar transactions, the Purchaser shall give remaining Consortium Members (the Company the opportunity “Offeree Members”) pursuant to purchase such stock, in the following mannerprocedures:
(ai) The Purchaser the Selling Members shall give provide notice to the Partnership, the General Partner and the Offeree Members of its desire to potentially sell, assign or transfer its Interest (the "“Potential Transfer Notice") to the Company in writing of such intention, specifying the number and kind of securities proposed to be sold or transferred, the proposed price per share therefor (the "Transfer Price") and the other material terms, upon which such disposition is proposed to be made, including the names of the proposed purchasers or transferees if such persons have been identified.”);
(bii) The Company shall have the right, exercisable by written notice given by the Company to the Purchaser within ten calendar days of receipt of the Transfer Notice to purchase all of the shares specified in such Transfer Notice upon the terms specified in such Transfer Notice. Notwithstanding the foregoing, the Company shall have twenty-five calendar days from the receipt of the Transfer Notice (regardless of the date of the Transfer Notice) to notify Purchaser of the Company's election to purchase the shares pursuant to this Section 7.2 if the Company shall furnish a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within at any time during the ten (10) day period provided for pursuant to this Section 7.2 beginning thirty (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 shall not constitute such an event). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have the right to pay for such shares specified in the Transfer Notice: (a30) the same amount in cash, if the consideration to be paid consists of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that set forth in the Transfer Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement of the Company and the Purchaser.
(c) If the Company (or its assignees) does not exercise its right of first offer hereunder within the time specified for such exercise, the Seller(s) shall be free, during the period of 120 days following the date of deemed receipt of the Potential Transfer Notice, the Selling Members may give notice (the “Offer Notice”) to sell the shares specified Partnership, the General Partner and the Offeree Members of its offer to sell, assign or transfer the Offered Interest and the price (the “Offer Price”) and terms under which it is prepared to do so (the “Offer Terms”);
(iii) each Offeree Member shall have fifteen (15) days from the date of deemed receipt of the Offer Notice (such period, the “Acceptance Notice Period”) to elect to purchase all or any portion of the Offered Interest at the Offer Price and under the Offer Terms by providing notice to the Partnership, the General Partner and the Selling Members (the “Acceptance Notice”);
(iv) the purchase by any Offeree Member of the Offered Interest or any portion thereof shall take place within five (5) Business Days of the date of deemed receipt of the Acceptance Notice;
(v) if the aggregate amount of Interests that the Offeree Members elect to purchase under the Acceptance Notices is in excess of the Offered Interest, the portion of the Offered Interest which each Offeree Member providing an Acceptance Notice shall acquire shall be determined by allocating the Offered Interest among the Offeree Members as follows:
(1) first, to each Offeree Member the lesser of (A) the portion of the Offered Interest indicated in its Acceptance Notice to the extent it has not been allocated to such Transfer Notice for such consideration Offeree Member on a previous application of this Section 10.1(b)(v)(1) and (B) its pro rata share (determined based on such other material terms Offeree Member’s Commitment as shall be a proportion of the aggregate Commitments of all Offeree Members providing an Acceptance Notice) of the Offered Interest which has not been allocated on a previous application of this Section 10.1(b)(v)(1); and (2) second, by repeating the allocation process in Section 10.1(b)(v)(1) until all of the Offered Interest has been allocated;
(vi) if the aggregate amount of Interests under the Acceptance Notices is less than the Offered Interest, the Selling Members may, in its discretion, for a period of 90 days following the end of the Acceptance Notice Period, sell, assign or transfer all or any portion of the Offered Interest (including such portion as the Offeree Members may have elected to purchase pursuant to Section 10.1(b)(iii) hereof) to a third party at a price that equals or exceeds the Offer Price and otherwise on substantially no more favorable terms to the purchaser of the shares such third party than the terms specified in such Transfer Notice.Offer Terms; and
(dvii) The provisions for the avoidance of doubt, this Section 7.2 10.1(b) shall terminate upon the earlier not be applicable to occur of: (i) such time as 3Com Corporation distributes a sale, assignment or transfer of Interests by BAM or its shares of the Company's Common Stock to the shareholders of 3Com Corporation wholly-owned Affiliates in accordance with Section 10.7 hereof or (ii) one year following the Closing Dateby a Partner in accordance with Section 10.8.
Appears in 2 contracts
Samples: Limited Partnership Agreement (Brookfield Retail Holdings LLC), Limited Partnership Agreement (Brookfield Retail Holdings LLC)
Right of First Offer. For so long 5.1. The Parties agree that, as Purchaser holds any Sharesof the Closing, if the Purchaser joins sale by either Party of its shares in a partnership, limited partnership, syndicate, or otherwise acts in concert or alone for the purpose of disposing of more than Company which constitute at such time 5% or more of the Shares total issued and outstanding shares of the Company on an as-issued basis (as adjusted for stock splits in one single transaction or similar events after the date hereofin aggregate from a series of related transactions, occurring within a rolling six (6) month period) to any third party (a single person or transferee or any group of affiliated persons or transferees but specifically excluding any hedging or similar transactions“Potential Buyer”), the Purchaser shall give the Company the opportunity to purchase such stock, other than in the following manner:course of ordinary trade in the market, shall be subject to a right of first offer, as set forth below (such sale, a “Qualified Sale”).
5.2. A Party wishing to perform a Qualified Sale (athe “Selling Party”) The Purchaser shall give provide the other Party (the “Non-Selling Party”) with a notice (the "Transfer “Notice"”) to the Company in writing of such intention, specifying detailing the number and kind of securities proposed shares it wishes to be sold or transferred, the proposed price per share therefor offer (the "Transfer Price"“Selling Shares”) and the other material terms, upon which such disposition is proposed to be made, including the names of the proposed purchasers or transferees if such persons have been identifiedconsideration.
(b) 5.3. The Company Non-Selling Party shall have the rightfirst right and option, exercisable by written notice given by but not obligation, to present the Company to the Purchaser within ten calendar days of receipt of the Transfer Notice Selling Party with an offer to purchase all of the shares specified in such Transfer Selling Shares pursuant to the Notice upon (the terms specified in such Transfer Notice. Notwithstanding the foregoing, the Company shall have twenty-five “Offer”) within thirty (30) calendar days from the receipt of the Transfer Notice (regardless of the date of “Acceptance Period”).
5.4. If the Transfer Notice) to notify Purchaser of the Company's election Non-Selling Party agrees to purchase all the shares pursuant to this Section 7.2 if Selling Shares under the Company shall furnish a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 shall not constitute such an event). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have the right to pay for such shares specified in the Transfer Notice: (a) the same amount in cash, if the consideration to be paid consists of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that terms set forth in the Transfer NoticeOffer, or an amount of cash having equivalent value, as determined in good faith by mutual agreement then subject to the execution of the Company payment to the Selling Party pursuant to the payment terms and performance of other conditions as set out in the Purchaser.
(c) If the Company (or its assignees) does not exercise its right of first offer hereunder within the time specified for such exerciseOffer, the Seller(s) Selling Party shall be free, during the period of 120 days following the date of the Transfer Notice, to sell the shares specified in such Transfer Notice for such consideration and on such other material terms as shall be no more favorable transfer to the purchaser of Non-Selling Party the shares than Selling Shares under the terms specified in such Transfer Noticethe Offer, within twenty one (21) calendar days from Non- Selling Party’ notice of agreement or at another time to be agreed between the Parties.
5.5. If the Non-Selling Party does not purchase all the Selling Shares in accordance with the Offer, or does not respond to the Offer within the Acceptance Period, then the Selling Party shall be entitled, within one hundred and fifty (d150) The provisions calendar days (the “Third Party Offer Period”), to enter into a binding agreement regarding the sale of the Selling Shares (all or part thereof) to any third party, provided that the sale of the Selling Shares shall be made under the terms of the Offer, or at a higher price.
5.6. If the Acceptance Period has passed with respect to a third party and the Selling Party has not yet sold or transferred to any third party the Selling Shares in the Third Party Offer Period in accordance with the conditions set out in Section 5.5 above, then the Selling Party will not be entitled to transfer or sell to third parties the Selling Shares, unless all the terms and conditions set out in this Section 5 are re-applied.
5.7. Notwithstanding the above, if the Potential Buyer is deemed a “Competitor” (as defined below), then the Selling Party shall be required to disclose the name of such Potential Buyer and seek prior written consent from the Non-Selling Party to proceed with the Qualified Sale, even if the Non-Selling Party does not respond within the Acceptance Period or the Acceptance Period lapses.
5.8. For the purpose of this Section 7.2 Agreement, “Competitor” shall terminate upon the earlier to occur ofmean either: (i) such time as 3Com Corporation distributes its shares of an entity which competes in a substantial manner with the Company's Common Stock to the shareholders of 3Com Corporation ’s core business or (ii) one year following an entity which is in the Closing Dateindustry of test & measurements, is headquartered in PRC (including Hong Kong and Macao) or Taiwan and the majority of its business competes in a substantial manner with Chroma’s core business.
Appears in 2 contracts
Samples: Share Purchase Agreement (Camtek LTD), Share Purchase Agreement (Camtek LTD)
Right of First Offer. For so long as Purchaser holds any SharesNotwithstanding the consent requirements of Section 11.1 (but subject to the other provisions thereof), if the Purchaser joins in a partnership, limited partnership, syndicate, or otherwise acts in concert or alone for the purpose of disposing of more than 5% of the Shares Class A Member may Transfer its interest (as adjusted for stock splits or similar events after the date hereof) to a single person or transferee or any group portion thereof) in compliance with the following procedures:
11.2.1 If a Class A Member (a “Selling Member”) proposes to Transfer all or any portion of affiliated persons or transferees but specifically excluding any hedging or similar transactions, the Purchaser shall give its interest in the Company the opportunity to purchase any Person other than an Affiliate of CDI, such stock, in the following manner:
(a) The Purchaser Selling Member shall give notice of its intent to make such Transfer (the "“Transfer Notice"”) to the Company in writing Manager. The Transfer Notice shall set forth (i) the portion of such intention, specifying the number and kind of securities proposed Selling Member’s interest to be sold or transferredTransferred (the “Offered Interest”) and (ii) if known to the Selling Member, the proposed price per share therefor (identity of the "Transfer Price") prospective Transferee and the other material terms, upon which such disposition is proposed to be made, including the names terms of the proposed purchasers or transferees if such persons have been identifiedTransfer to the prospective Transferee.
(b) 11.2.2 The Company Manager shall have the right, exercisable by written notice given by but not the Company obligation, to deliver to the Purchaser within Selling Member, before the close of the ten calendar days of receipt (10) day period after the delivery of the Transfer Notice to the Manager (such period, the “Offer Period”), a written offer (an “Offer”) to purchase the Offered Interest. An Offer shall set forth all of the shares specified material terms and conditions of the proposed purchase of the Offered Interest. The Manager’s rights to make the Offer and to purchase the Offered Interest pursuant thereto shall be assignable by the Manager to such one (1) or more Persons as the Manager determines to be appropriate (subject to compliance by the Manager with the provisions of Section 11.1 as if such rights were an interest in such Transfer Notice upon the terms specified in such Transfer NoticeCompany). Notwithstanding During the foregoingOffer Period, the Company Selling Member shall not solicit proposals or offers from, or engage in discussions with, other parties regarding the sale of the Offered Interest.
11.2.3 The Selling Member shall have twenty-five calendar days from no obligation to accept an Offer by the receipt Manager (or its assignee). Any closing of the Transfer Notice (regardless purchase of the date Offered Interest by the Manager (or its assignee), however, shall take place on such date, and at such time and place, as the Selling Member and the Manager (or its assignee) shall agree upon. At such closing, the Manager (or its assignee) shall make such deliveries in payment for the Offered Interest as are contemplated by the Offer, and the Selling Member shall deliver such executed documentation (including, without limitation, any required consents) to the Manager (or its assignee) as may be required to effect the Transfer of the Offered Interest to the Manager (or its assignee) and the admission of the Manager (or its assignee) as a substituted Member with respect to the Offered Interest. All of the foregoing deliveries shall be deemed to be made simultaneously and none shall be deemed completed until all have been completed.
11.2.4 If the Manager (or its assignee) does not purchase the Offered Interest in accordance with Section 11.2.3, then, subject to Section 11.1, the Selling Member shall be entitled to Transfer the Offered Interest to a third party Transferee at any time during the one hundred fifty (150) day period after the delivery of the Transfer Notice. If the Offered Interest (or any portion thereof) to notify Purchaser has not been transferred within such one hundred fifty (150) day period, no Transfer of any portion of the Company's election to purchase Offered Interest shall be effective unless the shares pursuant to this Section 7.2 if the Company shall furnish a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering Selling Member has again complied with the provisions of this Section 7.2 shall not constitute such an event)11 as to the Offered Interest. The purchase As a condition to the effectiveness of any Transfer of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts Offered Interest to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have the right a third party Transferee pursuant to pay for such shares specified in the Transfer Notice: (a) the same amount in cash, if the consideration to be paid consists of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that set forth in the Transfer Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement of the Company and the Purchaser.
(c) If the Company (or its assignees) does not exercise its right of first offer hereunder within the time specified for such exercise, the Seller(s) shall be free, during the period of 120 days following the date of the Transfer Notice, to sell the shares specified in such Transfer Notice for such consideration and on such other material terms as shall be no more favorable to the purchaser of the shares than the terms specified in such Transfer Notice.
(d) The provisions of this Section 7.2 shall terminate upon the earlier to occur of: 11.2.4, (i) such time Transferee shall (a) execute and deliver such documents and agreements as 3Com Corporation distributes its shares the Manager reasonably determines to be appropriate to effect such Transferee’s agreement to be bound by the terms and conditions of this Agreement and (b) take such other actions as the Manager may reasonably determine to be necessary to effect the admission of such Transferee to the Company, to qualify the Company to conduct business or to preserve the limited liability status of the Company's Common Stock to the shareholders of 3Com Corporation or Members, and (ii) one year following the Closing DateSelling Member and the Transferee shall execute and deliver such documents and agreements, and take such other actions, as the Manager may reasonably require to ensure that all of the obligations of the Selling Member to the Company and Fund B (including, without limitation, the obligation of the Selling Member to fund its commitment to Fund B with the escrow established pursuant to Section 7.5) will be satisfied in accordance with their terms.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Comdisco Holding Co Inc), Limited Liability Company Agreement (Comdisco Holding Co Inc)
Right of First Offer. For so long as Purchaser holds any Shares8.3.1 Notwithstanding anything to the contrary contained in this Agreement, if the Purchaser joins in a partnership, limited partnership, syndicate, or otherwise acts in concert or alone for the purpose of disposing of more than 5% of the Shares (as adjusted for stock splits or similar events after the date hereof) to a single person or transferee no Member may Transfer all or any group part of affiliated persons or transferees but specifically excluding any hedging or similar transactions, the Purchaser shall give its Interest in the Company the opportunity to purchase such stock, any Person (other than as permitted in the following manner:
Section 8.2.3(a) or Section 8.2.4) unless (a) The Purchaser such Transfer is for cash consideration to a bona fide third-party purchaser, (b) such selling Member does not violate the prohibitions set forth in Section 8.2 or this Section 8.3 and (c) such selling Member (“Selling Member”) has first made a Right of First Offer to the other Member (“Buying Member”) and such Selling Member has not received a written acceptance for all of the Offered Interest before the expiration of the Right of First Offer Period.
8.3.2 If a member wishes to Transfer its Interest in the Company (other than the Persons described in Sections 8.2.3(a) and 8.2.4(a)) (a “Selling Member Assignee”), such Selling Member shall give written notice of such intent to the Buying Member indicating the terms and conditions of the proposal, including the purchase price and the proposed closing date (which shall be no later sixty (60) days following the expiration of the Right of First Offer Period) (the "“Offer Closing Date”), which written notice shall be accompanied by a copy of the proposed contract of sale (the “Right of First Offer Purchase Agreement”) and all related agreements for the Transfer Notice"of the Interest, and the Selling Member shall offer to sell such Interest (the “Offered Interest”) to the Company Buying Member (and its designees) in writing of such intention, specifying accordance with the number and kind of securities proposed to be sold or transferred, the proposed price per share therefor provisions hereof (the "Transfer Price") and the other material terms, upon which such disposition is proposed to be made, including the names “Right of the proposed purchasers or transferees if such persons have been identified.
(b) The Company shall have the right, exercisable by written notice given by the Company to the Purchaser within ten calendar days of receipt of the Transfer Notice to purchase all of the shares specified in such Transfer Notice upon the terms specified in such Transfer Notice. Notwithstanding the foregoing, the Company shall have twenty-five calendar days from the receipt of the Transfer Notice (regardless of the date of the Transfer Notice) to notify Purchaser of the Company's election to purchase the shares pursuant to this Section 7.2 if the Company shall furnish a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 shall not constitute such an eventFirst Offer”). The purchase Right of First Offer Purchase Agreement shall provide that the shares by Selling Member shall make customary representations, warranties and covenants, including that the Company must Offered Interest shall be completed within 60 calendar days from the receipt sold free and clear of the Transfer Notice. any liens, encumbrances, pledges, security interests, restrictions and contractual claims of every kind and nature whatsoever.
8.3.3 The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company Buying Member shall have the right to pay for such shares specified in purchase the Transfer Notice: (a) Offered Interest at the same amount in cash, if the consideration to be paid consists of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that price set forth in the Transfer NoticeRight of First Offer and on the terms set forth in the Right of First Offer Purchase Agreement, or by giving written notice of acceptance to the Selling Member within fifteen (15) days after receipt of the Right of First Offer (such fifteen (15) day period shall hereinafter be referred to as the “Right of First Offer Period”), which acceptance by Buying Member shall be accompanied by a non-refundable cash deposit equal to five percent (5%) of the purchase price set forth in the Right of First Offer and a signed copy of the Right of First Offer Purchase Agreement. If accepted by the Buying Member, Selling Member shall execute the Right of First Offer Purchase Agreement within one (1) business day following receipt of Buying Member’s signed Right of First Offer Purchase Agreement and Selling Member shall be obligated to consummate the purchase of the Offered Interest in accordance with the terms of the Right of First Offer Purchase Agreement. Notwithstanding anything to the contrary set forth above in this Section 8.3, the Right of First Offer Purchase Agreement shall contain a provision that allows the buyer thereunder to extend the Offer Closing Date for up to thirty (30) days on ten (10) business days written notice prior to the scheduled Offer Closing Date and upon payment of an additional cash deposit in the amount of cash having equivalent value, as determined in good faith by mutual agreement five percent (5%) of the Company and the Purchaserpurchase price.
(c) If 8.3.4 Should the Company (Buying Member refuse or its assignees) does not exercise its right fail to accept the Right of first offer hereunder within the time specified for such exerciseFirst Offer, the Seller(s) Selling Member shall be free, during subject to Selling Member’s compliance with all provisions set forth in this Section 8 relating to Transfers (including, without limitation, the provisions of Sections 8.2.3 and 8.2.4 hereof), to sell all, but not less than all, of its Offered Interest to a Selling Member Assignee substantially upon the terms and conditions stated in the Right of First Offer Purchase Agreement for a period of 120 180 days following the date expiration of the Transfer NoticeRight of First Offer Period. In no event shall the Selling Member transfer such Offered Interest to a Selling Member Assignee for a price less than 95% of the purchase price set forth in the Right of First Offer, to sell the shares specified in such Transfer Notice for such consideration and or on such other material terms as shall be no materially more favorable to the purchaser of the shares Selling Member Assignee than the terms specified stated in the Right of First Offer and the Right of First Offer Purchase Agreement, without first offering the Buying Member the option to purchase such Offered Interest in the manner set forth above, at the same price and terms agreed upon between the Selling Member and the proposed Selling Member Assignee.
8.3.5 Should the Buying Member execute the Right of First Offer Purchase Agreement and thereafter breach its obligations thereunder to purchase the Selling Member’s Offered Interest, Selling Member shall be entitled to retain the non-refundable cash deposit as liquidated damages and, notwithstanding anything stated to the contrary in this Agreement, during the one hundred and eighty (180) day period following the Offer Closing Date, Selling Member shall be free to Transfer the Offered Interest to a Selling Member Assignee on such terms as Selling Member may elect (without the approval of the Buying Member and without reference to the terms of the Right of First Offer) provided that such Transfer Notice.
(d) The shall be subject to the provisions of this Section 7.2 shall terminate upon the earlier to occur of: (i) such time as 3Com Corporation distributes its shares of the Company's Common Stock to the shareholders of 3Com Corporation or (ii) one year following the Closing DateSections 8.2.5, 8.7 and 8.8.
Appears in 2 contracts
Samples: Operating Agreement, Operating Agreement (KBS Real Estate Investment Trust, Inc.)
Right of First Offer. For so long as Purchaser holds any Shares, if the Purchaser joins in a partnership, limited partnership, syndicate, or otherwise acts in concert or alone for the purpose of disposing of more than 5% of the Shares (as adjusted for stock splits or similar events after the date hereof) to a single person or transferee or any group of affiliated persons or transferees but specifically excluding any hedging or similar transactions, the Purchaser shall give the Company the opportunity to purchase such stock, in the following manner:
(a) The Prior to the Transfer for value of any Interests in the Company by a Purchaser Member Party or a Member (other than an Emdeon Party) who has acquired its interests from a Purchaser Member Party and holds Units equal to at least 5%, of the outstanding Units (other than to a Purchaser Member Permitted Transferee) (for purposes of this paragraph (a) and paragraph (b) below, a “Proposed Transfer”), such Member(s) (the “Purchaser Selling Members”) shall give a notice in writing (the "“Transfer Notice"”) to the Company in writing of such intention, specifying the number and kind of securities proposed to be sold or transferred, the proposed price per share therefor (the "Transfer Price") and the Emdeon Parties setting forth the desire to Transfer, which notice shall include the price and other material terms, upon which terms that the Purchaser Selling Members would be willing to accept. Each such disposition is proposed notice shall constitute a binding commitment by the applicable Member to be made, including sell the names of the proposed purchasers or transferees if such persons have been identifiedInterest referred to therein as provided in this Section 9.5.
(b) The Company shall have the rightUpon receipt of such Transfer Notice, exercisable by written notice given by the Company (acting for purposes of this Section 9.5 upon the decision of the disinterested Directors) will have an option to purchase, in the aggregate, all (but not part) of the Interest described in the Transfer Notice at the price specified in the Transfer Notice. If the Company desires to exercise the option set forth in the preceding sentence, it shall deliver a notice (an “Election Notice”) to the Purchaser Selling Members and the Emdeon Parties within ten calendar (10) days of receipt of the Transfer Notice (the “Election Period”). If the Company does not deliver an Election Notice to the Purchaser Selling Members and the Emdeon Parties within the Election Period, then the Emdeon Parties will have the option to deliver an Election Notice to the Purchaser Selling Members within twenty (20) days after the expiration of the Election Period. Subject to the restrictions contained in Section 9.1(b) and 9.4, the Emdeon Parties may assign the right to exercise all or part of the option to purchase all Interest described in a particular Transfer Notice to one or more of its Affiliates or other Persons, in which case (i) the Emdeon Parties shall specify the Persons exercising such option and the amount of Interests to be acquired by each such assignee not less than ten (10) days before the consummation of the shares Proposed Transfer (provided that, in any event, all Interests specified in the relevant Transfer Notice shall be purchased) and (ii) references to the Emdeon Parties in this Section 9.5 shall be deemed to refer to such assignees as appropriate to reflect such assignment.
(c) Prior to the Transfer for value of any Interests in the Company by an Emdeon Party or a Member (other than a Purchaser Member Party) who has acquired its interests from an Emdeon Party and holds Units equal to at least 5% of the outstanding Units (other than to an Emdeon Permitted Transferee) (for purposes of this paragraph (c) and paragraph (d) below, a “Proposed Transfer”) such Member (the “Emdeon Selling Members”) shall give a Transfer Notice to the Company and the Purchaser Member Parties setting forth the desire to Transfer, which notice shall include the price and other material terms and conditions the Emdeon Selling Members would be willing to accept. Each such notice shall constitute a binding commitment by the applicable Member to sell the Interest referred to therein as provided in this Section 9.5.
(d) Upon receipt of such Transfer Notice, the Company (acting for purposes of this Section 9.5 upon the decision of the disinterested Directors) will have an option to purchase, in the aggregate, all (but not part) of the Interest described in the Transfer Notice in each case at the price specified in the Transfer Notice. If the Company desires to exercise the option set forth in the preceding sentence, it shall deliver an Election Notice to the Emdeon Selling Members and the Purchaser Member Parties within the Election Period. If the Company does not deliver an Election Notice before the end of the Election Period, then the Purchaser Member Parties shall have the option to deliver an Election Notice to the Emdeon Selling Members within twenty (20) days after the expiration of the Election Period. Subject to the restrictions contained in Section 9.1(b) and 9.4, the Purchaser Member Parties may assign the right to exercise all or part of the option to purchase Interests described in a particular Transfer Notice to one to more of its Affiliates or other Persons, in which case (i) the Purchaser Member Parties shall specify the Persons exercising such option not less than ten (10) days before the consummation of the Proposed Transfer (provided that, in any event, all Interests specified in the relevant Transfer Notice shall be purchased) and (ii) references to the Purchaser Member Parties in this Section 9.5 shall be deemed to refer to such assignees as appropriate to reflect such assignment.
(e) If the Company, the Emdeon Parties or the Purchaser Member Parties deliver an Election Notice, then such Members shall be obligated to purchase, and the applicable Member(s) shall be obligated to sell, the Interests described in such Transfer Notice upon at the cash price and on the other terms indicated in the notice, except that the closing of such purchase and sale shall be held on the tenth business day after the expiration of the Election Period at 9:00 a.m., local time, at the principal executive office of the Company, or at such other time and place as the parties to such purchase and sale may mutually agree.
(f) If a Member that is subject to the transfer restrictions of Section 9.5(a) or (c) has complied with the provisions of this Section 9.5 and no Election Notice is delivered pursuant thereto, such Member may, subject to the provisions of the last sentence of Section 9.1(a) and Section 9.1(b) hereof and compliance with the provisions of Section 9.6 or Section 9.7 hereof, Transfer the Interests described in the Transfer Notice, but only for consideration consisting solely of cash and/or Marketable Securities and on terms and conditions that are no more favorable in any material respect to the purchaser than those specified in such Transfer Notice. Notwithstanding ; provided, that (i) the foregoingrestrictions set forth in Section 9.4 (in the case of a Transfer under Section 9.7) and the procedures of Section 9.6 or Section 9.7, as applicable, are met, (ii) the Company shall have twenty-five calendar days from the receipt acquiring Person in such Transfer is not an Affiliate of the Transfer Notice (regardless transferring Member, including, for purposes of the date restriction in this Section 9.5(f)(ii), any portfolio company (A) controlled by the Purchaser Member Party or its Affiliates or (B) of which the Purchaser Member Party or its Affiliates beneficially own more than 10% of the Transfer Notice) to notify Purchaser of the Company's election to purchase the shares pursuant to this Section 7.2 if the Company shall furnish a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating thatEquity Securities, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 shall not constitute such an event). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have the right to pay for such shares specified in the Transfer Notice: (a) the same amount in cash, if the consideration to be paid consists of cash, or (biii) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that set forth transferring Member will receive Marketable Securities in the Transfer Noticetransaction, or such Marketable Securities are of an amount issuer having a public market capitalization of cash having equivalent valueat least $300 million, as determined in good faith by mutual agreement exclusive of the Company value of any such securities held by Affiliates of that issuer, and (iv) the Purchaser.
closing of such Transfer takes place within sixty (c60) If the Company (or its assignees) does not exercise its right of first offer hereunder within the time specified for such exercise, the Seller(s) shall be free, during the period of 120 business days following the date termination of the Transfer NoticeElection Period. In addition, to sell the shares specified in such Transfer Notice for such consideration and on such other material terms as shall be no more favorable subject to the purchaser of limitations contained in Section 8.2(a), in connection with any such Transfer, the shares than transferring Member may assign the terms specified right to effect Demands and participate in such Transfer Notice.
(d) The provisions of this Section 7.2 shall terminate upon piggyback registrations pursuant to Article VIII hereof. Any election by the earlier to occur of: (i) such time as 3Com Corporation distributes its shares of the Company's Common Stock to the shareholders of 3Com Corporation Company or (ii) one year following the Closing Date.a Member not
Appears in 1 contract
Right of First Offer. For so long as Purchaser holds any Shares, if the Purchaser joins in a partnership, limited partnership, syndicate, or otherwise acts in concert or alone for the purpose of disposing of more than 5% of the Shares (as adjusted for stock splits or similar events after the date hereof) to a single person or transferee If Optionor or any group Partnership desires to sell any Interest or the Property or any interest in Fee Owner to an unaffiliated third party at any time during the term of affiliated persons this Agreement, then, subject only to Optionee’s right of first offer contained in this Section 4, Optionor shall have the right to convey such Interest or transferees but specifically excluding the Property or such interest in Fee Owner, as the case may be, to such third party during the term of this Agreement. If Optionor or any hedging Partnership desires to sell any Interest or similar transactionsthe Property or any interest in Fee Owner to an unaffiliated third party, the Purchaser Optionor shall first give the Company the opportunity to purchase such stock, in the following manner:
(a) The Purchaser shall give written notice (the "Transfer “ROFO Notice"”) thereof to the Company in writing of such intention(the date the ROFO Notice is received by the Company is referred to as the “Notice Date”), specifying which ROFO Notice shall include the number proposed sale price and kind of securities proposed to be sold or transferredother material terms (collectively, the proposed price per share therefor (the "Transfer Price"“Acquisition Terms”) and the other material terms, upon which such disposition is proposed to be made, including the names of the proposed purchasers or transferees if such persons have been identified.
(b) The Company shall have the right, exercisable by written notice given by the Company to the Purchaser within ten calendar days of receipt transfer of the Transfer Notice to purchase all of Interest or Property or such interest in Fee Owner, as the shares specified in such Transfer Notice upon the terms specified in such Transfer Notice. Notwithstanding the foregoing, the Company shall have twenty-five calendar days from the receipt of the Transfer Notice (regardless of the date of the Transfer Notice) to notify Purchaser of the Company's election to purchase the shares pursuant to this Section 7.2 if the Company shall furnish a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 shall not constitute such an event). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewithcase may be. The Company shall have thirty (30) days from the right Notice Date to pay give written notice to Optionor (the “OP Notice”) of its election to acquire the relevant Interest or Property or such interest in Fee Owner, as the case may be, (i) for such shares specified in the Transfer Notice: (a) the same amount in cash, if sale price and on substantially the consideration to be paid consists of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that same other terms as set forth in the Transfer ROFO Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement of the Company and the Purchaser.
(c) If the Company (or its assignees) does not exercise its right of first offer hereunder within the time specified for such exercise, the Seller(s) shall be free, during the period of 120 days following the date of the Transfer Notice, to sell the shares specified in such Transfer Notice for such consideration and on such other material terms as shall be no more favorable to the purchaser of the shares than the terms specified in such Transfer Notice.
(d) The provisions of this Section 7.2 shall terminate upon the earlier to occur of: (i) such time as 3Com Corporation distributes its shares of the Company's Common Stock to the shareholders of 3Com Corporation or (ii) one year pursuant to the exercise of its Option under Section 2.1. If the Company fails to make such election on a timely basis, the Company’s rights under this Agreement shall expire and be of no further force or effect; provided, however, that such rights shall be revived and reinstated in favor of the Company in the event Optionor or any Partnership, as the case may be, (i) desires to accept an offer from a third party to purchase such Interest, the Property or any interest in Fee Owner on terms that are not substantially in accordance with the Acquisition Terms set forth in the ROFO Notice (including, without limitation, for a sale price that is less than ninety five percent (95.0%) of the proposed sale price set forth in the ROFO Notice) or (ii) does not sell the relevant Interest, the Property or interest in the Fee Owner within 180 days following the Closing Notice Date. Notwithstanding anything to the contrary contained herein, the terms of this Section 4 shall not apply with respect to any transfer of the Property to the lender of the Project Indebtedness existing as of the date hereof (or its designee; provided that such designee is not an affiliate of Optionor) for total consideration equal to or less than the then existing amount of such Project Indebtedness.
Appears in 1 contract
Right of First Offer. For (a) Subject to the terms and conditions of Article 9 of this Agreement and notwithstanding anything to the contrary contained herein, if, at any time, (i) Sunrise intends to sell all or a portion of its Interest pursuant to Section 9.5(a)(ii), or (ii) CHT intends to sell all or a portion of its Interest pursuant to Section 9.5(a)(iii), such Member (the “Transferor Member”) shall give a notice (“Transfer Notice”) to the other Member (the “Non-Transferor Member”) that the Transferor Member intends to Transfer such portion of its Interest to a third party and, upon receipt of such Transfer Notice the Non-Transferor Member shall determine a price for the assets of the Company if the Company was sold to a third party purchaser for fair market value, free and clear of all liabilities (the “Transfer Price”). Within ten (10) Business Days of receipt of the Transfer Notice, the Non-Transferor Member shall notify the Transferor Member as to its determination of the Transfer Price (the “Transfer Price Notice”). Upon receipt of such Notice, the Transferor Member shall either accept or reject the Transfer Price. If the Transfer Price is accepted, the Transferor Member shall so long as Purchaser holds any Sharesnotify the Non-Transferor Member (“Acceptance Notice”) and within three (3) Business Days of acceptance, the Independent Accountant acting on behalf of the Company shall determine the cash amount (the “ROFO Amount”) that the Transferor Member would have received in respect of such portion of the Transferor Member’s Interest pursuant to Section 8.2, net of the Transfer Expenses, in the event of a Capital Transaction of the type described in Section 10.1(a) above on the date of delivery of the Transfer Notice for a sales price equal to the Transfer Price, and shall notify the Transferor Member and Non-Transferor Member of the same. Upon delivery and acceptance of the ROFO Amount, the Non-Transferor Member shall purchase the Transferor Member’s Interest in accordance with the provisions of Section 12.5 of this Agreement. Notwithstanding the foregoing or anything to the contrary contained herein, if CHT is the Purchaser joins in a partnershipTransferor Member and Section 8.3(b) has not been deemed to be of no further force and effect pursuant to Section 9.5(a)(ii) or Section 9.5(a)(iv) above, limited partnership, syndicate, or otherwise acts in concert or alone then the amount payable to CHT for the purpose purchase of disposing its Interest under this Section 12.3(a) shall equal (i) the ROFO Amount less (ii) an amount equal to the aggregate sum of more than 5% of the Shares (as adjusted for stock splits or similar events all future Quarterly Interest Rate Differential Amounts applicable to each quarter occurring from and after the date hereof) to a single person or transferee or any group of affiliated persons or transferees but specifically excluding any hedging or similar transactionssuch purchase, as such amounts are set forth on Schedule 1.2 as in effect as of the date the closing of such purchase. If the Transfer Price is rejected, the Purchaser Transferor Member shall give so notify the Company the opportunity to purchase such stock, in the following manner:
Non-Transferor Member (a) The Purchaser shall give notice (the "Transfer “Rejection Notice") to the Company in writing of such intention, specifying the number and kind of securities proposed to be sold or transferred, the proposed price per share therefor (the "Transfer Price"”) and the other material terms, upon which Transferor Member shall be free to sell its Interest to any third party in accordance with Section 12.3(b) of this Agreement. The failure of a Transferor Member to deliver either an Acceptance Notice or a Rejection Notice within such disposition is proposed period of time shall be deemed to be madethe delivery by such Non-Transferor Member of a Rejection Notice. If the Non-Transferor Member fails to deliver a Transfer Price Notice within the time period set forth herein, including the names of the proposed purchasers or transferees if such persons have been identifiedTransferor Member shall be free to sell its Interest to any third party.
(b) The Company shall have the right, exercisable by written notice given by the Company Subject to the Purchaser within ten calendar days restrictions of receipt Section 9.5, the Transferor Member shall at all times be free to negotiate with any prospective third party purchasers of its Interest and, if no Acceptance Notice has been timely delivered to any Non-Transferor Member, the Transferor Member may sell all or a portion of its Interest to a bona fide third-party purchaser (the “Third Party Purchaser”) for an amount that is at least ninety five percent (95%) of the Transfer Notice to purchase all of the shares specified in such Transfer Notice ROFO Amount and upon the terms specified in such Transfer Notice. Notwithstanding the foregoing, the Company shall have twenty-five calendar days from the receipt of the Transfer Notice (regardless of the date of the Transfer Notice) to notify Purchaser of the Company's election to purchase the shares pursuant to this Section 7.2 if the Company shall furnish a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 shall not constitute such an event). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have the right to pay for such shares specified in the Transfer Notice: (a) the same amount in cash, if the consideration to be paid consists of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that set forth in the Transfer Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement of the Company and the Purchaser.
(c) If the Company (or its assignees) does not exercise its right of first offer hereunder within the time specified for such exercise, the Seller(s) shall be free, during the period of 120 days following the date of the Transfer Notice, to sell the shares specified in such Transfer Notice for such consideration and on such other material terms as shall be no more favorable to such Third Party Purchaser than were the purchaser of material terms offered by the shares than the terms specified in such Transfer Notice.
(d) The provisions of this Section 7.2 shall terminate upon the earlier to occur of: Non-Transferor Member, provided that (i) such time as 3Com Corporation distributes its shares of the Company's Common Stock to the shareholders of 3Com Corporation or purchase price is payable in immediately available funds, (ii) the Transferor Member and the Third Party Purchaser enter into a contract of sale not later than ninety (90) days after the date the Rejection Notices were delivered or deemed delivered and (iii) the Transferor Member and the Third Party Purchaser close the Transfer at any time within one year following hundred twenty (120) days after the Closing Datedate the Rejection Notices were delivered or deemed delivered, on the terms and conditions set forth in Section 12.5 below. In such case, the Third Party Purchaser shall become a Member hereunder; provided however, that with respect to the voting rights of the Third Party Purchaser, if less than 100% percent of the Interest of a Member is transferred to a Third Party Purchaser, such rights will be exercised by the Transferor Member on behalf of the Third Party Purchaser as if the Transferor Member retained 100% of its Interest.
Appears in 1 contract
Samples: Limited Liability Company Agreement (CNL Healthcare Trust, Inc.)
Right of First Offer. In addition to other restrictions found in this Agreement, in the event any Member (such Member being herein referred to as the "SELLING MEMBER"), desires to Transfer any of its Membership Interest to any Person which is not an Affiliate of such Selling Member, and, in the case of Lifford, any member of the Xxxxxxxx Group (a "THIRD PARTY BUYER"), such Selling Member must first make a bona fide offer in good faith (including as to price and terms) to Transfer such Membership Interest to the other Members (such other Members being referred to as the "MEMBER OFFEREES") on a pro rata basis and must Transfer such Membership Interest to any Member Offeree that accepts such offer as set forth below. In the event any such Selling Member desires to Transfer such offered Membership Interest, such Selling Member will notify in writing (the "OFFER NOTIFICATION") the Company and the Member Offerees of such desire setting forth the amount of the Membership Interest proposed to be Transferred and the proposed purchase price thereof (the "OFFERED MEMBERSHIP INTEREST") and other terms of the proposed sale (the "TERMS"); provided, that the consideration must be in United States Dollars and must constitute a bona fide, good faith offer. For so long as Purchaser holds any Sharesa period of thirty (30) days following the receipt of the Offer Notification, if the Purchaser joins Selling Member and the Member Offerees shall negotiate in good faith to agree upon a partnership, limited partnership, syndicate, or otherwise acts in concert or alone final purchase price and terms for the purpose Offered Membership Interest (a "NEGOTIATED PURCHASE PRICE"). If the Selling Member and the Member Offerees agree on a Negotiated Purchase Price, then the Member Offerees shall purchase the Offered Membership Interest at the Negotiated Purchase Price. If the Selling Member and the Member Offerees are unable in good faith to agree on a purchase price and terms, the Member Offerees shall have the right for a period of disposing of more than 5% fifteen (15) days following the end of the Shares thirty (as adjusted for stock splits or similar events after the date hereof30) day negotiation period, to a single person or transferee elect to purchase all or any group portion of affiliated persons or transferees its pro rata share of such Offered Membership Interest on the Terms originally set forth in the Offer Notification (the "TRANSFER OFFER PERIOD"). If the Member Offeree elects not to purchase the Offered Membership Interest prior to the termination of the forty-five (45) day period, such Member Offeree shall be deemed to have waived its right to purchase the Offered Membership Interest under this Section 9.3 (but specifically excluding not under any hedging or similar transactions, the Purchaser shall give the Company the opportunity other section of this Agreement). If any Member Offeree desires to purchase such stockOffered Membership Interest, it will notify in the following manner:
(a) The Purchaser shall give notice writing (the "Transfer NoticePURCHASE NOTIFICATION") the Selling Member of such desire. In the event that any Member Offeree does not elect to purchase its full pro rata share of any such Offered Membership Interest, such unpurchased Offered Membership Interest will be offered by the Selling Member to the Company in writing other Member Offerees (if any) subscribing to purchase the Offered Membership Interest on a pro rata basis for a period of such intention, specifying fifteen (15) days commencing on the number and kind expiration of securities proposed to be sold or transferred, the proposed price per share therefor Transfer Offer Period (the "SUBSEQUENT TRANSFER OFFER PERIOD"); provided, however, that if there is only one other Member, there shall be no Subsequent Transfer Price") and Offer Period. In the other material termsevent that, upon which such disposition is proposed to be madeafter compliance with the foregoing provisions of this Section 9.3, including the names of the proposed purchasers or transferees if such persons have been identified.
(b) The Company shall have the rightMember Offerees, exercisable by written notice given by the Company to the Purchaser within ten calendar days of receipt of the Transfer Notice taken together, fail to purchase all of the shares specified in Offered Membership Interest, then (i) the Member Offerees shall have no right to purchase any of the Offered Membership Interest (other than pursuant to Section 9.4 or 9.8 below), and (ii) such Selling Member may offer to Transfer all of the Offered Membership Interest to any Person; provided, however, that any such Transfer Notice upon must be made in accordance with the terms specified provisions set forth in Section 9.4 below. The closing of any purchase by the Member Offerees of any of the Offered Membership Interest as provided in this Section 9.3 will take place at the offices of the Company on such date as designated by the Member Offerees occurring within fifteen (15) days after the expiration of the Subsequent Transfer Offer Period, or if there be none, the Transfer Offer Period. At such closing, the Member Offerees will be entitled to receive customary representations and warranties from the Selling Member regarding ownership and title of the Offered Membership Interest and the Company will evidence such Transfer Notice. Notwithstanding on the foregoing, the Company shall have twenty-five calendar days from the receipt of the Transfer Notice (regardless of the date of the Transfer Notice) to notify Purchaser books of the Company's election to purchase the shares pursuant to this Section 7.2 if the Company shall furnish a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 shall not constitute such an event). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have the right to pay for such shares specified in the Transfer Notice: (a) the same amount in cash, if the consideration to be paid consists of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that set forth in the Transfer Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement of the Company and the Purchaser.
(c) If the Company (or its assignees) does not exercise its right of first offer hereunder within the time specified for such exercise, the Seller(s) shall be free, during the period of 120 days following the date of the Transfer Notice, to sell the shares specified in such Transfer Notice for such consideration and on such other material terms as shall be no more favorable to the purchaser of the shares than the terms specified in such Transfer Notice.
(d) The provisions of this Section 7.2 shall terminate upon the earlier to occur of: (i) such time as 3Com Corporation distributes its shares of the Company's Common Stock to the shareholders of 3Com Corporation or (ii) one year following the Closing Date.
Appears in 1 contract
Samples: Operating Agreement (Claxson Interactive Group Inc)
Right of First Offer. For so long 1.4.1. The sale of the Property is subject to a right of first offer held by the PHS Unit Owner (as such term is defined in the Master Deed) with respect to the Unit, as more fully set forth in Section 9.5 of the Master Deed (the “ROFO”). Purchaser holds any Sharesshall cooperate with Unit Seller in complying with Unit Seller’s notice obligations to the PHS Unit Owner under the Master Deed.
1.4.2. Promptly after each of Unit Seller and Purchaser has executed and delivered this Agreement, Unit Seller shall undertake to comply with its notice obligations to the PHS Unit Owner as set forth in the Master Deed and shall deliver a copy of the notice delivered to the PHS Unit Owner to Purchaser. In the event the PHS Unit Owner provides notice to the Unit Seller that it intends to exercise the ROFO (such notice, an “Exercise Notice”) or rejects such ROFO (such notice, a “Rejection Notice”), Unit Seller shall promptly notify Purchaser thereof. Alternately, if the Purchaser joins in Unit Seller has not received either an Exercise Notice or a partnershipRejection Notice, limited partnership, syndicate, or otherwise acts in concert or alone for the purpose of disposing of more than 5% of the Shares (as adjusted for stock splits or similar events after the date hereof) to a single person or transferee or any group of affiliated persons or transferees but specifically excluding any hedging or similar transactions, the Purchaser Unit Seller shall give the Company the opportunity to purchase such stock, in the following manner:
(a) The Purchaser shall give notice (the "Transfer Notice") to the Company in writing of such intention, specifying the number and kind of securities proposed to be sold or transferred, the proposed price per share therefor (the "Transfer Price") and the other material terms, upon which such disposition is proposed to be made, including the names of the proposed purchasers or transferees if such persons have been identified.
(b) The Company shall have the right, exercisable by written notice given by the Company to the Purchaser within ten calendar days of receipt of the Transfer Notice to purchase all of the shares specified in such Transfer Notice upon the terms specified in such Transfer Notice. Notwithstanding the foregoing, the Company shall have twenty-five calendar days from the receipt of the Transfer Notice (regardless of the date of the Transfer Notice) to notify Purchaser of the Company's election date (such date, the “Waiver Date”) that Unit Seller reasonably believes the PHS Unit Owner has waived or is deemed to purchase have waived the shares pursuant to this Section 7.2 if ROFO.
1.4.3. In the Company shall furnish a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer event PHS Unit Owner timely delivers an Exercise Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day time period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 shall not constitute such an event). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have the right to pay for such shares specified in the Transfer Notice: (a) the same amount in cash, if the consideration to be paid consists of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that set forth in the Transfer NoticeMaster Deed, or an amount of cash having equivalent value, as determined in good faith by mutual agreement of the Company this Agreement shall terminate and the Purchaser.
(c) If Unit Seller and Purchaser shall have no any further obligations under this Agreement except for those obligations which expressly survive the Company (or its assignees) does not exercise its right of first offer hereunder within the time specified for such exercise, the Seller(s) shall be free, during the period of 120 days following the date of the Transfer Notice, to sell the shares specified in such Transfer Notice for such consideration and on such other material terms as shall be no more favorable to the purchaser of the shares than the terms specified in such Transfer Notice.
(d) The provisions termination of this Section 7.2 shall terminate upon the earlier to occur of: (i) such time as 3Com Corporation distributes its shares of the Company's Common Stock to the shareholders of 3Com Corporation or (ii) one year following the Closing DateAgreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Digital Realty Trust, Inc.)
Right of First Offer. For so long as Purchaser holds any Shares, if (A) If either Limited Partner (the Purchaser joins in a partnership, limited partnership, syndicate, or otherwise acts in concert or alone for the purpose of disposing of more than 5% of the Shares (as adjusted for stock splits or similar events after the date hereof"Selling Party") desires to a single person or transferee sell all or any group part of affiliated persons or transferees but specifically excluding any hedging or similar transactionsits Limited Partnership Interest to an person not an Affiliate of a Limited Partner, the Purchaser shall give the Company the opportunity to purchase such stock, in the following manner:
(a) The Purchaser Selling Party shall give notice (the "Transfer Offer Notice") to the Company in writing General Partner describing that portion or all of such intention, specifying the number and kind of securities proposed Limited Partnership Interest to be sold (such whole or transferredpartial Limited Partnership Interest, as the proposed price per share therefor case may be, to be hereinafter referred to as the "Offered Interest"). The General Partner shall have the option (the "Transfer PriceOption") and the other material terms, upon which such disposition is proposed to be made, including the names of the proposed purchasers or transferees if such persons have been identified.
(b) The Company shall have the right, exercisable by written notice given by the Company to the Purchaser within ten calendar days of receipt of the Transfer Notice to purchase all of the shares specified Offered Interest for the price set forth in such Transfer Notice upon the terms specified in such Transfer Notice. Notwithstanding the foregoing, the Company shall have twenty-five calendar days from the receipt of the Transfer Offer Notice (regardless the "Withdrawal Price").
(B) The General Partner may elect to exercise the Option by giving written notice of its election to the Selling Party at any time within 15 days after the date of the Transfer NoticeOffer Notice (the "Election Date"). The General Partner's notice of its election shall set forth a closing date (the "Closing Date") for the purchase, which shall not be more than 30 days after the date of General Partner's notice. If the General Partner elects to notify Purchaser exercise the Option, the Withdrawal Price shall be paid in cash on the Closing Date.
(C) If the General Partner fails to exercise the Option, the Selling Party shall be permitted to offer and sell the Offered Interest to any non-Affiliate for a period of 180 days after the CompanyElection Date at a price not less than the Withdrawal Price. If the Selling Party does not sell the Offered Interest within such period, the Selling Party's election right to purchase sell the shares Offered Interest pursuant to this Section 7.2 if the Company shall furnish a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental to the Company cease and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering terminate and the provisions of this Section 7.2 shall not constitute such an event). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts began anew with respect to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have the right subsequent sale to pay for such shares specified in the Transfer Notice: (a) the same amount in cash, if the consideration to be paid consists of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that set forth in the Transfer Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement of the Company and the Purchaser.
(c) If the Company (or its assignees) does not exercise its right of first offer hereunder within the time specified for such exercise, the Seller(s) shall be free, during the period of 120 days following the date of the Transfer Notice, to sell the shares specified in such Transfer Notice for such consideration and on such other material terms as shall be no more favorable to the purchaser of the shares than the terms specified in such Transfer Notice.
(d) The provisions of which this Section 7.2 shall terminate upon the earlier to occur of: (i) such time as 3Com Corporation distributes its shares of the Company's Common Stock to the shareholders of 3Com Corporation or (ii) one year following the Closing Dateapplies.
Appears in 1 contract
Samples: Articles of Limited Partnership (Amerus Life Holdings Inc)
Right of First Offer. For so long as Purchaser holds (a) If at any Sharestime, if the Purchaser joins in other than pursuant to an Exempt Transfer, any Shareholder or their Related Party (each, a partnership, limited partnership, syndicate, "Seller") desires to Transfer any or otherwise acts in concert or alone for the purpose of disposing of more than 5% all of the Shares (as adjusted for stock splits or similar events after the date hereof) to a single person or transferee or any group of affiliated persons or transferees but specifically excluding rights to Shares held by such Seller to any hedging or similar transactionsperson, such Seller shall reduce to writing the Purchaser shall give the Company the opportunity terms pursuant to purchase which Seller desires to Transfer such stock, in the following manner:
Shares (a) The Purchaser shall give notice (the a "Transfer NoticeOffer") to the Company in writing of such intention, specifying ). The Transfer Offer shall identify the number and kind of securities proposed Shares to be sold or transferred, the proposed price per share therefor (consideration for the "Transfer Price") Shares, the identity of any third party offeror, and all the other material termsterms and conditions of such Transfer Offer. The Seller shall deliver the Transfer Offer to the Company, upon which Founders and Investors. Notwithstanding anything to the contrary contained herein, for any Transfer by an Investor or Founder, or their Exempt Transferees, of (i) Series A Preferred Stock, the rights set forth in this Section 2.2 shall be limited to Transfer Offerees holding Series A Preferred Stock, or (ii) Series B Preferred Stock, the rights set forth in this Section 2.2 shall be limited to Transfer Offerees holding Series B Preferred Stock and Section 2.3 shall not apply to any such disposition is proposed to be made, including the names Transfer of the proposed purchasers or transferees if such persons have been identifiedSeries B Preferred Stock.
(b) The Company Subject to the conditions set forth in Section 2.2(a), each Investor and Founder (collectively, the "Transfer Offerees") shall have the rightright to purchase up to its pro rata share of the Shares offered in the Transfer Offer, on the terms therein, exercisable by written notice given by the Company to the Purchaser Seller within ten calendar 20 days of receipt of the Transfer Notice Offer. For purposes of this Section 2.2(b), pro-rata share is determined by the respective Share holdings of each Transfer Offeree, expressed as a percentage of the total number of Shares held by all Transfer Offerees, on an As Converted Basis (including all shares of Common Stock issued or issuable upon the exercise of any outstanding options or warrants).
(c) If, after expiration of the 20 day period in Section 2.2(b), any Transfer Offer Shares remain unsubscribed, then the Seller shall, by written notice (the "Second Notice") no later than 5 days after expiration of the 20 day period, offer the Transfer Offerees who have elected to purchase all Shares under Section 2.2(b) the right to purchase their pro-rata share of the shares specified in unsubscribed Shares, such Transfer Notice upon right exercisable by written notice to the terms specified in such Transfer Notice. Notwithstanding the foregoing, the Company shall have twenty-five calendar days from the receipt of the Transfer Notice (regardless of the date of the Transfer Notice) to notify Purchaser of the Company's election to purchase the shares pursuant to this Section 7.2 if the Company shall furnish a certificate signed by the President or Chief Executive Officer of the Company Seller within ten calendar 5 business days of receipt of the Second Notice. The Second Notice shall state the number of unsubscribed Shares, and the pro-rata share of those Shares for each Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions Offeree. For purposes of this Section 7.2 shall not constitute such an event2.2(c). The purchase , pro-rata share is determined by the respective Share holdings of each Transfer Offeree, expressed as a percentage of the total number of Shares held by all Transfer Offerees electing to purchase unsubscribed Shares, on an As Converted Basis, including all shares by of Common Stock issued or issuable upon the Company must be completed within 60 calendar days from the receipt exercise of the any outstanding options or warrants. Transfer Notice. The Company and Purchaser shall use their best efforts Offerees electing to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have the right to pay for such shares specified in the Transfer Notice: (a) the same amount in cash, if the consideration to be paid consists of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that set forth in the Transfer Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement of the Company and the Purchaser.
purchase unsubscribed Shares under this Section 2.2 (c) If the Company (may assign to each other some or its assignees) does not exercise its right all of first offer hereunder within the time specified for such exercise, the Seller(s) shall be free, during the period of 120 days following the date of the Transfer Notice, to sell the shares specified in such Transfer Notice for such consideration and on such other material terms as shall be no more favorable to the purchaser of the shares than the terms specified in such Transfer Noticetheir pro-rata share.
(d) The closing of the purchases of Shares by the Transfer Offerees shall take place at the principal office of the Company at least 20 business days after the expiration of the Transfer Offer, or at least 20 business days after expiration of the Second Notice, whichever is later. At such closing, the Transfer Offerees shall deliver a certified check or checks in the appropriate amount to the Seller against delivery of certificates representing the Shares so purchased, duly endorsed in blank for transfer or accompanied by a stock power duly executed in blank. In the event that the consideration specified in the Transfer Offer is other than cash, then the Transfer Offerees may, at their option, deliver at such closing cash, in lieu of such other consideration, in an amount equal to the fair market value of such other consideration (as agreed upon by the parties or as determined by an independent appraisal, agreed upon by the parties).
(e) If the Transfer Offerees agree collectively to purchase less than all of the Shares offered in the Transfer Offer, the Seller shall have the right, for a period of 90 days from expiration of the Transfer Offer, to Transfer any remaining Shares to any person at a price not less than and on terms no more favorable than contained in the Transfer Offer. If the Seller has not completed the sale of all the Shares offered under the Transfer Offer within such 90 day period, the Seller shall no longer be permitted to Transfer such Transfer Stock pursuant to this Section 2.2 without again fully complying with the provisions hereof.
(f) Notwithstanding the foregoing, no sale may be made to any third party unless such third party agrees in writing, in form and substance reasonably acceptable to the Company, to be bound by the provisions of this Agreement. Promptly after any sale pursuant to this Section 7.2 2.2, the Seller shall terminate upon notify the earlier to occur of: (i) such time as 3Com Corporation distributes its shares Company of the Company's Common Stock to consummation thereof and shall furnish such evidence of the shareholders completion (including time of 3Com Corporation or (iicompletion) one year following of such sale and of the Closing Dateterms thereof as the Company may reasonably request.
Appears in 1 contract
Right of First Offer. For so long as Purchaser holds In addition to and not in limitation of any Sharesother restrictions on Transfers of Stock contained in this Agreement, if the Purchaser joins in any Transfers of Stock by a partnershipShareholder (other than an Investment Shareholder, limited partnership, syndicate, or otherwise acts in concert or alone for the purpose of disposing of more than 5% of the Shares (as adjusted for stock splits or similar events unless such Transfer occurs prior to 90 days after the date hereof) to a single person or transferee or any group of affiliated persons or transferees but specifically excluding any hedging or similar transactions, the Purchaser shall give the Company the opportunity to purchase such stock, be consummated only in accordance with the following mannerprocedures:
(a) The Purchaser Transferring Shareholder shall give first deliver to the Company and each Major Shareholder other than the Transferring Shareholder and, if the Transferring Shareholder is a Management Shareholder, each other Management Shareholder (collectively, the "Offered Shareholders") a written notice (an "Offer Notice") that shall (i) state the Transferring Shareholder's intention to Transfer Stock to one or more Persons in a bona fide, arm's length transaction, the amount and type of Stock to be Transferred (the "Subject Stock"), the purchase price therefor (which shall be payable in cash) and a summary of the other material terms of the proposed Transfer Notice"and (ii) offer the Company and the Offered Shareholders the option to acquire all or a portion of such Subject Stock upon the terms and subject to the Company in writing conditions of such intention, specifying the number and kind of securities proposed to be sold or transferred, the proposed price per share therefor Transfer as set forth in the Offer Notice (the "Transfer PriceOffer") ). The Offer shall remain open and irrevocable for the other material termsperiods set forth below (and, upon which to the extent the Offer is accepted during such disposition is proposed to be madeperiods, including until the names consummation of the proposed purchasers or transferees if such persons have been identifiedsale contemplated by the Offer).
(b) The Company shall have the rightright and option, exercisable for a period of twenty (20) days after delivery of the Offer Notice (the "Company Acceptance Period"), to accept all or any part of the Subject Stock so offered at the cash purchase price and on the terms stated in the Offer Notice. Such acceptance shall be made by delivering a written notice given to the Transferring Shareholder and each of the Offered Shareholders within the Company Acceptance Period specifying the maximum number of Shares the Company will purchase. The Transferring Shareholder (and its designees to the Board of Directors, as applicable) shall abstain from participating in any decision to be made by the Company to the Purchaser within ten calendar days of receipt of the Transfer Notice to purchase all of the shares specified in such Transfer Notice upon the terms specified in such Transfer Notice. Notwithstanding the foregoing, the Company shall have twenty-five calendar days from the receipt of the Transfer Notice (regardless of the date of the Transfer Notice) to notify Purchaser of the Company's election to purchase the shares pursuant to this Section 7.2 if the Company shall furnish a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 shall not constitute such an event6(b). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have the right to pay for such shares specified in the Transfer Notice: (a) the same amount in cash, if the consideration to be paid consists of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that set forth in the Transfer Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement of the Company and the Purchaser.
(c) If the Company shall fail to accept all of the Subject Stock offered pursuant to, or shall reject in writing, the Offer, then, upon the earlier of the expiration of the Company Acceptance Period or the giving of such written notice of rejection or failure to accept such Offer by the Company, each Offered Shareholder shall have the right and option, for a period of twenty (20) days (the "Shareholder Acceptance Period"), to accept all or its assignees) does any part of the Subject Stock not exercise its right of first offer hereunder accepted by the Company at the cash purchase price and on the terms stated in the Offer Notice. Such acceptance shall be made by delivering a written notice to the Company and the Transferring Shareholder within the time specified for Shareholder Acceptance Period specifying the maximum number of shares such exerciseOffered Shareholder will purchase (the "First Offer Shares"). If, upon the expiration of the Shareholder Acceptance Period, the Seller(s) aggregate amount of First Offer Shares exceeds the amount of Subject Stock, the Subject Stock shall be freeallocated among the Offered Shareholders as follows: (i) first, during each Offered Shareholder shall be entitled to purchase no more than its First Offer Percentage of Subject Stock; (ii) second, if any shares of Subject Stock have not been allocated for purchase pursuant to (i) above (the period "Remaining Shares"), each Offered Shareholder (an "Oversubscribed Shareholder") that had offered to purchase a number of 120 days following the date shares of Subject Stock in excess of the Transfer amount of stock allocated for purchase to it in accordance with previous allocations of such shares of Subject Stock, shall be entitled to purchase an amount of Remaining Shares equal to no more than its First Offer Percentage (treating only Oversubscribed Shareholders as Offered Shareholders for these purposes) of the Remaining Shares; and (iii) third, the process set forth in (ii) above shall be repeated with respect to any shares of Subject Stock not allocated for purchase until all shares of Subject Stock are allocated for purchase.
(d) If effective acceptance shall not be received pursuant to Sections 6(b) and/or 6(c) above with respect to all of the Subject Stock offered for sale pursuant to the Offer Notice, to sell then the shares specified in such Transferring Shareholder may Transfer Notice all or any portion of the Stock so offered for such consideration sale and not so accepted at a cash price not less than the price, and on such other material terms as shall be no not more favorable to the purchaser thereof than the terms, stated in the Offer Notice at any time within ninety (90) days after the expiration of the shares than Shareholder Acceptance Period (the terms specified in "Sale Period"). In the event that all of the Stock is not sold by the Transferring Shareholder during the Sale Period, the right of the Transferring Shareholder to Transfer such Transfer NoticeStock shall expire and the obligations of this Section 6 shall be reinstated.
(de) All Transfers of Subject Stock to the Company and/or the Offered Shareholders pursuant to this Section 6 shall be made free and clear of all liens (other than a lien to secure payment on the stock transferred if payment is in the form of a promissory note) and shall be consummated contemporaneously at the offices of the Company on a mutually satisfactory business day within twenty (20) days after the expiration of the later of the Company Acceptance Period or the Shareholder Acceptance Period, as applicable or at such other time and/or place as the parties may agree. The delivery of certificates or other instruments evidencing such Subject Stock duly endorsed for Transfer shall be made on such date against payment of the purchase price for such Subject Stock.
(f) The provisions requirements of this Section 7.2 6 shall terminate upon the earlier not apply to occur of: (i) any Transfer of Stock by a Shareholder to an Affiliate of such time as 3Com Corporation distributes its shares of the Company's Common Stock to the shareholders of 3Com Corporation or Shareholder; (ii) one year following the Closing Dateany Transfer of Stock pursuant to Sections 5 or 8 of this Agreement; or (iii) any Transfer of Stock pursuant to a Public Sale.
Appears in 1 contract
Samples: Shareholders' and Voting Agreement (Americasdoctor Com Inc)
Right of First Offer. For so long as Purchaser holds Upon or prior to entering into significant negotiations with any Shares, if the Purchaser joins third party for engaging in a partnership, limited partnership, syndicate, or otherwise acts in concert or alone for the purpose of disposing of more than 5% any of the Shares (as adjusted for stock splits or similar events after the date hereof) transactions referred to a single person or transferee or any group of affiliated persons or transferees but specifically excluding any hedging or similar transactions, the Purchaser shall give the Company the opportunity to purchase such stock, in the following manner:
under paragraphs (a) The Purchaser shall give notice or (the c) of Subsection 9.02 above (hereinafter, a "Transfer NoticeMATERIAL TRANSACTION") to the Company in writing of such intention, specifying the number and kind of securities proposed to be sold or transferred, the proposed price per share therefor (the "Transfer Price") and the other material terms, upon which such disposition is proposed to be made, including the names of the proposed purchasers or transferees if such persons have been identified.
(b) The Company shall have the right, exercisable by written notice given by the Company to the Purchaser within ten calendar days of receipt of the Transfer Notice to purchase all of the shares specified in such Transfer Notice upon the terms specified in such Transfer Notice. Notwithstanding the foregoing), the Company shall notify TTC in writing of its intention of entering into such negotiations, together with a general description of such intended Material Transaction, the proposed terms thereof and the identity of the third party involved. TTC shall have twenty-five calendar fourteen (14) days from receiving such notice to respond in writing, stating whether or not it is interested in entering into negotiations with the receipt Company regarding such Material Transaction on the basis of the Transfer Notice (regardless of the date of the Transfer Notice) to notify Purchaser of the Company's election to purchase the shares pursuant to this Section 7.2 if the Company shall furnish a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 shall not constitute such an event). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have the right to pay for such shares specified in the Transfer Notice: (a) the same amount in cash, if the consideration to be paid consists of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that proposed terms set forth in the Transfer NoticeCompany's notice. Should TTC give an affirmative response within the said fourteen (14) day period, or then the Company shall enter into good-faith negotiations with TTC (and/or other parties designated by TTC) and all parties shall employ their respective best efforts to reach an amount of cash having equivalent value, as determined in good faith by mutual agreement of within forty-five (45) days following TTC's response. If the Company and the Purchaser.
(c) If TTC shall not be able to reach such an agreement within such period, then the Company (or its assignees) does not exercise its right of first offer hereunder within the time specified for such exercise, the Seller(s) shall be freeat liberty to commence or resume negotiations with the third party and consummate the Material Transaction, without the need for TTC's consent as provided in Subsection 9.02 above, provided that (i) the terms of such Material Transaction shall be no less favorable to the Company then the terms proposed by TTC during the period of 120 negotiations therewith and (ii) the agreement with such third party shall be signed within ninety (90) days following the date expiration of the Transfer Noticenegotiations with TTC, and TTC at its election shall be entitled to sell receive its share in the shares specified consideration in such Transfer Notice for such consideration and on such other material terms as shall be no more favorable transaction, proportionate to its equity interest in the purchaser of the shares than the terms specified in such Transfer NoticeCompnay.
(d) The provisions of this Section 7.2 shall terminate upon the earlier to occur of: (i) such time as 3Com Corporation distributes its shares of the Company's Common Stock to the shareholders of 3Com Corporation or (ii) one year following the Closing Date.
Appears in 1 contract
Samples: Share Purchase and Option Agreement (Given Imaging LTD)
Right of First Offer. For so long as Purchaser holds any SharesIn the event (i) the Owner Participant desires to directly or indirectly sell, lease, convey or otherwise transfer some or all of its Lessor Membership Interest (other than to an Affiliate of the Owner Participant or while a Lease Event of Default is continuing) or (ii) the Owner Lessor desires (or the Owner Participant desires to cause Owner Lessor) directly or indirectly to sell, lease, convey or otherwise transfer some or all of the Owner Lessor's Interest, in each case prior to the expiration of the Facility Lease Term then, if the Purchaser joins in and only if as a partnership, limited partnership, syndicate, result of such proposed sale or otherwise acts in concert or alone for the purpose of disposing of more sales less than 550.1% of (i) the Shares ownership interests of the Owner Lessor and each Other Owner Lessor (as adjusted for stock splits or similar events after the date hereof) to a single person or transferee or any group of affiliated persons or transferees but specifically excluding any hedging or similar transactionstogether, the Purchaser "Total Owner Lessor Interests") or (ii) the Owner Lessor's Interest and the Other Owner Lessor's Interests (together, the "Total Facility Ownership Interests") would be held by GECC or Persons who are Affiliates of GECC, then the Owner Participant or the Owner Lessor, as the case may be, must first offer to sell such Lessor Membership Interest or such Owner Lessor's Interest, as the case may be, to Xxxxx City on the terms and conditions set forth in this Section 14.1. Such offer shall give be made to the Company the opportunity to purchase such stock, Facility Lessee in the following manner:
(a) The Purchaser form of a proposed term sheet, which proposed term sheet shall give notice (include an outline of the "Transfer Notice") to price and of all of the Company in writing of such intention, specifying the number and kind of securities proposed to be sold or transferred, the proposed price per share therefor (the "Transfer Price") and the other material terms, conditions and provisions upon which the Owner Participant or the Owner Lessor, as the case may be, would be willing to transfer such disposition is Lessor Membership Interest or such Owner Lessor's Interest, as the case may be, or any part thereof. Xxxxx City will thereafter have the right within a period of thirty (30) days from and after the receipt by the Facility Lessee of such proposed term sheet to be madenotify the Owner Participant or Owner Lessor, including as the names case may be, of its irrevocable intent to exercise its right to purchase all, but not less than all, of the proposed purchasers Lessor Membership Interests or transferees if Owner Lessor's Interest being offered hereunder. If the Facility Lessee elects to exercise the right provided in the preceding sentence, it shall within 60 days of such persons have been identified.
notice purchase, and the Owner Participant or Owner Lessor, as the case may be, shall sell, the Lessor Membership Interest or the Owner Lessor's Interest, as the case may be, on the same terms and conditions as the offer giving rise to such right (b) The Company except that the Owner Participant shall have the right, exercisable by written notice given by the Company not be required to make any representations to the Purchaser Facility Lessee with respect to matters regarding the Facility (even though such representations are being made to a potential third party purchaser) other than a warranty as to the absence of Owner Participant Liens). If the Facility Lessee does not give such notice to the Owner Participant or Owner Lessor, as the case may be, within ten calendar the thirty (30) day period or does not purchase the Lessor Membership Interest or the Owner Lessor's Interest, as the case may be, within 60 days of receipt such notice, the Owner Participant or Owner Lessor, as the case may be, will be free to so sell, lease, convey or otherwise transfer such Lessor Membership Interest or such Owner Lessor's Interest, as the case may be, or a portion thereof, at a price no less than the price set forth in the proposed term sheet and on terms and conditions, taken as a whole, that, other than in an immaterial respect, are no less favorable to the Owner Participant or Owner Lessor, as the case may be, than the terms and conditions set forth in the proposed term sheet. In the event that the terms or conditions are revised in any way that the price is reduced or any of the Transfer Notice other terms and conditions thereof, taken as a whole change the agreement for sale, lease, conveyance or transfer such that the terms and conditions of any such subsequent transaction are less favorable, other than in an immaterial respect, to purchase all the Owner Participant or Owner Lessor, the Owner Participant or Owner Lessor, as the case may be, must again comply with the notice and acceptance provisions of this Section 14.1. It is understood and agreed among the parties hereto that the transaction contemplated by this Section 14.1 shall not effect a merger of the shares specified Facility Lessee's leasehold interest in such Transfer Notice upon the terms specified Facility and its ownership or subleasehold interest in such Transfer Noticethe Facility Site with the Owner Lessor's Interest. Notwithstanding the foregoing, if, concurrently with the Company shall have twenty-five calendar days from Owner Participant's offer to sell its Lessor Membership Interest or the receipt of the Transfer Notice (regardless of the date of the Transfer Notice) Owner Lessor's offer to notify Purchaser of the Companysell its Owner Lessor's election to purchase the shares Interest pursuant to this Section 7.2 if the Company shall furnish a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company14.1, it would be detrimental or one of its Affiliates offers to sell any interest in an Other Owner Lessor who has entered into any Other Facility Participation Agreement, then the Company and Facility Lessee shall exercise its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to rights under this Section 7.2 (14.1 only if, concurrently therewith, it being understood that the mere election exercises its purchase rights under Section 14.1 of Purchaser to sell each such Shares in a transaction triggering the provisions of this Section 7.2 shall not constitute such an event). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have the right to pay for such shares specified in the Transfer Notice: (a) the same amount in cash, if the consideration to be paid consists of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that set forth in the Transfer Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement of the Company and the PurchaserOther Facility Participation Agreement.
(c) If the Company (or its assignees) does not exercise its right of first offer hereunder within the time specified for such exercise, the Seller(s) shall be free, during the period of 120 days following the date of the Transfer Notice, to sell the shares specified in such Transfer Notice for such consideration and on such other material terms as shall be no more favorable to the purchaser of the shares than the terms specified in such Transfer Notice.
(d) The provisions of this Section 7.2 shall terminate upon the earlier to occur of: (i) such time as 3Com Corporation distributes its shares of the Company's Common Stock to the shareholders of 3Com Corporation or (ii) one year following the Closing Date.
Appears in 1 contract
Samples: Participation Agreement (Eme Homer City Generation Lp)
Right of First Offer. For so long as Purchaser holds any SharesIf BEA desires to transfer, if the Purchaser joins in a partnershipsell, limited partnershipassign, syndicatepledge, encumber or otherwise acts in concert or alone for the purpose dispose of disposing (a "Transfer") any shares of more than 5% of the Shares (as adjusted for stock splits or similar events after the date hereof) to Preferred Stock, BEA shall deliver a single person or transferee or any group of affiliated persons or transferees but specifically excluding any hedging or similar transactions, the Purchaser shall give the Company the opportunity to purchase such stock, in the following manner:
(a) The Purchaser shall give written notice (the "Transfer NoticeNotice of Intended Transfer") to the Company in writing Company. The Notice of such intention, specifying Intended Transfer shall indicate the proposed number and kind of securities proposed shares of Preferred Stock contemplated to be sold or transferred, the proposed price per share therefor transferred (the "Transfer PriceOffered Shares") ), and the other material terms, upon which such disposition is proposed to be made, including the names terms and conditions of the proposed purchasers or transferees if such persons have been identified.
(b) The Company shall have the right, exercisable by written notice given by the Company to the Purchaser within ten calendar days of receipt of the Transfer Notice to purchase all of the shares specified in such Transfer Notice upon the terms specified in such Transfer Notice. Notwithstanding the foregoing, the Company shall have twenty-five calendar days from the receipt of the Transfer Notice (regardless of the date of the Transfer Notice) to notify Purchaser of the Company's election to purchase the shares pursuant to this Section 7.2 if the Company shall furnish a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 shall not constitute such an event). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewithTransfer. The Company shall have the right to pay for purchase all (but not less than all) of the Offered Shares subject to a particular Notice of Intended Transfer at the proposed price in cash and on the other proposed terms of Transfer. In order to exercise such shares specified in purchase rights, within ten (10) days after receiving the Transfer Notice of Intended Transfer, the Company shall deliver to BEA a written election (the "Election Notice: (a) the same amount in cash, if the consideration to be paid consists of cash, or (b") to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that set forth in the Transfer Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement purchase all of the Company and the Purchaser.
(c) Offered Shares. If the Company (or its assignees) does not exercise its purchase rights with respect to all (and not less than all) of the Offered Shares within such ten (10) day period or fails to deliver the Election Notice within such time period, BEA shall be free for a period of ninety (90) days thereafter to complete a Transfer of the Offered Shares at a price and on other terms no less favorable to BEA than those specified in the applicable Notice of Intended Transfer. If such a Transfer is not consummated within such ninety (90) day period by BEA, the Offered Shares shall again be subject to a right of first offer hereunder within by the time specified for such exercise, Company under the Seller(s) shall be free, during the period of 120 days following the date of the Transfer Notice, to sell the shares specified in such Transfer Notice for such consideration and on such other material terms as shall be no more favorable to the purchaser of the shares than the terms specified in such Transfer Notice.
(d) The provisions of this Section 7.2 4. In the event the Company exercises its right to purchase such Offered Shares pursuant to this Section 4, the Company and BEA shall, no later than thirty (30) days after proper exercise of such right and as a condition of their respective obligations hereunder, enter into such agreements and deliver such documents to one another as shall terminate upon be necessary for the earlier Transfer of the Offered Shares to occur of: (i) the Company as contemplated hereby. In the event that the Company is not in compliance with its obligations pursuant to Section 2 of this Agreement, the provisions of this Section 4 shall not apply to any proposed transfer by BEA during such time as 3Com Corporation distributes its shares of that the Company's Common Stock to the shareholders of 3Com Corporation or (ii) one year following the Closing DateCompany is not in compliance with such provisions.
Appears in 1 contract
Samples: Securities Agreement (Interactive Entertainment LTD)
Right of First Offer. For so long as Purchaser holds any Shares(i) In the event that a Notice is delivered to each Major Investor pursuant to subsection (a)(i) above, if the Purchaser joins each such Major Investor, in a partnership, limited partnership, syndicate, or otherwise acts in concert or alone for the purpose of disposing of more than 5% lieu of the exercise of the rights set forth in subsection (a)(ii) above, shall have the right within twenty (20) days following receipt of the Notice, to purchase any or all of the Founder Shares specified in the Notice (as adjusted for stock splits or similar events after including any shares being sold by Participants pursuant to this paragraph 2) upon substantially the date hereof) to a single person or transferee or any group of affiliated persons or transferees but specifically excluding any hedging or similar transactions, the Purchaser shall give the Company the opportunity same terms and conditions specified therein. Each such Major Investor so electing to purchase such stock, in the following manner:
(a) The Purchaser Founder Shares is referred to herein as a "Purchasing Investor." Such right shall give be exercisable by written notice (the "Transfer Purchase Notice") delivered by the Purchasing Investor(s) to the Company Company, the Founders and the Participants prior to the expiration of the twenty (20) day exercise period. If such right is exercised with respect to all or any of the Founder Shares specified in writing the Notice, then the Purchasing Investor(s) shall effect the purchase of the Founder Shares, including payment of the purchase price, not more than ten (10) business days after delivery of the Purchase Notice; and at such intention, specifying time the number and kind of securities proposed Founder and/or Participant shall deliver to the Purchasing Investor the certificates representing the Founder Shares to be sold or transferredpurchased, the proposed price per share therefor (the "Transfer Price") and the other material terms, upon which such disposition is proposed to be made, including the names of the proposed purchasers or transferees if such persons have been identifiedproperly endorsed for transfer.
(bii) The Company In the event that no Major Investor exercises the rights provided in this subsection (e), the Founder Shares shall have the right, exercisable by written notice given by the Company be sold pursuant to the Purchaser within ten calendar days provisions of receipt subsection (a)(viii) above. In the event that the Purchasing Investor(s) make a timely exercise of the Transfer Notice rights contained in this subsection (e) with respect to purchase a portion, but not all of the shares specified in such Transfer Notice upon Founder Shares subject to the terms specified in such Transfer Notice. Notwithstanding , then the foregoing, the Company shall have twenty-five calendar days from the receipt remainder of the Transfer Founder Shares subject to such Notice (regardless of the date of the Transfer Notice) to notify Purchaser of the Company's election to purchase the shares shall be sold pursuant to this Section 7.2 if the Company shall furnish a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 shall not constitute such an event). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have the right to pay for such shares specified in the Transfer Notice: subsection (aa)(viii) the same amount in cash, if the consideration to be paid consists of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that set forth in the Transfer Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement of the Company and the Purchaserabove.
(c) If the Company (or its assignees) does not exercise its right of first offer hereunder within the time specified for such exercise, the Seller(s) shall be free, during the period of 120 days following the date of the Transfer Notice, to sell the shares specified in such Transfer Notice for such consideration and on such other material terms as shall be no more favorable to the purchaser of the shares than the terms specified in such Transfer Notice.
(d) The provisions of this Section 7.2 shall terminate upon the earlier to occur of: (i) such time as 3Com Corporation distributes its shares of the Company's Common Stock to the shareholders of 3Com Corporation or (ii) one year following the Closing Date.
Appears in 1 contract
Right of First Offer. For so long as Purchaser holds Subject to the terms and conditions specified in this Section 4, Xxxxxxxxxx hereby grants to Xxx a right of first offer with respect to any Sharesassignment, if the Purchaser joins in a partnership, limited partnership, syndicate, sale or otherwise acts in concert or alone for the purpose other transfer of disposing of more than 5% of the Shares (as adjusted for stock splits or similar events after the date hereof) to a single person or transferee or any group of affiliated persons or transferees but specifically excluding any hedging or similar transactions, the Purchaser shall give the Company the opportunity to purchase such stock, in the following mannerImprovements by Xxxxxxxxxx:
(a) The Purchaser Each time Xxxxxxxxxx proposes to assign, license, sell or otherwise transfer “Transfer”) any Improvement to a third party, Xxxxxxxxxx shall give first deliver to Xxx a notice by certified mail (“Notice”) stating (i) a detailed description of the "Improvement, (ii) its bona fide intention to Transfer Notice"the same, and (iii) to the Company in writing of such intention, specifying the number price and kind of securities proposed to be sold or transferred, the proposed price per share therefor (the "Transfer Price") and the other material terms, terms upon which such disposition is proposed it proposes to be made, including the names of the proposed purchasers or transferees if such persons have been identifieddo so.
(b) The Company Thereafter, Xxx shall have the right, exercisable by written notice given by the Company access to the Purchaser within ten calendar Improvement reasonably sufficient to permit a due diligence evaluation of the same, and Xxxxxxxxxx shall cooperate as reasonably requested to assist Xxx in such evaluation. Within thirty (30) days of after receipt of the Transfer Notice Notice, Xxx may elect to purchase all of or otherwise obtain, at the shares specified in such Transfer Notice upon price and on the terms specified in the Notice, such Transfer Notice. Notwithstanding the foregoing, the Company shall have twenty-five calendar days from the receipt of the Transfer Notice (regardless of the date of the Transfer Notice) to notify Purchaser of the Company's election to purchase the shares Improvement pursuant to this Section 7.2 if the Company shall furnish and in accordance with a certificate signed definitive purchase and technology transfer agreement as negotiated by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating thatParties in good faith, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 during which time Xxxxxxxxxx shall not constitute Transfer or encumber any portion of such an event). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during Improvement or enter into discussions with any third party concerning any such period any approvals required on their respective parts in connection therewith. The Company shall have the right to pay for such shares specified in the Transfer Notice: (a) the same amount in cash, if the consideration to be paid consists of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that set forth in the Transfer Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement of the Company and the Purchasertransaction.
(c) If the Company (or its assignees) If, pursuant to Section 4(b), Xxx does not exercise its right of first offer hereunder within the time specified for such exerciseelect to acquire an Improvement, the Seller(s) shall be freeXxxxxxxxxx may, during the one hundred eighty (180) day period of 120 days following the date expiration of the Transfer Notice, to sell the shares period specified in Section 4(b) above, consummate a Transfer of such Transfer Notice for such consideration Improvement with any third party at a price not less than, and on such other material upon terms as shall be no more favorable to the purchaser offeree, than those specified in the Notice. If Xxxxxxxxxx does not Transfer such Improvement within such period, then the right provided to Xxx hereunder shall be deemed revived and no Transfer of the shares than the terms specified improvement shall be effected unless first reoffered to Xxx in such Transfer Noticeaccordance herewith.
(d) The provisions This right of this Section 7.2 shall terminate upon first offer may not be assigned or transferred by Xxx, except to any wholly-owned subsidiary or parent of, or to any corporation or entity that is, within the earlier to occur of: (i) such time as 3Com Corporation distributes its shares meaning of the Company's Common Stock to the shareholders Securities Act of 3Com Corporation 1933, as amended, controlling, controlled by or (ii) one year following the Closing Dateunder common control with, Xxx.
Appears in 1 contract
Samples: License Agreement (Strasbaugh)
Right of First Offer. For so long as Purchaser holds any Shares, if the Purchaser joins In addition to other restrictions found in a partnership, limited partnership, syndicate, or otherwise acts in concert or alone for the purpose of disposing of more than 5% of the Shares (as adjusted for stock splits or similar events after the date hereof) to a single person or transferee or any group of affiliated persons or transferees but specifically excluding any hedging or similar transactions, the Purchaser shall give the Company the opportunity to purchase such stockthis Agreement, in the event any Member (such Member being herein referred to as the "Selling Member"), desires to Transfer any of its Membership Interest to any Person which is not an Affiliate of such Selling Member, and, in the case of Lifford, any member of the Cisneros Group (a "Third Party Buyer"), such Selling Member must xxxxx xxke a bona fide offer in good faith (including as to price and terms) to Transfer such Membership Interest to the other Members (such other Members being referred to as the "Member Offerees") on a pro rata basis and must Transfer such Membership Interest to any Member Offeree that accepts such offer as set forth below. In the event any such Selling Member desires to Transfer such offered Membership Interest, such Selling Member will notify in writing (the "Offer Notification") the Company and the Member Offerees of such desire setting forth the amount of the Membership Interest proposed to be Transferred and the proposed purchase price thereof (the "Offered Membership Interest") and other terms of the proposed sale (the "Terms"); provided, that the consideration must be in United States Dollars and must constitute a bona fide, good faith offer. For a period of thirty (30) days following manner:
the receipt of the Offer Notification, the Selling Member and the Member Offerees shall negotiate in good faith to agree upon a final purchase price and terms for the Offered Membership Interest (aa "Negotiated Purchase Price"). If the Selling Member and the Member Offerees agree on a Negotiated Purchase Price, then the Member Offerees shall purchase the Offered Membership Interest at the Negotiated Purchase Price. If the Selling Member and the Member Offerees are unable in good faith to agree on a purchase price and terms, the Member Offerees shall have the right for a period of fifteen (15) The Purchaser shall give notice days following the end of the thirty (30) day negotiation period, to elect to purchase all or any portion of its pro rata share of such Offered Membership Interest on the Terms originally set forth in the Offer Notification (the "Transfer NoticeOffer Period") ). If the Member Offeree elects not to purchase the Offered Membership Interest prior to the Company termination of the forty-five (45) day period, such Member Offeree shall be deemed to have waived its right to purchase the Offered Membership Interest under this Section 9.3 (but not under any other section of this Agreement). If any Member Offeree desires to purchase such Offered Membership Interest, it will notify in writing of such intention, specifying the number and kind of securities proposed to be sold or transferred, the proposed price per share therefor (the "Transfer PricePurchase Notification") and the Selling Member of such desire. In the event that any Member Offeree does not elect to purchase its full pro rata share of any such Offered Membership Interest, such unpurchased Offered Membership Interest will be offered by the Selling Member to the other material terms, upon which such disposition is proposed Member Offerees (if any) subscribing to be made, including purchase the names Offered Membership Interest on a pro rata basis for a period of fifteen (15) days commencing on the proposed purchasers or transferees if such persons have been identified.
(b) The Company shall have the right, exercisable by written notice given by the Company to the Purchaser within ten calendar days of receipt expiration of the Transfer Notice Offer Period (the "Subsequent Transfer Offer Period"); provided, however, that if there is only one other Member, there shall be no Subsequent Transfer Offer Period. In the event that, after compliance with the foregoing provisions of this Section 9.3, the Member Offerees, taken together, fail to purchase all of the shares specified in Offered Membership Interest, then (i) the Member Offerees shall have no right to purchase any of the Offered Membership Interest (other than pursuant to Section 9.4 or 9.8 below), and (ii) such Selling Member may offer to Transfer all of the Offered Membership Interest to any Person; provided, however, that any such Transfer Notice upon must be made in accordance with the terms specified provisions set forth in Section 9.4 below. The closing of any purchase by the Member Offerees of any of the Offered Membership Interest as provided in this Section 9.3 will take place at the offices of the Company on such date as designated by the Member Offerees occurring within fifteen (15) days after the expiration of the Subsequent Transfer Offer Period, or if there be none, the Transfer Offer Period. At such closing, the Member Offerees will be entitled to receive customary representations and warranties from the Selling Member regarding ownership and title of the Offered Membership Interest and the Company will evidence such Transfer Notice. Notwithstanding on the foregoing, the Company shall have twenty-five calendar days from the receipt of the Transfer Notice (regardless of the date of the Transfer Notice) to notify Purchaser books of the Company's election to purchase the shares pursuant to this Section 7.2 if the Company shall furnish a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 shall not constitute such an event). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have the right to pay for such shares specified in the Transfer Notice: (a) the same amount in cash, if the consideration to be paid consists of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that set forth in the Transfer Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement of the Company and the Purchaser.
(c) If the Company (or its assignees) does not exercise its right of first offer hereunder within the time specified for such exercise, the Seller(s) shall be free, during the period of 120 days following the date of the Transfer Notice, to sell the shares specified in such Transfer Notice for such consideration and on such other material terms as shall be no more favorable to the purchaser of the shares than the terms specified in such Transfer Notice.
(d) The provisions of this Section 7.2 shall terminate upon the earlier to occur of: (i) such time as 3Com Corporation distributes its shares of the Company's Common Stock to the shareholders of 3Com Corporation or (ii) one year following the Closing Date.
Appears in 1 contract
Right of First Offer. For so long as Purchaser holds any Shares, if the Purchaser joins in a partnership, limited partnership, syndicate, or otherwise acts in concert or alone for the purpose of disposing of more than 5% of the Shares (as adjusted for stock splits or similar events after the date hereof) to a single person or transferee or any group of affiliated persons or transferees but specifically excluding any hedging or similar transactions, the Purchaser shall give the Company the opportunity to purchase such stock, in the following manner:
(a) The Purchaser In addition and subject to the restrictions contained in the other provisions of this Article X, if a Member (in its capacity as such, a “Transferring Member“) desires to Transfer all or a portion of its Membership Interest (as represented by its Contribution Percentage) (“Offered Contribution Percentage“) other than pursuant to a Permitted Transfer, then the Transferring Member shall give deliver written notice (the "Transfer a “Sale Notice"“) to each other Member (any such Member receiving a Sale Notice hereunder, a “Non-Transferring Member“) setting forth the Company in writing of such intention, specifying Contribution Percentage that the number and kind of securities proposed Transferring Member proposes to be sold or transferred, the proposed price per share therefor (the "Transfer Price") and the other material terms, upon which such disposition is proposed to be made, including the names of the proposed purchasers or transferees if such persons have been identifiedTransfer.
(b) The Company Each Non-Transferring Member shall have the a right but not an obligation (such right, exercisable by written notice given by the Company a “ROFO Right“) to the Purchaser within ten calendar days of receipt of the Transfer Notice make an all-cash offer to purchase all of the shares specified in Offered Contribution Percentage from the Transferring Member. To the extent a Non-Transferring Member desires to exercise the ROFO Right, such Transfer Non-Transferring Member shall, within fifteen (15) days after the receipt of the Sale Notice, deliver a notice to the Transferring Member setting forth the price at which the Non-Transferring Member desires to purchase the Offered Contribution Percentage and any terms and conditions of the purchase (such notice, the “Election Notice”). Failure of a Non-Transferring Member to deliver a timely Election Notice upon shall constitute an election by such Non-Transferring Member not to exercise the terms specified in ROFO Right.
(c) If only one Election Notice is received, the Transferring Member shall, within fifteen (15) days after receiving such Transfer Election Notice, accept or reject the Election Notice by delivering a written notice to the Non-Transferring Member that delivered the Election Notice. Notwithstanding In the foregoingevent that more than one Election Notice is received, the Company Transferring Member shall select in good faith the Election Notice offering the highest cash consideration (the “Prevailing Election Notice”) and shall provide a written notice to all Non-Transferring Members that delivered an Election Notice setting forth the material terms the Prevailing Election Notice (including the amount of consideration offered for the Offered Contribution Percentage). Any such Non-Transferring Member shall have twenty-five calendar ten (10) days from the receipt of the Transfer notice setting forth the material terms of the Prevailing Election Notice (regardless the “Revised Offer Period”) to submit a revised Election Notice (a “Revised Election Notice”); provided, that the Non-Transferring Member that submitted the Prevailing Election Notice may deliver a conditional Revised Election Notice that will become effective only if another Non-Transferring Member delivers a Revised Election Notice offering higher cash consideration than the Prevailing Election Notice. At the end of the date Revised Offer Period, the Transferring Member shall select the Election Notice or Revised Election Notice offering the highest cash consideration and such Election Notice or Revised Election Notice shall thereafter become the Prevailing Election Notice. Within fifteen (15) days after the end of the Transfer Notice) to notify Purchaser of Revised Offer Period, the Company's election to purchase Transferring Member shall accept or reject the shares pursuant to this Section 7.2 if the Company shall furnish Prevailing Election Notice by delivering a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental written notice to the Company and its stockholders to decide whether to elect to purchase Non-Transferring Member that delivered the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 shall not constitute such an event). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have the right to pay for such shares specified in the Transfer Notice: (a) the same amount in cash, if the consideration to be paid consists of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that set forth in the Transfer Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement of the Company and the Purchaser.
(c) If the Company (or its assignees) does not exercise its right of first offer hereunder within the time specified for such exercise, the Seller(s) shall be free, during the period of 120 days following the date of the Transfer Notice, to sell the shares specified in such Transfer Notice for such consideration and on such other material terms as shall be no more favorable to the purchaser of the shares than the terms specified in such Transfer Prevailing Election Notice.
(d) The If a Transferring Member accepts an Election Notice or Revised Election Notice as contemplated in Section 10.4(b) or 10.4(c), as the case may be, then the Transferring Member shall negotiate in good faith and use commercially reasonable efforts to (i) enter into customary definitive documentation for the sale of the Offered Contribution Percentage (that contains customary representations and warranties, covenants and indemnities) on the terms and conditions set forth in the Election Notice or Revised Election Notice and (ii) consummate the sale of the Offered Contribution Percentage as soon as practicable and, in any event, no more than thirty (30) days after having received notice of the acceptance of the offer, which may be extended to the extent necessary to secure required governmental approvals.
(e) If no Non-Transferring Member delivers an Election Notice, or if the Transferring Member rejects all Election Notices or Revised Election Notices received by the Transferring Member as contemplated in Section 10.4(b) or 10.4(c), as the case may be, then, for a period of one-hundred twenty (120) days from the date the Transferring Member sends the applicable Non-Transferring Member written notice rejecting the Election Notice or Revised Election Notice, or if no Election Notices were received, from the date that is the fifteenth (15th) day following the delivery of the Sale Notice, the Transferring Member may Transfer the Offered Contribution Percentage to a Third Party for cash consideration greater than the cash consideration set forth in the Election Notice or Revised Election Notices. For the avoidance of doubt, if a Transferring Member does not effect the Transfer of the Offered Contribution Percentage within such one hundred twenty (120) day period, then any Transfer shall again be subject to the provisions of this Section 7.2 10.4.
(f) If any Transfer is proposed to be made to a Third Party pursuant to the foregoing provisions of this Section 10.4, the Company shall terminate upon the earlier to occur of: (i) permit the Proposed Transferees selected by the Transferring Member, after executing a confidentiality agreement in such time form as 3Com Corporation distributes its shares shall be reasonably acceptable to the Members, to conduct a due diligence review of the Company's Common Stock to the shareholders Company and its business, operations, prospects, assets, liabilities, financial condition and results of 3Com Corporation or operations, (ii) one year following cooperate in allowing Proposed Transferees to visit the Closing Dateoffices of the Company and (iii) make available the officers and technical personnel of the Company for the purpose of making presentations to such Proposed Transferees and answering questions posed by them, who shall provide reasonable cooperation during normal business hours and upon reasonable advance notice, and at such Transferring Member’s sole cost and expense.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Crestwood Midstream Partners LP)
Right of First Offer. For so long (a) During the period from the date of this Agreement and ending on the earlier of (i) the date of the payment of the Earn-Out Payment in accordance with Section 4.3, if any, and (ii) the date occurring 45 days after the Income Statement for the Fiscal Year 2007 is delivered pursuant to Section 4.3(b) (if as Purchaser holds any Sharesof such 45th date no Election Notice shall have been delivered to the Buyer by the Stockholders’ Representatives), if the Purchaser joins in a partnership, limited partnership, syndicate, Buyer desires to sell the Surviving Corporation or otherwise acts in concert grant an exclusive license to all or alone for the purpose of disposing of more than 5% substantially all of the Shares (as adjusted for stock splits or similar events after intellectual property of the date hereof) Surviving Corporation to a single person Person that is not an Affiliate of the Buyer or transferee engage in any other transaction or any group series of affiliated persons transactions pursuant to which the Surviving Corporation ceases to be an Affiliate of Buyer (such sale, license or transferees but specifically excluding any hedging or similar transactionsother transaction, a “Transfer”), the Purchaser Buyer shall give so notify the Company the opportunity to purchase such stock, in the following manner:
(a) The Purchaser shall give notice (the "Transfer Notice") to the Company Stockholders’ Representatives in writing of (such intentionnotice, specifying the number and kind of securities proposed to be sold or transferred, the proposed price per share therefor (the "Transfer Price"a “Sale Notice”) and the other material terms, upon which such disposition is proposed Preferred Stockholders or a designee thereof shall have the right (the “Right of First Offer”) to be made, including offer to purchase the names of Surviving Corporation from the proposed purchasers or transferees if such persons have been identifiedBuyer in accordance with this Section 4.5.
(b) The Company shall have the right, exercisable Right of First Offer may be exercised by written notice given from the Stockholders’ Representatives to the Buyer (such notice, an “Offer Notice”) within 30 days after the Buyer delivers a Sale Notice to the Stockholders’ Representatives, which written notice shall contain (i) a binding offer (an “Offer”) from one or more of the Preferred Stockholders or a designee thereof to purchase the Surviving Corporation for a cash purchase price and (ii) a good faith cash deposit in an amount equal to 10% of the purchase price contained in such Offer. Each Offer shall be irrevocable for a period of six months and one day from the date of the Offer Notice (such period, an “Offer Period”), subject to the occurrence of a Material Adverse Effect with respect to the Surviving Corporation in which case the Offer shall terminate upon notice from the Stockholders’ Representatives to the Buyer. If the Buyer does not accept any Offer during the relevant Offer Period, within five days after the expiration of such Offer Period the Buyer will return to the Preferred Stockholders or their designee, as the case may be, the deposit referred to in clause (ii) above.
(c) At any time during an Offer Period, the Buyer may either (i) accept the Offer relating to such Offer Period by written notice to the Stockholders’ Representatives or (ii) accept an offer to sell the Surviving Corporation to a Person other than the Preferred Stockholders or a designee thereof for a cash purchase price that is higher than the purchase price offered by such Preferred Stockholders or designee thereof in the relevant Offer. For a period of six months following the expiration of any Offer Period, the Buyer shall not Transfer the Surviving Corporation to any Person other than one or more of the Preferred Stockholders or a designee thereof (with the Stockholders’ Representatives acting as representatives therefor), except pursuant to an offer accepted in accordance with clause (ii) above. After the expiration of such six-month period following the expiration of an Offer Period, the Buyer may not Transfer the Surviving Corporation without first providing a Sale Notice and Right of First Offer as provided in clause (a) above.
(d) In the event that the Buyer Transfers the Surviving Corporation in accordance with this Section 4.5 to a Person other than the Preferred Stockholders or an Affiliate thereof, as a condition to such Transfer the Buyer’s obligations under Section 4.3 shall be assigned by the Company Buyer to, and assumed by, the Person to whom the Purchaser within ten calendar days Buyer shall Transfer the Surviving Corporation. In the event of receipt any such assignment and assumption, the Buyer shall be relieved of its obligations under Section 4.3 unless the purchaser of the Transfer Notice Surviving Corporation is an Affiliate of the Buyer.
(e) Nothing contained in this Section 4.5 shall in any way restrict the right of the Buyer to dissolve, liquidate or otherwise terminate the Surviving Corporation; provided that the Buyer shall give the Stockholders’ Representatives not less than 30 days’ prior written notice of any such dissolution, liquidation or other termination and shall permit the Preferred Stockholders to purchase all of the shares specified in such Transfer Notice upon issued and outstanding capital stock of the terms specified in such Transfer Notice. Notwithstanding the foregoing, the Company shall have twenty-five calendar days Surviving Corporation from the receipt Buyer prior to any such dissolution, liquidation or termination for a total cash purchase price of $2,500,000.
(f) In the event any sale of the Transfer Notice (regardless of Surviving Corporation to the date of Preferred Stockholders by the Transfer Notice) to notify Purchaser of the Company's election to purchase the shares Buyer shall be consummated pursuant to this Section 7.2 if 4.5, under the Company shall furnish a certificate signed by terms of such sale neither the President or Chief Executive Officer Buyer nor any Affiliate of the Company within ten calendar days of receipt Buyer shall be required to make any representations, warranties or indemnities with respect to any matters other than the Buyer’s good title to the stock of the Transfer Notice stating that, in Surviving Corporation at the good faith judgment time of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 such sale.
(it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions g) For purposes of this Section 7.2 shall not constitute such an event). The purchase 4.5, references to any “purchase” or “sale” of the shares by the Company must Surviving Corporation shall be completed within 60 calendar days from the receipt deemed to include a purchase or sale of all or substantially all of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have assets, together with the right to pay for such shares specified in the Transfer Notice: (a) the same amount in cash, if the consideration to be paid consists of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that set forth in the Transfer Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement assumption of the Company and all the Purchaser.
(c) If the Company (or its assignees) does not exercise its right of first offer hereunder within the time specified for such exerciseliabilities, the Seller(s) shall be free, during the period of 120 days following the date of the Transfer Notice, to sell the shares specified in such Transfer Notice for such consideration and on such other material terms as shall be no more favorable to the purchaser of the shares than the terms specified in such Transfer NoticeSurviving Corporation.
(d) The provisions of this Section 7.2 shall terminate upon the earlier to occur of: (i) such time as 3Com Corporation distributes its shares of the Company's Common Stock to the shareholders of 3Com Corporation or (ii) one year following the Closing Date.
Appears in 1 contract
Right of First Offer. For so long as Purchaser holds any Shares, if the Purchaser joins in a partnership, limited partnership, syndicate, or otherwise acts in concert or alone for the purpose of disposing of more than 5% of the Shares (as adjusted for stock splits or similar events after the date hereof) to a single person or transferee or any group of affiliated persons or transferees but specifically excluding any hedging or similar transactions, the Purchaser shall give the Company the opportunity to purchase such stock, in the following manner:
(a) The Purchaser In addition to Transfers permitted under Section 11.1, Owner Member may directly Transfer its Membership Interest in whole, or an owner of Owner Member may, directly or indirectly, Transfer an interest in Owner’s Membership Interest, in whole or in part, at any time, provided that it complies with this Section 11.2. If Owner Member desires to Transfer all, or an owner of Owner Member desires to (indirectly) Transfer all or any portion, of Owner Member’s Membership Interest in a transaction which is not otherwise permitted in Section 11.1 (in such capacity, the “ROFO Initiating Member”), then the ROFO Initiating Member shall give first deliver to the Investor Member (in such capacity, the “ROFO Non-Initiating Member”) a written notice (the "“ROFO Notice”), which shall specify the material terms and conditions pursuant to which the ROFO Initiating Member proposes to effect such Transfer Notice"including, among other terms and conditions, (i) to the ROFO Initiating Member’s total Percentage Interest, (ii) the percentage of limited liability company interests in the Company in writing of such intention, specifying represented by the number and kind of securities Membership Interests proposed to be sold or transferredTransferred pursuant to the ROFO Notice (the “ROFO Membership Interests”) and (iii) the total purchase price (which shall be in cash) (the “ROFO Interest Purchase Price”) in exchange for which the ROFO Initiating Member proposes to Transfer the ROFO Membership Interests. The ROFO Notice shall constitute the ROFO Initiating Member’s offer to Transfer the ROFO Membership Interests to the ROFO Non-Initiating Member on the terms and conditions identified in the ROFO Notice and such offer shall be irrevocable for a period of 30 days after delivery of the ROFO Notice (such period of 30 days, the proposed price per share therefor (the "Transfer Price") and the other material terms, upon which such disposition is proposed to be made, including the names of the proposed purchasers or transferees if such persons have been identified“ROFO Acceptance Period”).
(b) The Company shall have Within the right, exercisable by written notice given by the Company to the Purchaser within ten calendar days of receipt of the Transfer Notice to purchase all of the shares specified in such Transfer Notice upon the terms specified in such Transfer Notice. Notwithstanding the foregoingROFO Acceptance Period, the Company shall have twentyROFO Non-five calendar days from the receipt of the Transfer Notice (regardless of the date of the Transfer Notice) to notify Purchaser of the Company's election to purchase the shares pursuant to this Section 7.2 if the Company shall furnish a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 shall not constitute such an event). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company Initiating Member shall have the right to pay for such shares specified in the Transfer Notice: (a) the same amount in cash, if the consideration to be paid consists of cash, or (b) deliver to the extent that ROFO Initiating Member a notice (the consideration “ROFO Acceptance Notice”) stating its desire to be paid does purchase all (but not consist less than all) of cash, consideration per share equivalent to that the ROFO Membership Interests on the terms and conditions set forth in the Transfer ROFO Notice; provided, that simultaneously with the giving of the ROFO Acceptance Notice, such ROFO Non-Initiating Member shall deliver to a national title insurance company (or another comparable third-party), as escrow agent pursuant to a customary escrow agreement, a deposit in an amount of cash having equivalent value, as determined in good faith by mutual agreement equal to 10% of the Company and ROFO Interest Purchase Price (as the Purchasersame may be increased in connection with an extension of the Interest Closing Date, the “ROFO Deposit”).
(c) If the Company (or its assignees) does not exercise its right of first offer hereunder within the time specified for such exercise, the Seller(s) shall be free, during the period of 120 days following the date of the Transfer Notice, to sell the shares specified in such Transfer Notice for such consideration and on such other material terms as shall be no more favorable to the purchaser of the shares than the terms specified in such Transfer Notice.
(d) The provisions of this Section 7.2 shall terminate upon the earlier to occur of: ROFO Non-Initiating Member (i) such time as 3Com Corporation distributes its shares of the Company's Common Stock fails to the shareholders of 3Com Corporation deliver a ROFO Acceptance Notice pursuant to Section 11.2(b) or (ii) one year following gives the Closing ROFO Initiating Member notice that it has declined the ROFO Initiating Member’s offer, in each case on or before the expiration of the ROFO Acceptance Period (the earlier of such dates to occur, the “ROFO Expiration Date”), the ROFO Initiating Member may, at any time within six months after the ROFO Expiration Date, Transfer all (but not less than all) of the ROFO Membership Interests to any Person who is a Qualifying Buyer for a cash purchase price of not less than 95% of the ROFO Interest Purchase Price and on substantially the terms and conditions set forth in the ROFO Notice. If a Transfer does not occur during such six months period, the restrictions of this Section 11.2 shall again become applicable to the Transfer of all or a portion of the ROFO Membership Interests. If such Transfer is consummated within such six months period and such Transfer (a “Triggering Transfer”) is with respect to all of Owner Member’s Membership Interest other than a portion of Owner Member’s Membership Interest reflecting less than or equal to 1.1% of the total Membership Interests in the Company (the “Put Interest”), then Owner Member shall have the right to require Investor Member to purchase (the “Put Option”) and, if the Put Option is exercised, Investor Member shall purchase, the Put Interest, free and clear of all Liens and adverse claims, as described below.
(i) The Put Option may be exercised by Owner Member by delivering written notice (a “Put Notice”) to Investor Member within five (5) Business Days of the consummation of the Triggering Transfer. The Put Notice shall contain (i) a certification that a Triggering Transfer has been consummated, (ii) a written statement that Owner Member is exercising the Put Option under this Section 11.2(c) and (iii) Owner Member’s determination of the fair market value of the Property and the calculation of the Put Price, accompanied by a statement showing the calculation thereof in reasonable detail.
Appears in 1 contract
Samples: Limited Liability Company Agreement (New York REIT, Inc.)
Right of First Offer. For so long as Purchaser holds any Shares(a) Subject to Section 8.08, if applicable, from and after the Purchaser joins second anniversary of the date of this Agreement, if any Investor (the “Transferring Member”) proposes to Transfer (in one transaction or in a partnershipseries of transactions, limited partnershipincluding, syndicate, or otherwise acts in concert or alone for the purpose avoidance of disposing of more doubt, either directly or indirectly through a Member Entity Transfer) any Units to a third party (other than 5% of the Shares (as adjusted for stock splits or similar events after the date hereofi) to a single person Permitted Transferee, (ii) in a Public Offering, (iii) in a sale pursuant to Section 8.05, (iv) in a Company Sale (except that any Company Sale by means of a Transfer of less than all of the Units then outstanding shall be subject to this Section 8.04), (v) in a Drag-Along Sale, or transferee or any group of affiliated persons or transferees but specifically excluding any hedging or similar transactions(vi) in a sale pursuant to Section 8.03), the Purchaser Transferring Member shall give the Company the opportunity to purchase such stock, in the following manner:
(a) The Purchaser shall give written notice (the "Transfer “ROFO Notice"”) to (A) S&N, S&N Blocker (after S&N Blocker becomes a Member) and the Permitted Transferees thereof (if any of the Essex Members or any Permitted Transferee thereof is the Transferring Member) or (B) the Essex Members and the Permitted Transferees thereof (if S&N, S&N Blocker or any Permitted Transferee thereof is the Transferring Member) (S&N and S&N Blocker, on the one hand, or the Essex Members, on the other hand, the “Electing Members”) and the Company in writing of such intention, specifying proposed Transfer and the number and kind of securities Units proposed to be sold or transferredTransferred pursuant thereto (in the case of a Member Entity Transfer, the proposed price per share therefor (the "Transfer Price") and the other material terms, upon which such disposition is proposed to be made, including the names of the proposed purchasers or transferees if such persons have been identifiedas determined in accordance with Section 8.08(a)(i)).
(b) The Company Electing Members shall have the rightright and option, exercisable within 30 days after the date of the ROFO Notice, to make an offer (the “Offer”) to purchase up to their respective ROFO Percentages of the Units proposed to be Transferred at a price proposed by the Electing Members (which shall be in cash payable by wire transfer of immediately available funds in U.S. Dollars) (the “Member Entity ROFO Price”) and on the terms and conditions proposed by the Electing Members by providing written notice of the Offer to the Transferring Member (and the other Investors). In the case of a proposed indirect Transfer of Units by the Transferring Member through a Member Entity Transfer subject to this Section 8.04(b), each Electing Member a shall have the further right and option, exercisable by inclusion of such Electing Member’s election in the written notice given referred to in the immediately preceding sentence, to exercise its right to make an Offer with respect to either the Units held by the Company Transferring Member (subject to Section 8.04(e)) or the Purchaser within ten calendar days of receipt equity interests of the Transfer Notice Transferring Member proposed to be Transferred pursuant to such Member Entity Transfer. If any Electing Member fails to make an Offer to purchase its ROFO Percentage of the Units within such 30-day period, the Transferring Member shall give prompt written notice of such failure to those other Electing Members (if any) who do make an Offer to purchase up to their ROFO Percentage and such other Electing Members may make an Offer to purchase on a pro rata basis, based on the number of Units they have previously offered to purchase, all of the balance thereof (or commit to purchase all of the shares specified in such Transfer Notice upon balance thereof) at the price and on the terms specified in and conditions proposed by such Transfer Notice. Notwithstanding Electing Member by providing written notice of that proposal to the foregoingTransferring Member within 10 days after the expiration of the 30-day period described above (such 30-day period, as may be extended by the additional 10-day period, the Company shall have twenty-five calendar “ROFO Period”). Within 30 days from after the receipt end of the Transfer Notice ROFO Period, the Transferring Member shall provide written notice (regardless the “ROFO Response Notice”) to any Electing Member that has made an Offer prior to the end of the date ROFO Period as to whether the Transferring Member accepts or rejects such Electing Member’s Offer, and the Transferring Member shall be deemed to have rejected the Offer of the Transfer Notice) any Electing Member if it fails to so notify Purchaser of the Company's election to purchase the shares such Electing Member. Any Offer made by any Electing Member pursuant to this Section 7.2 if 8.04(b) shall be irrevocable and binding on the Company shall furnish a certificate signed Electing Member making such Offer, subject only to compliance by the President or Chief Executive Officer of Transferring Member with the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions terms of this Section 7.2 shall not constitute such an event). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have the right to pay for such shares specified in the Transfer Notice: (a) the same amount in cash, if the consideration to be paid consists of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that set forth in the Transfer Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement of the Company and the Purchaser8.04.
(c) The closing for all Transfers of the Units purchased by the Electing Members pursuant to the Transferring Member’s acceptance of any Offer shall occur within 30 days after the expiration of the ROFO Period (which 30-day period shall be extended to up to 90 days in the event any required approval of such sales from any governmental entity, including termination or expiration of the applicable waiting period under the HSR Act, has not then been obtained), or at such other time as may be mutually agreed upon by the Transferring Member and the applicable Electing Members purchasing the Units, with the Transferring Member being required to provide representations and indemnification to such purchasers only with respect to due authorization, valid execution and delivery, good title to the Units and no Liens on such Units (except as may arise under the terms of this Agreement). If the Company (or any purchasing Electing Member shall default in its assignees) does not exercise its right of first offer hereunder within the time specified for such exerciseobligations to purchase Units pursuant to this Section 8.04(c), the Seller(s) other purchasing Electing Members shall be free, during entitled to purchase the period Units that such defaulting Electing Member failed to purchase on the same basis as the other Units purchased by the non-defaulting Electing Members; provided that such purchase shall take place within 10 Business Days of 120 days following the date of the Transfer Notice, to sell the shares specified in such Transfer Notice for such consideration and on such other material terms as shall be no more favorable to the purchaser of the shares than the terms specified in such Transfer Noticedefault.
(d) The provisions Upon the failure of (i) the Electing Members to exercise their right to make an Offer with respect to all (and not less than all) of the Units subject to a ROFO Notice in accordance with Section 8.04(b) or (ii) the purchasing Electing Members to purchase all (and not less than all) of the Units subject to such ROFO Notice pursuant to Section 8.04(c) within the time designated therein for closing, as applicable (the time of such applicable failure, the “ROFO Termination”), the Transferring Member shall be relieved of such Transferring Member’s obligations under this Section 8.04 with respect to that particular proposed Transfer and, subject to Section 8.05, such Transferring Member shall be permitted, for a 90-day period commencing upon the ROFO Termination (which 90-day period shall be extended up to 180 days in the event any required approval of such sales from any governmental entity, including termination or expiration of the applicable waiting period under the HSR Act, has not then been obtained), to Transfer the Units subject to the ROFO Notice to one or more third party(s) at a price not lower, and on other terms and conditions in the aggregate not significantly more favorable to the third party(s), than offered to the Transferring Member by the Electing Members. If, at the end of such 90-day (or up to 180-day, as applicable) period, the Transferring Member has not completed such Transfer to one or more third party(s), then all the restrictions on Transfer contained in this Agreement with respect to Units subject to such ROFO Notice shall again be in effect.
(e) Notwithstanding any other provision of this Section 7.2 8.04 to the contrary, in connection with any proposed indirect Transfer of Units through a Member Entity Transfer subject to this Section 8.04, if any Electing Member makes an Offer with respect to the Units held by the Transferring Member, rather than with respect to the equity interests of the Transferring Member proposed to be Transferred pursuant to such Member Entity Transfer, such Electing Member agrees that the price that it shall pay to such Transferring Member for such Units (the “Member Unit ROFO Price”) shall be equal to (i) the Member Entity ROFO Price plus (ii) an amount equal to the product of: Gain = x [ 1 –1 ] For purpose of this Section 8.04(e), the Transferring Member’s “Gain” equals the excess, if any, of the Member Entity ROFO Price over the Transferring Member’s basis in its Units for U.S. federal income tax purposes, and “T” equals the Assumed Tax Rate. In connection with any proposed indirect Transfer of Units through a Member Entity Transfer subject to this Section 8.04, the Transferring Member shall include the Member Unit ROFO Price and shall certify its basis in the relevant Units for U.S. federal income tax purposes in the ROFO Response Notice.
(f) This Section 8.04 shall terminate upon the earlier to occur of: (i) such time as 3Com Corporation distributes its shares consummation of the Company's Common Stock to the shareholders of 3Com Corporation or (ii) one year following the Closing Datea Qualified Initial Public Offering.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Bioventus Inc.)
Right of First Offer. For so long as Purchaser holds any Shares(a) Subject to Section 8.08, if applicable, from and after the Purchaser joins second anniversary of the date of this Agreement, if any Investor (the “Transferring Member”) proposes to Transfer (in one transaction or in a partnershipseries of transactions, limited partnershipincluding, syndicate, or otherwise acts in concert or alone for the purpose avoidance of disposing of more doubt, either directly or indirectly through a Member Entity Transfer) any Units to a third party (other than 5% of the Shares (as adjusted for stock splits or similar events after the date hereofi) to a single person Permitted Transferee, (ii) in a Public Offering, (iii) in a sale pursuant to Section 8.05, (iv) in a Company Sale (except that any Company Sale by means of a Transfer of less than all of the Units then outstanding shall be subject to this Section 8.04), (v) in a Drag-Along Sale or transferee or any group of affiliated persons or transferees but specifically excluding any hedging or similar transactions(vi) in a sale pursuant to Section 8.03), the Purchaser Transferring Member shall give the Company the opportunity to purchase such stock, in the following manner:
(a) The Purchaser shall give written notice (the "Transfer “ROFO Notice"”) to (A) S&N, S&N Blocker (after S&N Blocker becomes a Member) and the Permitted Transferees thereof (if any of the Essex Members or any Permitted Transferee thereof is the Transferring Member) or (B) the Essex Members and the Permitted Transferees thereof (if S&N, S&N Blocker or any Permitted Transferee thereof is the Transferring Member) (S&N and S&N Blocker, on the one hand, or the Essex Members, on the other hand, the “Electing Members”) and the Company in writing of such intention, specifying proposed Transfer and the number and kind of securities Units proposed to be sold or transferredTransferred pursuant thereto (in the case of a Member Entity Transfer, the proposed price per share therefor (the "Transfer Price") and the other material terms, upon which such disposition is proposed to be made, including the names of the proposed purchasers or transferees if such persons have been identifiedas determined in accordance with Section 8.08(a)(i)).
(b) The Company Electing Members shall have the rightright and option, exercisable within 30 days after the date of the ROFO Notice, to make an offer (the “Offer”) to purchase up to their respective ROFO Percentages of the Units proposed to be Transferred at a price proposed by the Electing Members (which shall be in cash payable by wire transfer of immediately available funds in U.S. Dollars) (the “Member Entity ROFO Price”) and on the terms and conditions proposed by the Electing Members by providing written notice of the Offer to the Transferring Member (and the other Investors). In the case of a proposed indirect Transfer of Units by the Transferring Member through a Member Entity Transfer subject to this Section 8.04(b), each Electing Member shall have the further right and option, exercisable by inclusion of such Electing Member’s election in the written notice given referred to in the immediately preceding sentence, to exercise its right to make an Offer with respect to either the Units held by the Company Transferring Member (subject to Section 8.04(e)) or the Purchaser within ten calendar days of receipt equity interests of the Transfer Notice Transferring Member proposed to be Transferred pursuant to such Member Entity Transfer. If any Electing Member fails to make an Offer to purchase its ROFO Percentage of the Units within such 30-day period, the Transferring Member shall give prompt written notice of such failure to those other Electing Members (if any) who do make an Offer to purchase up to their ROFO Percentage and such other Electing Members may make an Offer to purchase on a pro rata basis, based on the number of Units they have previously offered to purchase, all of the balance thereof (or commit to purchase all of the shares specified in such Transfer Notice upon balance thereof) at the price and on the terms specified in and conditions proposed by such Transfer Notice. Notwithstanding Electing Member by providing written notice of that proposal to the foregoingTransferring Member within 10 days after the expiration of the 30-day period described above (such 30-day period, as may be extended by the additional 10-day period, the Company shall have twenty-five calendar “ROFO Period”). Within 30 days from after the receipt end of the Transfer Notice ROFO Period, the Transferring Member shall provide written notice (regardless the “ROFO Response Notice”) to any Electing Member that has made an Offer prior to the end of the date ROFO Period as to whether the Transferring Member accepts or rejects such Electing Member’s Offer, and the Transferring Member shall be deemed to have rejected the Offer of the Transfer Notice) any Electing Member if it fails to so notify Purchaser of the Company's election to purchase the shares such Electing Member. Any Offer made by any Electing Member pursuant to this Section 7.2 if 8.04(b) shall be irrevocable and binding on the Company shall furnish a certificate signed Electing Member making such Offer, subject only to compliance by the President or Chief Executive Officer of Transferring Member with the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions terms of this Section 7.2 shall not constitute such an event). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have the right to pay for such shares specified in the Transfer Notice: (a) the same amount in cash, if the consideration to be paid consists of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that set forth in the Transfer Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement of the Company and the Purchaser8.04.
(c) The closing for all Transfers of the Units purchased by the Electing Members pursuant to the Transferring Member’s acceptance of any Offer shall occur within 30 days after the expiration of the ROFO Period (which 30-day period shall be extended to up to 90 days in the event any required approval of such sales from any governmental entity, including termination or expiration of the applicable waiting period under the HSR Act, has not then been obtained), or at such other time as may be mutually agreed upon by the Transferring Member and the applicable Electing Members purchasing the Units, with the Transferring Member being required to provide representations and indemnification to such purchasers only with respect to due authorization, valid execution and delivery, good title to the Units and no Liens on such Units (except as may arise under the terms of this Agreement). If the Company (or any purchasing Electing Member shall default in its assignees) does not exercise its right of first offer hereunder within the time specified for such exerciseobligations to purchase Units pursuant to this Section 8.04(c), the Seller(s) other purchasing Electing Members shall be free, during entitled to purchase the period Units that such defaulting Electing Member failed to purchase on the same basis as the other Units purchased by the non-defaulting Electing Members; provided that such purchase shall take place within 10 Business Days of 120 days following the date of the Transfer Notice, to sell the shares specified in such Transfer Notice for such consideration and on such other material terms as shall be no more favorable to the purchaser of the shares than the terms specified in such Transfer Noticedefault.
(d) The provisions Upon the failure of (i) the Electing Members to exercise their right to make an Offer with respect to all (and not less than all) of the Units subject to a ROFO Notice in accordance with Section 8.04(b) or (ii) the purchasing Electing Members to purchase all (and not less than all) of the Units subject to such ROFO Notice pursuant to Section 8.04(c) within the time designated therein for closing, as applicable (the time of such applicable failure, the “ROFO Termination”), the Transferring Member shall be relieved of such Transferring Member’s obligations under this Section 8.04 with respect to that particular proposed Transfer and, subject to Section 8.05, such Transferring Member shall be permitted, for a 90-day period commencing upon the ROFO Termination (which 90-day period shall be extended up to 180 days in the event any required approval of such sales from any governmental entity, including termination or expiration of the applicable waiting period under the HSR Act, has not then been obtained), to Transfer the Units subject to the ROFO Notice to one or more third party(s) at a price not lower, and on other terms and conditions in the aggregate not significantly more favorable to the third party(s), than offered to the Transferring Member by the Electing Members. If, at the end of such 90-day (or up to 180-day, as applicable) period, the Transferring Member has not completed such Transfer to one or more third party(s), then all the restrictions on Transfer contained in this Agreement with respect to Units subject to such ROFO Notice shall again be in effect.
(e) Notwithstanding any other provision of this Section 7.2 8.04 to the contrary, in connection with any proposed indirect Transfer of Units through a Member Entity Transfer subject to this Section 8.04, if any Electing Member makes an Offer with respect to the Units held by the Transferring Member, rather than with respect to the equity interests of the Transferring Member proposed to be Transferred pursuant to such Member Entity Transfer, such Electing Member agrees that the price that it shall pay to such Transferring Member for such Units (the “Member Unit ROFO Price”) shall be equal to (i) the Member Entity ROFO Price plus (ii) an amount equal to the product of: For purpose of this Section 8.04(e), the Transferring Member’s “Gain” equals the excess, if any, of the Member Entity ROFO Price over the Transferring Member’s basis in its Units for U.S. federal income tax purposes, and “T” equals the Assumed Tax Rate. In connection with any proposed indirect Transfer of Units through a Member Entity Transfer subject to this Section 8.04, the Transferring Member shall include the Member Unit ROFO Price and shall certify its basis in the relevant Units for U.S. federal income tax purposes in the ROFO Response Notice.
(f) This Section 8.04 shall terminate upon the earlier to occur of: (i) such time as 3Com Corporation distributes its shares consummation of the Company's Common Stock to the shareholders of 3Com Corporation or (ii) one year following the Closing Datea Qualified Initial Public Offering.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Bioventus Inc.)
Right of First Offer. For so long as Stock subject to the Purchase Option may not -------------------- be transferred. Before any shares of Stock registered in the name of Purchaser holds any Sharesand not subject to the Purchase Option may be sold or transferred (including transfer by operation of law or other involuntary transfer and excluding transfers by gift, will or intestate succession of the Purchaser to the Purchaser's spouse or lineal descendants or ancestors of a trust for the benefit of such persons if the Purchaser joins transferee agrees in writing in a partnership, limited partnership, syndicate, or otherwise acts in concert or alone for the purpose of disposing of more than 5% of the Shares (as adjusted for stock splits or similar events after the date hereof) form satisfactory to a single person or transferee or any group of affiliated persons or transferees but specifically excluding any hedging or similar transactions, the Purchaser shall give the Company to be subject to the opportunity terms of this Agreement) such shares shall first be offered to purchase such stock, the Company in the following manner:
(a) a. The Purchaser or his or her transferee shall give deliver a notice by certified mail (the "Transfer Notice") to the principal business office of the Company in writing stating (i) his or her bona fide intention to sell or transfer such shares, (ii) the number of such intention, specifying the number and kind of securities proposed shares to be sold or transferred, and (iii) the proposed price per share therefor (the "Transfer Price") and the other material termsprice, upon if any, for which he or she proposes to sell or transfer such disposition is proposed to be made, including the names of the proposed purchasers or transferees if such persons have been identifiedshares.
(b) The Company shall have the right, exercisable by written notice given by the Company to the Purchaser within ten calendar days of receipt of the Transfer Notice to purchase all of the shares specified in such Transfer Notice upon the terms specified in such Transfer Notice. Notwithstanding the foregoing, the Company shall have twenty-five calendar days from the receipt of the Transfer Notice (regardless of the date of the Transfer Notice) to notify Purchaser of the Company's election to purchase the shares pursuant to this Section 7.2 if the Company shall furnish a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 shall not constitute such an event). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. b. The Company shall have the right at any time within thirty (30) days of receipt of the Notice to pay for such purchase some or all of the shares to which the Notice refers at the price per share specified in the Transfer Notice: (a) the same amount in cash, if the consideration to be paid consists of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that set forth in the Transfer Notice, or an amount of cash having equivalent valueif no price is specified therein, at the fair market value thereof as determined by the Board of Directors in good faith faith. Said right shall be exercised by mutual agreement written notice signed by an officer of the Company and delivered or mailed as provided in subsection 9(b), which notice shall specify the Purchasertime, place and date for settlement of such purchase.
(c) If c. In the event the Company (or its assignees) does not not, for any reason, exercise its right of first offer hereunder within pursuant hereto the time specified for Company may assign such exerciseright, provided such right shall not extend beyond such 30-day period. If exercised by the assignees pursuant hereto, the Seller(s) right to purchase shall be freeexercised by written notice signed by the exercising assignees and delivered or mailed as provided in subsection 9(b) which notice shall specify the time, during place and date for settlement of such purchase. Purchaser shall sell to the period Company or such assignees the number of 120 shares which either of them elect to purchase, such sale to be consummated within seventy-five (75) days following after the date of the Transfer Notice, to sell the shares specified in such Transfer Notice for such consideration and on such other material terms as shall be no more favorable to the purchaser .
d. If some or all of the shares than to which the Notice refers are not elected to be purchased, as provided in subsections 5(b) and 5(c) hereof, the Purchaser may sell such shares at the price specified in the Notice or at a higher price, provided that such sale or transfer is consummated within seventy-five (75) days of the date of said Notice to the Company, and provided, further, that any such sale is in accordance with all the terms specified and conditions hereof. If Purchaser does not consummate the sale or transfer within such seventy-five (75) day period, the right provided hereby shall be deemed to be revived with respect to such shares and no sale or transfer shall be effected without first offering the shares in such Transfer Noticeaccordance herewith.
(d) The provisions e. Purchaser agrees to cooperate affirmatively with the Company, to the extent reasonably requested by the Company, to enforce rights and obligations pursuant to this Agreement.
f. Notwithstanding the above, neither the Company nor the assignees of the Company shall have any right under this Section 7.2 shall terminate upon 5 at any time subsequent to the earlier to occur of: (i) such time as 3Com Corporation distributes its shares Closing of a bona fide, firm commitment underwritten public offering of the Company's Common Stock common stock of the Company pursuant to a Registration Statement declared effective under the shareholders Securities Act of 3Com Corporation or (ii) one year following the Closing Date1933, as amended.
Appears in 1 contract
Right of First Offer. For so long as Purchaser holds any Shares, if the Purchaser joins in a partnership, limited partnership, syndicate, or otherwise acts in concert or alone for the purpose of disposing of more than 5% of the Shares (as adjusted for stock splits or similar events after the date hereof) to a single person or transferee or any group of affiliated persons or transferees but specifically excluding any hedging or similar transactions, the Purchaser shall give the Company the opportunity to purchase such stock, in the following manner:
(a) The Purchaser shall give notice (the "Transfer Notice") to the Company in writing of such intention, specifying the number and kind of securities proposed to be sold or transferred, the proposed price per share therefor (the "Transfer Price") and the other material terms, upon which such disposition is proposed to be made, including the names of the proposed purchasers or transferees if such persons have been identified.
(b) The Company shall have the right, exercisable by written notice given by the Company to the Purchaser within ten calendar days of receipt of the Transfer Notice to purchase all of the shares specified in such Transfer Notice upon the terms specified in such Transfer Notice. Notwithstanding the foregoing, the Company shall have twenty-five calendar days At any time from the receipt of Closing under this Agreement until the Transfer Notice (regardless of the date of the Transfer Notice) to notify Purchaser time that any class of the Company's election to purchase equity securities are registered under the shares pursuant to this Section 7.2 if the Company shall furnish a certificate signed by the President or Chief Executive Officer Securities and Exchange Act of the Company within ten calendar days of receipt of the Transfer Notice stating that1934, as amended, in the good faith judgment event that the Company desires to enter into negotiations to issue, sell or otherwise transfer any of its capital stock or securities exercisable for, or exchangeable into capital stock (the "Offered Stock") to any person, it shall promptly so notify Grumman Hill, IXC, NYSERNet and the Management Stockholders (other than Richxxx Xxxxxxxxxx) (xhe "Offerees") and shall offer to sell to each of the management Offerees (the "Offer") its pro rata share (as defined below) of the CompanyOffered Stock it desires to sell at the price, it and on the terms and conditions, upon which the Company would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser willing to sell such Shares in a transaction triggering the provisions of this Section 7.2 shall not constitute such an event)Offered Stock to that person. The purchase of In the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have the right to pay for such shares specified in the Transfer Notice: (a) the same amount in cash, if the consideration to be paid consists of cash, or (b) to the extent event that the consideration to be paid does by such person is not consist of cash, consideration per share equivalent to that set forth in the Transfer Notice, or an amount of cash having equivalent value, as determined Board shall determine in good faith by mutual agreement an equivalent cash price and the Offerees, at their option, can choose to pay the equivalent cash price, or, if practicable, to pay consideration of the same or similar kind to that which such person will pay. At any time during the first seven (7) days following receipt of the Offer, the Offerees may notify the Company that they exercise their right to purchase their pro rata portion of the Offered Stock (based on the respective Offeree's percentage ownership of the Company's capital stock computed on a basis that assumes full exercise of (i) all employee stock options and (ii) the Purchaser.
put option in the Option Agreements referred to herein) on the same terms and conditions as are specified in the Offer (c) an "Acceptance Notice"). If the Company shall not receive any Acceptance Notice or shall not receive Acceptance Notices sufficient to sell all of the Offered Stock, it shall have the right to sell any remaining shares of the Offered Stock to any person or entity at a price equal to the price set out in the Offer, and upon such other terms and conditions as are no less favorable to the Company than those set out in the Offer; provide, however, that none of such terms and conditions shall violate any provision of this Agreement and such sale must be consummated within ninety (or its assignees90) does not exercise its right of first offer hereunder within the time specified for such exercise, the Seller(s) shall be free, during the period of 120 days following from the date of the Transfer Notice, to sell the shares specified in such Transfer Notice for such consideration and on such other material terms as shall be no more favorable to the purchaser of the shares than the terms specified in such Transfer NoticeOffer.
(db) The provisions With respect to each purchase of Offered Stock by the Offerees under this Section 7.2 6.2, the closing therefor shall terminate upon be held at 10 a.m. at the earlier to occur of: (i) such time as 3Com Corporation distributes its shares principal office of the Company's Common Company on the date determined in accordance with Section 6.2(a) hereof. The purchase price for the Offered Stock shall be paid in full at such closing in cash or by certified check payable to the shareholders order of 3Com Corporation the Company against delivery of the appropriate stock certificates or (ii) one year following instruments evidencing such Offered Stock, duly endorsed or with duly executed stock powers attached thereto. Stock delivered at each closing hereunder shall be free and clear of all liens, charges and encumbrances, and all title thereto, and all rights and privileges of ownership thereof, immediately shall be vested in the Closing Datepurchaser thereof. The purchaser shall pay all transfer taxes, and all requisite transfer tax stamps shall be duly affixed to the stock certificates at the time of delivery.
Appears in 1 contract
Right of First Offer. For so long as Purchaser holds any Shares10.3.1 Notwithstanding anything herein to the contrary (including but not limited to Section 10.1.1), if any Member (the Purchaser joins in "Transferring Member") intends to transfer all or a partnership, limited partnership, syndicate, portion of its Voting Interest or otherwise acts in concert Economic Interest (the "Sale Interest") to any Person or alone for the purpose entity who is not a Member or Affiliate of disposing of more than 5% any Member of the Shares Company (as adjusted for stock splits or similar events after the date hereof) to a single person or transferee or any group of affiliated persons or transferees but specifically excluding any hedging or similar transactions"Third Party"), the Purchaser Transferring Member shall give the Company the opportunity to purchase such stock, in the following manner:
(a) The Purchaser shall give written notice (the "Transfer Notice") to the Company in writing other Members of the same Series (the "Non-Transferring Members") of such intention. The Transfer Notice, specifying in addition to stating the number and kind fact of securities the intention to transfer, shall set forth: (i) the amount of Sale Interest proposed to be sold or transferred, ; (ii) the name and address of the Third Party; (iii) the proposed price per share therefor (the "Transfer Price") amount of consideration and the other material terms, upon which such disposition is proposed to be made, including the names terms and conditions of the proposed purchasers or transferees if such persons have been identified.
(b) The Company shall have the right, exercisable by written notice given payment offered by the Company to Third Party; and (iv) that the Purchaser within ten calendar days of receipt Third Party has been informed of the Transfer Notice provided for in this Section 10.3. Each of the Non-Transferring Members may, within thirty (30) days of its receipt of a Transfer Notice, exercise an option to purchase all its pro-rata portion of the shares specified Sale Interest intended to be transferred by the Transferring Member as indicated in such Transfer Notice upon the terms specified in such Transfer Notice. Notwithstanding Each of the foregoing, Non-Transferring Members must exercise its option to purchase its pro-rata portion of the Company shall have twenty-five calendar days from Sale Interest on the receipt terms of the Transfer Notice or forfeit its option granted hereunder. The Non-Transferring Member(s), if any, shall exercise its or their, as the case may be, option by delivering written notice (regardless of the date of the Transfer "Acceptance Notice") to notify Purchaser of the Company's election to Transferring Member within the time period specified above.
10.3.2 The purchase price for the shares Sale Interest purchased pursuant to this Section 7.2 if the Company 10.3 shall furnish a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 shall not constitute such an event). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have the right to pay for such shares specified in the Transfer Notice: (a) the same amount in cash, if the consideration to be paid consists of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that as set forth in the Transfer Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement . The closing of the Company sale and purchase shall take place within sixty (60) days after the Purchaserdelivery to the Transferring Member of the Acceptance Notice.
(c) 10.3.3 If not all of the Company (or Non-Transferring Members elect to exercise their respective option to purchase its assignees) does not exercise its right pro-rata interest in the remaining portion of first offer hereunder within the time specified for such exerciseSale Interest pursuant to Section 10.3.1 above, then the Seller(s) shall be free, during Transferring Member may transfer the period of 120 days following Sale Interest according to the date terms of the Transfer Notice, to sell Notice at any time within one hundred eighty (180) days after the shares expiration of the thirty (30) day period specified in such Transfer Notice for such consideration and on such other material terms as Section 10.3.1 above. Such transfer shall not require consent pursuant to Section 10.1.1, but shall be no more favorable subject to the purchaser of the shares than the terms specified in such Transfer Notice.
(d) The provisions all other terms, covenants and conditions of this Section 7.2 shall terminate upon the earlier to occur of: (i) such time as 3Com Corporation distributes its shares of the Company's Common Stock to the shareholders of 3Com Corporation or (ii) one year following the Closing DateLLC Agreement.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Great Plains Energy Inc)
Right of First Offer. For so long as (a) Prior to the Transfer for value of any Interests in the Company by a Purchaser Member Party or a Member (other than an Emdeon Party) who has acquired its interests from a Purchaser Member Party and holds any Shares, if the Purchaser joins in a partnership, limited partnership, syndicate, or otherwise acts in concert or alone for the purpose of disposing of more than Units equal to at least 5% of the Shares outstanding Units (as adjusted for stock splits or similar events after the date hereof) other than to a single person or transferee or any group Purchaser Member Permitted Transferee) (for purposes of affiliated persons or transferees but specifically excluding any hedging or similar transactions, the Purchaser shall give the Company the opportunity to purchase such stock, in the following manner:
this paragraph (a) The and paragraph (b) below, a “Proposed Transfer”), such Member(s) (the “Purchaser Selling Members”) shall give a notice in writing (the "“Transfer Notice"”) to the Company in writing of such intention, specifying the number and kind of securities proposed to be sold or transferred, the proposed price per share therefor (the "Transfer Price") and the Emdeon Parties setting forth the desire to Transfer, which notice shall include the price and other material terms, upon which terms that the Purchaser Selling Members would be willing to accept. Each such disposition is proposed notice shall constitute a binding commitment by the applicable Member to be made, including sell the names of the proposed purchasers or transferees if such persons have been identifiedInterest referred to therein as provided in this Section 9.5.
(b) The Company shall have the rightUpon receipt of such Transfer Notice, exercisable by written notice given by the Company (acting for purposes of this Section 9.5 upon the decision of the disinterested Directors) will have an option to purchase, in the aggregate, all (but not part) of the Interest described in the Transfer Notice at the price specified in the Transfer Notice. If the Company desires to exercise the option set forth in the preceding sentence, it shall deliver a notice (an “Election Notice”) to the Purchaser Selling Members and the Emdeon Parties within ten calendar (10) days of receipt of the Transfer Notice (the “Election Period”). If the Company does not deliver an Election Notice to the Purchaser Selling Members and the Emdeon Parties within the Election Period, then the Emdeon Parties will have the option to deliver an Election Notice to the Purchaser Selling Members within twenty (20) days after the expiration of the Election Period. Subject to the restrictions contained in Section 9.1(b) and 9.4, the Emdeon Parties may assign the right to exercise all or part of the option to purchase all Interest described in a particular Transfer Notice to one or more of its Affiliates or other Persons, in which case (i) the Emdeon Parties shall specify the Persons exercising such option and the amount of Interests to be acquired by each such assignee not less than ten (10) days before the consummation of the shares Proposed Transfer (provided that, in any event, all Interests specified in the relevant Transfer Notice shall be purchased) and (ii) references to the Emdeon Parties in this Section 9.5 shall be deemed to refer to such assignees as appropriate to reflect such assignment.
(c) Prior to the Transfer for value of any Interests in the Company by an Emdeon Party or a Member (other than a Purchaser Member Party) who has acquired its interests from an Emdeon Party and holds Units equal to at least 5% of the outstanding Units (other than to an Emdeon Permitted Transferee) (for purposes of this paragraph (c) and paragraph (d) below, a “Proposed Transfer”), such Member (the “Emdeon Selling Members”) shall give a Transfer Notice to the Company and the Purchaser Member Parties setting forth the desire to Transfer, which notice shall include the price and other material terms and conditions the Emdeon Selling Members would be willing to accept. Each such notice shall constitute a binding commitment by the applicable Member to sell the Interest referred to therein as provided in this Section 9.5.
(d) Upon receipt of such Transfer Notice, the Company (acting for purposes of this Section 9.5 upon the decision of the disinterested Directors) will have an option to purchase, in the aggregate, all (but not part) of the Interest described in the Transfer Notice in each case at the price specified in the Transfer Notice. If the Company desires to exercise the option set forth in the preceding sentence, it shall deliver an Election Notice to the Emdeon Selling Members and the Purchaser Member Parties within the Election Period. If the Company does not deliver an Election Notice before the end of the Election Period, then the Purchaser Member Parties shall have the option to deliver an Election Notice to the Emdeon Selling Members within twenty (20) days after the expiration of the Election Period. Subject to the restrictions contained in Section 9.1(b) and 9.4, the Purchaser Member Parties may assign the right to exercise all or part of the option to purchase Interests described in a particular Transfer Notice to one or more of its Affiliates or other Persons, in which case (i) the Purchaser Member Parties shall specify the Persons exercising such option not less than ten (10) days before the consummation of the Proposed Transfer (provided that, in any event, all Interests specified in the relevant Transfer Notice shall be purchased) and (ii) references to the Purchaser Member Parties in this Section 9.5 shall be deemed to refer to such assignees as appropriate to reflect such assignment.
(e) If the Company, the Emdeon Parties or the Purchaser Member Parties deliver an Election Notice, then such Members shall be obligated to purchase, and the applicable Member(s) shall be obligated to sell, the Interests described in such Transfer Notice upon at the cash price and on the other terms indicated in the notice, except that the closing of such purchase and sale shall be held on the tenth business day after the expiration of the Election Period at 9:00 a.m., local time, at the principal executive office of the Company, or at such other time and place as the parties to such purchase and sale may mutually agree.
(f) If a Member that is subject to the transfer restrictions of Section 9.5(a) or (c) has complied with the provisions of this Section 9.5 and no Election Notice is delivered pursuant thereto, such Member may, subject to the provisions of the last sentence of Section 9.1(a) and Section 9.1(b) hereof and compliance with the provisions of Section 9.6 or Section 9.7 hereof, Transfer the Interests described in the Transfer Notice, but only for consideration consisting solely of cash and/or Marketable Securities and on terms and conditions that are no more favorable in any material respect to the purchaser than those specified in such Transfer Notice. Notwithstanding the foregoing; provided, the Company shall have twenty-five calendar days from the receipt of the Transfer Notice that (regardless of the date of the Transfer Notice) to notify Purchaser of the Company's election to purchase the shares pursuant to this Section 7.2 if the Company shall furnish a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 shall not constitute such an event). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have the right to pay for such shares specified in the Transfer Notice: (ai) the same amount in cash, if the consideration to be paid consists of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that restrictions set forth in Section 9.4 (in the case of a Transfer Notice, under Section 9.7) and the procedures of Section 9.6 or an amount of cash having equivalent valueSection 9.7, as determined in good faith by mutual agreement of the Company and the Purchaser.
(c) If the Company (or its assignees) does not exercise its right of first offer hereunder within the time specified for such exerciseapplicable, the Seller(s) shall be freeare met, during the period of 120 days following the date of the Transfer Notice, to sell the shares specified in such Transfer Notice for such consideration and on such other material terms as shall be no more favorable to the purchaser of the shares than the terms specified in such Transfer Notice.
(d) The provisions of this Section 7.2 shall terminate upon the earlier to occur of: (i) such time as 3Com Corporation distributes its shares of the Company's Common Stock to the shareholders of 3Com Corporation or (ii) one year following the Closing Date.acquiring
Appears in 1 contract
Right of First Offer. For so long as Purchaser holds any Shares, if the Purchaser joins in a partnership, limited partnership, syndicate, or otherwise acts in concert or alone for the purpose of disposing of more than 5% of the Shares (as adjusted for stock splits or similar events after the date hereof) to a single person or transferee or any group of affiliated persons or transferees but specifically excluding any hedging or similar transactions, the Purchaser shall give the Company the opportunity to purchase such stock, in the following manner:
(a) The Purchaser GAHR3 shall give notice cause all of its Affiliates to act in accordance with this Section 6.06, GAHR4 shall cause all of its Affiliates to act in accordance with this Section 6.06, and NHI shall cause all of its Affiliates (the "Transfer Notice"as applicable) to the Company act in writing of such intention, specifying the number and kind of securities proposed to be sold or transferred, the proposed price per share therefor (the "Transfer Price") and the other material terms, upon which such disposition is proposed to be made, including the names of the proposed purchasers or transferees if such persons have been identifiedaccordance with this Section 6.06.
(b) At any time (i) prior to September 11, 2020 with regard to a Transfer of Units with respect to which a Member may not unreasonably withhold its Consent pursuant to Section 6.01(a), or (ii) after September 11, 2020 with regard to any Transfer of Units, if GAHR3, GAHR4 or NHI (the “Selling Member”) desires to Transfer (or cause its Affiliate to Transfer) all or any portion of its Units to a purchaser that is not an Affiliate of GAHR3, GAHR4 or NHI in a single, arm’s length transaction, or in a series of related arm’s length transactions through the sale of Units, or a merger, consolidation or other similar corporate reorganization of the Company (the “Proposed Sale” and the Units that are the subject of such Proposed Sale are the “Proposed Units”), the Selling Member shall notify each other Member (each an “Offeree Member” and collectively, the “Offeree Members”) in writing of its intentions to sell (the “Initial Sale Notice”). The Company Initial Sale Notice shall contain general information on the proposed sale. The parties shall have sixty (60) days to discuss the rightproposed sale (such sixty (60) day period beginning upon receipt by the Offeree Members of the Initial Sale Notice defined as the “Proposed Sale Discussion Period”). If, exercisable by after the Proposed Sale Discussion Period, the Selling Member still desires to proceed with the Proposed Sale, then Selling Member shall provide a formal written notice given (the “Proposed Sale Notice”) to each Offeree Member within thirty (30) days after the end of the Proposed Sale Discussion Period. The Proposed Sale Notice shall specify the proposed sale price of the Proposed Units and the material terms and conditions of such Proposed Sale (the “Proposed Sale Terms”). If applicable, the Proposed Sale Notice may also constitute the Drag-Along Notice provided for in Section 6.07 or the Tag-Along Notice provided for by the Company to the Purchaser within ten calendar Section 6.08 if it includes all information required by such sections. Within thirty (30) days of after receipt of the Transfer Proposed Sale Notice (such period beginning upon the Offeree Members’ receipt of the Proposed Sale Notice and ending on the thirtieth (30th) day thereafter being known as the “Proposed Sale Notice Period”), each Offeree Member may elect to purchase all of the shares specified in such Transfer Notice Proposed Units from the Selling Member upon the same terms specified in such Transfer Notice. Notwithstanding the foregoing, the Company shall have twenty-five calendar days from the receipt of the Transfer Notice (regardless of the date of the Transfer Notice) to notify Purchaser of the Company's election to purchase the shares pursuant to this Section 7.2 if the Company shall furnish a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 shall not constitute such an event). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have the right to pay for such shares specified in the Transfer Notice: (a) the same amount in cash, if the consideration to be paid consists of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that conditions as those set forth in the Proposed Sale Notice by delivering a written notice (the “Purchase Notice”) of such election to the Selling Member. If an Offeree Member elects to purchase the Proposed Units, then the closing of such Transfer shall take place at such time and place as specified in the Purchase Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement which date shall not be more than one hundred twenty (120) days after delivery of the Company and Purchase Notice by the PurchaserOfferee Member, subject to extension of up to an additional one hundred fifty (150) days if necessary in order to obtain any third party Consents required to consummate the Proposed Sale. At the closing, the Selling Member shall deliver such customary transfer documents as the applicable Offeree Member may reasonably request to Transfer the Proposed Units to be sold by such Selling Member, against delivery of the applicable consideration. In the event more than one Offeree Member elects to purchase the Proposed Units, such units shall be allocated to each Offeree Member pro rata in accordance with their relative Percentage Interests.
(c) If no Offeree Member timely elects to purchase the Company Selling Member’s Proposed Units or if one or more Offeree Members timely elect to purchase the Proposed Units but one or more Offeree Members fails to close the purchase in the time frame described in Section 6.06(c), then, subject to Section 6.06(e), the Selling Member may proceed with the Proposed Sale without the Consent of any Member or Manager, provided that (i) (A) if no Offeree Member timely elected to purchase the Selling Member’s Proposed Units, such Proposed Sale is consummated within one hundred twenty (120) days following the end of the Proposed Sale Notice Period, subject to extension of up to an additional one hundred fifty (150) days if necessary in order to obtain any third party Consents required to consummate the Proposed Sale, or its assignees(B) does not exercise its right if an Offeree Member elected to purchase the Proposed Units but fails to close the purchase of first offer hereunder the Proposed Units within the time specified for frame described in Section 6.06(c), such exercise, the Seller(sProposed Sale is consummated within one hundred twenty (120) shall be free, during the period of 120 days following the last possible date that the Offeree Member could have consummated the Proposed Sale in accordance with Section 6.06(c), subject to extension of up to an additional one hundred fifty (150) days if necessary in order to obtain any third party Consents required to consummate the Proposed Sale, and (ii) the actual sale terms are substantially consistent with the Proposed Sale Terms (it being acknowledged and agreed that the sale price of the Transfer Proposed Units must be equal to or greater than ninety-eight percent (98%) of the sale price of the Proposed Units as specified in the Proposed Sale Notice). If no Offeree Member elected to purchase the Selling Member’s Proposed Units, and the Proposed Sale is not consummated within the time frame and on the terms described above, the Offeree Member shall have the right to require that the Selling Member thereafter again comply with this Section 6.06, however if the Selling Member provides the Offeree Members a subsequent Proposed Sale Notice on the same or more favorable terms to the Offeree Members within one hundred eighty (180) days from the original Proposed Sale Notice, to sell the shares specified in such Transfer Notice for such consideration and on such other material terms as shall be no more favorable each Offeree Member must respond to the purchaser subsequent Proposed Sale Notice within ten (10) Business Days after receipt of the shares than the terms specified in such Transfer subsequent Proposed Sale Notice.
(d) If any Member shall default in its obligations under this Section 6.06, then the other Member may seek specific performance of such Member’s obligations under this Section 6.06 or pursue any other remedies at law or in equity. In addition, to the extent any Member fails to take any required action in connection with this Section 6.06, each Member hereby grants the other Member power of attorney to take such action on such Member’s behalf. The power of attorney granted pursuant to this Section 6.06(d) is a special power of attorney coupled with an interest and is irrevocable.
(e) If both Offeree Members elect to purchase the Proposed Units but one Offeree Member (the “Defaulting Offeree Member”) fails to close the purchase in the time frame described in Section 6.06(c), then the Offeree Member (the “Non-defaulting Offeree Member”) which is prepared to close on the purchase of the Proposed Units it elected to Purchase shall have the right to purchase the Proposed Units that the Defaulting Offeree Member fails to purchase. The Selling Member shall give the Non-defaulting Offeree Member notice of such failure by the Defaulting Offeree Member and the Non-defaulting Offeree Member shall have a period of twenty (20) days to elect whether to purchase the Proposed Units which the Defaulting Offeree Member failed to purchase and shall have an additional period of time, not to exceed (20) days, to consummate such sale subject to a reasonable extension of time necessary in order to obtain any third party Consents required to consummate such sale. If the Non-defaulting Offeree Member does not elect to purchase the Proposed Units which the Defaulting Offeree Member failed to Purchase within the time period set forth in this Section 6.06(e), then the Selling Member may proceed with the Proposed Sale of all of the Proposed Units without the Consent of any Member or Manager but subject to the provisions of this Section 7.2 6.06, and the Non-defaulting Offeree Member shall terminate upon have no further right to purchase the earlier Proposed Units it elected to occur of: (i) such time as 3Com Corporation distributes its shares of the Company's Common Stock to the shareholders of 3Com Corporation or (ii) one year following the Closing Datepurchase.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Griffin-American Healthcare REIT III, Inc.)
Right of First Offer. For so long as Purchaser holds Subject to the exceptions described below, the Company agrees that during the period beginning on the date hereof and ending on and including the date which is 183 days after the Initial Closing Date, neither the Company nor its Subsidiaries will negotiate or contract with any Shares, if the Purchaser joins in a partnership, limited partnership, syndicate, party for any equity financing (including any debt financing with an equity component) or otherwise acts in concert or alone for the purpose of disposing of more than 5% issue any equity securities of the Shares (as adjusted for stock splits or similar events after the date hereof) to a single person or transferee Company or any group Subsidiary or securities convertible or exchangeable into or for equity securities of affiliated persons or transferees but specifically excluding any hedging or similar transactions, the Purchaser shall give the Company the opportunity or any Subsidiary (including debt securities with an equity component) in any form (a "PROPOSED OFFERING") unless it shall have first delivered to purchase each Buyer or a designee appointed by such stock, in the following manner:
(a) The Purchaser shall give Buyer written notice (the "Transfer NoticeOFFERING NOTICE") describing the proposed Participation Offering, including the size, terms and conditions thereof, and providing each Buyer an option to offer terms to the Company in writing of such intention, specifying for the number and kind of securities proposed to be sold or transferred, the proposed price per share therefor Proposed Offering (the limitations referred to in this sentence are collectively referred to as the "Transfer PriceCAPITAL RAISING LIMITATIONS") and the other material terms, upon which such disposition is proposed to be made, including the names of the proposed purchasers or transferees if such persons have been identified.
(b) The Company shall have the right, exercisable by written notice given by the Company to the Purchaser within ten calendar days of receipt of the Transfer Notice to purchase all of the shares specified in such Transfer Notice upon the terms specified in such Transfer Notice). Notwithstanding the foregoing, the Company shall have twenty-five calendar days retain the right to accept such Buyer's terms for the Proposed Offering, to attempt to secure better terms from other investors, or postpone or discontinue such Proposed Offering. A Buyer shall exercise its option to offer terms to the Company for the Proposed Offering by delivering written notice of such terms to the Company within 10 Business Days after receipt of the Transfer Notice a Proposed Offering Notice. Within five (regardless 5) Business Days of the date Company's receipt of proposed terms from a Buyer pursuant to this Section 4(j), the Transfer Notice) to Company shall notify Purchaser such Buyer in writing of the Company's election to purchase accept such terms, to attempt to secure better terms from other investors, or postpone or discontinue such Proposed Offering. In the shares pursuant to this Section 7.2 if event the Company has not sold such securities of the Proposed Offering within such 135 days of the Company's delivery of the Offering Notice, the Company shall furnish not thereafter issue or sell such securities without first notifying each Buyer of the proposed offering in the manner provided in this Section 4(j). The Capital Raising Limitations shall not apply to (i) a certificate signed loan from a commercial bank, insurance company or other institutional investor which does not have any equity feature, (ii) any transaction involving the Company's issuances of securities (A) as consideration in a merger or consolidation, (B) in connection with any strategic partnership or joint venture (the primary purpose of which is not to raise equity capital), or (C) as consideration for the acquisition of a business, product, license or other assets by the President Company, (iii) the issuance of Common Stock or Chief Executive Officer debt in a firm commitment, underwritten public offering, (iv) the issuance of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management securities upon exercise or conversion of the Company's options, it would be detrimental warrants or other convertible securities outstanding as of the date hereof, (v) the grant of additional options or warrants, or the issuance of additional securities, under any Company stock option plan, restricted stock plan or stock purchase plan for the benefit of the Company's employees, directors or consultants, (vi) the issuance of securities pursuant to an offering by the Company in reliance upon Rule 144A under the 1933 Act with proceeds to the Company of at least $50,000,000 and its stockholders to decide whether to elect to purchase (vii) the Shares within issuance of convertible debt in exchange for Bank Debt not held by the ten day period provided for pursuant to this Section 7.2 (it being understood that Holders of the mere election of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 Notes. The Buyers shall not constitute such an event). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts required to secure during such period any approvals required on their respective parts offer terms for a particular Proposed Offering in connection therewith. The Company shall order to have the right to pay for such shares specified in the Transfer Notice: (a) the same amount in cash, if the consideration receive notice with respect to be paid consists of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that set forth in the Transfer Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement of the Company and the Purchaserlater Proposed Offerings.
(c) If the Company (or its assignees) does not exercise its right of first offer hereunder within the time specified for such exercise, the Seller(s) shall be free, during the period of 120 days following the date of the Transfer Notice, to sell the shares specified in such Transfer Notice for such consideration and on such other material terms as shall be no more favorable to the purchaser of the shares than the terms specified in such Transfer Notice.
(d) The provisions of this Section 7.2 shall terminate upon the earlier to occur of: (i) such time as 3Com Corporation distributes its shares of the Company's Common Stock to the shareholders of 3Com Corporation or (ii) one year following the Closing Date.
Appears in 1 contract
Right of First Offer. For so long as Purchaser holds (a) Prior to the occurrence of an IPO, any Shares, if the Purchaser joins in a partnership, limited partnership, syndicate, or otherwise acts in concert or alone for the purpose proposed Transfer of disposing of more than 5% of the Class B Common Shares (as adjusted for stock splits or similar events after the date hereofother than (i) to a single person Permitted Transferee, (ii) pursuant to, and in accordance with, Section 4 and Section 5 or transferee (iii) an initial pledge pursuant to a bona fide financing transaction) by any Holder (other than the Partnership and its Permitted Transferees) (each a “Transferring Holder”) shall be subject to the right of first offer pursuant to, and any Transferring Holder must first comply with the provisions of, this Section 3, Section 2 and Section 7. In the event a Transferring Holder proposes to Transfer any or any group all of affiliated persons its Class B Common Shares (other than (i) to a Permitted Transferee, (ii) pursuant to, and in accordance with, Section 4 and Section 5 or transferees but specifically excluding any hedging or similar transactions, the Purchaser shall give the Company the opportunity (iii) an initial pledge pursuant to purchase such stock, in the following manner:
(aa bona fide financing transaction) The Purchaser shall give notice (the "Transfer Notice") “Offer”), then the Transferring Holder shall furnish to the Company in writing Partnership a written notice of such intention, specifying the number and kind of securities proposed to be sold or transferred, the proposed price per share therefor Transfer (the "Transfer Price") and the other material terms, upon which such disposition is proposed to be made, including the names of the proposed purchasers or transferees if such persons have been identifiedan “Offer Notice”).
(b) The Company Offer Notice shall have include:
(i) the right, exercisable by written notice given number and class of Class B Common Shares proposed to be Transferred by the Company Transferring Holder (the “Offered Shares”), (B) the per Offered Shares purchase price in cash at which the Transferring Holder is prepared to Transfer such Offered Shares (the “Offer Price”) and (C) all other material terms and conditions, if any, in connection with such proposed Transfer; and
(ii) an irrevocable offer to sell the Offered Shares to the Purchaser within ten calendar days of receipt of Partnership at the Transfer Notice to purchase all of the shares specified in such Transfer Notice upon the terms specified in such Transfer Notice. Notwithstanding the foregoing, the Company shall have twenty-five calendar days from the receipt of the Transfer Notice (regardless of the date of the Transfer Notice) to notify Purchaser of the Company's election to purchase the shares pursuant to this Section 7.2 if the Company shall furnish a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 shall not constitute such an event). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have the right to pay for such shares specified in the Transfer Notice: (a) the same amount in cash, if the consideration to be paid consists of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that set forth in the Transfer Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement of the Company and the PurchaserOffer Price.
(c) If the Company (Partnership, or its assignees) does not exercise its any assignee of the rights under this Section 3, wishes to purchase the Offered Shares pursuant to the right of first offer hereunder offer, it and its assignees must elect to purchase all of the Offered Shares at the Offer Price within the time specified for such exercise, the Seller(stwenty (20) shall be free, during the period of 120 days Business Days following the date of delivery of the Transfer Offer Notice (the “Option Period”) by delivering an irrevocable notice (the “Purchase Notice” and the Partnership, or any assignee of the rights under this Section 3, upon delivering such notice, the “Purchasing Holder(s)”) to the Transferring Holder indicating its desire to exercise its rights under this Section 3 and specifying the number of Offered Shares (which shall be the aggregate amount of the number of Offered Shares) it desires to purchase for cash at the Offer Price. If the Partnership, or any assignee of the rights under this Section 3, does not deliver a Purchase Notice in compliance with the above requirements, including the time period, the Partnership, or any assignee of the rights under this Section 3, shall be deemed to have waived all of its rights with respect to the offer contained in the Offer Notice. After receipt of the Purchase Notice, the parties shall negotiate in good faith to sell the shares specified in enter into an agreement with respect to such Transfer Notice for such consideration and on such other material terms as shall be no more favorable to the purchaser of the shares than the terms specified in such Transfer Noticefifteen (15) Business Days.
(d) The If the aggregate number of Offered Shares offered to be purchased by the Purchasing Holder(s) as set forth in their Purchase Notices does not equal or exceed the number of the Offered Shares which the Transferring Holder desires to Transfer or the Purchasing Holder(s) and the Transferring Holder cannot agree upon the terms of such Transfer within such fifteen (15) Business Day period, then, in each such case, the Transferring Holder may, subject to the other provisions of this Agreement, not later than one hundred and twenty (120) days after the date of the Offer Notice, as such period may be extended to obtain any required regulatory approvals, Transfer all (but not less than all) of the Offered Shares to any other Person on terms no less favorable to the Transferring Holder than those set forth in the Offer Notice, including at a purchase price in cash equal to or greater than the Offer Price, and, if any other material terms and conditions are identified in the Offer Notice, on those terms and conditions (or those terms and conditions modified in a manner which are no less favorable to the Transferring Holder), without any further obligation to the Purchasing Holder(s) pursuant to this Section 7.2 3(d); provided, that such sale shall terminate upon not be consummated unless prior to the earlier purchase by such other Person of such Offered Shares, such Person shall become a party to occur of: this Agreement and shall agree to be bound by the terms and conditions hereof to the same extent as the Transferring Holder. If, at the end of such period, as such period may be extended to obtain any required regulatory approvals, the Transferring Holder has not completed the Transfer of the Offered Shares in accordance with the foregoing, the restrictions on transfer set forth in this Section 3 shall again be in effect with respect to such Class B Common Shares.
(e) In the event the Partnership is the Purchasing Holder, if the aggregate number of Offered Shares offered to be purchased by the Partnership as set forth in its Purchase Notice equals or exceeds the number of the Offered Shares, the Transferring Holder shall sell to the Partnership the Offered Shares.
(f) The Holders hereby acknowledge and agree that the Partnership may assign all, but not less than all, of its rights under this Section 3 to all of the Principal Investor Limited Partners (as defined in the Partnership Agreement); provided that if a Principal Investor Limited Partner will not accept such transfer, such rights shall be transferred to the Principal Investor Limited Partners that are willing to accept such transfer. In the event the Partnership assigns its rights under this Section 3(f), if the aggregate number of Offered Shares offered to be purchased by the Principal Investor Limited Partners as set forth in their Purchase Notices equals or exceeds the number of the Offered Shares, the Transferring Holder shall sell to the Principal Investor Limited Partners a number of Offered Shares calculated as follows:
(i) first there shall be allocated to each Principal Investor Limited Partner a number of Offered Shares equal to the lesser of (A) the number of Offered Shares such time Principal Investor Limited Partner has offered to purchase in its Purchase Notice and (B) the number of Offered Shares determined by multiplying (x) the number of Offered Shares by (y) a fraction the numerator of which is the Allocated Value (as 3Com Corporation distributes its shares defined in the Partnership Agreement) of the Company's Common Stock to Limited Partnership Units (as defined in the shareholders Partnership Agreement) owned by such Principal Investor Limited Partner and the denominator of 3Com Corporation or which is the Allocated Value of the total number of Limited Partnership Units owned by all Principal Investor Limited Partners (the “Participation Share”); and
(ii) one year following the Closing Dateany remaining Offered Shares shall be allocated to those Principal Investor Limited Partners that offered to purchase in excess of their Participation Share, pro rata to such Principal Investor Limited Partners based upon each such Principal Investor Limited Partners’ relative Participation Share or as such Principal Investor Limited Partners may otherwise agree.
Appears in 1 contract
Right of First Offer. For so long as Purchaser holds any Shares, if the Purchaser joins in a partnership, limited partnership, syndicate, or otherwise acts in concert or alone for the purpose of disposing of more than 5% of the Shares (as adjusted for stock splits or similar events after the date hereof) to a single person or transferee or any group of affiliated persons or transferees but specifically excluding any hedging or similar transactions, the Purchaser shall give the Company the opportunity to purchase such stock, in the following manner:
(a) The Purchaser Notwithstanding anything herein to the contrary (including but not limited to Section 9.1(a)), if any Member (the "Transferring Member") intends to transfer all or a portion of its Units (the "Sale Interest") to any Person or entity who is not a Member or Affiliate of any Member of the Company (a "Third Party"), the Transferring Member shall give written notice (the "Transfer Notice") to the Company in writing other Members (the "Non-Transferring Members") of such intention. The Transfer Notice, specifying in addition to stating the number and kind fact of securities the intention to transfer, shall set forth: (i) the amount of Units proposed to be sold or transferred, ; (ii) the name and address of the Third Party; (iii) the proposed price per share therefor amount of consideration and terms and conditions of payment offered by the Third Party; and (iv) that the Third Party has been informed of the Transfer Notice provided for in this Section 9.3. Each of the Non-Transferring Members may, within thirty (30) days of its receipt of a Transfer Notice, exercise an option to purchase its pro-rata portion of the Units intended to be transferred by the Transferring Member as indicated in the Transfer Notice. Each of the Non-Transferring Members must exercise its option to purchase its pro-rata portion of the Units on the terms of the Transfer Notice or the option granted hereunder to the Non-Transferring Members shall be forfeited. The Non-Transferring Member(s), if any, shall exercise its or their, as the case may be, option by delivering written notice (the "Transfer PriceAcceptance Notice") and to the other material terms, upon which such disposition is proposed to be made, including Transferring Member within the names of the proposed purchasers or transferees if such persons have been identifiedtime period specified above.
(b) The Company shall have purchase price for the right, exercisable by written notice given by the Company to the Purchaser within ten calendar days of receipt of the Transfer Notice to purchase all of the shares specified in such Transfer Notice upon the terms specified in such Transfer Notice. Notwithstanding the foregoing, the Company shall have twenty-five calendar days from the receipt of the Transfer Notice (regardless of the date of the Transfer Notice) to notify Purchaser of the Company's election to purchase the shares Sale Interest purchased pursuant to this Section 7.2 if the Company 9.3 shall furnish a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 shall not constitute such an event). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have the right to pay for such shares specified in the Transfer Notice: (a) the same amount in cash, if the consideration to be paid consists of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that as set forth in the Transfer Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement . The closing of the Company sale and purchase shall take place within sixty (60) days after the Purchaserdelivery to the Transferring Member of the Acceptance Notice.
(c) If any of the Company (or its assignees) does not Non-Transferring Members fails to exercise its right respective option to purchase its pro-rata interest of first offer hereunder within the time specified for such exerciseSale Interest pursuant to Section 9.3(a) above, then the Seller(s) shall be free, during Transferring Member may transfer the period of 120 days following Sale Interest according to the date terms of the Transfer Notice, to sell Notice at any time within one hundred eighty (180) days after the shares expiration of the thirty (30) day period specified in such Transfer Notice for such consideration and on such other material terms as Section 9.3(a) above. Such transfer shall not require consent pursuant to Section 9.1(a), but shall be no more favorable subject to the purchaser of the shares than the terms specified in such Transfer Notice.
(d) The provisions all other terms, covenants and conditions of this Section 7.2 shall terminate upon the earlier to occur of: (i) such time as 3Com Corporation distributes its shares of the Company's Common Stock to the shareholders of 3Com Corporation or (ii) one year following the Closing DateLLC Agreement.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Great Plains Energy Inc)
Right of First Offer. For so long as Purchaser holds any Shares, if Each Party hereby grants to the Purchaser joins in other Parties a partnership, limited partnership, syndicate, or otherwise acts in concert or alone for the purpose right of disposing first offer (according to each Party's Pro Rata Share) with respect to future Transfers by such Party of more than 5% its shares of capital stock of the Shares (as adjusted for Company. Each time a Party proposes to Transfer any shares of such Party's capital stock splits or similar events after the date hereof) to a single person or transferee or any group of affiliated persons or transferees but specifically excluding any hedging or similar transactions, the Purchaser shall give the Company (the opportunity "Transferred Shares"), such Party (a "Transferring Party") shall first make an offering of such Transferred Shares to purchase such stock, all of the other Parties in accordance with the following mannerprovisions:
(a) The Purchaser Transferring Party shall give deliver a notice by certified mail (the "Transfer ROF Notice") to the Company in writing of other Parties stating (i) its bona fide intention to Transfer such intentionTransferred Shares, specifying (ii) the number and kind of securities proposed Transferred Shares to be sold or transferredTransferred, and (iii) the proposed price per share therefor (the "Transfer Price") and the other material terms, if any, upon which it proposes to Transfer such disposition is proposed to be made, including the names of the proposed purchasers or transferees if such persons have been identifiedTransferred Shares.
(b) The Company shall have the right, exercisable by written notice given by the Company to the Purchaser within ten Within 20 calendar days of after receipt of the Transfer Notice ROF Notice, each Party may elect to purchase all of or obtain, at the shares specified in such Transfer Notice upon price and on the terms specified in such Transfer Notice. Notwithstanding the foregoing, the Company shall have twenty-five calendar days from the receipt of the Transfer Notice (regardless of the date of the Transfer Notice) to notify Purchaser of the Company's election to purchase the shares pursuant to this Section 7.2 if the Company shall furnish a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 shall not constitute such an event). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have the right to pay for such shares specified in the Transfer Notice: (a) the same amount in cash, if the consideration to be paid consists of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that set forth in the Transfer ROF Notice, or an amount up to such Party's Pro Rata Share of cash having equivalent value, as determined in good faith by mutual agreement of the Company and the Purchasersuch Transferred Shares.
(c) If any Party elects not to purchase its respective Pro Rata Share of the Company Transferred Shares (or its assignees) does not exercise its right of first offer hereunder fails to respond within the time 20 day period specified for such exercisein Section 4.1(b) above), then (i) the Seller(sTransferring Party shall deliver a second notice by certified mail (the "Second ROF Notice") shall be free, during to each Subscribing Party stating the period number of 120 days following Transferred Shares still available (the date "Available Transferred Shares") and (ii) each Subscribing Party may elect to purchase its Pro Rata Share of the Transfer Notice, to sell the shares specified in such Transfer Notice for such consideration and on such other material terms as shall be no more favorable to the purchaser Available Transferred Shares within 10 calendar days after receipt of the shares than the terms specified in such Transfer Second ROF Notice.
(d) The provisions If all Transferred Shares which the Parties are entitled to obtain pursuant to Sections 4.1(b) and 4.1(c) are not elected to be obtained as provided, the Transferring Party may, during the 30-day period following the expiration of the periods provided in Sections 4.1(b) and 4.1(c), offer the remaining unsubscribed portion of such Transferred Shares, to any Person or Persons, at a price not less than, and upon terms no more favorable to the offeree or transferee than those specified in the ROF Notice, provided that such Person agrees in writing to be bound by the terms and conditions of this Section 7.2 shall terminate upon 4.
1. If the earlier to occur of: (i) such time as 3Com Corporation distributes its shares Transferring Party does not enter into an agreement for the Transfer of the Company's Common Stock Transferred Shares within such period, or if such agreement is not consummated within 30 days of the execution thereof, the right provided hereunder shall be deemed to be revived and such Transferred Shares shall not be Transferred unless the shareholders Transferring Party first complies with the right of 3Com Corporation or (ii) one year following the Closing Datefirst offer under this Section 4.1.
Appears in 1 contract
Samples: Investors' Rights Agreement (Optimark Holdings Inc)
Right of First Offer. For so long as Purchaser holds any SharesPrior to the consummation of an initial public offering, if any Member (the Purchaser joins in a partnership“Transferring Member”) desires to Transfer, limited partnershipdirectly or indirectly, syndicate, or otherwise acts in concert or alone for the purpose of disposing of more than 5% of the Shares (as adjusted for stock splits or similar events after the date hereof) to a single person or transferee all or any group part of affiliated persons or transferees but specifically excluding any hedging or similar transactionsits Units (the “Offered Units”), then the Purchaser Transferring Member shall give the Company the opportunity to purchase such stock, in the following manner:
(a) The Purchaser shall give deliver a written notice (the "“Transfer Notice"”) to all other Members that hold 5% (including, for purposes of determining such percentage, any Units owned by affiliates) or more of the Company in writing of such intention, specifying then outstanding Units (the “Offerees”). The Transfer Notice shall state the number and kind of securities proposed to be sold or transferred, the proposed price per share therefor (the "Transfer Price") and the other material terms, upon which such disposition is proposed to be made, including the names of the proposed purchasers or transferees if such persons have been identified.
(b) The Company Offered Units. Each Offeree shall have the right, exercisable by written notice given by the Company right to provide to the Purchaser Transferring Member, within ten calendar 20 days of receipt of the Transfer Notice to purchase all of the shares specified in such Transfer Notice upon the terms specified in such Transfer Notice. Notwithstanding the foregoing, the Company shall have twenty-five calendar days from the receipt of the Transfer Notice (regardless of the date of the Transfer NoticeNotice (the “Offer Period”), an irrevocable offer to acquire such Offeree’s pro rata portion (but not less than all of its pro rata portion) to notify Purchaser of the Company's election Offered Units (based on the proportion that the number of Units owned by such Offeree bears to the total number of Units outstanding (other than the Offered Units), upon the price, terms and conditions on which such Offeree is willing to purchase the shares pursuant to this Section 7.2 if the Company shall furnish such Offered Units (each, a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (“Proposed Offer”); it being understood that in the mere election of Purchaser to sell such Shares in a transaction triggering event the provisions of this Section 7.2 shall not constitute such an event). The purchase of Transferring Member is Transferring the shares by Units indirectly, the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company Offeree shall have the right to pay for offer to purchase the Units and not any equity interest in any other entity (other than Buyer, which shall have the right to transfer the stock of Buyer so long as Buyer has no liabilities, and will not incur any liabilities of any kind, and so long as in connection with such shares specified Transfer, the governance of Buyer or the Company is restructured so that the Offeree has all such rights, taking into account its ownership interest in the Transfer Notice: Company, as it would have had had it received Units in such Transfer). If the Transferring Member, in its sole discretion, elects to accept any Proposed Offer, the Transferring Member shall communicate in writing its irrevocable acceptance (a) the same amount in casheach, if the consideration to be paid consists of cash, or (ban “Acceptance”) to the extent Offeree that submitted such Proposed Offer (each, a “Participating Offeree”), which Acceptance shall be delivered within 10 days of the consideration to be paid does not consist date of cash, consideration per share equivalent to that set forth in the Transfer Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement Notice (the “Acceptance Period”). After termination of the Company and the Purchaser.
(c) If the Company (or its assignees) does not exercise its right of first offer hereunder within the time specified for such exerciseAcceptance Period, the Seller(s) shall be freeTransferring Member may, during the a period of 120 days following the Acceptance Period, Transfer the Offered Units, at and upon the price and other terms and conditions that are at least as favorable to the Transferring Member as that which the Transferring Member has accepted or, if no Proposed Offers were accepted, the most favorable Proposed Offer that the Transferring Member has rejected (such Transfer, “Permitted Transfer”). In the event that the Transferring Member has not consummated a Permitted Transfer, or has not entered into a definitive agreement regarding a Permitted Transfer, within such 120 day period, the Transferring Member shall not thereafter Transfer any Units (including such Offered Units), whether pursuant to a Proposed Offer or otherwise, without first providing a new Transfer Notice to the Offerees in the manner provided above. Tag-Along Rights: Prior to the consummation of an initial public offering, if the Transferring Member proposes to Transfer, directly or indirectly, to a third party or parties by a transaction or a series of related transactions Units representing no less than 10% (including, for purposes of determining such percentage, any Units owned by affiliates ) of the then outstanding Units (including a transaction effected pursuant to the exercise of the Right of First Offer described above), then such Transferring Member shall provide to all Offerees that are not Participating Offerees within the earlier of five days following the execution of the agreement with respect to the proposed Transfer and 15 days prior to consummation of the proposed Transfer a notice (a “Tag Along Notice”). Such Tag Along Notice shall state the price and other terms and conditions of such proposed Transfer, and each such Offeree shall have the right to elect to exercise its tag-along right (the “Tag-Along Right”) by providing written notice to such Transferring Member no later than 10 days after the date of the Tag Along Notice. If any Offeree exercises its Tag-Along Right (the “Tag-Along Member”), the Tag-Along Member shall have the right to Transfer Notice, to sell the shares specified in such Transfer Notice for such consideration and on such other material terms as shall be no more favorable to the purchaser transferees of any proposed Transfer, as a condition to such proposed Transfer by the Transferring Member, such number of Units which are in the same proportion to the Tag-Along Member’s total ownership of Units as the number of Offer Units is to the Transferring Member’s total ownership of Units, upon the same price, terms and conditions as those of the shares than the terms specified in such Transfer Noticeproposed Transfer.
(d) The provisions of this Section 7.2 shall terminate upon the earlier to occur of: (i) such time as 3Com Corporation distributes its shares of the Company's Common Stock to the shareholders of 3Com Corporation or (ii) one year following the Closing Date.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Fifth Third Bancorp)
Right of First Offer. For so long as Purchaser holds any SharesSubject to the terms and conditions specified in this Section 6(d), if the Purchaser joins in Warrant Holder hereby grants to the Company a partnershipright of first offer with respect to future transfers by the Warrant Holder of: (i) the Warrants or (ii) units, limited partnership, syndicate, or otherwise acts in concert or alone for the purpose of disposing of more than 5% consisting of the Shares (as adjusted for stock splits or similar events after the date hereof) to a single person or transferee Warrants and all or any group part of affiliated persons or transferees but specifically excluding any hedging or similar transactionsthe unpaid principal amount of indebtedness outstanding under the Loan Agreement ("Units"), to an entity that is known at the time of the transfer to be a direct competitor of the Company. In the case of Units, the Purchaser shall give Warrants may not be obtained by the Company separately from the opportunity corresponding indebtedness. Each time the Warrant Holder proposes to purchase offer any Warrants or Units to an entity that is known at the time of the transfer to be a direct competitor of the Company, the Warrant Holder shall first make an offering of such stock, in the following manner:
(a) The Purchaser shall give notice (the "Transfer Notice") Warrants and/or Units to the Company in writing accordance with the following provisions:
(1) The Warrant Holder shall deliver a Notice, pursuant to the provisions of Section 7(b) hereof, to the Company stating (i) its bona fide intention to offer such Warrants and/or Units, (ii) the number of such intention, specifying the number and kind of securities proposed Warrants and/or Units to be sold or transferredoffered, and (iii) the proposed price per share therefor (the "Transfer Price") and the other material terms, if any, upon which it proposes to offer such disposition is proposed to be made, including the names of the proposed purchasers or transferees if such persons have been identifiedWarrants and/or Units.
(b2) The Company shall have the right, exercisable by By written notice given notification received by the Company to the Purchaser Warrant Holder, within ten five calendar days of receipt after the giving of the Transfer Notice Notice, the Company may elect to purchase all of or obtain, at the shares specified in such Transfer Notice upon price and on the terms specified in the Notice, all of such Transfer Notice. Notwithstanding the foregoing, Warrants and/or Units.
(3) If the Company shall have twenty-five calendar days from the receipt does not elect to obtain all of the Transfer Warrants and/or Units referred to in the Notice (regardless of the date of the Transfer Notice) which it is entitled to notify Purchaser of the Company's election to purchase the shares obtain pursuant to this Section 7.2 if the Company shall furnish a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 shall not constitute such an event6(d). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have the right to pay for such shares specified in the Transfer Notice: (a) the same amount in cash, if the consideration to be paid consists of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that set forth in the Transfer Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement of the Company and the Purchaser.
(c) If the Company (or its assignees) does not exercise its right of first offer hereunder within the time specified for such exercise, the Seller(s) shall be freeWarrant Holder may, during the 60-day period of 120 days following the date expiration of the Transfer Noticeperiod provided in Section 6(d)(2) hereof, offer the Warrants and/or Units to sell the shares specified in such Transfer Notice for such consideration any person or persons at a price not less than, and on such other material upon terms as shall be no more favorable to the purchaser offeree than those specified in the Notice. If the Warrant Holder does not enter into an agreement for the sale of the shares than the terms specified in Warrants and/or Units within such Transfer Notice.
(d) The provisions of this Section 7.2 shall terminate upon the earlier to occur of: (i) period, or if such time as 3Com Corporation distributes its shares agreement is not consummated within 60 days of the Company's Common Stock execution thereof, the right provided hereunder shall be deemed to be revived and such Warrants and or Units shall not be offered to any entity that is known at the time of such transfer to be a direct competitor of the Company unless first reoffered to the shareholders of 3Com Corporation or (ii) one year following the Closing DateCompany in accordance herewith.
Appears in 1 contract
Samples: Warrant Agreement (Futurelink Corp)
Right of First Offer. For so long as Purchaser holds any Shares, if the Purchaser joins in a partnership, limited partnership, syndicate, or otherwise acts in concert or alone for the purpose of disposing of more than 5% of the Shares (as adjusted for stock splits or similar events after the date hereof) to a single person or transferee or any group of affiliated persons or transferees but specifically excluding any hedging or similar transactions, the Purchaser shall give the Company the opportunity to purchase such stock, in the following manner:
(a) The Purchaser shall give notice (the "Transfer Notice") Except as set forth in this Section 4, MD Xxxxxxxx hereby irrevocably grants to the Company in writing of such intention, specifying or its permitted transferees or assigns the number and kind of securities proposed to be sold or transferred, the proposed price per share therefor right (the "Transfer Price") and “Right of First Offer”), but not the other material termsobligation, upon which such disposition is proposed to be made, including the names purchase all or any portion of any capital stock of the proposed purchasers Company (or transferees if such persons have been identifiedany interest therein) (the “Transfer Stock”) that MD Xxxxxxxx may from time to time propose to assign, sell, offer to sell, pledge, mortgage, hypothecate, encumber, dispose of or otherwise transfer or encumber (a “Proposed Transfer”); provided that a Proposed Transfer shall not include: (i) any transfer effected pursuant to a Corporate Transaction; or (ii) any transfer effected to the public in an offering pursuant to an effective registration statement filed by the Company under the Securities Act of 1933, as amended (the “Act”).
(b) The Company Subject to Section 3 hereof, if MD Xxxxxxxx proposes to make a Proposed Transfer, MD Xxxxxxxx shall have the right, exercisable by deliver a written notice given by (each, a “Proposed Transfer Notice”) to the Company setting forth the terms and conditions of the Proposed Transfer to the Purchaser within ten calendar days of receipt of the Company, with such Proposed Transfer Notice to purchase all contain the material terms and conditions of the shares specified in such Proposed Transfer Notice upon the terms specified in such Transfer Notice(including price and form of consideration). Notwithstanding the foregoingTo exercise its Right of First Offer, the Company shall have twentydeliver within forty-five calendar (45) days from after MD Xxxxxxxx delivers the receipt of the Proposed Transfer Notice (regardless of the date of the Transfer Notice) to notify Purchaser of the Company's election to purchase the shares pursuant to this Section 7.2 if the Company shall furnish a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders a written notice (each, a “Company Notice”) to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood MD Xxxxxxxx notifying MD Xxxxxxxx that the mere election Company intends to exercise its Right of Purchaser First Offer as to sell such Shares in a transaction triggering the provisions of this Section 7.2 shall not constitute such an event). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of all the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have the right to pay for such shares specified in the Transfer Notice: (a) the same amount in cash, if the consideration to be paid consists of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that set forth in the Transfer Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement of the Company and the PurchaserStock.
(c) If The closing of the purchase of Transfer Stock by the Company shall take place, and all payments from the Company shall have been delivered to MD Xxxxxxxx, by the later of: (or its assigneesi) does not exercise its right of first offer hereunder within the time date specified for such exercise, in the Seller(s) shall be free, during Proposed Transfer Notice as the period of 120 days following the intended date of the Transfer Notice, to sell the shares specified in such Transfer Notice for such consideration and on such other material terms as shall be no more favorable to the purchaser Proposed Transfer; or (ii) sixty (60) days after delivery of the shares than the terms specified in such Proposed Transfer Notice.
(d) The provisions Subject to Section 3 hereof, if Company does not purchase Transfer Stock subject to a Proposed Transfer Notice from MD Xxxxxxxx as set forth in Sections 4(a)-4(c), MD Xxxxxxxx shall have the right to assign, sell, offer to sell, pledge, mortgage, hypothecate, encumber, dispose of this Section 7.2 shall terminate upon the earlier to occur ofor otherwise transfer or encumber such Transfer Stock in MD Anderson’s discretion, including by transaction with any third party; provided, however, that: (i) any such time as 3Com Corporation distributes its shares assignment, sale or other disposition of such Transfer Stock shall be consummated within one hundred twenty (120) days after delivery of the Company's Common Stock Proposed Transfer Notice, and shall be on terms that are not more favorable in any material respect to the shareholders of 3Com Corporation or terms set forth in the Proposed Transfer Notice; and (ii) one year following any proposed transferee shall agree in the Closing Dateform required by applicable law to become a party to this Agreement and be subject to the terms and conditions hereof as the successor and assignee of MD Xxxxxxxx.
(e) If MD Xxxxxxxx becomes obligated to sell any capital stock to the Company under this Agreement (including pursuant to Sections 1, 2, 4 or 9) and fails to deliver such capital stock in accordance with the terms of this Agreement, the Company may, at its option, in addition to all other remedies it may have, send to MD Xxxxxxxx the purchase price by certified check or wire transfer to an account designated by MD Xxxxxxxx for such capital stock of the Company as is herein specified and cancel on its books the certificate or certificates representing the capital stock of the Company to be sold.
(f) Any Proposed Transfer not made in compliance with the requirements of this Agreement shall be null and void ab initio, shall not be recorded on the books of the Company or its transfer agent and shall not be recognized by the Company.
Appears in 1 contract
Samples: Restricted Stock Purchase Agreement (Immatics B.V.)
Right of First Offer. For so long as Purchaser holds any Shares, if the Purchaser joins in a partnership, limited partnership, syndicate, or otherwise acts in concert or alone for the purpose of disposing of more than 5% of the Shares (as adjusted for stock splits or similar events after the date hereof) to a single person or transferee or any group of affiliated persons or transferees but specifically excluding any hedging or similar transactions, the Purchaser shall give the Company the opportunity to purchase such stock, in the following manner:
(a) The Purchaser shall give notice If a Member proposes to Transfer (each, a "Proposed Transfer") any of its Membership Interests (the "Transfer NoticeOffered Interests") to any Person (each, a "Third Party") other than to a Permitted Transferee, such Member (the "Proposing Member") shall submit a written notice (a "Notice of Proposed Transfer") to the Company other Members (the "Remaining Members") describing the material terms and conditions of the Proposed Transfer in writing of such intentionreasonable detail, specifying the number and kind of securities proposed to be sold or transferredincluding, without limitation, the proposed purchase price per share therefor (which shall be for cash only) (the "Transfer Offer Price") and the other material terms, upon which such disposition is proposed to be made, including the names of the proposed purchasers or transferees if such persons have been identified).
(b) Upon receipt of the Notice of Proposed Transfer, each of the Remaining Members shall have the primary right, but not the obligation, for a period (the "Primary Option Period") of ten (10) Business Days following receipt of the Notice of Proposed Transfer, to elect to purchase at the Offer Price a portion of the Offered Interests equal to such Remaining Mem ber's pro rata portion which portion shall be equal to a fraction the numerator of which is the Membership Interests owned by the Remaining Members electing to purchase Offered Interests and the denominator of which is the total Membership Interests as of the date of the Notice of Proposed Transfer owned by all of the Members (other than the Proposing Member), on the same terms and conditions as are set forth in the Notice of Proposed Transfer. Each Remaining Mem ber shall also have a secondary right, on the same terms as are set forth in the Notice of Proposed Transfer, for a period of ten (10) Business Days from the expiration of the Primary Option Period, to purchase any or all of the remaining portion of the Offered Interests not purchased by any other Remaining Member in the exercise of his or its primary right. If, however, there is more than one Remaining Member desiring to exercise secondary rights to purchase any such remaining Offered Interests and they do not agree on the number of such Offered Interests to be purchased by each within five (5) Business Days from the expiration of the Primary Option Period, then each such Remaining Member shall be entitled to purchase such proportion of those Offered Interests which remain undisposed of as the Membership Interests owned by such Re maining Member bears to the total Membership Interests held by all of the Members desiring to purchase such Offered Interests. The primary and secondary rights of the Remaining Members set forth herein are exercisable in each case by delivery of one notice to the Company and the Proposing Member (a "Notice of Exercise") within the time periods specified herein, which Notice of Exercise shall specify a time and place of closing, which closing shall Occur not less than thirty (30) days and not more than sixty (60) days from the date of delivery of the Notice of Exercise.
(c) In the event that the Remaining Members exercise their rights to purchase all but not less than all of the Offered Interests in accordance with Section 4.3(b), then the Pro posing Member must sell the Offered Interests elected to be purchased by the Remaining Mem bers to such Remaining Members at the closing specified in Section 4.3(b) hereof. The Propos ing Member shall notify each such Remaining Member of the portion of Offered Interests to be sold to such Remaining Members. At such closing, the Proposing Member shall, and hereby covenants to, Transfer the Offered Interests to such Remaining Members free and clear of any and all liens, mortgages, pledges, security interests or other restrictions or encumbrances against payment of the Offer Price in accordance with the notices specified in Sections 4.3(a) and (b) hereof.
(d) If (i) all notices required to be given pursuant to Sections 4.3(a) and (b) hereof have been duly given and (ii) all of the Offered Interests are not purchased by the Remain ing Members in accordance with Sections 4.3(b) and (c) hereof, then the Proposing Member shall have the right, exercisable by written for a period of ninety (90) days from the earlier of (i) the expiration of the last applicable option period pursuant to Section 4.3 (b) hereof with respect to such Notice of Pro posed Transfer and (ii) the date on which such Proposing Member receives notice given by from all of the Company Remaining Members that they will not exercise the options granted pursuant to Sections 4.3(b) and (c) hereof to sell, subject to Section 4.4 hereof, to any Third Party the Offered Interests at a price not less than the Offer Price and on terms and conditions as favorable as offered to the Purchaser within ten calendar days of receipt of Remaining Members.
(e) In the Transfer Notice event that the Remaining Members do not exercise their options to purchase all of the shares specified Offered Interests, and the Proposing Member shall not have sold the Offered Interests as to which such options shall not have been exercised, to a Third Party for any reason before the expiration, as applicable, of the ninety (90)-day period described in Section 4.3(d) hereof, or such Proposing Member withdraws the Notice of Proposed Transfer, then such Pro posing Member shall not give another Notice of Proposed Transfer Notice upon the terms specified in such Transfer Notice. Notwithstanding the foregoing, the Company shall have twenty-five calendar pursuant to Section 4.3(a) hereof for a period of one hundred twenty (120) days from the receipt last day of the Transfer Notice such ninety (regardless of the date of the Transfer Notice) to notify Purchaser of the Company's election to purchase the shares pursuant to this Section 7.2 if the Company shall furnish a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 shall not constitute such an event). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have the right to pay for such shares specified in the Transfer Notice: (a) the same amount in cash, if the consideration to be paid consists of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that set forth in the Transfer Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement of the Company and the Purchaser90)-day period.
(cf) If the Company (or its assignees) any Member does not exercise its right of first offer hereunder within the time specified for such exercise, the Seller(s) shall be free, during the period of 120 days following the date purchase any of the Transfer Notice, Offered Interests under this Section 4.3 but wishes to sell the shares specified in Membership Interests under Section 4.4 hereof, such Transfer Member must deliver a Tag-Along Notice for pursuant to Section 4.4(b) hereof simultaneously with declining such consideration and on such other material terms as shall be no more favorable Member's right to the purchaser of the shares than the terms specified in such Transfer Notice.
(d) The provisions of purchase under this Section 7.2 shall terminate upon the earlier to occur of: (i) such time as 3Com Corporation distributes its shares of the Company's Common Stock to the shareholders of 3Com Corporation or (ii) one year following the Closing Date4.3 hereof.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Capital Z Financial Services Fund Ii Lp)
Right of First Offer. For so long as Purchaser holds (a) None of the Minority Investors shall have the right to Transfer any SharesUnits or other equity securities of the Company pursuant to this Section 7.02 until the applicable Permitted Third Party Transfer Date. If, following the applicable Permitted Third Party Transfer Date, a Minority Investor desires to sell all or any portion of the Units or other equity securities of the Company (the “Transfer Units”) then owned by such Minority Investor, such Minority Investor shall provide the Company and the other Members with a written notice (the “Transfer Notice”) setting forth: (i) the number of Units or other equity securities of the Company to be offered and (ii) the material terms and conditions of the proposed sale including the price at which such Minority Investor proposes to sell such Units or other equity securities of the Company. The Transfer Notice shall also contain an irrevocable offer to sell the Transfer Units to the Company and, if the Purchaser joins in a partnership, limited partnership, syndicate, Company shall decline to purchase all or otherwise acts in concert or alone for the purpose of disposing of more than 5% any portion of the Shares Transfer Units, to AS Person(s) and all other Members (in the manner set forth below) at a price equal to the price contained in, and upon the same terms and conditions as adjusted for stock splits or similar events the terms and conditions contained in, the Transfer Notice (subject to clause (y) below). At any time within 15 Business Days after the date hereof) to a single person or transferee or any group of affiliated persons or transferees but specifically excluding any hedging or similar transactions, the Purchaser shall give receipt by the Company the opportunity to purchase such stock, in the following manner:
(a) The Purchaser shall give notice (the "Transfer Notice") to the Company in writing of such intention, specifying the number and kind of securities proposed to be sold or transferred, the proposed price per share therefor (the "Transfer Price") and the other material terms, upon which such disposition is proposed to be made, including the names of the proposed purchasers or transferees if such persons have been identified.
(b) The Company shall have the right, exercisable by written notice given by the Company to the Purchaser within ten calendar days of receipt Members of the Transfer Notice to purchase all of the shares specified in such Transfer Notice upon the terms specified in such Transfer Notice. Notwithstanding the foregoing, the Company shall have twenty-five calendar days from the receipt of the Transfer Notice (regardless of the date of the Transfer Notice) option to notify Purchaser of the Company's election exercise its right to purchase the shares pursuant to this Section 7.2 or, if the Company shall furnish a certificate signed by the President decline to purchase all or Chief Executive Officer of the Company within ten calendar days of receipt any portion of the Transfer Notice stating thatUnits, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 shall not constitute such an event). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company other Members shall have the right to pay for exercise such shares specified option to purchase (or in the case of an AS Person, to assign such Member’s right to any party) some or all of the portion of the Transfer Notice: Units that the Company does not wish to purchase (ax) at the same amount in price and on the same terms and conditions as the Transfer Notice or (y) if the Transfer Notice includes any consideration other than cash, if at the consideration to be paid consists option of cashthe Company or such other Members, or (b) to at the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that set forth in the Transfer Notice, or an amount of all cash having equivalent value, price as determined in good faith by mutual agreement the Board.
(b) Each Member who wishes to exercise such option shall deliver an irrevocable notice exercising such option to the Company and such Minority Investor within 20 Business Days after the date of the receipt by the Company and the Purchaser.
other Members of the Transfer Notice and specifying the number of such Units or other equity securities of the Company, as applicable, sought to be purchased (c) which shall not exceed the number of Units or other equity securities of the Company, as applicable, declined to be purchased by the Company multiplied by a fraction the numerator of which is the number of Units or other equity securities of the Company, as applicable, owned by such Member and the denominator of which is the aggregate number of Units or other equity securities of the Company, as applicable, owned by all Members other than the Minority Investor selling the Transfer Units). If the aggregate number of Units or other equity securities of the Company, as applicable, to be purchased by the Members pursuant to the immediately preceding sentence is less than the number of Units or other equity securities of the Company, as applicable, declined to be purchased by the Company (or its assignees) does not exercise its right of first offer hereunder within the time specified for such exercisedifference, the Seller(s“Shortfall Units”), then the AS Persons shall have the option to purchase (or assign such Members’ right to any party) shall be free, during the period Shortfall Units or a portion thereof. If the AS Persons and the other Members have not exercised the option to purchase all of 120 days following Transfer Units within 25 Business Days after the date of the receipt by the Company and the other Members of the Transfer Notice, then such Minority Investor may sell any remaining Transfer Units (the “Remaining Units”) to sell the shares specified in such Transfer Notice for such consideration and on such other material terms as shall be no more favorable a Qualified Purchaser pursuant to the purchaser Section 7.02(c). The closing of the shares than the terms specified in such Transfer Notice.
(d) The provisions of this Section 7.2 shall terminate upon the earlier to occur of: (i) such time as 3Com Corporation distributes its shares purchase of the Company's Common Stock Transfer Units upon exercise of the option pursuant to the shareholders of 3Com Corporation or (iiSection 7.02(a) one year following the Closing Date.and/or
Appears in 1 contract
Samples: Limited Liability Company Agreement (Grede Wisconsin Subsidiaries LLC)
Right of First Offer. For so long as Purchaser holds any SharesSubject to the terms and conditions specified in this Section 2.3, if the Purchaser joins in Company hereby grants to each Shareholder a partnership, limited partnership, syndicate, or otherwise acts in concert or alone for right of first offer with respect to future sales by the purpose Company of disposing of more than 5% of the its Shares (as adjusted for stock splits or similar events after the date hereof) to a single person or transferee or any group hereinafter defined). For purposes of affiliated persons or transferees but specifically excluding any hedging or similar transactionsthis Section 2.3, the Purchaser term “Shareholder” includes any partners, members and affiliates of a Shareholder. A Shareholder shall give be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and affiliates in such proportions as it deems appropriate, provided, however, that such partner, member or affiliate of that Shareholder who is not a party to this Agreement shall not be allotted or issued any Shares unless and until it has delivered to the Company a duly executed Deed of Adherence. For purposes of this Section 2.3, “affiliates” means any person that (i) Tiger or UCI (as the opportunity case may be) controls or manages, directly or indirectly, whether by possessing the power to purchase direct or cause the direction of the management policies of such stockan affiliate, through the ownership of voting securities, by contract, credit arrangement or proxy, as trustee, executor, agent or otherwise, (ii) is under common control with Tiger or UCI (as the case may be) or (iii) controls, directly or indirectly, Tiger or UCI (as the case may be). Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, any class of the Company’s shares (“Shares”), the Company shall first make an offering of such Shares to each Shareholder in accordance with the following mannerprovisions:
(a) The Purchaser Company shall give deliver a notice in accordance with Section 5.5 (the "Transfer “Notice"”) to the Company in writing Shareholders stating (i) its bona fide intention to offer such Shares, (ii) the number of such intention, specifying the number and kind of securities proposed Shares to be sold or transferred, offered and (iii) the proposed price per share therefor (the "Transfer Price") and the other material terms, terms upon which it proposes to offer such disposition is proposed to be made, including the names of the proposed purchasers or transferees if such persons have been identifiedShares.
(b) The Company shall have the right, exercisable by By written notice given notification received by the Company to the Purchaser within ten twenty-five (25) calendar days of after receipt of the Transfer Notice Notice, each Shareholder may elect to purchase all of or obtain, at the shares specified in such Transfer Notice upon price and on the terms specified in the Notice, up to that portion of such Transfer Notice. Notwithstanding Shares that equals the foregoing, proportion that the Company shall have twenty-five calendar days from the receipt number of the Transfer Notice Ordinary Shares Equivalents held by such Shareholder (regardless assuming full conversion and exercise of the date of the Transfer Noticeall convertible and exercisable securities then outstanding) to notify Purchaser of the Company's election to purchase the shares pursuant to this Section 7.2 if the Company shall furnish a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental bears to the Company total number of Ordinary Shares Equivalents then outstanding (assuming full conversion and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election exercise of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 shall not constitute such an eventall convertible and exercisable securities then outstanding). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have promptly, in writing, inform each Shareholder that elects to purchase all the right shares available to pay it (a “Fully Exercising Shareholder”) of any other Shareholder’s failure to do likewise. During the ten (10) day period commencing after such information is given, each Fully Exercising Shareholder may elect to purchase that portion of the Shares for such shares specified in which Shareholders were entitled to subscribe but which were not subscribed for by the Transfer Notice: (a) the same amount in cash, if the consideration to be paid consists of cash, or (b) Shareholders that is equal to the extent proportion that the consideration number of Ordinary Shares Equivalents held by such Fully Exercising Shareholder (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to be paid does not consist the total number of cash, consideration per share equivalent to that set forth in the Transfer Notice, or an amount Ordinary Shares Equivalents then outstanding (assuming full conversion and exercise of cash having equivalent value, as determined in good faith by mutual agreement of the Company all convertible and the Purchaserexercisable securities then outstanding).
(c) If all Shares that Shareholders are entitled to obtain pursuant to subsection 2.3(b) are not elected to be obtained as provided in subsection 2.3(b) hereof, the Company (or its assignees) does not exercise its right of first offer hereunder within the time specified for such exercise, the Seller(s) shall be freemay, during the ninety (90) day period of 120 days following the date expiration of the Transfer Noticeperiod provided in subsection 2.3(b) hereof, offer the remaining unsubscribed portion of such Shares to sell the shares specified in such Transfer Notice for such consideration any person or persons at a price not less than that, and on such other material upon terms as shall be no more favorable to the purchaser offeree than those, specified in the Notice, provided, however, that no Shares shall be allotted or issued to such offeree unless and until such offeree has delivered to the Company a duly executed Deed of Adherence as a condition precedent to any such offer. If the Company does not enter into an agreement for the sale of the shares than Shares within such period, or if such agreement is not consummated within sixty (60) days of the terms specified execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Shareholders in such Transfer Noticeaccordance herewith.
(d) The provisions right of first offer in this Section 7.2 2.3 shall terminate upon the earlier not be applicable to occur of: (i) such time as 3Com Corporation distributes its shares of the Company's Common Stock Ordinary Shares issued pursuant to the shareholders of 3Com Corporation a share split or similar reorganization; (ii) one year following Ordinary Shares issued or issuable upon conversion of a Note; (iii) securities issued in connection with a bona fide business acquisition by the Closing DateCompany; (iv) securities issued or issuable pursuant to strategic transactions entered into for primarily non-equity financing purposes; (v) securities issued or issuable pursuant to equipment lease financings or bank credit arrangements entered into for primarily non-equity financing purposes; or (vi) any securities offered in a Qualified Public Offering.
Appears in 1 contract
Samples: Subscription Agreement (Gushan Environmental Energy LTD)
Right of First Offer. For so long as Purchaser holds After the first year of this Investor Rights -------------------- Agreement, subject to the terms and conditions specified in Section 2.1 above and this Section 2.2, the Company hereby grants to the Investor, provided it owns any Registrable Securities or the Option, a right of first offer with respect to future sales by the Company of its Shares. Each time the Company proposes to offer any Shares, if the Purchaser joins in a partnership, limited partnership, syndicate, or otherwise acts in concert or alone for the purpose of disposing of more than 5% of the Shares (as adjusted for stock splits or similar events after the date hereof) to a single person or transferee or any group of affiliated persons or transferees but specifically excluding any hedging or similar transactions, the Purchaser shall give the Company shall first make an offering of such Shares to the opportunity to purchase such stock, Investor in accordance with the following mannerprovisions:
(a) The Purchaser Company shall give deliver a notice by certified mail (the "Transfer Offer Notice") to the Company in writing Investor stating (i) its bona fide intention to offer such Shares, (ii) the number of such intention, specifying the number and kind of securities proposed Shares to be sold or transferredoffered, and (iii) the proposed price per share therefor (the "Transfer Price") and the other material terms, if any, upon which it proposes to offer such disposition is proposed to be made, including the names of the proposed purchasers or transferees if such persons have been identifiedShares.
(b) The Company shall have the right, exercisable by written notice given by the Company to the Purchaser within ten Within 30 calendar days of after receipt of the Transfer Notice Offer Notice, the Investor may elect to purchase all of or obtain, at the shares specified in such Transfer Notice upon price and on the terms specified in the Offer Notice, up to that portion of such Transfer Notice. Notwithstanding Shares which equals the foregoingproportion that the number of shares of common stock issued and held, the Company shall have twenty-five calendar days from the receipt or issuable upon exercise of the Transfer Notice (regardless of the date of the Transfer Notice) to notify Purchaser of the Company's election to purchase the shares pursuant to this Section 7.2 if the Company shall furnish a certificate signed Option then held by the President or Chief Executive Officer Investor bears to the total number of shares of common stock of the Company within ten calendar days then outstanding (assuming full conversion and exercise of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 shall not constitute such an eventall convertible or exercisable securities). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have the right to pay for such shares specified in the Transfer Notice: (a) the same amount in cash, if the consideration to be paid consists of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that set forth in the Transfer Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement of the Company and the Purchaser.
(c) If all Shares which Investor is entitled to obtain pursuant to subsection 2.2(b) are not elected to be obtained as provided in subsection 2.2(b) hereof, the Company (or its assignees) does not exercise its right of first offer hereunder within the time specified for such exercise, the Seller(s) shall be freemay, during the 30-day period of 120 days following the date expiration of the Transfer Noticeperiod provided in subsection 2.2(b) hereof, offer the remaining unsubscribed portion of such Shares to sell the shares specified in such Transfer Notice for such consideration any person or persons at a price not less than, and on such other material upon terms as shall be no more favorable to the purchaser offeree than those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the shares than Shares within such period, or if such agreement is not consummated within 30 days of the terms specified execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Investor in such Transfer Noticeaccordance herewith.
(d) The provisions right of first offer in this Section 7.2 2.2 shall terminate upon the earlier to occur of: not be applicable (i) such time as 3Com Corporation distributes its to the issuance or sale of shares of common stock (or options therefor) to employees for the Company's Common Stock primary purpose of soliciting or retaining their employment, pursuant to the shareholders of 3Com Corporation a stock option, stock purchase or stock bonus plan, or (ii) one year following to or after consummation of a bona fide, firmly underwritten public offering of shares of common stock, registered under the Closing DateAct pursuant to a registration statement on Form S-1, at an offering price of at least $10.00 per share (appropriately adjusted for any stock split, dividend, combination or other recapitalization) and $75,000,000 in the aggregate.
(e) The right of first offer set forth in this Section 2.2 may not be assigned or transferred, except that such right is assignable by the Investor to (i) any wholly owned subsidiary or parent of, or to any corporation or entity that is, within the meaning of the Act, controlling, controlled by or under common control with, the Investor, or (ii) any business organization which the Investor consolidates with, or merges into, or to which the Investor sells or conveys all of the Investor's stock or all or substantially all of the assets of the Investor.
Appears in 1 contract
Samples: Investor Rights Agreement (Advanced Tissue Sciences Inc)
Right of First Offer. For so long (a) Without limiting the provisions of Section 7.5(d), below, other than as Purchaser holds any Shares, if the Purchaser joins in a partnership, limited partnership, syndicate, or otherwise acts in concert or alone for the purpose of disposing of more than 5% of the Shares (as adjusted for stock splits or similar events after the date hereof) to a single person or transferee or any group of affiliated persons or transferees but specifically excluding any hedging or similar transactions, the Purchaser shall give the Company the opportunity to purchase such stockpermitted by Section 7.3, in the following manner:
event that the TRB Members on the one hand, (aacting jointly and in proportion to their respective Percentage Interests in all cases for purposes of this Section 7.5) The Purchaser or the RBH Members (acting jointly in all cases for purposes of this Section 7.5) at any time (the “Selling Members”) desire to sell all or a portion of their Interests, the Selling Members shall give provide to the other Members written notice of such intention which notice (the "Transfer “First Offer Notice"”) shall include a description of the terms of a transfer which the Selling Members would accept and any other material information then known by the Selling Members relating to a specific proposed transfer, if any, for which the Company Selling Members had already commenced negotiations (“Sale Proposal”). The non-selling Members shall have the first right (“Right of First Offer”) for a fifteen (15)-day period from the date of receipt of the First Offer Notice to accept the Sale Proposal on the terms specified in writing the First Offer Notice, and to consummate the transaction contemplated by the Sale Proposal. If the non-Selling Members have not responded within such fifteen (15) day period, it shall be deemed a rejection of such intentionthe Sale Proposal. In the event that the Selling Members are the TRB Members, specifying and their proposed sale includes a sale of all or part of the number BRT Senior Mortgage, then the Offer shall include, and kind of securities proposed to may only be sold or transferredaccepted with, the proposed price per share therefor (the "Transfer Price") and the other material terms, upon which such disposition is proposed to be made, including the names portion of the proposed purchasers or transferees if such persons have been identifiedBRT Senior Mortgage set forth in the Offer.
(b) The Company Upon any express or deemed rejection by the non-Selling Members of the Sale Proposal, the Selling Members shall have the right, exercisable by written notice given by the Company a one hundred eighty (180)-day period thereafter to the Purchaser within ten calendar days of receipt of the Transfer Notice to purchase all of the shares specified in such Transfer Notice upon consummate a transaction with any Qualified Transferee (as hereinafter defined) on the terms specified in such Transfer Noticethe Sale Proposal or on terms more advantageous to the Selling Members. Notwithstanding A Qualified Transferee shall be a Person who:
1. has a net worth in excess of $1,000,000.00;
2. has not been the foregoing, subject of an insolvency or bankruptcy proceeding;
3. has no outstanding judgments or liens;
4. has no material litigation pending against him or her;
5. is not then under indictment and has not been convicted of a felony;
6. has not been the Company subject of a foreclosure action; and
7. is not on any OFAC list. The Qualified Transferee shall have twenty-five calendar days from be required to provide representations confirming the receipt foregoing as a condition of the Transfer Notice (regardless of transfer and such other supporting documents as the date of the Transfer Notice) to notify Purchaser of the Company's election to purchase the shares pursuant to this Section 7.2 if the Company shall furnish a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 shall not constitute such an event). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have the right to pay for such shares specified in the Transfer Notice: (a) the same amount in cash, if the consideration to be paid consists of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that set forth in the Transfer Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement of the Company and the Purchasernon-Selling Members may reasonably request.
(c) If the Company (non-Selling Members do not elect to exercise their rights pursuant to Section 7.5(a) above and the Selling Members are selling all or its assignees) does not exercise its right a portion of first offer hereunder within the time specified for such exercisetheir Interests to any third party, the Seller(s) non-Selling Members shall have the right, exercisable upon written notice to the Selling Members, to participate in such sale and to Transfer their Interests to the third party pursuant to the Sale Proposal on the same terms and conditions as the Selling Members intend to Transfer their Interests set forth in the Sale Proposal (except that the price to be to be paid by the Qualified Transferee to the non-Selling Members participating in the sale shall be freedetermined as follows: such price shall be the amount that such non-Selling Member would receive as distributions of Cash Flow pursuant to Section 8.1, during if distributions were to be made to the period Members pursuant to Section 8.1 and the Selling Member were to receive an amount equal to the price being paid by the Qualified Transferee to the Selling Members as set forth in the Sale Proposal. By way of 120 days following example only: Assume that the date TRB Members are the Selling Members and RBH Partners is a non-Selling Member that has elected to participate in the sale. Assume further that (i) the purchase price to be paid to the TRB members by a Qualified Transferee for their Interests as set forth in the sale proposal is $8,000,000, (ii) the TRB Members have theretofore made Additional Advances in the amount of $2,000,000, all of which is then unreturned, and are entitled to a Prority Return of $200,000 thereon, (iii) RBH Partners has theretofore made Additional Advances in the amount of $2,000,000, all of which is then unreturned, and is entitled to a Priority Return of $200,000 thereon, (iv) the amount of the Transfer NoticeUnrecouped TRB Preferred Capital Contributions is $6,800,000 and the unpaid Preferred Return thereon is $680,000 (v) RBH Capital has not been removed as Manager pursuant to Section 5.9(b)(iii), and (vi) neither the TRB Members nor RBH Partners has failed to sell make any required Additional Advance. In order to receive distributions of $8,000,000, the shares specified in such Transfer Notice for such consideration TRB Members would have to receive all of their Additional Advances and on such other material terms as shall the Priority Return thereon and a portion of the Unrecouped TRB Preferred Capital Contributions and the Preferred Return thereon. For the TRB Members to be no more favorable entitled to the purchaser Unrecouped TRB Preferred Capital Contributions and the Preferred Return thereon, RBH Partners would have been entitled to have first received the entire amount of its Additional Advances and the shares than Priority Return thereon, which is $2,200,000. Consequently, the terms specified in such Transfer Noticeprice that RBH Partners would be entitled to be paid by the Qualified Transferee for its Interest would be $2,200,000. TRB Members would still receive the $8,000,000 offered, for a total price of $10,200,000 to be paid by the Qualified Transferee for the TRB Members’ and RBH Partners’ Interests.
(d) The provisions Anything in this Agreement to the contrary notwithstanding, as a condition precedent to any transfer by the RBH Members set forth in this Section 7.5, the RBH Members shall, on behalf of the Company (but not with Company funds or Additional Advances made by the TRB Members), pay in full the BRT Senior Mortgage (together with the amounts of Additional Advances made by the TRB Members used to make payments of the principal amount of the BRT Senior Mortgage and any Deferred Interest (as such term is defined in the note evidencing the loan secured by the BRT Senior Mortgage) thereon), the Unrecouped TRB Preferred Capital Contributions and the unpaid Preferred Return (whether or not such amounts are then due).
(e) Any transfer by the Selling Members without strict compliance with the terms and conditions of this Section 7.2 Agreement shall terminate upon the earlier to occur of: (i) such time as 3Com Corporation distributes its shares be null and void and of the Company's Common Stock to the shareholders of 3Com Corporation or (ii) one year following the Closing Dateno effect.
Appears in 1 contract
Samples: Limited Liability Company Operating Agreement (BRT Realty Trust)
Right of First Offer. For so long as Purchaser holds any SharesSubject to the terms and conditions specified in this Section 2.3, if the Purchaser joins in Company hereby grants to each Shareholder a partnership, limited partnership, syndicate, or otherwise acts in concert or alone for right of first offer with respect to future sales by the purpose Company of disposing of more than 5% of the its Shares (as adjusted for stock splits or similar events after the date hereof) to a single person or transferee or any group hereinafter defined). For purposes of affiliated persons or transferees but specifically excluding any hedging or similar transactionsthis Section 2.3, the Purchaser term “Shareholder” includes any partners, members and affiliates of a Shareholder. A Shareholder shall give be entitled to apportion the right of first offer hereby granted it among itself and its partners, members and affiliates in such proportions as it deems appropriate, provided, however, that such partner, member or affiliate of that Shareholder who is not a party to this Agreement shall not be allotted or issued any Shares unless and until it has delivered to the Company a duly executed Deed of Adherence. For purposes of this Section 2.3, “affiliates” means any person that (i) Tiger Holder or UCI Holder (as the opportunity case may be) controls or manages, directly or indirectly, whether by possessing the power to purchase direct or cause the direction of the management policies of such stockan affiliate, through the ownership of voting securities, by contract, credit arrangement or proxy, as trustee, executor, agent or otherwise, (ii) is under common control with Tiger Holder or UCI Holder (as the case may be) or (iii) controls, directly or indirectly, Tiger Holder or UCI Holder (as the case may be). Each time the Company proposes to offer any shares of, or securities convertible into or exchangeable or exercisable for any shares of, any class of the Company’s shares (“Shares”), the Company shall first make an offering of such Shares to each Shareholder in accordance with the following mannerprovisions:
(a) The Purchaser Company shall give deliver a notice in accordance with Section 5.5 (the "Transfer “Notice"”) to the Company in writing Shareholders stating (i) its bona fide intention to offer such Shares, (ii) the number of such intention, specifying the number and kind of securities proposed Shares to be sold or transferred, offered and (iii) the proposed price per share therefor (the "Transfer Price") and the other material terms, terms upon which it proposes to offer such disposition is proposed to be made, including the names of the proposed purchasers or transferees if such persons have been identifiedShares.
(b) The Company shall have the right, exercisable by By written notice given notification received by the Company to the Purchaser within ten twenty-five (25) calendar days of after receipt of the Transfer Notice Notice, each Shareholder may elect to purchase all of or obtain, at the shares specified in such Transfer Notice upon price and on the terms specified in the Notice, up to that portion of such Transfer Notice. Notwithstanding Shares that equals the foregoing, proportion that the Company shall have twenty-five calendar days from the receipt number of the Transfer Notice Ordinary Shares Equivalents held by such Shareholder (regardless assuming full conversion and exercise of the date of the Transfer Noticeall convertible and exercisable securities then outstanding) to notify Purchaser of the Company's election to purchase the shares pursuant to this Section 7.2 if the Company shall furnish a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental bears to the Company total number of Ordinary Shares Equivalents then outstanding (assuming full conversion and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election exercise of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 shall not constitute such an eventall convertible and exercisable securities then outstanding). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have promptly, in writing, inform each Shareholder that elects to purchase all the right shares available to pay it (a “Fully Exercising Shareholder”) of any other Shareholder’s failure to do likewise. During the ten (10) day period commencing after such information is given, each Fully Exercising Shareholder may elect to purchase that portion of the Shares for such shares specified in which Shareholders were entitled to subscribe but which were not subscribed for by the Transfer Notice: (a) the same amount in cash, if the consideration to be paid consists of cash, or (b) Shareholders that is equal to the extent proportion that the consideration number of Ordinary Shares Equivalents held by such Fully Exercising Shareholder (assuming full conversion and exercise of all convertible and exercisable securities then outstanding) bears to be paid does not consist the total number of cash, consideration per share equivalent to that set forth in the Transfer Notice, or an amount Ordinary Shares Equivalents then outstanding (assuming full conversion and exercise of cash having equivalent value, as determined in good faith by mutual agreement of the Company all convertible and the Purchaserexercisable securities then outstanding).
(c) If all Shares that Shareholders are entitled to obtain pursuant to subsection 2.3(b) are not elected to be obtained as provided in subsection 2.3(b) hereof, the Company (or its assignees) does not exercise its right of first offer hereunder within the time specified for such exercise, the Seller(s) shall be freemay, during the ninety (90) day period of 120 days following the date expiration of the Transfer Noticeperiod provided in subsection 2.3(b) hereof, offer the remaining unsubscribed portion of such Shares to sell the shares specified in such Transfer Notice for such consideration any person or persons at a price not less than that, and on such other material upon terms as shall be no more favorable to the purchaser offeree than those, specified in the Notice, provided, however, that no Shares shall be allotted or issued to such offeree unless and until such offeree has delivered to the Company a duly executed Deed of Adherence as a condition precedent to any such offer. If the Company does not enter into an agreement for the sale of the shares than Shares within such period, or if such agreement is not consummated within sixty (60) days of the terms specified execution thereof, the right provided hereunder shall be deemed to be revived and such Shares shall not be offered unless first reoffered to the Shareholders in such Transfer Noticeaccordance herewith.
(d) The provisions right of first offer in this Section 7.2 2.3 shall terminate upon the earlier not be applicable to occur of: (i) such time as 3Com Corporation distributes its shares of the Company's Common Stock Ordinary Shares issued pursuant to the shareholders of 3Com Corporation a share split or similar reorganization; (ii) one year following Ordinary Shares issued or issuable upon conversion of a Note; (iii) securities issued in connection with a bona fide business acquisition by the Closing DateCompany; (iv) securities issued or issuable pursuant to strategic transactions entered into for primarily non-equity financing purposes; (v) securities issued or issuable pursuant to equipment lease financings or bank credit arrangements entered into for primarily non-equity financing purposes; or (vi) any securities offered in a Qualified Public Offering.
Appears in 1 contract
Samples: Investors’ Rights Agreement (Gushan Environmental Energy LTD)
Right of First Offer. For so long (a) Any Shareholder (the "Section 4.1 Seller") that desires to sell any of its Shares (other than a Sale (x) to a Permitted Transferee as Purchaser holds any Sharespermitted by Section 3.3, if the Purchaser joins (y) in a partnership, limited partnership, syndicatePublic Sale, or otherwise acts (z) in concert or alone connection with a Transfer by QPL pursuant to Transfer of Shares referred to in Section 4.5) shall provide each non-selling Shareholder written notice of its desire to so Sell Shares (a "Right of First Offer Notice"). The Right of First Offer Notice shall set forth the number of Shares which the Section 4.1 Seller desires to Sell, the per share consideration to be received for the purpose Shares and any other proposed material terms and conditions relating to such Sale. Notwithstanding the foregoing, no Lender shall have any rights under, but each of disposing the Lenders nonetheless shall be bound by this Section 4.1, subject to Section 4.4(b) and Section 4.4(c), provided that Section 4.1 shall not restrict any Transfer of more Shares by way of Public Sale.
(i) The delivery of a Right of First Offer Notice shall constitute an offer, which, subject to Section 4.4(b) below, shall be irrevocable for 21 days (the "Right of First Offer Notice Period"), by the Section 4.1 Seller to Sell to each non-selling Shareholder (each an "Offeree" and collectively the "Offerees") the Shares subject to the Right of First Offer Notice, for the per share price set forth in the Right of First Offer Notice and on the terms and conditions set forth therein. Each Offeree shall have the right, but not the obligation, to accept the offer set forth in the Right of First Offer Notice to purchase all but not less than 5% all of the Shares subject thereto by giving a written notice of purchase (as adjusted for stock splits or similar events after the date hereof) to a single person or transferee or any group of affiliated persons or transferees but specifically excluding any hedging or similar transactions, the Purchaser shall give the Company the opportunity to purchase such stock, in the following manner:
(a) The Purchaser shall give notice (the "Transfer Section 4.1 Purchase Notice") to the Company Section 4.1 Seller prior to the expiration of the Right of First Offer Notice Period. Subject to Section 4.1(b)(ii), delivery of a Section 4.1 Purchase Notice by an Offeree to the Section 4.1 Seller shall constitute a contract between such Offeree and the Section 4.1 Seller for the purchase and Sale of the Shares subject to the Right of First Offer Notice for the per share price set forth in writing the Right of First Offer Notice and on the terms and conditions set forth therein.
(ii) In the event more than one Offeree shall deliver a Section 4.1 Purchase Notice to the Section 4.1 Seller prior to the expiration of the Right of First Offer Notice Period, each such intentionSection 4.1 Purchase Notice shall constitute a separate contract between the Section 4.1 Seller and such Offeree delivering a Section 4.1 Purchase Notice for the purchase and Sale of Shares subject to the Right of First Offer Notice, specifying at the per share price set forth therein. The number of Shares subject to each such separate contract shall be determined on a pro rata basis based upon the number of Shares owned by each Offeree delivering a Section 4.1 Purchase Notice, or on such other basis as such Offerees may agree. The aggregate number of Shares, and kind the aggregate purchase price thereof, subject to all such contracts shall at all times equal the number of securities proposed to be sold or transferred, Shares set forth in the proposed Right of First Offer Notice and the purchase price per share therefor set forth therein multiplied by the number of Shares set forth therein, respectively. EXHIBIT 99.3
(c) The closing of any purchase and Sale of Shares between the "Transfer Price") Section 4.1 Seller and any Offeree pursuant to this Section 4.1 shall take place on the other material terms, upon which date designated by such disposition is proposed to be made, including Offeree within 30 days from the names termination of the proposed purchasers or transferees Right of First Offer Notice Period; provided that if such persons purchase and Sale of such Shares is subject to any prior approval or other consent required by applicable law, regulation or stock exchange rule, the time period during which the closing of such purchase and Sale may occur shall be extended (but not to exceed 120 days in the aggregate) until the expiration of ten Business Days after all such approvals and consents shall have been identifiedreceived. The parties shall use reasonable efforts to obtain all such approvals and consents.
(bd) The Company If no Offerees deliver a Section 4.1 Purchase Notice in accordance with Section 4.1(b) prior to the termination of the Right of First Offer Notice Period, there shall commence a 90 day period during which the Section 4.1 Seller shall have the right, exercisable by written notice given by subject to Section 4.2 (Tag Along Rights) and Section 4.3 (Drag Along Rights), to enter into an agreement to Sell all the Company Shares subject to the Purchaser within ten calendar days Right of receipt of the Transfer First Offer Notice to purchase all a Third Party for a per share price equal to at least the per share price set forth in the Right of First Offer Notice and otherwise on terms and conditions not more favorable in the shares specified aggregate to the purchaser than those set forth in such Transfer Notice upon the terms specified in such Transfer Right of First Offer Notice. Notwithstanding the foregoing, the Company shall have twenty-five calendar days from the receipt of the Transfer Notice .
(regardless of the date of the Transfer Noticee) Any proposed Sale to notify Purchaser of the Company's election to purchase the shares a Third Party pursuant to this Section 7.2 4.1: (i) shall be in compliance with all applicable laws, regulations and stock exchange rules, including, without limitation, all securities laws, and (ii) shall be consummated within 30 days from the termination of the Tag Along Notice Period as defined in Section 4.2(b); provided that if the Company Sale of such Shares is subject to any prior regulatory approval or consent, the time period during which such Sale may be consummated may be extended (but not to exceed 120 days in the aggregate from the date of execution of such agreement) until the expiration of ten Business Days after all such approvals and consents shall furnish a certificate signed by have been received. If the President or Chief Executive Officer Section 4.1 Seller does not consummate the Sale of the Company within ten calendar days Shares subject to the Right of receipt of First Offer Notice in accordance with the Transfer Notice stating that, in the good faith judgment of the management of the Companyabove time limitations, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell may not thereafter Sell such Shares except in a transaction triggering compliance in full with all the provisions of this Section 7.2 4.1.
(f) Promptly after consummation of any Sale to a Third Party pursuant to Section 4.1(e), the Section 4.1 Seller shall not constitute such an event). The purchase notify each non-selling Shareholder of the shares by the Company must be completed within 60 calendar days from the receipt consummation thereof and shall furnish such evidence of the Transfer Notice. The Company completion of such Sale and Purchaser shall use their best efforts to secure during of the terms thereof as such period any approvals required on their respective parts in connection therewith. The Company shall have the right to pay for such shares specified in the Transfer Notice: (a) the same amount in cashShareholder may reasonably request, if the consideration to be paid consists of cashincluding, or (b) to the extent without limitation, evidence that the consideration to be paid does not consist of cash, consideration per share equivalent price paid by such Third Party was equal to that at least the per share price set forth in the Transfer Right of First Offer Notice and otherwise on terms and conditions not more favorable in the aggregate to such Third Party than those set forth in the Right of First Offer Notice. EXHIBIT 99.3
(g) All proposed Sales of Shares to a Third Party under Section 4.1(d) shall also be subject to Sections 4.2 and 4.3. For avoidance of doubt, or an amount the operation of cash having equivalent value, as determined in good faith by mutual agreement Sections 4.2 and 4.3 do not require the selling Shareholder to deliver a second Right of the Company and the PurchaserFirst Offer Notice under Section 4.1.
(ch) If the Company (or its assignees) does not exercise its right of first offer hereunder within the time specified for such exerciseNotwithstanding anything contained in this Section 4.1, the Seller(s) shall be free, during the period of 120 days following the date of the Transfer Notice, to sell the shares specified in such Transfer Notice for such consideration and on such other material terms as there shall be no more favorable to liability on the purchaser part of the shares than Section 4.1 Seller to any non-Selling Shareholder if the terms specified in such Transfer Notice.
(d) The provisions Sale of Shares to a Third Party pursuant to this Section 7.2 4.1 is not consummated for whatever reason. Any decision as to whether to Sell Shares shall terminate upon be at the earlier to occur of: (i) such time as 3Com Corporation distributes its shares sole and absolute discretion of the Company's Common Stock to the shareholders of 3Com Corporation or (ii) one year following the Closing Date.Section 4.1
Appears in 1 contract
Samples: Shareholders Agreement (Chase Asia Investment Partners Ii (Y), LLC)
Right of First Offer. For so So long as Purchaser holds the Minimum Whitney Common Ownership is at least twenty percent (20%), neither Xxxxxxxx nor any Shares, if of his Permitted Transferees (the Purchaser joins "XXXXXXXX PARTIES") may Transfer any Securities except in a partnership, limited partnership, syndicate, or otherwise acts in concert or alone for the purpose of disposing of more than 5% of the Shares (as adjusted for stock splits or similar events after the date hereof) to a single person or transferee or any group of affiliated persons or transferees but specifically excluding any hedging or similar transactions, the Purchaser shall give the Company the opportunity to purchase such stock, in the following manner:compliance with this Section 2.3.
(a) The Purchaser If any Xxxxxxxx Party desires to Transfer Securities, he shall give notice (the "Transfer Notice") thereof to the Company in writing of such intention, specifying Whitney Notice Parties (a "FIRST OFFER NOTICE"). The First Offer Notice shall include the number and kind type of securities proposed Securities that are to be sold or transferredthe subject of the Transfer and, to the extent then known, the proposed price per share therefor (process applicable to the "Transfer Price") and the other material terms, upon which intended timing of such disposition is proposed to be made, including the names of the proposed purchasers or transferees if such persons have been identifiedTransfer.
(b) The Company holders of a majority of the Whitney Common Shares (the "REQUIRED HOLDERS") shall have the right, but not the obligation, exercisable by written notice given by at any time within thirty (30) days after delivery of the Company First Offer Notice, to deliver in writing to the Purchaser within ten calendar days of receipt of the Transfer Notice Xxxxxxxx Party an offer to purchase all all, but not less than all, of such Securities (the shares specified in such Transfer Notice upon "FIRST OFFER ELECTION") setting forth the material terms specified in such Transfer Notice. Notwithstanding the foregoing, the Company shall have twenty-five calendar days from the receipt of the Transfer Notice (regardless of the date of the Transfer Notice) to notify Purchaser of the Company's election and conditions on which it proposes to purchase such Securities (the shares pursuant to this Section 7.2 if the Company shall furnish a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 shall not constitute such an event"FIRST OFFER TERMS"). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have the right to pay for such shares specified in the Transfer Notice: (a) the same amount in cash, if the consideration to be paid consists of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that set forth in the Transfer Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement of the Company and the Purchaser.
(c) The Xxxxxxxx Party shall have a period of ten (10) days after the delivery of the First Offer Election in which to accept or reject the offer by the Required Holders on the First Offer Terms. Notice of such acceptance shall be referred to as the "XXXXXXXX ACCEPTANCE NOTICE."
(d) Upon the acceptance of any such offer pursuant to (b) above, the Required Holders shall designate a date to purchase the Securities to be acquired, which date shall be not less than five (5) days following the date on which the Required Holders notify the Xxxxxxxx Party thereof and not more than thirty (30) days following delivery of the Xxxxxxxx Acceptance Notice, at which time the Required Holders shall deliver payment in the appropriate amount to the Xxxxxxxx Party against (i) delivery of certificates or other instruments representing the Securities to be purchased, appropriately endorsed by the Xxxxxxxx Party and (ii) completion of all documentation necessary to satisfy all of the First Offer Terms.
(e) If the Company (Required Holders do not make a First Offer Election or its assignees) does if the Xxxxxxxx Party has not exercise its right of first accepted the offer hereunder embodied in the First Offer Notice within the time specified for such exerciseten (10) day period set forth in subparagraph (b) above, the Seller(sXxxxxxxx Party shall have the unlimited right at his option, at any time within the one hundred eighty (180) shall be free, during the period of 120 days following the date of the Transfer Notice, First Offer Notice to sell all of the shares specified Securities that were the subject of the First Offer Notice free of any obligation to sell any of such Securities to the Required Holders; provided, however, that, if the Required Holders shall have made a First Offer Election but the Xxxxxxxx Party did not accept such offer as aforesaid, the per share price in such sale shall not be less than the per share price contained in the First Offer Terms. Any subsequent or other proposed Transfer Notice for such consideration and on such other material terms as shall be no more favorable subject to the purchaser rights of the shares than the terms specified in such Transfer Noticefirst offer set forth herein.
(df) The provisions Notwithstanding any provision of this Section 7.2 shall terminate upon 2.3 to the earlier to occur of: contrary, if the exercise by any holder of Whitney Securities of its Right of First Offer would cause the Voting Power (ion a fully-diluted basis, including in respect of all Derivative Securities) such time as 3Com Corporation distributes its shares which all of the Company's holders of the Whitney Securities own, directly or indirectly, to exceed forty-nine and nine-tenths percent (49.9%) of the Voting Power of the Common Stock (on a fully-diluted basis, including in respect of all Derivative Securities), then such holders of Whitney Securities agrees that that portion of the Securities so exceeding such forty-nine and nine-tenths percent (49.9%) threshold shall be replaced with a different class of Securities without any voting rights whatsoever (but in all other respects identical to the shareholders Securities offered pursuant to this Section 2.3). Each of 3Com Corporation the Parties covenants and agrees that it shall take all measures required to carry out the foregoing, including approval of any required amendment to the Certificate of Incorporation of Holdings.
(g) Notwithstanding anything contained herein to the contrary, this Section 2.3 shall not apply to: any Transfer or series of related Transfers of Securities by the Xxxxxxxx Parties that, in the aggregate, together with all other Transfers subject to the exception set forth in this subsection (g)(i), constitute Minimum Xxxxxxxx Ownership of less than ten percent (10%), (ii) one year following Transfers to Permitted Transferees and (iii) Transfers with respect to which the Closing DateXxxxxxxx Transferors have exercised a right to compel sale pursuant to Section 2.5.
Appears in 1 contract
Samples: Stockholders' Agreement (Roller Bearing Co of America Inc)
Right of First Offer. For so long as Purchaser holds any Shares, if the Purchaser joins in a partnership, limited partnership, syndicate, or otherwise acts in concert or alone for the purpose of disposing of more than 5% of the Shares (as adjusted for stock splits or similar events after the date hereof) to a single person or transferee or any group of affiliated persons or transferees but specifically excluding any hedging or similar transactions, the Purchaser shall give the Company the opportunity to purchase such stock, in the following manner:
(a) The Purchaser shall give notice If a Member desires to sell, transfer or otherwise dispose of any of its Units (other than to an Affiliate thereof), the Member (the "Transfer NoticeSELLER") shall first deliver a written notice to the Company in writing each other Member of such intentionproposed sale, specifying transfer or other disposition (the "FIRST OFFER NOTICE"). The First Offer Notice shall contain (i) the proposed purchase price, (ii) the number and kind of securities Units proposed to be sold or transferred, transferred and (iii) the proposed price per share therefor (the "Transfer Price") terms of payment and the other material terms, upon which such disposition is proposed to be made, including the names terms and conditions of the proposed purchasers or transferees if such persons have been identifiedSeller's offer.
(b) The Company Each Member shall have the right, exercisable by upon written notice given by the Company to the Purchaser Seller within ten calendar fifteen (15) days of after receipt of the Transfer Notice First Offer Notice, to purchase all of the shares specified in such Transfer Notice upon either: (i) purchase, on the terms specified in such Transfer Notice. Notwithstanding the foregoing, the Company shall have twenty-five calendar days from the receipt of the Transfer Notice (regardless of the date of the Transfer Notice) to notify Purchaser of the Company's election to purchase the shares pursuant to this Section 7.2 if the Company shall furnish a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 shall not constitute such an event). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have the right to pay for such shares specified in the Transfer Notice: (a) the same amount in cash, if the consideration to be paid consists of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that conditions as set forth in the Transfer NoticeFirst Offer Notice all, or an amount of cash having equivalent valuebut not less than all, as determined in good faith by mutual agreement of the Company Units that is the subject of the First Offer Notice on a pro rata basis based on the percentage of Units owned by each Member electing to participate in the right of first offer (the "FIRST PURCHASE RIGHT") or (ii) notify the Seller in writing of a price per share (the "MEMBER STATED PRICE") at which such Member would be willing to purchase the number of Units specified in the First Offer Notice on the terms and conditions as set forth in the PurchaserFirst Offer Notice other than price (the "ALTERNATIVE MEMBER OFFER") at the Member Stated Price included in such Alternative Member Offer. Each Member electing to exercise the First Purchase Right shall notify the Seller in writing of such election (the "NOTICE OF FIRST OFFER ACCEPTANCE") and shall complete the First Purchase Right within sixty (60) days after delivery of the Notice of First Offer Acceptance.
(c) If no Member elects to exercise the Company (or its assigneesFirst Purchase Right pursuant to Section 7.2(b) does not exercise its right of first offer hereunder within the time specified for such exerciseabove, the Seller(sSeller may, not later than one hundred twenty (120) shall be free, during the period of 120 days following the date expiration of the Transfer NoticeMembers' First Purchase Rights, to sell transfer the shares specified in such Transfer Notice for such consideration and on such other material terms as shall be no more favorable to Units that were the purchaser subject of the shares than the terms specified in such Transfer Notice.
(d) The provisions of this Section 7.2 shall terminate upon the earlier to occur of: (i) such time as 3Com Corporation distributes its shares of the Company's Common Stock to the shareholders of 3Com Corporation or (ii) one year following the Closing Date.First Offer
Appears in 1 contract
Right of First Offer. For so long as Purchaser holds any Shares, if Prior to the Purchaser joins solicitation of third party offers or the written acceptance of an unsolicited third party offer for sale of the Property by the Company in a partnershiptransaction that would be a taxable disposition under the Code, limited partnershipthe Manager shall first notify the Xxxxxxx Representative in writing, syndicate, or otherwise acts in concert or alone of the price (the “Specified Selling Price”) for the purpose Property, provided that the provisions of disposing of Section 10.7 need not be complied with if at the time they would otherwise be applicable TZO and/or Beacon are exercising their rights under Section 8.3 against Members whose aggregate Percentage Interests are more than 533 1/3% of the Shares (as adjusted for stock splits aggregate Percentage Interests of all of the Original Partners or similar events after the date hereof) if at such time there has been failure to a single person or transferee or make any group of affiliated persons or transferees but specifically excluding any hedging or similar transactions, the Purchaser shall give the Company the opportunity payments required to purchase such stock, in the following manner:
(a) The Purchaser shall give notice (the "Transfer Notice") be made to the Company pursuant to the Indemnity Agreement after notice thereof from the Company and there has been a lapse of thirty (30) days since such notice was given. The Original Partners (among themselves in writing whatever proportions as they may determine) shall then have the right to purchase the Property at the Specified Selling Price set forth in the Manager’s notice or to purchase the Interests of TZO and all of (but not less than all of) the other Beacon Members in the Company (the “Beacon Interests”), such intention, specifying the number and kind of securities proposed right to be sold or transferredexercised, the proposed price per share therefor (the "Transfer Price") and the other material termsif exercised at all, upon which such disposition is proposed to be made, including the names of the proposed purchasers or transferees if such persons have been identified.
(b) The Company shall have the right, exercisable by written notice from the Xxxxxxx Representative to the Manager given within thirty (30) days (the “Election Period”) after the notice from the Manager given pursuant to above. Any such notice shall also include an election as to whether the purchase is of the Property or of the Beacon Interests. If no such designation is made, it shall be deemed that the Original Partners have elected to purchase the Beacon Interests. If the Original Partners exercise their rights under this paragraph, then the notice of such election shall be accompanied by, and shall be valid only if accompanied by, a non-refundable $2,000,000 cash deposit paid to an escrow agent designated by the Manager; such deposit shall be held by the escrow agent in an interest bearing account. If notice is not timely given or is not accompanied by the requisite deposit, the Original Partners shall be deemed to have elected not to purchase the Property. If the Original Partners purchase the Property or the Beacon Interests, as the case may be, the $2,000,000 shall be a credit against the purchase price. During the Election Period, the Manager shall make the books and records of the Company available to the Purchaser within ten calendar days Original Partners and shall allow access to the Property during normal business hours for customary inspections by prospective purchasers of receipt real property, subject, however, to delivery of confidentiality agreements and indemnities as to access comparable to those contained in the Master Transaction Agreement. Any purchase of the Transfer Notice to purchase all of Property or the shares specified in such Transfer Notice upon Beacon Interests by the terms specified in such Transfer Notice. Notwithstanding Original Partners under this Section 10.7 shall be consummated within sixty (60) days after the foregoing, the Company shall have twenty-five calendar days notice from the receipt Original Partners of the Transfer Notice (regardless of the date of the Transfer Notice) to notify Purchaser of the Company's their election to purchase the shares pursuant Property or the Beacon Interests, as the case may be, shall be for all cash and shall require the repayment of all mortgage loans on the Property, including, without limitation, the Subordinate Loans, provided, however, if any third party loan is assumable or, as the case may be, is not callable or it is not a default thereunder as a result of the consummation of the purchase of the Beacon Interests, such loan may be assumed or, as the case may be, remain outstanding if such is not callable or a default or appropriate consent is received, provided that all fees and other costs and expenses for such assumption shall be paid by the purchasing Original Partners, and TZO, any other Beacon Member, Beacon and any of their Affiliates which have provided any guarantees or indemnities in connection with any such loan shall be released therefrom. In the event the Beacon Interests are to this Section 7.2 be purchased, the purchase price for the Beacon Interests shall be the amount the Beacon Members owning the Beacon Interests would receive (and as among the Beacon Members, in the amount each such Beacon Member would receive) if the Company shall furnish a certificate signed by Property were sold for the President or Chief Executive Officer Specified Selling Price, all indebtedness of the Company within ten calendar days of receipt were discharged, all other assets of the Transfer Notice stating that, in Company other than cash and cash equivalents were sold for their respective Book Values and the good faith judgment Company then liquidated. If any then existing third party indebtedness of the management Company remains outstanding after a purchase of the Beacon Interests, then the principal amount thereof on the Closing of any such purchase shall be deducted in determining the aforesaid purchase price. In determining the amount pursuant to clause (i) of the first sentence of this paragraph, it shall be assumed that no amount would be payable by the Company upon a sale of the Property on account of the D.C. Franchise Tax if none would have been payable upon a sale of the Property by the Company based on the Company liquidating at the time of a sale (and thus the gain being passed out to the Members of the Company, it would be detrimental if such is then permissible or required under applicable law), and after deducting one-half of the then applicable real estate transfer tax if none is incurred in the actual transaction or if and to the extent the Beacon Members do not bear such tax. For purposes of determining the amount due under the Subordinate Loans under the immediately preceding two paragraphs, it shall be deemed that the Property is sold for the Specified Selling Price. If the Original Partners do not exercise, or are deemed not to have exercised, their right of purchase pursuant to the preceding provisions of this Section 10.7, the Manager shall thereafter be entitled to cause the Company to sell the Property, provided that any such sale is closed within two hundred and its stockholders seventy (270) days after the expiration of the Election Period at a price which is not less than ninety-two and one-half percent (92.5%) of the Specified Selling Price. In the event the Property is not sold to decide whether a third party within the aforesaid two hundred and seventy (270) days period for the minimum price determined pursuant to this paragraph, then if the Manager thereafter desires to sell the Property or thereafter receives an unsolicited offer for the Property, the Manager shall be required to reinstate the aforesaid provisions of this Section 10.7. In the event the Original Partners elect to purchase the Shares within Property or the ten day period Beacon Interests but fail to complete the purchase for any reason other than the Manager’s failure to cause the Company to convey the Property or any Beacon Member’s failure to convey its Interest or the failure to give the requisite representations and warranties provided for pursuant above , the aforesaid $2,000,000 deposit shall be retained by the Beacon Members as liquidated damages (as payments between Members and not as Company revenue or expenditure) and the Manager shall thereafter be free to this Section 7.2 (it being understood that cause the mere election of Purchaser Company to sell such Shares in a transaction triggering the Property at any time and for any price and the provisions of this Section 7.2 10.7 shall not constitute such an event)thereafter be null and void and no longer applicable as to any future potential sale of the Property. The remedies under this paragraph shall be the sole and exclusive remedies in the event the Original Partners elect to purchase the Property or to purchase the Beacon Interests but thereafter fail to close. Any conveyance of the Property by the Company to or as directed by the purchasing Original Partners shall be by standard conveyance documents, “as is”, and without any representations and warranties by the Company or the Beacon Members except that, subject to the proviso below, the Beacon Members shall make real estate representations as to rent roll, leases and operating contracts (but not any other real estate related representations) which the Beacon Members’ parent customarily makes when it sells real estate and due authorization and similar entity representations of the selling Entity, except that all matters occurring or existing prior to the Closing Date under the Master Transaction Agreement shall be excluded from any such representations, provided, however, if at such time the Xxxx X. Xxxxxxx Company or any Affiliate thereof or any Affiliate of any Original Partner (an “Xxxxxxx PM Affiliate”) is the property manager or the subproperty manager, then no real estate representations of any nature shall be made by the Company or the Beacon Members. Any conveyance of the Beacon Interests in the Company if there is a purchase of the shares Beacon Interests shall be by an Assignment of Member Interest with representations and warranties by the Company must be completed within 60 calendar days assigning Beacon Member of its authority to so convey and its ownership of the Interest being conveyed free and clear of all liens and other encumbrances other than those under this Agreement, as well as representations and warranties of the Beacon Members comparable to the Entity Representations contained in, and as such term is defined in, the Master Transaction Agreement for the period from the receipt Closing Date until the closing of the Transfer Noticepurchase of the Beacon Interests. The Company Any representations and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company warranties so provided shall have the right to pay for such shares specified in the Transfer Notice: (a) survival periods, floors and limits of liability and concepts of “deemed Buyer knowledge” which are the same amount in cash, if the consideration to be paid consists of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that as those set forth in the Transfer NoticeMaster Transaction Agreement; as to “deemed Buyer knowledge”, the relevant individuals shall be such Persons as are agreed upon as between the Xxxxxxx Representative and the Manager, each acting reasonably, provided that in all events such individuals shall include the appropriate on-site manager, if any, or an amount the person having a comparable off-site position, and the relevant senior supervisor of cash having equivalent valuethe Xxxxxxx PM Affiliate, if any. In all events, all representations and warranties shall exclude any matter in existence prior to the Closing Date under the Master Transaction Agreement and shall exclude all matters which were or are caused by any act or omission of any Original Partner or any Affiliate of any Original Partner Closing costs shall be apportioned as between, and normal prorations shall be made as between, the Company, as determined if it were a seller of real property, and the purchasing Original Partners in good faith by mutual agreement the customary manner for real estate transactions in the District of Columbia. At the request of the Company and Manager, upon a prospective sale of the Purchaser.
(c) If Property, at any time from the Company (or its assignees) does not exercise its right initiation of first offer hereunder within the time specified for such exercisesale process therefor until the consummation of any sale, the Seller(s) Xxxxxxx Representative, on its own behalf and on behalf of all the other Original Partners, shall be free, during provide an Estoppel Certificate or other similar form of certification as to the period of 120 days following the date compliance and satisfaction of the Transfer Notice, to sell the shares specified in such Transfer Notice for such consideration and on such other material terms as shall be no more favorable to the purchaser of the shares than the terms specified in such Transfer Notice.
(d) The provisions of this Section 7.2 10.7, or if it believes such compliance has not occurred, stating the particulars of any non-compliance. Any such certification by the Xxxxxxx Representative shall terminate upon be binding on all the earlier to occur of: Original Partners. If no such certification or statement of non-compliance is received within ten (i10) Business Days after request therefor, then it shall be unrebuttably presumed that Section 10.7 has been complied with and such time as 3Com Corporation distributes its shares of unrebuttable presumption shall be binding on all the Company's Common Stock to the shareholders of 3Com Corporation Members, and any Person claiming by or (ii) one year following the Closing Datethrough any Member.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Wells Real Estate Investment Trust Inc)
Right of First Offer. For so long as Purchaser holds (a) Except for any Shares, if the Purchaser joins in a partnership, limited partnership, syndicate, or otherwise acts in concert or alone for the purpose of disposing of more than 5% of the Shares (as adjusted for stock splits or similar events after the date hereof) to a single person or transferee Permitted Transfers or any group of affiliated persons Transfers in accordance with Section 8.7 or transferees but specifically excluding any hedging or similar transactions, the Purchaser shall give the Company the opportunity to purchase such stockSection 8.9, in the following manner:
event that a Member other than a Partners Group Member that has obtained approval from the Board as contemplated in Section 8.4(a) and wishes to sell all or any of the Units held by it (a) The Purchaser in each case, a “Transferring Member” and such proposed sale a “Transaction Offer”), such Transferring Member shall give written notice thereof to the Significant Holders (the "“ROFO Holders”), which notice shall describe the material terms and conditions of such offer (a “ROFO Notice”), which shall specify in detail (A) the number of Units which the Transferring Member desires to Transfer, and (B) the material terms and conditions (including the per share purchase price payable and the form of consideration for such offered Units) pursuant to which the Transferring Member proposes to Transfer Notice") such Units. The ROFO Notice shall constitute the Transferring Member’s offer to Transfer the offered Units to the Company in writing of such intention, specifying the number and kind of securities proposed to be sold or transferred, the proposed price per share therefor (the "Transfer Price") and the other material terms, upon which such disposition is proposed to be made, including the names of the proposed purchasers or transferees if such persons have been identified.
(b) The Company shall have the right, exercisable by written notice given by the Company to the Purchaser within ten calendar days of receipt of the Transfer Notice to purchase all of the shares specified in such Transfer Notice upon ROFO Holders on the terms specified in therein and such Transfer Notice. Notwithstanding offer shall be irrevocable until the foregoing, the Company shall have twenty-five calendar days from the receipt expiration of the Transfer Notice (regardless of the date of the Transfer Notice) to notify Purchaser of the Company's election to purchase the shares pursuant to this Section 7.2 if the Company shall furnish a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 shall not constitute such an event). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewithMember ROFO Acceptance Period. The Company shall have the right and option, for a period of thirty (30) days after delivery of the ROFO Notice (the “Company ROFO Acceptance Period”), to pay for such shares specified accept in writing all or any of the Transfer Units so offered at the purchase price stated in, and on the other terms and conditions set forth in, the ROFO Notice: (a) the same amount in cash, if the consideration to be paid consists of cash, or .
(b) If the Company shall not have accepted all of the Units offered for sale pursuant to the extent that ROFO Notice within the consideration to be paid does not consist Company ROFO Acceptance Period, the Company will provide each ROFO Holder with notice of cash, consideration per share equivalent to that set forth in such determination within five (5) days following the Transfer Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement expiration of the Company ROFO Acceptance Period. Each ROFO Holder shall have the right and option, for a period of twenty (20) days after the Purchaserexpiration of the Company ROFO Acceptance Period (the “Member ROFO Acceptance Period”), to accept in writing all or any of his, her or its pro rata portion (based on the number of Preferred Units then-held by such ROFO Holder in relation to the aggregate number of Preferred Units then-held by all ROFO Holders, in each case calculated on an as-converted basis) of the Units not accepted by the Company at the purchase price stated in, and on the other terms and conditions set forth in, the ROFO Notice.
(c) If the Company (and the ROFO Holders shall not have accepted all of the Units offered for sale pursuant to the ROFO Notice within the Company ROFO Acceptance Period and the Member ROFO Acceptance Period, the Company will provide each ROFO Holder who shall have fully exercised his, her or its assigneesoption to purchase or acquire Units available to him, her, or it in accordance with Section 8.8(a) does not exercise its right (a “Fully Exercising ROFO Holder”) with notice of first offer hereunder such determination within the time specified for such exercise, the Seller(sfive (5) shall be free, during the period of 120 days following the date expiration of the Transfer NoticeMember ROFO Acceptance Period. Each other Fully Exercising ROFO Holder shall have the right and option, to sell for a period of twenty (20) days after the shares specified in such Transfer Notice for such consideration and on such other material terms as shall be no more favorable to the purchaser expiration of the shares than Member ROFO Acceptance Period (the terms specified in such Transfer Notice.
(d) The provisions of this Section 7.2 shall terminate upon the earlier to occur of: “Over-Allotment ROFO Acceptance Period”), (i) to accept in writing all or any of his, her or its pro rata portion (based on the number of Preferred Units then-held by such time as 3Com Corporation distributes its shares Fully Exercising ROFO Holder in relation to the aggregate number of Preferred Units then-held by all Fully Exercising ROFO Holders (in each case, calculated on an as-converted basis)) of the Company's Common Stock to Units not accepted by the shareholders of 3Com Corporation or Company and the ROFO Holders at the purchase price stated in, and on the other terms and conditions set forth in, the ROFO Notice and (ii) one year following to offer, in any written notice of acceptance, to purchase any Units not accepted by the Closing Dateother ROFO Holders pursuant to this sentence, in which case the Units not accepted by the other ROFO Holders shall be deemed, on the same terms and conditions, to be re-offered from time to time during the Over-Allotment ROFO Acceptance Period to and accepted by the Fully Exercising ROFO Holders who exercised their option under this Section 8.8(c), pro rata among such Fully Exercising ROFO Holders until all such Units are fully subscribed or until all such Fully Exercising ROFO Holders have subscribed for all such offered Units which they desire to purchase.
Appears in 1 contract
Samples: Limited Liability Company Agreement (KC Holdco, LLC)
Right of First Offer. For so long as Purchaser holds (a) Subject to the terms and conditions of Article 9 of this Agreement and notwithstanding anything to the contrary contained herein, if, at any Sharestime, (i) GCI intends to sell all or a portion of its Interest pursuant to Section 9.5(a)(ii), or (ii) CHP intends to sell all or a portion of its Interest pursuant to Section 9.5(a)(iii), such Member (the “Transferor Member”) shall give a notice (“Transfer Notice”) to the other Member (the “Non-Transferor Member”) that the Transferor Member intends to Transfer such portion of its Interest to a third party and, upon receipt of such Transfer Notice the Non-Transferor Member shall determine a price for the assets of the Company if the Purchaser joins in Company was sold to a partnershipthird party purchaser for fair market value, limited partnership, syndicate, or otherwise acts in concert or alone for free and clear of all liabilities (the purpose “Transfer Price”). Within ten (10) Business Days of disposing of more than 5% receipt of the Shares (as adjusted for stock splits or similar events after the date hereof) to a single person or transferee or any group of affiliated persons or transferees but specifically excluding any hedging or similar transactionsTransfer Notice, the Purchaser Non-Transferor Member shall give notify the Transferor Member as to its determination of the Transfer Price (the “Transfer Price Notice”). Upon receipt of such Notice, the Transferor Member shall either accept or reject the Transfer Price. If the Transfer Price is accepted, the Transferor Member shall so notify the Non-Transferor Member (“Acceptance Notice”) and within three (3) Business Days of acceptance, the Independent Accountant acting on behalf of the Company shall determine the opportunity cash amount (the “ROFO Amount”) that the Transferor Member would have received in respect of such portion of the Transferor Member’s Interest pursuant to purchase such stockSection 8.2, net of the Transfer Expenses, in the following manner:
(aevent of a Capital Transaction of the type described in Section 10.1(a) The Purchaser shall give notice (above on the "date of delivery of the Transfer Notice") Notice for a sales price equal to the Company in writing Transfer Price, and shall notify the Transferor Member and Non-Transferor Member of such intention, specifying the number same. Upon delivery and kind acceptance of securities proposed to be sold or transferredthe ROFO Amount, the proposed price per share therefor Non-Transferor Member shall purchase the Transferor Member’s Interest in accordance with the provisions of Section 12.3 of this Agreement. If the Transfer Price is rejected, the Transferor Member shall so notify the Non-Transferor Member (the "Transfer Price"“Rejection Notice”) and the other material terms, upon which Transferor Member shall be free to sell its Interest to any third party in accordance with Section 12.2(b) of this Agreement. The failure of a Transferor Member to deliver either an Acceptance Notice or a Rejection Notice within such disposition is proposed period of time shall be deemed to be madethe delivery by such Non-Transferor Member of a Rejection Notice. If the Non-Transferor Member fails to deliver a Transfer Price Notice within the time period set forth herein, including the names of Transferor Member shall be free to sell its Interest to any third party pursuant to the proposed purchasers or transferees if such persons have been identifiedterms and conditions set forth in Section 11.2(b) below.
(b) The Company shall have the right, exercisable by written notice given by the Company Subject to the Purchaser within ten calendar days restrictions of receipt Section 9.1, the Transferor Member shall at all times be free to negotiate with any prospective third party purchasers of its Interest and, if no Acceptance Notice has been timely delivered to any Non-Transferor Member, the Transferor Member may sell all or a portion of its Interest to a bona fide third-party purchaser (the “Third Party Purchaser”) for an amount that is at least ninety five percent (95%) of the Transfer Notice to purchase all of the shares specified in such Transfer Notice ROFO Amount and upon the terms specified in such Transfer Notice. Notwithstanding the foregoing, the Company shall have twenty-five calendar days from the receipt of the Transfer Notice (regardless of the date of the Transfer Notice) to notify Purchaser of the Company's election to purchase the shares pursuant to this Section 7.2 if the Company shall furnish a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 shall not constitute such an event). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have the right to pay for such shares specified in the Transfer Notice: (a) the same amount in cash, if the consideration to be paid consists of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that set forth in the Transfer Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement of the Company and the Purchaser.
(c) If the Company (or its assignees) does not exercise its right of first offer hereunder within the time specified for such exercise, the Seller(s) shall be free, during the period of 120 days following the date of the Transfer Notice, to sell the shares specified in such Transfer Notice for such consideration and on such other material terms as shall be no more favorable to such Third Party Purchaser than were the purchaser of material terms offered by the shares than the terms specified in such Transfer Notice.
(d) The provisions of this Section 7.2 shall terminate upon the earlier to occur of: Non-Transferor Member, provided that (i) such time as 3Com Corporation distributes its shares of the Company's Common Stock to the shareholders of 3Com Corporation or purchase price is payable in immediately available funds, (ii) the Transferor Member and the Third Party Purchaser enter into a contract of sale not later than ninety (90) days after the date the Rejection Notices were delivered or deemed delivered and (iii) the Transferor Member and the Third Party Purchaser close the Transfer at any time within one year following hundred twenty (120) days after the Closing Datedate the Rejection Notices were delivered or deemed delivered, on the terms and conditions set forth in Section 12.3 below. In such case, the Third Party Purchaser shall become a Member hereunder; provided however, that with respect to the voting rights of the Third Party Purchaser, if less than 100% percent of the Interest of a Member is transferred to a Third Party Purchaser, such rights will be exercised by the Transferor Member on behalf of the Third Party Purchaser as if the Transferor Member retained 100% of its Interest.
Appears in 1 contract
Samples: Limited Liability Company Agreement (CNL Healthcare Properties, Inc.)
Right of First Offer. For so long as Purchaser holds any Shares, if COMPANY PROPERTY. Before the Purchaser joins in a partnership, limited partnership, syndicate, Company sells or otherwise acts in concert or alone for the purpose disposes of disposing of more than 5% of the Shares any Company Property (as adjusted for stock splits or similar events after the date hereof) to a single person or transferee or any group of affiliated persons or transferees but specifically excluding any hedging or similar transactions, the Purchaser shall give the Company the opportunity to purchase such stock, in the following manner:
(a) The Purchaser shall give notice (the an "Transfer NoticeOFFERED PROPERTY") to the Company in writing of such intention, specifying the number and kind of securities proposed to be sold or transferred, the proposed price per share therefor (the "Transfer Price") and the other material terms, upon which such disposition is proposed to be made, including the names of the proposed purchasers or transferees if such persons have been identified.
(b) The Company shall have the right, exercisable by written notice given by the Company to the Purchaser within ten calendar days of receipt of the Transfer Notice to purchase all of the shares specified in such Transfer Notice upon the terms specified in such Transfer Notice. Notwithstanding the foregoingany Person, the Company shall have twenty-five calendar days from notify (the receipt "SALE NOTICE") the Members in writing of the Transfer Notice (regardless proposed sale and of the date terms and conditions of such sale (including the Transfer Notice) price at which the Company is seeking to notify Purchaser sell the Offered Property and such other terms and conditions of the Company's such proposed sale as are reasonably required for a Member to make its election to purchase the shares pursuant Offered Property). If a Member shall at that time not be in default of the terms of this Agreement, the Member shall thereafter have thirty (30) days (such period the "OFFER PERIOD") to this notify the Board in writing of its election to acquire the Company Property on the terms of the Sale Notice; provided, however, that CRS shall have such right to receive a Sale Notice and acquire the Offered Property only if the requirements of Section 7.2 if 6.3(C) have been satisfied and only to the Company Property for which the requirements of Section 6.3(C) have been satisfied. Should the Member fail to notify the Board in writing of its election within such thirty (30) day period, it shall be deemed to have elected not to purchase the Offered Property. Upon notice to the Board of the Member's election not to purchase the Offered Property or the expiration of the Offer Period, the Company shall furnish a certificate signed by thereafter use reasonable efforts to sell the President or Chief Executive Officer Offered Property on the terms and subject to the conditions set forth in the Sale Notice; provided, however, that should (i) the price for the sale of the Company within ten calendar days Offered Property be reduced by more than five percent (5%) below the price set forth in the Sale Notice, or (ii) a period of receipt six (6) months after the date of delivery of the Transfer Sale Notice stating that, in the good faith judgment expire without a sale of the management of Offered Property, the Company, it would be detrimental to the Company and Member shall have its stockholders to decide whether to elect right to purchase the Shares within Offered Property reinstated in accordance with the ten day period provided for pursuant to procedure set forth in this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 shall not constitute such an event)6.8. The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company Any Member shall have the right to pay for such shares specified in designate an Affiliate of the Transfer Notice: (a) the same amount in cash, if the consideration to be paid consists of cashMember, or (b) to the extent that the consideration to be paid does not consist one of cash, consideration per share equivalent to that set forth in the Transfer Notice, or an amount of cash having equivalent valueits members, as determined the grantee in good faith any conveyance by mutual agreement of the Company and of an Offered Property which the Purchaser.
(c) If the Company (or its assignees) does not exercise its right of first offer hereunder within the time specified for such exercise, the Seller(s) shall be free, during the period of 120 days following the date of the Transfer Notice, Member has elected to sell the shares specified in such Transfer Notice for such consideration and on such other material terms as shall be no more favorable acquire pursuant to the purchaser of the shares than the terms specified in such Transfer Notice.
(d) The provisions of this Section 7.2 shall terminate upon the earlier to occur of: (i) such time as 3Com Corporation distributes its shares of the Company's Common Stock to the shareholders of 3Com Corporation or (ii) one year following the Closing Date6.8.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Centerpoint Properties Trust)
Right of First Offer. For so long as Purchaser holds At any Sharestime, if the Purchaser joins in either DVB Bank SE or SEACOR Capital Corp. (each, an “Initial Lender”) desires to assign to one or more assignees all or a partnershipportion of its rights and obligations under this Agreement (other than assignments to its Affiliates), limited partnership, syndicate, or otherwise acts in concert or alone for the purpose of disposing of more than 5% of the Shares (as adjusted for stock splits or similar events after the date hereof) to a single person or transferee or any group of affiliated persons or transferees but specifically excluding any hedging or similar transactions, the Purchaser it shall give the Company other Initial Lender (the opportunity “Non-Assigning Lender”) no less than five (5) Business Days prior written notice of its intention to make such assignment (a “ROFO Notice”). The Non-Assigning Lender may, within such five (5) Business Day period following the date on which a ROFO Notice is received (the “ROFO Election Period”), irrevocably elect to purchase such stockrights and obligations for an amount equal to full amount of the outstanding principal, in the following manner:
(a) The Purchaser shall give notice (the "Transfer Notice") accrued interest thereon, accrued fees and all other amounts payable to the Company assigning Lender in writing respect thereof. The closing of such intention, specifying assignment shall occur on the number final Business Day occurring during such ROFO Election Period and kind of securities proposed shall be subject to be sold or transferred, the proposed price per share therefor (the "Transfer Price") and the all other material terms, upon which such disposition is proposed to be made, including the names of the proposed purchasers or transferees if such persons have been identified.
(b) The Company shall have the right, exercisable by written notice given by the Company to the Purchaser within ten calendar days of receipt of the Transfer Notice to purchase all of the shares specified in such Transfer Notice upon the terms specified in such Transfer Notice. Notwithstanding the foregoing, the Company shall have twenty-five calendar days from the receipt of the Transfer Notice (regardless of the date of the Transfer Notice) to notify Purchaser of the Company's election to purchase the shares pursuant to this Section 7.2 if the Company shall furnish a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 shall 12.5. If the Non-Assigning Lender does not constitute does not respond to the assigning Lender or elects not to exercise its rights during the ROFO Election Period then such an eventassigning Lender may assign all or a portion of its rights and obligations under this Agreement free of any restriction under this Section 12.5(a)(viii), but, for the avoidance of doubt, otherwise in accordance with this Section 12.5. The purchase of the shares Subject to acceptance and recording thereof by the Company must be completed within 60 calendar days Administrative Agent pursuant to subsection (c) of this Section, from and after the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have the right to pay for such shares effective date specified in each Assignment Agreement, the Transfer Notice: (a) the same amount in cashassignee thereunder shall be a party to this Agreement and, if the consideration to be paid consists of cash, or (b) to the extent that of the consideration interest assigned by such Assignment Agreement, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment Agreement, be released from its obligations under this Agreement (and, in the case of an Assignment Agreement covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be paid a party hereto) but shall continue to be entitled to the benefits of Sections 2.13, 2.14 and 12.2 with respect to facts and circumstances occurring prior to the effective date of such assignment. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not consist of cash, consideration per share equivalent to that set forth in the Transfer Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement of the Company and the Purchaser.
(c) If the Company (or its assignees) does not exercise its right of first offer hereunder within the time specified for such exercise, the Seller(s) comply with this subsection shall be free, during the period treated for purposes of 120 days following the date this Agreement as a sale by such Lender of the Transfer Notice, to sell the shares specified a participation in such Transfer Notice for such consideration rights and on such other material terms as shall be no more favorable to the purchaser of the shares than the terms specified obligations in such Transfer Notice.
accordance with subsection (d) The provisions of this Section 7.2 shall terminate upon the earlier to occur of: (i) such time as 3Com Corporation distributes its shares of the Company's Common Stock to the shareholders of 3Com Corporation or (ii) one year following the Closing DateSection.
Appears in 1 contract
Samples: Credit Agreement
Right of First Offer. For (i) If, at any time after January 1, 2009, any Partner (or Partners) (collectively, the "Selling Partners"; it being acknowledged and agreed that the Selling Partner and all Partners who are Affiliates of such Selling Partner shall automatically be deemed to collectively constitute the Selling Partners for purposes of this Section VII) shall desire to sell the Property, then, so long as Purchaser holds the Partnership is not then subject to any Shares, if prohibition on the Purchaser joins in a partnership, limited partnership, syndicate, or otherwise acts in concert or alone for the purpose of disposing of more than 5% sale of the Shares Property pursuant to loan documents or other agreements binding upon the Partnership (or if it is so subject, either the loan(s) evidenced by such loan documents can be prepaid at the time of such sale or such prohibition is waived prior to the closing date of any such sale of the Property in accordance with the terms hereof, as adjusted for stock splits or similar events after the date hereof) to a single person or transferee or any group of affiliated persons or transferees but specifically excluding any hedging or similar transactionscase may be), the Purchaser Selling Partners shall give the Company other Partners (the opportunity to purchase such stock, in the following manner:
(a"Remaining Partners") The Purchaser shall give a written notice (the "Transfer Sale Notice") to which Sale Notice shall set forth the Company in writing Selling Partners' determination of such intention, specifying the number and kind of securities proposed to be sold or transferred, the proposed price per share therefor fair market value (the "Transfer Property Value"), in dollars, of the Property, free and clear of all liabilities secured by or otherwise relating to the Property.
(ii) Within a period (the "Acceptance Period") of 60 days following the receipt of the Sale Notice, the Remaining Partners shall have the right to deliver to the Selling Partners a notice (the "Acceptance Notice") stating their desire to purchase the Selling Partners' Partnership Interests; provided, that simultaneously with such notice the Remaining Partners shall deliver to a national title company, as escrow agent pursuant to an escrow agreement containing terms substantially similar to the terms set forth in Article 4 of the Purchase Agreement, a deposit (the "Acceptance Deposit") in an amount equal to $5,000,000. If the Remaining Partners timely give the Acceptance Notice and make the Acceptance Deposit, then on the 120th day after receipt of the Acceptance Notice (the "Closing Date"), such Remaining Partners shall purchase from the Selling Partners, and the Selling Partners shall sell to the Remaining Partners, the Selling Partners' Partnership Interests for the Purchase Price (as defined below), subject to the further terms and conditions hereof.
(iii) Following the delivery of the Sale Notice, the General Partner shall request the Partnership Accountant (as hereinafter defined) to promptly calculate the amount (the "Purchase Price") that would be distributed to the Selling Partners if the Property was sold for cash in an amount equal to the Property Value set forth in the Sale Notice and the other material termsNet Proceeds of such sale were distributed to the Partners pursuant to Section 5.02; provided, upon which that for purposes of such disposition is proposed calculation, there shall be deducted from such Net Proceeds an amount equal to the customary transaction expenses that would be madeincurred if the Property was sold for the Property Value, including the names sales fee contemplated in Section 6.04(c) (such expenses to be determined by the Partnership Accountant). The failure of the proposed purchasers or transferees if such persons have been identifiedPartnership Accountant to complete the calculation of the Purchase Price (as defined below) prior to the last day of the Acceptance Period shall not extend the Acceptance Period.
(b) The Company On the Closing Date:
(i) the Selling Partners shall have deliver to the rightapplicable Remaining Partner a duly executed and acknowledged instrument of assignment conveying the Selling Partners' Partnership Interests to such Remaining Partner or its designee(s) free and clear of all liens and encumbrances other than liens and encumbrances that may exist in connection with any financing undertaken for the benefit of the Partnership, exercisable by written notice given which instrument shall contain a surviving representation concerning the absence of such liens and encumbrances;
(ii) the Selling Partners shall pay (A) all transfer, gains, stamp or similar taxes, if any, due in connection with the conveyance of the Selling Partners' Partnership Interests and (B) any amounts due to the Remaining Partners or the Partnership under this Agreement;
(iii) the Remaining Partners shall pay the Purchase Price (minus the Acceptance Deposit, together with any interest accrued thereon, and as adjusted by the Company credits and apportionments herein set forth) to the Purchaser within ten calendar days Selling Partners in immediately available funds and the Remaining Partners and the Selling Partners shall execute, exchange and/or deliver any instruments of receipt assumption, indemnities, guarantees or other security with respect to material liabilities for which the Selling Partners are or will be personally liable;
(iv) the Partnership Accountant shall close the books of the Transfer Notice to purchase all Partnership as of the shares specified in such Transfer Notice upon the terms specified in such Transfer Notice. Notwithstanding the foregoingClosing Date, the Company shall have twenty-five calendar days from the receipt and all items of the Transfer Notice Partnership which are customarily apportioned in the sale of properties comparable to the Property shall be apportioned between the Selling Partners and the Remaining Partners in proportion to their respective shares of Net Cash Flow for the current calendar period as of 11:59 p.m. on the day preceding the Closing Date in accordance with the customs and practices usual in transactions involving properties comparable to the Property in New York City;
(regardless v) Net Cash Flow and Net Proceeds through the Closing Date shall be distributed in accordance with the provisions of Section V;
(vi) the Purchase Price shall (A) be increased by the aggregate amount of all Additional Capital loans made by the Selling Partners on account of the Selling Partners' Partnership Interests in the period between the date of the Transfer NoticeSale Notice and the Closing Date and (B) be decreased by any Net Proceeds distributed to notify Purchaser the Selling Partners pursuant to Section 5.02 on account of the Company's election Selling Partners' Partnership Interests during such period; and
(vii) the Partners shall execute all amendments to purchase fictitious name, partnership or similar certificates necessary to reflect the shares pursuant to this Section 7.2 if the Company shall furnish a certificate signed by the President or Chief Executive Officer withdrawal of the Company within ten calendar days Selling Partners from the Partnership, the admission of receipt any new Partner to the Partnership, if applicable, the termination of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 shall not constitute such an event). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have the right to pay for such shares specified in the Transfer Notice: (a) the same amount in cash, if the consideration to be paid consists of cashPartnership, or (b) to the extent that the consideration to as may otherwise be paid does not consist of cash, consideration per share equivalent to that set forth in the Transfer Notice, or an amount of cash having equivalent value, as determined in good faith required by mutual agreement of the Company and the Purchaserlaw.
(c) If none of the Company Remaining Partners delivers an Acceptance Notice to the Selling Partners and makes the Acceptance Deposit on or before the close of the Acceptance Period (time being of the essence), the Selling Partners may market and sell the Property on behalf of the Partnership to an unaffiliated third party, provided that (A) the gross purchase price (without deduction for any brokerage or its assigneessimilar fees payable in connection with such sale) does not exercise its right is equal to or greater than 96% of first offer hereunder within the time specified Property Value, (B) an agreement for such exercise, sale is entered into not later than 183 days after the Seller(s) shall be free, during the period of 120 days following the date expiration of the Transfer NoticeAcceptance Period, to sell and (C) the shares specified in closing of such Transfer Notice for such consideration and on such other material terms as sale shall be no more favorable to occur not later than 365 days after the purchaser expiration of the shares than Acceptance Period (the terms specified in "365-Day Period"). The Remaining Partners shall within ten (10) business days after written request therefor from the Selling Partners, execute such Transfer Notice.
(d) The provisions of this Section 7.2 documentation as the Selling Partners shall terminate upon the earlier to occur of: reasonably request (i) such time as 3Com Corporation distributes its shares evidencing the Remaining Partners' declining (or deemed declining) of the Company's Common Stock right to purchase the shareholders of 3Com Corporation or Selling Partners' Partnership Interests and (ii) one year following in the Closing Datecase of the General Partner, effecting on behalf of the Partnership all actions the Selling Partners determine, in accordance with this Section, to be necessary or appropriate.
Appears in 1 contract
Samples: Limited Partnership Agreement (Metropolis Realty Holdings LLC)
Right of First Offer. For so long as Purchaser holds Xxxxxx hereby agrees that he shall not Sell any Shares, if the Purchaser joins Equity Security except in a partnership, limited partnership, syndicate, or otherwise acts in concert or alone for the purpose of disposing of more than 5% of the Shares (as adjusted for stock splits or similar events after the date hereof) to a single person or transferee or any group of affiliated persons or transferees but specifically excluding any hedging or similar transactions, the Purchaser shall give the Company the opportunity to purchase such stock, in accordance with Section 4.4 and with the following manner:procedures
(a) The Purchaser Xxxxxx shall give notice first deliver to each Shareholder a written Notice of Intention To Sell, which shall be irrevocable for a period of twenty (20) days after delivery thereof, offering to each Shareholder the "Transfer Notice") right to purchase up to its Preemptive Share of the Company in writing of such intention, specifying the number and kind of securities shares proposed to be sold or transferred, the proposed price per share therefor (the "Transfer PriceXxxxxx Sale Shares") at the purchase price and on the other material termsterms specified therein. Each Shareholder shall have the right and option, upon which for a period of thirty (30) days after delivery to Shareholders of such disposition is proposed Notice of Intention To Sell, to be made, including the names purchase all or any part of the proposed purchasers or transferees if such persons have been identifiedXxxxxx Sale Shares so offered at the purchase price and on the terms stated therein. Such acceptance shall be made by delivering a written Notice of Acceptance to Xxxxxx within the aforesaid thirty (30) day period.
(b) The Company If any Shareholder shall fail to accept, or shall reject in writing, the offer made pursuant to Section 4.5(a), then, upon the earlier of the expiration of the aforesaid thirty (30) day period or the receipt of Notices of Acceptance, or written rejections of such offer, from all Shareholders, the then remaining Xxxxxx Sale Shares formerly subject to such offer shall be reoffered to all other Shareholders, if any, which shall have accepted their Preemptive Share of such original offer. Such subsequent offer shall be on the rightterms and subject to acceptance in the manner provided in Section 4.5(a), exercisable by written notice given by except that the Company Shareholders receiving such subsequent offer shall have (i) the right and option to the Purchaser within ten calendar days of receipt of the Transfer Notice accept such offer with respect to purchase all of the shares specified then remaining Xxxxxx Sale Shares subject thereto PRO RATA in such Transfer accordance with their respective Preemptive Shares, for a period of seven (7) business days, and (ii) the further right and option to offer, in any Notice upon the terms specified in such Transfer Notice. Notwithstanding the foregoingof Acceptance, the Company shall have twenty-five calendar days from the receipt of the Transfer Notice (regardless of the date of the Transfer Notice) to notify Purchaser of the Company's election to purchase the shares pursuant any of such Xxxxxx Sale Shares not purchased by other Shareholders, in which case such Xxxxxx Sale Shares not accepted by other Shareholders shall be deemed to this Section 7.2 if the Company shall furnish a certificate signed have been offered to and accepted by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating thatShareholders which have exercised their option under this clause (ii), PRO RATA, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 shall not constitute such an event). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on accordance with their respective parts in connection therewith. The Company shall have Preemptive Shares, and on the right to pay for such shares specified in the Transfer Notice: (a) the same amount in cash, if the consideration to be paid consists of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that set forth in the Transfer Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement of the Company above-described terms and the Purchaserconditions.
(c) If The closing of any sales of Xxxxxx Sale Shares under the Company (or its assignees) does not exercise its right terms of first offer hereunder within the time specified for such exercise, the Seller(sSection 4.5(a) shall be free, during made at the period of 120 days following the date offices of the Transfer NoticeCompany on a mutually satisfactory business day within fourteen (14) days after the expiration of the aforesaid periods. Delivery of certificates or other instruments evidencing such Xxxxxx Sale Shares duly endorsed for transfer to the Shareholders shall be made on such date against payment of the purchase price therefor.
(d) If effective acceptance shall not be received pursuant to Section 4(a) above with respect to all Xxxxxx Sale Shares offered for sale pursuant to a Notice of Intention To Sell, to then Xxxxxx may sell all or any part of the shares specified in such Transfer Notice remaining Xxxxxx Sale Shares so offered for such consideration sale at a price not less than the price, and on such other material terms as shall be no not more favorable to the purchaser of the shares thereof than the terms specified stated in the original Notice of Intention To Sell, at any time within one hundred twenty (l20) days after the expiration of the offer required by Section 4.5(a) above. In the event the remaining Xxxxxx Sale Shares are not sold by Xxxxxx during such Transfer Notice.
one hundred twenty (dl20) The provisions day period, the right of Xxxxxx to sell such remaining Xxxxxx Sale Shares shall expire and the obligations of this Section 7.2 4.5 shall terminate upon be reinstated; provided, however, that in the earlier to occur of: event Xxxxxx determines, at any time during such one hundred twenty (il20) such time as 3Com Corporation distributes its shares day period, that the sale of all or any part of the Company's Common Stock to remaining Xxxxxx Sale Shares on the shareholders terms set forth in the Notice of 3Com Corporation or Intention To Sell is impractical, Xxxxxx can terminate the offer and reinstate the procedure provided in this Section 4 without waiting for the expiration of such one hundred twenty (iil20) one year following the Closing Dateday period.
Appears in 1 contract
Right of First Offer. For so long as Purchaser holds any Shares, if Prior to the Purchaser joins solicitation of third party offers or the written acceptance of an unsolicited third party offer for sale of the Property by the Company in a partnershiptransaction that would be a taxable disposition under the Code, limited partnershipthe Manager shall first notify the Xxxxxxx Representative in writing, syndicate, or otherwise acts in concert or alone of the price (the “Specified Selling Price”) for the purpose Property, provided that the provisions of disposing of Section 10.7 need not be complied with if at the time they would otherwise be applicable TTF and/or Beacon are exercising their rights under Section 8.3 against Members whose aggregate Percentage Interests are more than 533 1/3% of the Shares (as adjusted for stock splits aggregate Percentage Interests of all of the Original Partners or similar events after the date hereof) if at such time there has been failure to a single person or transferee or make any group of affiliated persons or transferees but specifically excluding any hedging or similar transactions, the Purchaser shall give the Company the opportunity payments required to purchase such stock, in the following manner:
(a) The Purchaser shall give notice (the "Transfer Notice") be made to the Company pursuant to the Indemnity Agreement after notice thereof from the Company and there has been a lapse of thirty (30) days since such notice was given. The Original Partners (among themselves in writing whatever proportions as they may determine) shall then have the right to purchase the Property at the Specified Selling Price set forth in the Manager’s notice or to purchase the Interests of TTF and all of (but not less than all of) the other Beacon Members in the Company (the “Beacon Interests”), such intention, specifying the number and kind of securities proposed right to be sold or transferredexercised, the proposed price per share therefor (the "Transfer Price") and the other material termsif exercised at all, upon which such disposition is proposed to be made, including the names of the proposed purchasers or transferees if such persons have been identified.
(b) The Company shall have the right, exercisable by written notice from the Xxxxxxx Representative to the Manager given within thirty (30) days (the “Election Period”) after the notice from the Manager given pursuant to above. Any such notice shall also include an election as to whether the purchase is of the Property or of the Beacon Interests. If no such designation is made, it shall be deemed that the Original Partners have elected to purchase the Beacon Interests. If the Original Partners exercise their rights under this paragraph, then the notice of such election shall be accompanied by, and shall be valid only if accompanied by, a non-refundable $2,000,000 cash deposit paid to an escrow agent designated by the Manager; such deposit shall be held by the escrow agent in an interest bearing account. If notice is not timely given or is not accompanied by the requisite deposit, the Original Partners shall be deemed to have elected not to purchase the Property. If the Original Partners purchase the Property or the Beacon Interests, as the case may be, the $2,000,000 shall be a credit against the purchase price. During the Election Period, the Manager shall make the books and records of the Company available to the Purchaser within ten calendar days Original Partners and shall allow access to the Property during normal business hours for customary inspections by prospective purchasers of receipt real property, subject, however, to delivery of confidentiality agreements and indemnities as to access comparable to those contained in the Master Transaction Agreement. Any purchase of the Transfer Notice to purchase all of Property or the shares specified in such Transfer Notice upon Beacon Interests by the terms specified in such Transfer Notice. Notwithstanding Original Partners under this Section 10.7 shall be consummated within sixty (60) days after the foregoing, the Company shall have twenty-five calendar days notice from the receipt Original Partners of the Transfer Notice (regardless of the date of the Transfer Notice) to notify Purchaser of the Company's their election to purchase the shares pursuant Property or the Beacon Interests, as the case may be, shall be for all cash and shall require the repayment of all mortgage loans on the Property, including, without limitation, the Subordinate Loan, provided, however, if any third party loan is assumable or, as the case may be, is not callable or it is not a default thereunder as a result of the consummation of the purchase of the Beacon Interests, such loan may be assumed or, as the case may be, remain outstanding if such is not callable or a default or appropriate consent is received, provided that all fees and other costs and expenses for such assumption shall be paid by the purchasing Original Partners, and TTF, any other Beacon Member, Beacon and any of their Affiliates which have provided any guarantees or indemnities in connection with any such loan shall be released therefrom. In the event the Beacon Interests are to this Section 7.2 be purchased, the purchase price for the Beacon Interests shall be the amount the Beacon Members owning the Beacon Interests would receive (and as among the Beacon Members, in the amount each such Beacon Member would receive) if the Company shall furnish a certificate signed by Property were sold for the President or Chief Executive Officer Specified Selling Price, all indebtedness of the Company within ten calendar days of receipt were discharged, all other assets of the Transfer Notice stating that, in Company other than cash and cash equivalents were sold for their respective Book Values and the good faith judgment Company then liquidated. If any then existing third party indebtedness of the management Company remains outstanding after a purchase of the Beacon Interests, then the principal amount thereof on the Closing of any such purchase shall be deducted in determining the aforesaid purchase price. In determining the amount pursuant to clause (i) of the first sentence of this paragraph, it shall be assumed that no amount would be payable by the Company upon a sale of the Property on account of the D.C. Franchise Tax if none would have been payable upon a sale of the Property by the Company based on the Company liquidating at the time of a sale (and thus the gain being passed out to the Members of the Company, it would be detrimental if such is then permissible or required under applicable law), and after deducting one-half of the then applicable real estate transfer tax if none is incurred in the actual transaction or if and to the extent the Beacon Members do not bear such tax. For purposes of determining the amount due under the Subordinate Loan under the immediately preceding two paragraphs, it shall be deemed that the Property is sold for the Specified Selling Price. If the Original Partners do not exercise, or are deemed not to have exercised, their right of purchase pursuant to the preceding provisions of this Section 10.7, the Manager shall thereafter be entitled to cause the Company to sell the Property, provided that any such sale is closed within two hundred and its stockholders seventy (270) days after the expiration of the Election Period at a price which is not less than ninety-two and one-half percent (92.5%) of the Specified Selling Price. In the event the Property is not sold to decide whether a third party within the aforesaid two hundred and seventy (270) days period for the minimum price determined pursuant to this paragraph, then if the Manager thereafter desires to sell the Property or thereafter receives an unsolicited offer for the Property, the Manager shall be required to reinstate the aforesaid provisions of this Section 10.7. In the event the Original Partners elect to purchase the Shares within Property or the ten day period Beacon Interests but fail to complete the purchase for any reason other than the Manager’s failure to cause the Company to convey the Property or any Beacon Member’s failure to convey its Interest or the failure to give the requisite representations and warranties provided for pursuant above, the aforesaid $2,000,000 deposit shall be retained by the Beacon Members as liquidated damages (as payments between Members and not as Company revenue or expenditure) and the Manager shall thereafter be free to this Section 7.2 (it being understood that cause the mere election of Purchaser Company to sell such Shares in a transaction triggering the Property at any time and for any price and the provisions of this Section 7.2 10.7 shall not constitute such an event)thereafter be null and void and no longer applicable as to any future potential sale of the Property. The remedies under this paragraph shall be the sole and exclusive remedies in the event the Original Partners elect to purchase the Property or to purchase the Beacon Interests but thereafter fail to close. Any conveyance of the Property by the Company to or as directed by the purchasing Original Partners shall be by standard conveyance documents, “as is”, and without any representations and warranties by the Company or the Beacon Members except that, subject to the proviso below, the Beacon Members shall make real estate representations as to rent roll, leases and operating contracts (but not any other real estate related representations) which the Beacon Members’ parent customarily makes when it sells real estate and due authorization and similar entity representations of the selling Entity, except that all matters occurring or existing prior to the Closing Date under the Master Transaction Agreement shall be excluded from any such representations, provided, however, if at such time the Xxxx X. Xxxxxxx Company or any Affiliate thereof or any Affiliate of any Original Partner (an “Xxxxxxx PM Affiliate”) is the property manager or the subproperty manager, then no real estate representations of any nature shall be made by the Company or the Beacon Members. Any conveyance of the Beacon Interests in the Company if there is a purchase of the shares Beacon Interests shall be by an Assignment of Member Interest with representations and warranties by the Company must be completed within 60 calendar days assigning Beacon Member of its authority to so convey and its ownership of the Interest being conveyed free and clear of all liens and other encumbrances other than those under this Agreement, as well as representations and warranties of the Beacon Members comparable to the Entity Representations contained in, and as such term is defined in, the Master Transaction Agreement for the period from the receipt Closing Date until the closing of the Transfer Noticepurchase of the Beacon Interests. The Company Any representations and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company warranties so provided shall have the right to pay for such shares specified in the Transfer Notice: (a) survival periods, floors and limits of liability and concepts of “deemed Buyer knowledge” which are the same amount in cash, if the consideration to be paid consists of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that as those set forth in the Transfer NoticeMaster Transaction Agreement; as to “deemed Buyer knowledge”, the relevant individuals shall be such Persons as are agreed upon as between the Xxxxxxx Representative and the Manager, each acting reasonably, provided that in all events such individuals shall include the appropriate on-site manager, if any, or an amount the person having a comparable off-site position, and the relevant senior supervisor of cash having equivalent valuethe Xxxxxxx PM Affiliate, if any. In all events, all representations and warranties shall exclude any matter in existence prior to the Closing Date under the Master Transaction Agreement and shall exclude all matters which were or are caused by any act or omission of any Original Partner or any Affiliate of any Original Partner Closing costs shall be apportioned as between, and normal prorations shall be made as between, the Company, as determined if it were a seller of real property, and the purchasing Original Partners in good faith by mutual agreement the customary manner for real estate transactions in the District of Columbia. At the request of the Company and Manager, upon a prospective sale of the Purchaser.
(c) If Property, at any time from the Company (or its assignees) does not exercise its right initiation of first offer hereunder within the time specified for such exercisesale process therefor until the consummation of any sale, the Seller(s) Xxxxxxx Representative, on its own behalf and on behalf of all the other Original Partners, shall be free, during provide an Estoppel Certificate or other similar form of certification as to the period of 120 days following the date compliance and satisfaction of the Transfer Notice, to sell the shares specified in such Transfer Notice for such consideration and on such other material terms as shall be no more favorable to the purchaser of the shares than the terms specified in such Transfer Notice.
(d) The provisions of this Section 7.2 10.7, or if it believes such compliance has not occurred, stating the particulars of any non-compliance. Any such certification by the Xxxxxxx Representative shall terminate upon be binding on all the earlier to occur of: Original Partners. If no such certification or statement of non-compliance is received within ten (i10) Business Days after request therefor, then it shall be unrebuttably presumed that Section 10.7 has been complied with and such time as 3Com Corporation distributes its shares of unrebuttable presumption shall be binding on all the Company's Common Stock to the shareholders of 3Com Corporation Members, and any Person claiming by or (ii) one year following the Closing Datethrough any Member.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Wells Real Estate Investment Trust Inc)
Right of First Offer. For so long A. Subject to the terms and conditions specified in this Agreement, the Company hereby grants to West End a right of first offer with respect to future sales by the Company of shares of any class of its capital stock ("Shares"). West End shall be entitled to apportion the right of first offer hereby granted to it among itself and its affiliates in such proportions as Purchaser holds it deems appropriate.
B. Each time the Company proposes to, prior to the first anniversary of the Initial Closing Date, offer any shares of, or securities convertible into or exercisable for any shares of, any Shares, if the Purchaser joins (except in connection with a partnershipbona fide, limited partnershipfirm commitment, syndicate, or otherwise acts in concert or alone for the purpose of disposing of more than 5% of the Shares (as adjusted for stock splits or similar events after the date hereof) to a single person or transferee or any group of affiliated persons or transferees but specifically excluding any hedging or similar transactionsunderwritten public offering), the Purchaser Company shall give the Company the opportunity first make an offer of such Shares to purchase such stock, West End in accordance with the following mannerprovisions:
(ai) The Purchaser Company shall give deliver a notice (the "Transfer Notice") to West End stating (A) its bona fide intention to offer such Shares, (B) the Company in writing number of such intention, specifying the number and kind of securities proposed Shares to be sold or transferredoffered and (C) the price and terms, the proposed price per share therefor (the "Transfer Price") and the other material termsif any, upon which it proposes to offer such disposition is proposed to be made, including the names of the proposed purchasers or transferees if such persons have been identifiedShares.
(bii) The Company shall have the right, exercisable by written notice given by the Company to the Purchaser within ten calendar Within twenty (20) days of after receipt of the Transfer Notice Notice, West End may elect to purchase all of or obtain, at the shares specified in such Transfer Notice upon price and on the terms specified in the Notice of such Transfer NoticeShares. Notwithstanding West End shall purchase such Shares within ten (10) days after making such election. If all of the foregoingShares are not elected to be obtained as provided in subsection (2), the Company shall have twenty-five calendar days from the receipt of the Transfer Notice (regardless of the date of the Transfer Notice) to notify Purchaser of the Company's election to purchase the shares pursuant to this Section 7.2 if the Company shall furnish a certificate signed by the President or Chief Executive Officer of the Company within ten calendar days of receipt of the Transfer Notice stating that, in the good faith judgment of the management of the Company, it would be detrimental to the Company and its stockholders to decide whether to elect to purchase the Shares within the ten day period provided for pursuant to this Section 7.2 (it being understood that the mere election of Purchaser to sell such Shares in a transaction triggering the provisions of this Section 7.2 shall not constitute such an event). The purchase of the shares by the Company must be completed within 60 calendar days from the receipt of the Transfer Notice. The Company and Purchaser shall use their best efforts to secure during such period any approvals required on their respective parts in connection therewith. The Company shall have the right to pay for such shares specified in the Transfer Notice: (a) the same amount in cash, if the consideration to be paid consists of cash, or (b) to the extent that the consideration to be paid does not consist of cash, consideration per share equivalent to that set forth in the Transfer Notice, or an amount of cash having equivalent value, as determined in good faith by mutual agreement of the Company and the Purchaser.
(c) If the Company (or its assignees) does not exercise its right of first offer hereunder within the time specified for such exercise, the Seller(s) shall be freemay, during the thirty (30) day period of 120 days following the date expiration of the Transfer Noticeperiod provided in subsection (2) hereof, offer the remaining unsubscribed portion of such Shares to sell the shares specified in such Transfer Notice for such consideration any person or persons at a price not less than, and on such other material upon terms as shall be no more favorable to the purchaser offeree than those specified in the Notice. If the Company does not enter into an agreement for the sale of the shares than the terms specified in Shares within such Transfer Notice.
period, or if such agreement is not consummated within thirty (d30) The provisions of this Section 7.2 shall terminate upon the earlier to occur of: (i) such time as 3Com Corporation distributes its shares days of the Company's Common Stock execution thereof, the right provided hereunder shall be deemed to the shareholders of 3Com Corporation or (ii) one year following the Closing Datebe revived and such Shares shall not be offered unless first reoffered to West End in accordance herewith.
Appears in 1 contract
Samples: Securities Purchase Agreement (American Electromedics Corp)
