Right of First Offer. (a) Other than Prohibited Transfers, if at any time after the Lock Up Period a Shareholder desires to Transfer other than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder (the “RFO Offeror”) fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers. (b) The RFO Offeror shall, prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth (i) the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein. (c) The RFO Offeree(s) collectively shall have the right to purchase (the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined. (d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days. (e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3. (f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.

Appears in 7 contracts

Samples: Shareholders Agreement (Sina Corp), Shareholder Agreement (China Real Estate Information Corp), Shareholders Agreement (E-House (China) Holdings LTD)

Right of First Offer. (a) ~~Other~~ If at any time from April 29, 2013 and prior to the consummation of an Investor Exit Event, (i) Parent or any of its Permitted Transferees desires to effect a Sale of all or any portion of Securities it owns or holds to a Third Party or Third Parties (including any transfer by operation of law, merger, recapitalization or other similar transaction), other than ~~Prohibited Transfers~~up to 7,000,000 Ordinary Shares (calculated in aggregate with all such prior Sales, if and as adjusted for share splits, share dividends, combinations, reclassifications, recapitalizations and the like), or (ii) any Management Shareholder or any of his or her Permitted Transferees desires to effect a Sale of all or any portion of Securities he or she owns or holds to a Third Party or Third Parties, other than up to 20% of the Ordinary Shares (on an as-converted basis) or Ordinary Shares issuable upon the exercise, conversion or exchange of any options, warrants or other rights to acquire Ordinary Shares held by such Person(s) as at April 29, 2013 (calculated in aggregate with all such prior Sales and as adjusted for share splits, share dividends, combinations, reclassifications, recapitalizations and the like) (each, a “Management Sale”), in each case, Parent shall deliver a written notice (an “Offer Notice”) thereof to Investor, which notice shall set forth all of the material terms and conditions, including the number of Securities to be sold (the “Investor ROFO Shares”) and the purchase price per share (the “Offer Price”) (which shall be payable solely in cash in one lump sum payment), on which Parent or such Management Shareholder offers or their relevant Permitted Transferee(s) to sell the Offered Shares to Investor (the “Investor ROFO”); provided, however, none of the following transactions shall be subject to the Investor ROFO: (x) any Sale of any equity securities of Parent, (y) any Sale of any Securities by Parent (or any of its Permitted Transferees) to any Permitted Transferee of Parent or any Sale of any Securities among any such Persons, and (z) any Sale of any Securities by any Management Shareholder (or any of his or her Permitted Transferees) to any Permitted Transferee of such Management Shareholder or any Sale of any Securities among any such Persons. (b) If at any time after the ~~Lock~~ expiration of the Lock-Up Period and prior to the consummation of a ~~Shareholder~~ Parent Exit Event, (i) any Investor Entity desires to ~~Transfer~~ effect a Sale of all or any portion of the Securities it owns or holds to a Third Party or Third Parties (including any transfer by operation of law, merger, recapitalization or other ~~than pursuant~~ similar transaction), or (ii) Alibaba or AIL desires to effect a Sale of all or any portion of the equity securities of any Investor Entity to a Third Party or Third Parties that results in a direct or indirect Sale of the Securities owned or held by such Investor Entity (including any transfer by operation of law, merger, recapitalization or other similar transaction), in each case, Investor shall deliver an Offer Notice to Parent, which notice shall set forth all of the material terms and conditions, including the number of Securities subject to such Sale (the “Parent ROFO Shares”) and the Offer Price (which shall be payable solely in cash in one lump sum payment), on which Investor offers to sell the Offered Shares to Parent (the “Parent ROFO”); provided, however, that none of the following transactions shall be subject to the Parent ROFO: (A) any Sale of any equity securities of AIL or any of its direct or indirect holding companies, (B) any Sale of any Securities by any Investor Entity to any Permitted ~~Transfer~~Transferee of Investor or any Sale of any Securities among any such Persons; (C) any Sale of up to 5% of the Acquired Shares by any of the Investor Entities, including as a result of a Sale of the equity securities of any Investor Entity (calculated in the aggregate with all such ~~Transfer~~ prior Sales) or (D) any transfer or issuance of up to 25% of the issued and outstanding equity securities of any Investor Entity (in the case of an issuance, after taking into account such issuance) to Existing Financial Investors (it being understood that in no event shall ~~be permitted only if~~ any transfer or issuance pursuant to this sub-clause (D) result in neither Alibaba nor AIL directly owning, legally and beneficially, 75% or more of the issued and outstanding equity securities of such ~~Shareholder (the “RFO Offeror”) fully complies with the terms of this Section 3.3~~Investor Entity after such transfer or issuance); provided however that the ~~provisions of this Section 3.3~~ Parent ROFO shall ~~not~~ apply to ~~Permitted Transfers.~~ any Sale contemplated by paragraph (bC) ~~The RFO Offeror shall~~or (D) that, ~~prior~~ when aggregated with any other Sales made pursuant to ~~the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice~~ paragraph (~~“RFO Notice”~~C) ~~to each other Shareholder~~ or (~~each, an “RFO Offeree”~~D), ~~setting forth (i) the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”)~~would result in Alibaba and AIL, (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the ~~RFO Notice at~~ aggregate, ceasing to hold, indirectly through the ~~same price per Ordinary Share and on~~ Investor Entities 75% or more of the ~~same terms and conditions as set forth therein~~Acquired Shares. (c) The ~~RFO Offeree(s~~provisions set forth in Section 4.05(d) ~~collectively~~ to 4.05(h) shall ~~have the right~~ apply in respect of each Investor ROFO and each Parent ROFO. (i) The receipt of an Offer Notice by a ROFO Holder shall constitute an exclusive offer by a Prospective Seller to ~~purchase (the “Right of First Offer”),~~ sell to such ROFO Holder any or all of the ~~RFO Ordinary~~ Offered Shares ~~by delivering a written notice (~~at the ~~“RFO Exercise”) of exercise of the Right of First~~ Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s))Price. Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-Such offer shall ~~lapse~~ remain open and irrevocable until the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined. (d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase expiration of ~~the RFO Ordinary Shares within~~ thirty (30) days ~~thereafter upon~~ after receipt of such Offer Notice by the ~~terms set forth in~~ ROFO Holder (the ~~RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with,~~ “Offer Period”). At any ~~Governmental Authority in connection with such purchase to be obtained or made, to the extent~~ time prior to the expiration of the ~~RFO Purchase Period reasonably appropriate actions~~ Offer Period, the ROFO Holder shall have ~~been taken~~ the right to accept the Prospective Seller’s offer as to any or all of the Offered Shares by giving a written notice of election (the “Notice of Election”) to the Prospective Seller. (ii) If the ROFO Holder accepts the Prospective Seller’s offer in accordance with this Section 4.05(d), the ROFO Holder shall purchase from the Prospective Seller, and the Prospective Seller shall sell to the ROFO Holder, such number of Offered Shares as to which the ROFO Holder shall have accepted the Prospective Seller’s offer pursuant to subparagraph (d)(i) above. The price per Security to be paid by the ~~RFO Offeree(s~~ROFO Holder shall be the Offer Price specified in the Offer Notice, payable in immediately available funds and in accordance with the terms of the Offer. In the event the ROFO Holder has not elected to purchase the entire amount of Offered Shares, the Prospective Seller may sell such remaining amount of Offered Shares in accordance with Section 4.05(f) ~~to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days~~as Remaining Shares. (e) If The Prospective Seller and the ~~RFO Offeree(s)~~ ROFO Holder shall ~~not have completed the purchase of all~~ select, for consummation of the ~~RFO Ordinary~~ Sale of Offered Shares ~~within~~ to the ~~RFO Purchase~~ ROFO Holder, a date not later than thirty (30) days (or longer, if so required pursuant to applicable Law) after the expiration of the Offer Period. At the consummation of such Sale, ~~as extended~~ (i) the Prospective Seller shall, against delivery by the ROFO Holder of the Offer Price multiplied by the number of Securities being purchased by the ROFO Holder, deliver to the ROFO Holder certificates evidencing the Offered Shares being sold, duly endorsed in blank or accompanied by written instruments of transfer in form reasonably satisfactory to the ROFO Holder duly executed by the Prospective Seller, free and clear of any and all Encumbrances other than this Agreement or as provided in ~~Section 3.3(d), or together have failed to deliver RFO Exercises within~~ the ~~RFO Response Period for all~~ Articles of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article IIIAssociation; ~~provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice~~ and (ii) the ~~RFO Offeror provides written confirmation~~ Prospective Seller shall procure that upon transfer of such Offered Shares to the ~~RFO Offeree(s~~ROFO Holder and payment therefor in accordance with this Agreement, the ROFO Holder will acquire such Offered Shares free and clear of all Encumbrances, and there will be no agreement, arrangement or obligation to create or give any Encumbrances in relation to any Offered Shares, other than this Agreement or as provided in the Articles of Association. (f) In the event that ~~such terms comply with clause~~ (i) ~~hereof prior~~ the ROFO Holder shall have received an Offer Notice from a Prospective Seller but the Prospective Seller shall not have received a Notice of Election indicating a desire to purchase, in the ~~consummation of such sale; and provided further~~aggregate, ~~that~~ all the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent Offered Shares prior to the expiration of the ~~Transfer~~ Offer Period ~~reasonably appropriate actions~~ or (ii) the ROFO Holder shall have ~~been taken~~ given a Notice of Election to the Prospective Seller but shall have failed to consummate, as a result of a breach or fault of the ROFO Holder, a purchase of the Offered Shares it elected to purchase in such Notice of Election within the time frame specified in paragraph (e) above, then the Prospective Seller shall thereafter be entitled to effect a Sale of all Offered Shares not accepted for purchase by the ~~RFO Offeror~~ ROFO Holder pursuant to ~~obtain such approvals~~a Notice of Election and/or, ~~consents~~ if applicable, all Offered Shares elected for purchase in the Notice of Election but the purchase of which the ROFO Holder so failed to consummate as a result of a breach or ~~authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end~~ fault of the ~~Transfer~~ ROFO Holder (the “Remaining Shares”); provided that: (A) the total number of Securities sold by the Prospective Seller to any one or more Third Parties shall be not more than the number of Remaining Shares; and (B) all the Securities that are sold or otherwise disposed of by the Prospective Seller pursuant to this paragraph (f) are sold (1) within sixty (60) days (or longer, if so required pursuant to applicable Law) after the expiration of the Offer Period, ~~as extended as provided herein~~(2) at an amount not less than the Offer Price (on a per share basis) included in such Offer Notice and (3) on material terms and conditions no more favorable to the prospective transferee than those specified in such Offer Notice. (g) In the event that the ROFO Holder shall have received an Offer Notice from a Prospective Seller, the ~~RFO Offeror has~~ Prospective Seller shall not ~~completed~~ have received a Notice of Election indicating a desire to buy all the ~~Transfer~~ Offered Shares prior to the expiration of the ~~RFO Ordinary Shares~~Offer Period and such Prospective Seller shall not have sold the Remaining Shares before the expiration of the period specified in subclause (f)(B) above, then such Prospective Seller shall not give another Offer Notice for a period of one hundred eighty (180) days from the ~~RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with~~ day the Offer Notice was delivered. (h) Notwithstanding anything in this Section 4.05, the provisions of this Section ~~3.3~~4.05 shall not be applicable to any Sale to a Permitted Transferee. (f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.

Appears in 5 contracts

Samples: Shareholder Agreement, Shareholder Agreement (Sina Corp), Shareholder Agreement (WEIBO Corp)

Right of First Offer. (a) ~~Other than Prohibited Transfers, if at any time after the Lock Up Period~~ Except for a ~~Shareholder desires to Transfer other than pursuant to any~~ Permitted Transfer, no Member shall directly Transfer any Membership Interest unless such Member first complies with the provisions of Section 5.02, except for a direct Transfer ~~shall be~~ of such Member’s entire Membership Interest to the extent expressly permitted ~~only if such Shareholder (the “RFO Offeror”) fully complies~~ by this Section 5.01 following compliance with the terms of this Section ~~3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers~~5.01. (b) ~~The RFO Offeror shall~~A Member (the “ROFO Seller”) shall at any time have the right, ~~prior to the Transfer~~ by delivery of ~~any Ordinary Shares to which this Section 3.3 applies, give~~ written notice (a “~~RFO~~ ROFO Notice”) to each other ~~Shareholder~~ Members, to request that the other Members specify the purchase price (~~each, an “RFO Offeree”~~which must be in cash), ~~setting forth (i)~~ and other terms and conditions on which such other Member is willing to purchase all, but not less than all, of the ~~number of Ordinary Shares proposed to be disposed of~~ ROFO Seller’s Membership Interest (the “~~RFO Ordinary Shares~~ROFO Interest”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein. (c) ~~The RFO Offeree(s~~Within thirty (30) ~~collectively shall have the right~~ days following delivery of a ROFO Notice, any such other Member may offer to purchase all, but not less than all, of the ROFO Interest by providing written notice to the ROFO Seller (a “ROFO Offer Notice”), specifying the purchase price, in cash (the “~~Right of First Offer~~ROFO Price”), and other terms and conditions on which such other Member is willing to purchase the ROFO Interest. The ROFO Seller shall have thirty (30) days following the delivery of a ROFO Offer Notice to elect to accept any ~~or all~~ such offer by delivery of ~~the RFO Ordinary Shares by delivering a~~ written notice ~~(the “RFO Exercise”)~~ of ~~exercise of the Right of First Offer~~ such acceptance to the ~~RFO Offeror within 20~~ applicable Member (~~twenty) Business Days from the date of delivery of the RFO Notice (the~~ a “~~RFO Response Period~~ROFO Acceptance Notice”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined. (d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares ROFO Seller delivers a ROFO Acceptance Notice within thirty (30) days ~~thereafter upon~~ following delivery of the ~~terms set forth in~~ ROFO Offer Notice, each such party and the ~~RFO Notice; provided~~Company shall use its commercially reasonable efforts to obtain, ~~however, that such period shall be extended following such date~~ as ~~necessary to permit all required approvals, consents or authorizations from, or filings or registrations with~~promptly as possible thereafter, any ~~Governmental Authority in connection with such purchase~~ and all consents, approvals and authorizations of any governmental authority required to be obtained ~~or made,~~ in order to ~~the extent prior to the expiration~~ consummate such sale and purchase. A sale and purchase of the ~~RFO Purchase Period reasonably appropriate actions have been taken by~~ ROFO Interest to a Member pursuant to this Section 5.01 shall be made at the ~~RFO Offeree(s~~offices of the Company on or before the later of (i) ~~to obtain such~~ the date that is one hundred and twenty (120) days following delivery of the ROFO Acceptance Notice or (ii) the date that is five (5) Business Days following receipt of all consents, approvals, ~~consents or authorizations, or make~~ and authorizations of any governmental authority required to be obtained in order to consummate such ~~filings or registrations;~~ sale and ~~provided further that no such extension shall exceed 60 days~~purchase. (e) If ~~the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares~~ no Member delivers a ROFO Offer Notice within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) ~~days. If at~~ days after receiving the ~~end of~~ ROFO Notice, or if the ~~Transfer Period, as extended as provided herein~~ROFO Seller does not accept an offer from any Member within thirty (30) days after receiving the ROFO Offer Notice, the ~~RFO Offeror has~~ ROFO Seller may, during the next 180 days, directly Transfer the ROFO Interest to a third party Transferee for an all cash purchase price not ~~completed~~ less than the highest ROFO Price offered by any other Member, and upon material terms no more favorable in the aggregate to the proposed transferee than those specified in the ROFO Offer Notice, provided that such direct Transfer ~~of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying~~ complies with ~~the provisions~~ all other applicable terms and restrictions of this Agreement, including Article IV. For the avoidance of doubt, Section ~~3.3~~5.02 shall not apply to such direct Transfer. (f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.

Appears in 4 contracts

Samples: Limited Liability Company Agreement (Crestwood Equity Partners LP), Contribution Agreement (Consolidated Edison Inc), Contribution Agreement (Crestwood Midstream Partners LP)

Right of First Offer. (a) ~~Other than Prohibited Transfers, if~~ The Company hereby grants to ABG-Pulmonx Limited (“ABG”) a primary right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined) of up to 50% of the Shares offered at ~~any time after the Lock Up Period a Shareholder desires to Transfer other than pursuant to any Permitted Transfer,~~ such ~~Transfer shall be permitted only if such Shareholder~~ future sale (the “~~RFO Offeror~~ABG Pro Rata”) ~~fully complies~~ until ABG has purchased $50,000,000 in aggregate of equity securities of the Company, whether pursuant to the ABG Pro Rata or otherwise, and which shall include the Stock (as defined in Purchase Agreement) purchased by ABG pursuant to the Purchase Agreement (the “ABG Limit”) in accordance with ~~the terms of this Section 3.3; provided that~~ the provisions of ~~this~~ Section ~~3.3~~ 2.4(a)(i) and (ii). (i) The Company shall ~~not apply~~ deliver a notice (the “ABG RFO Notice”) to ~~Permitted Transfers~~ABG stating (i) its bona fide intention to offer such Shares, (ii) the price and terms, if any, upon which it proposes to offer such Shares and (iii) the maximum number of Shares that ABG may purchase under its ABG Pro Rata (the “ABG Maximum Shares”). (ii) Within 10 business days after delivery of the ABG RFO Notice (the “ABG Pro Rata Period”), ABG may elect to purchase or obtain, at the price and on the terms specified in the ABG RFO Notice, up to the ABG Maximum Shares. (b) ~~The RFO Offeror shall, prior~~ Subject to the ~~Transfer of any Ordinary Shares to which~~ terms and conditions specified in this Section ~~3.3 applies~~2.4, ~~give written notice~~ and after the ABG Pro Rata Period, the Company hereby grants to each Major Investor (as hereinafter defined) a secondary right of first offer with respect to future sales by the Company of its Shares. For purposes of this Section 2.4, a “Major Investor” shall mean any person who holds at least 500,000 shares of Preferred Stock or the Common Stock issued upon conversion thereof (subject to adjustment for stock splits, stock dividends, reclassifications or the like). For purposes of this Section 2.4, the definition of Major Investor includes any general partners, managing members or affiliates of a Major Investor, including affiliated funds. A Major Investor who chooses to exercise the right of first offer may designate as purchasers under such right itself or its partners or affiliates, including affiliated funds, in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exercisable for any shares of, any class of its capital stock (“~~RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth (i) the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary~~ Shares”), ~~(ii)~~ the ~~proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii)~~ Company shall first make an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein. (c) The RFO Offeree(s) collectively shall have the right to purchase (the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all offering of such ~~remaining RFO Ordinary~~ Shares (to ABG until it has reached the ~~“Remaining RFO Ordinary Shares”~~ABG Limit in accordance with Section 2.4(a) ~~shall immediately be re-offered by the RFO Offeror~~ and then to ~~the other RFO Offeree(s) (or if there is more than one other RFO Offeree,~~ each Major Investor in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined. (d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days. (e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying accordance with the provisions of this Section 3.3. (f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.following provisions:

Appears in 4 contracts

Samples: Investors’ Rights Agreement (Pulmonx Corp), Investors’ Rights Agreement (Pulmonx Corp), Investors’ Rights Agreement (Pulmonx Corp)

Right of First Offer. 5.1 If at anytime, the Company proposes to issue any Stock, any rights, options or warrants to acquire Stock or any notes, debentures, preferred shares or other securities or rights, which are ultimately convertible or exercisable into, or exchangeable for, Ordinary Shares (collectively, “Equity Securities”) (after obtaining any requisite approval required under Section 11.3), the Company shall first offer such Equity Securities to each Shareholder in a written notice (an “Issuance Notice”) setting forth: (a) ~~Other than Prohibited Transfers~~a description of the Equity Securities to be issued, ~~if at any time after~~ including the Lock Up Period a Shareholder desires to Transfer other than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder (the “RFO Offeror”) fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers.rights and powers associated therewith; (b) The RFO Offeror shall, prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth (i) the number of ~~Ordinary Shares proposed~~ such Equity Securities to be ~~disposed of~~ offered (the “~~RFO Ordinary Shares~~New Securities”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein.; and (c) ~~The RFO Offeree(s) collectively shall have~~ the ~~right~~ price and terms upon which it proposes to offer the New Securities. 5.2 Each Shareholder who wishes to purchase any New Securities (a “Pre-emptive Shareholder”) shall provide the ~~“Right of First Offer”), any or all of the RFO Ordinary Shares by delivering~~ Company with a written notice (the “~~RFO Exercise~~Exercise Notice”) specifying the maximum number of ~~exercise of the Right of First Offer~~ New Securities which it irrevocably commits to ~~the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice~~ purchase (the “~~RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly~~Pre-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Sharesemptive Amount”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined. (d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days ~~thereafter upon~~ of the ~~terms set forth~~ receipt by such Pre-emptive Shareholder of the Issuance Notice. For the avoidance of doubt, each Pre-emptive Shareholder may specify in ~~the RFO Notice; provided, however, that such period~~ its Exercise Notice a Pre-emptive Amount higher or lower than its Pro-rata Amount. The New Securities shall be ~~extended following~~ allocated among each Pre-emptive Shareholder (with rounding to avoid fractional shares) in proportion to its respective Pro-rata Amount provided that in no event shall an amount greater than such ~~date as necessary~~ Pre-emptive Shareholder’s Pre-emptive Amount be allocated to ~~permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with~~ such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 daysPre-emptive Shareholder. (e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter 5.3 Any excess New Securities (the “~~Transfer Period~~Excess New Securities”), ) not yet allocated after employing the procedures set out in Section 5.2 shall be allocated among all the Pre-emptive Shareholders whose Pre-emptive Amounts have not yet been satisfied in proportion to ~~dispose of the RFO Ordinary Shares~~ each such Pre-emptive Shareholder’s respective Excess Pro-rata Amount (with rounding to avoid fractional shares) PROVIDED THAT in ~~one or~~ no event shall a Pre-emptive Shareholder be required to purchase more ~~Transfers thereof without being subject~~ New Securities pursuant to ~~any of the restrictions set forth in~~ this ~~Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof~~ Section 5.3 than ~~the terms~~ as specified in the ~~RFO~~ Exercise Notice of such Pre-emptive Shareholder, and the procedures set out in this Section 5.3 shall be repeatedly employed until the Pre-emptive Amounts of all Pre-emptive Shareholders shall have been satisfied or until the total number of the New Securities have been fully allocated to all the Pre-emptive Shareholders after employing the procedures set out in this Section 5.3, whichever is to occur first. A Pre-emptive Shareholder’s “Pro-rata Amount” is equal to the product obtainable by multiplying (x) the total number of New Securities, by (y) a fraction, the numerator of which shall be the number of Ordinary Shares Equivalents owned by such Pre-emptive Shareholder on the date of the Issuance Notice and ~~(ii)~~ the ~~RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation~~ denominator of ~~such sale; and provided further, that the Transfer Period~~ which shall be ~~extended following such~~ the aggregate number of all Ordinary Shares Equivalents owned by all the Pre-emptive Shareholders on the date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3Issuance Notice. (f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.

Appears in 4 contracts

Samples: Shareholders Agreement (Home Inns & Hotels Management Inc.), Series C Preference Shares Purchase Agreement (Home Inns & Hotels Management Inc.), Series C Preference Shares Purchase Agreement (Home Inns & Hotels Management Inc.)

Right of First Offer. No Shareholder shall Transfer any of its Company Shares other than to a Permitted Transferee, except as set forth below: (a) ~~Other than Prohibited Transfers, if at any time after the Lock Up Period~~ If either Shareholder (a ~~Shareholder desires~~ “ROFO Seller”) proposes to Transfer ~~other than pursuant~~ any or all of such ROFO Seller’s Company Shares, prior to any ~~Permitted Transfer~~Transfer of Company Shares, such ~~Transfer~~ ROFO Seller shall ~~be permitted only if such~~ deliver to the other Shareholder (the “~~RFO Offeror~~ROFO Recipient”) ~~fully complies with~~ written notice (the “ROFO Notice”), stating such ROFO Seller’s intention to effect such a Transfer, the number of Company Shares subject to such Transfer (the “ROFO Shares”), the price per ROFO Share or the formula by which such price per ROFO Share is to be determined (which price must consist of only cash consideration) (the “ROFO Price”) and the other material terms and conditions of ~~this Section 3.3; provided~~ the proposed Transfer. The ROFO Notice may require that the ~~provisions~~ ROFO Seller and ROFO Recipient enter into a definitive agreement with respect to any sale of ~~this Section 3.3 shall not apply~~ the ROFO Shares to ~~Permitted Transfers~~the ROFO Recipient on a date that is no less than thirty (30) days and no later than sixty (60) days after the date of the ROFO Notice. (b) The ~~RFO Offeror shall~~ROFO Recipient will have the right, ~~prior to the Transfer~~ exercisable by delivery of ~~any Ordinary Shares to which this Section 3.3 applies~~an irrevocable written offer (each, ~~give written notice (~~a “~~RFO~~ ROFO Offer Notice”) to ~~each other Shareholder~~ the ROFO Seller within thirty (~~each~~30) days after receipt of the ROFO Notice, to make an ~~“RFO Offeree”)~~offer to purchase all, ~~setting forth (i)~~ but not less than all, of the ~~number of Ordinary~~ ROFO Shares ~~proposed to be disposed of (the “RFO Ordinary Shares”), (ii) the proposed~~ for a purchase price ~~per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell~~ equal to the ~~RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share~~ ROFO Price and on the ~~same~~ other proposed terms and conditions as set forth ~~therein~~in the ROFO Notice (each, a “ROFO Offer”). (c) ~~The RFO Offeree(s) collectively shall have the right to purchase (the “Right of First Offer”), any or all~~ Following delivery of the ~~RFO Ordinary~~ ROFO Offer Notice, if applicable, the ROFO Recipient will purchase the ROFO Shares by delivering ~~a written notice (the “RFO Exercise”) of exercise of the Right of First Offer~~ cash equal to the ~~RFO Offeror within 20 (twenty) Business Days from~~ aggregate ROFO Price due for such ROFO Shares by wire transfer to an account designated in writing by the ~~date of~~ ROFO Seller against delivery of certificates or other instruments representing the ~~RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary~~ ROFO Shares ~~as shall be~~ so purchased, ~~collectively, by~~ it being understood that the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all consummation of such ~~remaining RFO Ordinary Shares (~~sale shall occur only after the ~~“Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree,~~ receipt of required authorizations as set forth in ~~the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se~~Section 3.3(e), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined. (d) If ~~the RFO Offeree(s) shall have~~ no ROFO Offer Notice is delivered ~~an RFO Exercise~~ to the ~~RFO Offeror within~~ ROFO Seller, or if the ~~RFO Response Period~~ ROFO Recipient elects not to make an offer to purchase all of the ROFO Shares pursuant to this Section 3.3, then the ROFO Seller shall be permitted for a period of six (6) months from the date the ROFO Offer Notice was due to be received by the ROFO Seller to sell to a Third Party not less than all of the ~~RFO Ordinary Shares~~ROFO Shares at a price not less than that contained in the ROFO Notice and otherwise on other terms and conditions not materially less favorable to the ROFO Seller than those contained in the ROFO Notice. Promptly after such sale to such Third Party, the ~~RFO Offeror~~ ROFO Seller will notify the ROFO Recipient of the closing thereof and ~~RFO Offeree(s) shall be respectively bound,~~ will furnish such evidence of the completion and ~~shall complete the~~ time of completion of such sale and ~~purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon~~ the terms ~~set forth in the RFO Notice; provided, however, that~~ and conditions of such ~~period shall~~ sale as may reasonably be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken requested by the ~~RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days~~ROFO Recipient. (e) If Upon exercise by the ~~RFO Offeree(s) shall not have completed the purchase~~ ROFO Recipients of ~~all~~ their rights of ~~the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in~~ first offer under this Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made3.3, to the extent ~~prior to the expiration of the Transfer Period reasonably appropriate actions have been taken~~ an offer or offers are received by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary ROFO Seller for all ROFO Shares, the ~~RFO Offeror~~ ROFO Recipients and the ROFO Seller shall ~~no longer~~ be ~~permitted~~ legally obligated to ~~dispose~~ consummate the purchase contemplated thereby and shall use their reasonable best efforts to secure any governmental authorization required, to comply as soon as reasonably practicable with all applicable Laws and to take all such other actions and to execute such additional documents as are reasonably necessary or appropriate in connection therewith and to consummate the purchase of ~~such RFO Ordinary~~ the ROFO Shares ~~without again fully complying with the provisions of this Section 3.3~~as promptly as practicable. (f) ~~The RFO Offeror shall~~In the event that such Transfer is not consummated under Sections 3.3(c) or (d), ~~upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to~~ then this Section ~~2.2 hereof,~~ 3.3 shall again apply and such ~~director~~ ROFO Seller shall ~~execute a letter of resignation~~not Transfer such Company Shares without again complying with this Section 3.3.

Appears in 4 contracts

Samples: Shareholder Agreement, Shareholder Agreement (Saieh Bendeck Alvaro), Transaction Agreement (Corpbanca/Fi)

Right of First Offer. ~~(a) Other than Prohibited Transfers, if at~~ Before any ~~time after~~ Shares may be Transferred by the ~~Lock Up Period a Shareholder desires to Transfer other than~~ Investor pursuant to a Permitted Public Transfer (excluding any ~~Permitted Transfer~~Transfer pursuant to paragraph (d) of Exhibit C), ~~such Transfer~~ the Investor shall be permitted only if such Shareholder (the “RFO Offeror”) fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers. (b) The RFO Offeror shall, prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give deliver a written notice (a “~~RFO~~ ROFO Notice”) to ~~each other Shareholder~~ the Company, which shall confirm the Investor’s bona fide intention to Transfer Shares (~~each~~such shares, an the “~~RFO Offeree~~ROFO Shares”~~), setting forth (i~~) ~~the number of Ordinary Shares proposed~~ in a Permitted Public Transfer. The Company may nominate one or more Preferred New Investors whom it elects to be ~~disposed~~ in deemed receipt of the ROFO Notice and shall give written notice of the identity of such Preferred New Investor(s) to the Investor within the period of ten (10) Business Days following the receipt of the ROFO Notice by the Company. During the period of fifteen (15) Business Days following the delivery of the ROFO Notice to the Company (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein. (c) The RFO Offeree(s) collectively shall have the right to purchase (the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response ROFO Negotiation Period”), ~~irrevocably stating therein such~~ the Investor shall, if so requested by the Company or the Preferred New Investor(s), negotiate exclusively with the Preferred New Investor(s) in good faith with respect to a transaction in which the Investor shall Transfer all or a portion of the ~~RFO Ordinary~~ ROFO Shares as to the Preferred New Investor(s), in lieu of an effective Permitted Public Transfer for such ROFO Shares. For the avoidance of doubt, the Investor shall ~~be purchased~~not have any obligation to Transfer any ROFO Shares to the Preferred New Investor(s), ~~collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof~~ and the ~~proportion thereof~~ Preferred New Investor(s) shall not have any obligation to ~~be purchased by each RFO Offeree (~~purchase any ROFO Shares from the Investor, unless the Preferred New Investor(s) and the Investor mutually agree to such a transaction in writing. If, following the expiration of the ROFO Negotiation Period, either the Company has not nominated any Preferred New Investors or ~~such Affiliate(s~~the Preferred New Investor(s) and the Investor have not agreed in writing for the Investor to Transfer all or a portion of the ROFO Shares to the Preferred New Investor(s)~~). Each RFO Offeree~~ , then the Investor shall have the right, ~~but shall not be required, to purchase~~ during a period of six (~~or cause its wholly-owned Affiliate(s~~6) ~~to purchase) such RFO Offeree’s pro rata share (based on~~ months following the ~~number of Ordinary Shares held by such RFO Offeree as a proportion~~ end of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares ROFO Negotiation Period (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined. (d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days. (e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer ROFO Open Period”), subject to ~~dispose~~ the terms and conditions of this Agreement (including Section 4.4), to Transfer all of the ~~RFO Ordinary~~ ROFO Shares in ~~one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III~~a Permitted Public Transfer; provided, however, that (ix) ~~such Transfer~~ if the ROFO Shares are comprised of the ~~RFO Ordinary Shares is consummated on terms not more favorable~~ Registrable Shares, and (y) if the Investor demands, pursuant to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation Registration Rights, a registration of such ~~sale; and provided further~~ROFO Shares or the filing of a Prospectus Supplement (as defined in Exhibit C) with respect to such ROFO Shares during the ROFO Open Period, ~~that~~ then the ~~Transfer~~ ROFO Open Period shall ~~be extended~~ end six (6) months following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the ~~extent prior to the expiration~~ effectiveness of the ~~Transfer Period reasonably appropriate actions have been taken~~ applicable Registration Statement or Prospectus Supplement filed by the ~~RFO Offeror~~ Company pursuant to ~~obtain such approvals, consents~~ or ~~authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days.~~ as contemplated by Exhibit C. If at the Investor desires to Transfer any ROFO Shares following the end of the ~~Transfer Period~~ROFO Open Period in a Permitted Public Transfer, ~~as extended as provided herein,~~ then the ~~RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror~~ Investor shall ~~no longer~~ be ~~permitted~~ required to ~~dispose of such RFO Ordinary Shares without again fully complying~~ comply with the ~~provisions of~~ procedures set forth under this Section ~~3.3. (f~~4.6 again by delivering a new ROFO Notice to the Company and provide the Company with the right to nominate one or more Preferred New Investors and such Preferred New Investor(s) ~~The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required~~ with another ROFO Negotiation Period pursuant to this Section ~~2.2 hereof, and such director shall execute a letter of resignation~~4.6.

Appears in 3 contracts

Samples: Investment and Strategic Cooperation Agreement (Henderson Group PLC), Investment and Strategic Cooperation Agreement (Henderson Group PLC), Investment and Strategic Cooperation Agreement (Janus Capital Group Inc)

Right of First Offer. (a) ~~Other than Prohibited Transfers~~CTO hereby agrees that, ~~if at~~ during the Restricted Period, neither CTO nor any ~~time after~~ of its Affiliates shall enter into any agreement with any third party for the ~~Lock Up Period a Shareholder desires~~ purchase and/or sale of any ROFO Property without first offering Alpine the right to ~~Transfer other than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder (~~purchase the ~~“RFO Offeror”) fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers~~ROFO Property. (b) ~~The RFO Offeror shall~~If, ~~prior~~ during the Restricted Period, CTO or any of its Affiliates proposes to ~~the Transfer of any Ordinary Shares to which this Section 3.3 applies~~sell a ROFO Property, ~~give~~ CTO or such Affiliate shall deliver a written notice (~~“RFO Notice”~~which may be by email) to ~~each other Shareholder~~ Alpine (~~each~~such notice, an a “~~RFO Offeree~~ROFO Notice”), ~~setting~~ which ROFO Notice shall set forth the material business terms of such proposal including, without limitation, CTO’s or such Affiliate’s proposed sales price, the square footage of the ROFO Property, the terms of any lease associated with the ROFO Property, the proposed due diligence period, the proposed closing date, any deposit requirements and any other principal business terms. Alpine shall have the option to purchase the ROFO Property, which Alpine shall exercise by delivering irrevocable notice to CTO or its Affiliate, as applicable (~~i) the number of Ordinary Shares proposed to be disposed of (the~~ an “~~RFO Ordinary Shares~~Acceptance Notice”), ~~(ii)~~ within ten Business Days of the ~~proposed~~ giving of the ROFO Notice, along with an agreement of sale to purchase ~~price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to~~ the ~~RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein~~ROFO Property. (c) ~~The RFO Offeree(s~~With respect to any ROFO Property for which a ROFO Notice has been delivered pursuant to Section 3(b) ~~collectively shall have~~ above, if Alpine declines or fails to exercise its right of first offer within the period provided in Section 3(b) above (such failure being deemed a waiver of any such right ~~to purchase (the “Right~~ of ~~First Offer”~~first offer), ~~any~~ then CTO or ~~all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer~~ its Affiliate, as applicable, shall thereafter be free to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined. (d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and ~~purchase of the RFO Ordinary Shares within thirty (30) days thereafter~~ sell such ROFO Property upon ~~the~~ terms similar to those set forth in the ~~RFO~~ ROFO Notice; provided, however, that the sale of such ~~period shall be extended following such date as necessary~~ ROFO Property upon terms similar to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days. (e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions those set forth in ~~this Article III; provided~~the ROFO Notice shall be completed by CTO or its Affiliate, ~~however~~as applicable, ~~that (i) such Transfer~~ within 12 months of the ~~RFO Ordinary Shares~~ date the ROFO Notice is ~~consummated on terms not more favorable~~ delivered to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such saleAlpine; ~~and~~ provided further, that if CTO or its Affiliate, as applicable, subsequently offers for sale such ROFO Property on terms that are materially different from the ~~Transfer Period~~ terms set forth in the ROFO Notice relating to such ROFO Property, then CTO or such Affiliate shall provide Alpine with a revised ROFO Notice in accordance with the terms set forth above and Alpine shall have all of the same rights as set forth above. Time shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the ~~Transfer Period reasonably appropriate actions have been taken by the RFO Offeror~~ essence as to ~~obtain such approvals, consents~~ Alpine’s giving of any Acceptance Notice. The terms upon which CTO or ~~authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period~~its Affiliate, as ~~extended as provided herein~~applicable, is willing to sell any ROFO Property shall be deemed materially different if the ~~RFO Offeror has not completed~~ net effective sales proceeds shall be more than five percent (5.00%) less than the ~~Transfer of~~ net effective sales proceeds set forth in the ~~RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3~~initial or any revised ROFO Notice. (f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.

Appears in 3 contracts

Samples: Exclusivity and Right of First Offer Agreement (Alpine Income Property Trust, Inc.), Exclusivity and Right of First Offer Agreement (Consolidated Tomoka Land Co), Exclusivity and Right of First Offer Agreement (Alpine Income Property Trust, Inc.)

Right of First Offer. 13.1 If any AHG Shareholder (aeach, a “ROFO Seller”) ~~Other~~ wishes to directly Transfer (other than ~~Prohibited Transfers~~with respect to a Transfer permitted under Clauses ‎11.1.1 and ‎11.1.3) all or any portion of its Securities to a Third Party Purchaser (a “Prospective Buyer”) and if such Transfer of such Securities to a Prospective Buyer would, if when taken together with any Securities Transferred by such ROFO Seller in the prior twenty-four (24) months, represent a Beneficial Ownership of at ~~any time after~~ least five per cent. (5%) of the ~~Lock Up Period~~ Voting Shares in issue, such ROFO Seller shall not be entitled to effect such proposed Transfer until: 13.1.1 it has first issued written notice of the proposed Transfer (a ~~Shareholder desires~~ “ROFO Notice”) to the other AHG Shareholders (each such other AHG Shareholder, a “ROFO AHG Shareholder”) and the Company; and 13.1.2 the other provisions of this Clause ‎13 have been complied with. 13.2 The ROFO Notice shall set out: 13.2.1 the number and class of Securities that each ROFO Seller wishes to Transfer ~~other than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder~~ (the “~~RFO Offeror~~Subject Securities”); 13.2.2 each ROFO AHG Shareholder’s Proportionate Entitlement to acquire such Subject Securities; and 13.2.3 the price per Subject Security on which the ROFO Seller wishes to Transfer the Subject Securities. 13.3 Within ten (10) Business Days following the date of the ROFO Notice (the “ROFO Offer Period”), any ROFO AHG Shareholder (individually or in combination with any other ROFO AHG Shareholder) may elect to make an offer to purchase any number of the Subject Securities at the price set out in the ROFO Notice by issuing a written notice (a “ROFO Offer Notice”) ~~fully complies with~~ to the ~~terms~~ ROFO Seller and the Company setting out: 13.3.1 the cash price per Subject Security offered (which shall be no less than the price set out in the ROFO Notice); 13.3.2 the number of ~~this Section 3.3~~Subject Securities each ROFO AHG Shareholder wishes to purchase from the ROFO Seller, which may include additional Subject Securities which the ROFO AHG Shareholder is prepared to purchase in excess of its Proportionate Entitlement (if such indication is included, such notice shall also constitute an “Excess Securities Notice”); ~~provided~~ and 13.3.3 if the ROFO Notice indicates that ~~the provisions of this Section 3.3 shall not apply to Permitted Transfers. (b) The RFO Offeror shall, prior to~~ the Transfer of Subject Securities would result in the Prospective Buyer Beneficially Owning or controlling more than fifty per cent. (50%) of the outstanding Securities, whether such ROFO AHG Shareholder intends to exercise its tag along rights pursuant to Clause ‎14 if the ROFO Seller proceeds with the Transfer to the Prospective Buyer, (each such ROFO AHG Shareholder delivering a ROFO Offer Notice, a “ROFO Offeror”). 13.4 If a ROFO AHG Shareholder has not issued a ROFO Offer Notice by the end of the ROFO Offer Period in accordance with Clause ‎13.3, such ROFO AHG Shareholder shall be deemed to have waived all of its rights under this Clause 13 to make an offer for and/or to purchase any ~~Ordinary Shares to which this Section 3.3 applies~~Subject Securities set out in the relevant ROFO Notice. 13.5 Within ten (10) Business Days after the expiry of the ROFO Offer Period, ~~give~~ the ROFO Seller shall issue a written notice (each a “~~RFO~~ ROFO Sale Notice”) to each ~~other~~ ROFO Offeror (or combination of ROFO Offerors) (if any) setting out: 13.5.1 subject to Clause ‎13.5.2, confirmation that the offer contained in such ROFO Offeror’s ROFO Offer Notice has been accepted; 13.5.2 the amount of the Subject Securities to be purchased by such ROFO Offeror plus, in accordance with Clause ‎13.6, in respect of each ROFO Offeror that has indicated an interest in purchasing additional Subject Securities in excess of its Proportionate Entitlement the amount of Excess Subject Securities to which such ROFO Offeror is entitled; and 13.5.3 the price per Subject Security payable by such ROFO Offeror (as set out in the relevant ROFO Offer Notice). 13.6 In the event that a ROFO AHG Shareholder does not respond to a ROFO Notice or a ROFO Offeror does not agree to subscribe for all of its Proportionate Entitlement of the Subject Securities on offer (~~each~~such ROFO Offeror being a “Non-Fully Purchasing AHG Shareholder”) and the aggregate number of Subject Securities set out in all ROFO Offer Notices is less than the number of Subject Securities offered in the ROFO Notice (such excess Subject Securities being the “Excess Subject Securities”) then the ROFO Offerors that have indicated an interest in purchasing Subject Securities in excess of their Proportionate Entitlement pursuant to Clause ‎13.3.2 shall have the right pursuant to Clause ‎13.5.2 above, to purchase all or a portion of such Excess Subject Securities based upon their Proportionate Entitlement disregarding the Non-Fully Purchasing AHG Shareholders’ respective Proportionate Entitlements to acquire the Subject Securities, and the Company shall notify the relevant ROFO Offerors of the number of Subject Securities that have been allocated to them pursuant to their election pursuant to Clause ‎13.5.2. 13.7 Subject to Clauses ‎13.8 and ‎13.9 the offer of each ROFO Offeror (or combination of ROFO Offerors) contained in a ROFO Offer Notice or, if applicable, in an ~~“RFO Offeree”~~Excess Securities Notice shall be irrevocable and such ROFO Offeror (or combination of ROFO Offerors) shall, subject to receipt of any Mandatory Regulatory Consents, be bound and obligated to purchase the number of Subject Securities set out in the ROFO Sale Notice or, if applicable, in an Excess Securities Notice issued to such ROFO Offeror (or combination of ROFO Offerors). 13.8 If: 13.8.1 no ROFO Offer Notices are received by the ROFO Sellers in accordance with Clause ‎13.3 before the ROFO Offer Period has expired, ~~setting forth~~ the ROFO Seller shall be entitled to agree to Transfer all (but not a portion only) of the Subject Securities to a Prospective Buyer; or 13.8.2 the aggregate number of Subject Securities set out in (i) ~~the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”)~~all ROFO Sale Notices and, if applicable, (ii) all Excess Securities Notices is less than the ~~proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth~~ number of Subject Securities offered in the ~~RFO~~ ROFO Notice ~~at the same price per Ordinary Share and on the same terms and conditions as set forth therein.~~ (~~c) The RFO Offeree(s) collectively shall have the right to purchase (~~such excess Subject Securities being the “~~Right of First Offer~~Saleable Securities”), such ROFO Seller shall be entitled to agree to Transfer any ~~or all~~ of the ~~RFO Ordinary Shares by delivering~~ Saleable Securities to a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO OffereeProspective Buyer, in ~~the proportion~~ each case of ‎13.8.1 and ‎13.8.2: (~~as nearly as may be~~a) ~~to the number of Ordinary Shares held by them inter se),~~ within one hundred and ~~such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10~~ twenty (~~ten~~120) Business Days of the expiry of the ROFO Offer Period, subject to any extensions to account for any Mandatory Regulatory Consents to be obtained (such ~~re-offer~~one hundred and twenty (120)–Business Day period, ~~after which~~ as extended from time ~~such re-offer shall lapse and~~ to time, the ~~re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.~~“Permitted Sale Period”); and (db) If at a price which is not less than ninety-seven and a half per cent. (97.5%) of the ~~RFO Offeree(s) shall have delivered an RFO Exercise~~ price included in the ROFO Notice and on terms substantially not less favourable to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon Prospective Buyer than the terms set ~~forth~~ out in the ~~RFO~~ ROFO Notice~~; provided~~. 13.9 If a Transfer of Subject Securities to which this Clause 13 applies is not completed within the Permitted Sale Period, ~~however~~the ROFO Notice and all ROFO Offer Notices, ~~that such period~~ ROFO Sale Notices and Excess Securities Notices (if any) issued with respect to the relevant proposed Transfer shall be ~~extended following such date as necessary~~ null and void, and the ROFO Sellers and ROFO AHG Shareholders shall be required to ~~permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection~~ comply with ~~such purchase~~ the terms and conditions of this Clause ‎13 again should the ROFO Sellers wish to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days. (e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such consummate a Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3Subject Securities. (f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.

Appears in 3 contracts

Samples: Shareholder Agreement (Prudential Financial Inc), Shareholders’ Agreement (Prudential Investment Portfolios, Inc. 15), Shareholders’ Agreement (Squarepoint Ops LLC)

Right of First Offer. (ai) ~~Other than Prohibited Transfers~~During any period between the expiration of the Restricted Period and the consummation of a Qualified Public Offering, if ~~at any time after the Lock Up Period~~ a ~~Shareholder desires to Transfer other than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder~~ Holder (the “~~RFO Offeror~~Transferring Holder”) ~~fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply~~ wishes to ~~Permitted Transfers. (b) The RFO Offeror shall, prior to the~~ effect a Transfer of ~~any Ordinary Shares to which this Section 3.3 applies~~its Common Shares, ~~give~~ then such Transferring Holder shall first deliver a written notice (the “~~RFO~~ ROFO Notice”) to ~~each other Shareholder~~ all Holders whose Proportionate Percentage is at least 5% (~~each, an~~ the “~~RFO Offeree~~ROFO Offerees”)~~, setting forth (i)~~ . Such ROFO Notice shall disclose the number of ~~Ordinary~~ Common Shares proposed to be ~~disposed of~~ Transferred (the “~~RFO Ordinary~~ Offered Shares”)) and the material terms of any offer the Transferring Holder has received or is contemplating, if applicable. (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein. (c) The RFO Offeree(s) collectively Each ROFO Offeree shall have the right ~~to purchase~~ (the “Right of First Offer”)) to provide the Transferring Holder, ~~any or~~ within 45 days of the date of the ROFO Notice, an irrevocable written offer to acquire all of the ~~RFO Ordinary~~ Offered Shares, upon the price, terms and conditions on which such ROFO Offeree is willing to purchase the Offered Shares ~~by delivering a written notice~~ (the “~~RFO Exercise~~Proposed Offer”). (iii) The Transferring Holder, in its sole discretion, may elect to accept any Proposed Offer by delivering an irrevocable written notice of acceptance (the “ROFO Acceptance Notice”) ~~of exercise of the Right of First Offer~~ to the ~~RFO Offeror~~ ROFO Offerees and the Company within ~~20 (twenty) Business Days from~~ 60 days after the date of ~~delivery of~~ the ~~RFO~~ ROFO Notice (the “~~RFO Response~~ ROFO Acceptance Period”)~~, irrevocably stating therein~~ ; provided that (A) if such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as Transferring Holder receives a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is Proposed Offer from more than one ~~other RFO~~ ROFO Offeree, such Transferring Holder may only accept the Proposed Offer with the most favorable terms and conditions (including price) in ~~the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se)~~its reasonable discretion, and (B) if such Transferring Holder (x) receives Proposed Offers with equivalent terms (including price, conditions and other ~~RFO Offeree(s~~terms and conditions) ~~may~~ from more than one ROFO Offeree and (y) elects to accept ~~by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days~~ one of such ~~re-offer~~Proposed Offers, ~~after which time~~ such ~~re-offer~~ Transferring Holder shall ~~lapse~~ accept all such Proposed Offers with equivalent terms and the ~~re-offer for~~ Offered Shares shall be allocated pro rata among such ~~Remaining RFO Ordinary Shares will be deemed to have been declined~~ROFO Offerees based on their respective ROFO Proportionate Percentages. (div) If The ROFO Offerees purchasing the ~~RFO Offeree(s) shall have delivered an RFO Exercise~~ Common Shares pursuant to ~~the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s~~this Section 4(c) shall be ~~respectively bound~~entitled to require the Transferring Holder to provide representations and warranties regarding (A) its power, authority and ~~shall complete~~ legal capacity to enter into such Transfer of Common Shares; (B) valid right, title and interest in such Common Shares and the ~~sale~~ Transferring Holder’s ownership of such Common Shares; (C) the absence of any Encumbrances on such Common Shares; and ~~purchase~~ (D) the absence of ~~the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided~~any violation, ~~however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from~~default, or ~~filings~~ acceleration of any agreement or ~~registrations with, any Governmental Authority in connection with~~ instrument pursuant to which such ~~purchase to be obtained~~ Transferring Holder or ~~made, to~~ the ~~extent prior to~~ assets of such Transferring Holder are bound as the ~~expiration~~ result of ~~the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain~~ such ~~approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days~~sale. (ev) If Subject to any Tag-Along Rights, after the ~~RFO Offeree(s) shall not have completed the purchase of all~~ termination of the ~~RFO Ordinary Shares within the RFO Purchase~~ ROFO Acceptance Period, ~~as extended as provided~~ the Transferring Holder may, during the 120 day period following the ROFO Acceptance Period, Transfer (or enter into an agreement to Transfer and at any time Transfer in ~~Section 3.3(d), or together have failed to deliver RFO Exercises within~~ accordance with such agreement) the ~~RFO Response Period for all of~~ Offered Shares at and upon the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, price and other material terms and conditions that ~~(i) such Transfer of the RFO Ordinary Shares is consummated on terms not~~ are more favorable to the ~~purchasers thereof~~ Transferring Holder than the ~~terms specified~~ most favorable Proposed Offer that the Transferring Holder received (such Transfer, the “Permitted ROFO Transfer”). If the Transferring Holder has not consummated a Permitted ROFO Transfer (or has not entered into an agreement with respect thereto) within such 120 day period, the Transferring Holder shall not thereafter Transfer any Common Shares (including such Offered Shares), whether pursuant to a Proposed Offer or otherwise, without first providing a new ROFO Notice to the ROFO Offerees in the ~~RFO Notice~~ manner provided above, and ~~(ii) the RFO Offeror provides written confirmation~~ such proposed Transfer shall again be subject to the ~~RFO Offeree(s~~requirements of this Section 4(c). (vi) ~~that~~ Upon the closing of the sale of any Common Shares pursuant to this Section 4(c), the Transferring Holder shall deliver at such ~~terms comply~~ closing, against payment of the purchase price therefor, certificates representing those Common Shares to be sold, duly endorsed for transfer or accompanied by duly endorsed stock powers, and evidence of the absence of Encumbrances and adverse claims with ~~clause~~ respect thereto and of such other matters as are deemed necessary by the Company for the proper Transfer of such Common Shares on the books of the Company. (ivii) ~~hereof prior~~ Notwithstanding anything to the ~~consummation~~ contrary in this Agreement, this Section 4(c) shall not apply to (A) Permitted Transfers, (B) Transfers of ~~such sale; and provided further~~Common Shares made in a Qualified Public Offering, ~~that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from~~(C) Transfers of Common Shares made by Dragged Holders in a Drag-Along Transaction, or ~~filings or registrations with, any Governmental Authority~~ (D) Transfers of Common Shares made in connection with ~~such Transfers to be obtained or made, to~~ the ~~extent prior to the expiration~~ exercise of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3Tag-Along Rights. (f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.

Appears in 3 contracts

Samples: Stockholder Agreement, Stockholder Agreement (Popular Inc), Stockholder Agreement (Popular Inc)

Right of First Offer. Tenant shall have the following right of first offer ("RIGHT OF FIRST OFFER") to lease additional space in or adjacent to the Center, PROVIDED, however, that such Right of First Offer shall not arise or be effective if Tenant is in default hereunder, beyond any applicable notice and cure periods, on the date Landlord would otherwise be required to notify Tenant of the commencement and terms of such Right of First Offer pursuant to this Section 1.3. Landlord has advised Tenant (a) ~~Other~~ that it is presently Landlord's intention to develop Building E of the Center, as shown on the Site Plan ("BUILDING E"), as an office building rather than ~~Prohibited Transfers~~a biotechnology building, and (b) that the property lying easterly of the Property and commonly known as 000 Xxxxxx Xxxxx Xxxxxxxxx, Xxxxx Xxx Xxxxxxxxx ("333 OYSTER POINT"), presently operated as a commercial warehouse facility, is presently owned by Landlord. In the event that either (x) Landlord decides, in its sole discretion, to develop Building E as a biotechnology building or (y) Landlord or any affiliate of Landlord to which 000 Xxxxxx Xxxxx may be transferred, as applicable, decides to redevelop 000 Xxxxxx Xxxxx as a biotechnology facility, then in either such event Tenant shall have a Right of First Offer to lease a minimum of 100,000 square feet of space in Building E (or the entirety of Building E, if less than 100,000 square feet) or the redeveloped 000 Xxxxxx Xxxxx facility, as applicable, and neither Landlord nor its affiliate, if applicable, shall lease space in Building E or in the redeveloped 000 Xxxxxx Xxxxx facility (excluding any leases which, individually and in the aggregate, leave at ~~any time after~~ least 100,000 square feet of space in the ~~Lock Up Period a Shareholder desires~~ applicable building or facility to ~~Transfer other than~~ be offered to Tenant pursuant to ~~any Permitted Transfer, such Transfer shall be permitted only if such Shareholder (the “RFO Offeror”~~this Right of First Offer) ~~fully complies~~ without first complying with ~~the terms of this Section 3.3; provided that the~~ all applicable provisions of this Section 3.3 shall not apply to Permitted Transfers. (b) The RFO Offeror shall, prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth (i) the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein. (c) The RFO Offeree(s) collectively shall have the right to purchase (the “1.3. Tenant's Right of First ~~Offer”)~~Offer with respect to Building E or 000 Xxxxxx Xxxxx, ~~any or all~~ as applicable, shall commence upon Tenant's receipt of ~~the RFO Ordinary Shares by delivering a~~ written notice from Landlord (a "FIRST OFFER NOTICE") identifying the ~~“RFO Exercise”) of exercise of~~ building or facility to which the Right of First Offer applies, the amount of space available in such building or facility (not to be less than 100,000 square feet or the entirety of the applicable building or facility, if less than 100,000 square feet) and the rent, improvement allowance and other material terms upon which Landlord proposes to offer space in such building or facility. Tenant shall have ten (10) business days after receipt of a First Offer Notice in which to reach agreement on all terms and achieve execution of a written lease agreement with Landlord or its affiliate, as applicable, regarding Tenant's leasing and occupancy of at least 100,000 square feet of space in the building or facility covered by the First Offer Notice (or the entirety of such building or facility, if less than 100,000 square feet). It is generally the intention of the parties that the form of lease for any such leasing of space pursuant to a First Offer Notice would be substantially identical to this Lease, excluding this Section 1.3 and subject only to such other modifications as may be reasonably necessary to reflect differences in the particular space to be occupied pursuant to such new lease and/or in the economic terms applicable to Tenant's leasing of such space. If Landlord and Tenant fail to reach agreement on all terms and achieve execution of a written lease within ten (10) business days after Tenant's receipt of a First Offer Notice, then Tenant shall have no further rights under this Section 1.3 with respect to the ~~RFO Offeror within 20 (twenty) Business Days~~ building or facility covered by such First Offer Notice and Landlord shall thereafter be free to proceed with the leasing of such building or facility at any time and from ~~the date of delivery of the RFO~~ time to time without any further obligation to Tenant. If Tenant leases space in either Building E or 000 Xxxxxx Xxxxx pursuant to a First Offer Notice ~~(the “RFO Response Period”)~~under this Section 1.3, irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree then Tenant shall have no further rights under this Section 1.3 with respect to either of such buildings or facilities (except Tenant's rights under the ~~right, but shall not be required,~~ written lease agreement entered into with respect to ~~purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on~~ the ~~number of Ordinary Shares held~~ particular space covered by such ~~RFO Offeree as a proportion~~ First Offer Notice) and Landlord shall thereafter be free to proceed with the further leasing of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of both such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), building and such ~~other RFO Offeree(s) may accept by delivery~~ facility at any time and from time to ~~the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which~~ time ~~such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed~~ without any further obligation to ~~have been declined~~Tenant. (d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days. (e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3. (f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.

Appears in 3 contracts

Samples: Build to Suit Lease (Pharmacopeia Inc), Build to Suit Lease (Pharmacopeia Inc), Build to Suit Lease (Pharmacopeia Inc)

Right of First Offer. (a) ~~Other than Prohibited Transfers, if at~~ If any ~~time after the Lock Up Period~~ Stockholder or Stockholders acting in concert (a ~~Shareholder desires~~ “Transferor”) desire to Transfer (other than pursuant to ~~any~~ an Exempt Transfer) Company Securities that represent, in the aggregate, more than 5% of the then outstanding shares of Common Stock (assuming conversion in full of all outstanding Preferred Shares and NVC Shares, and irrespective of the Conversion Limitation), such Transferor shall give each Stockholder (other than the Transferor and its Permitted Transferees, as applicable) that, together with its Permitted Transferees, holds more than 5% of the then outstanding shares of Common Stock (for this purpose, shares of Common Stock held by a Person shall include shares issuable upon exercise of Company stock options, or directly or indirectly through conversion or exchange of outstanding Preferred Shares and NVC Shares, held by such Person, and irrespective of the Conversion Limitation) and the Company (collectively, the “Option Holders”) prior written notice of such proposed Transfer, ~~such Transfer~~ which notice shall (i) specify the amount and type of Company Securities to be ~~permitted only if such Shareholder~~ Transferred (the “~~RFO Offeror~~Subject Securities”), the consideration to be received therefor, and the other material terms on which the Transferor proposes to Transfer the Subject Securities and (ii) contain the offer described below (collectively, the “Transferor’s Notice”). The Transferor’s Notice shall contain an offer to sell (the “Option”) ~~fully complies~~ the Subject Securities to the Option Holders in accordance with this Article 3 for the consideration and on the other terms ~~of this Section 3.3~~specified in the Transferor’s Notice; provided that to the ~~provisions~~ extent such consideration shall consist of ~~this Section 3.3~~ anything other than cash, each Option Holder shall be entitled, at its option, to instead pay in cash the value of such consideration as determined by mutual agreement of all such Option Holders so electing to pay cash and the Transferor, or if such agreement is not ~~apply~~ reached within 5 days of receipt of the Transferor’s Notice, as determined by an investment banker or appraiser of national reputation reasonably acceptable to ~~Permitted Transfers~~both the Transferor and such Option Holders (the fees and expenses of which shall be shared equally by the Transferor, on the one hand, and all such Option Holders requesting such valuation, on the other hand), in which case the date of the Transferor’s Notice shall be deemed the date the cash value of such consideration is so determined. (b) The ~~RFO Offeror shall~~Company, ~~prior to~~ at the ~~Transfer~~ election of ~~any Ordinary Shares to which~~ the Board (acting by majority vote, excluding, for purposes of this Section ~~3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth~~ (i) if the Transferor is an Investor (or Permitted Transferee thereof), any Investor Designee designated to the Board by such Investor pursuant to Article 2 hereof (and if such Transferor is WCAS (or Permitted Transferee thereof), also excluding Xxxxxxx Xxxxxxx if he is then an Investor Designee of WCAS), and (ii) if the Transferor is Xxxxxxx Xxxxxxx or any of his Permitted Transferees or Affiliates, and Xxxxxxx Xxxxxxx is then a director of the Company, Xxxxxxx Xxxxxxx), shall have the first right and option, exercisable at any time within the first 10 days following the date of the Transferor’s Notice, to exercise the Option to purchase from the Transferor the Subject Securities pursuant to the Option. If the Option is not exercised by the Company within the first 10 days after the date of the Transferor’s Notice, then the other Option Holders shall have the right and option, exercisable at any time within the first 20 days following the date of the Transferor’s Notice, to exercise the Option and purchase from the Transferor the Subject Securities pursuant to the Option, in which event, such other Option Holders may elect to purchase the Subject Securities in the proportions upon which they mutually agree or, if they are unable to agree upon an allocation of such Subject Securities among themselves, then in the proportion that the number of ~~Ordinary~~ shares of Common Stock held by each such Option Holder which desires to participate in the purchase of such Company Securities pursuant to the Option bears to the aggregate number of shares of Common Stock held by all such Option Holders that desire to participate in the purchase of such Company Securities pursuant to the Option. For purposes of the foregoing sentence, shares of Common Stock held by a Person shall include shares issuable upon exercise of Company stock options, or directly or indirectly through conversion or exchange of outstanding Preferred Shares ~~proposed to be disposed of (the “RFO Ordinary~~ and NVC Shares”), ~~(ii) the proposed purchase price per RFO Ordinary Share~~held by such Person, and ~~payment and other material terms and conditions and (iii)~~ irrespective of the Conversion Limitation. Acceptance of the Option by an ~~irrevocable offer to sell~~ Option Holder shall be in a writing delivered to the ~~RFO Offeree(s)~~ Transferor and the ~~RFO Ordinary Shares set forth in~~ Company, which shall deliver copies thereof to the ~~RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein~~other Option Holders. (c) ~~The RFO Offeree(s) collectively shall have~~ If the ~~right to purchase (the “Right of First Offer”), any or~~ Option is accepted in a manner such that all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, Company Securities covered by the ~~RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof~~ Transferor’s Notice are to be purchased by ~~each RFO Offeree~~ the Option Holders, the Transferor shall, subject to Section 3.03, Transfer such Company Securities free of all liens and encumbrances (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held other than restrictions imposed by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may bethis Agreement) to the ~~number~~ respective Option Holder purchasers thereof against delivery by the Option Holder purchaser of ~~Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery~~ the applicable consideration payable to the ~~RFO Offeror of an RFO Exercise in respect~~ Transferor therefor. Unless, through exercise of the ~~relevant Remaining RFO Ordinary Shares within 10~~ Option, all the Company Securities proposed to be transferred in the Transferor’s Notice are to be acquired by one or more Option Holders, the Transferor may, subject to Section 3.03, either (~~ten~~i) ~~Business Days of such re-offer, after which time such re-offer shall lapse and~~ Transfer the ~~re-offer~~ Company Securities subscribed for ~~such Remaining RFO Ordinary Shares will be deemed to have been declined. (d) If~~ by the ~~RFO Offeree(s) shall have delivered an RFO Exercise~~ Option Holders at the applicable purchase price therefor to the ~~RFO Offeror within~~ Option Holders or (ii) Transfer the ~~RFO Response Period for all~~ Subject Securities that were subject to the ~~RFO Ordinary Shares,~~ Option to a third party Transferee at the ~~RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and~~ same purchase ~~of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms~~ price set forth in the ~~RFO~~ Transferor’s Notice (or at a higher price) and on terms and conditions no less favorable to the Transferor than the terms and conditions set forth in the Transferor’s Notice; provided, however, that such ~~period~~ Transfer shall ~~be extended following such~~ occur no later than 90 days after the date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the ~~RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain~~ Transferor’s Notice. If such ~~approvals, consents or authorizations, or make~~ Transfer does not occur within such filings or registrations; and provided further that no such extension shall exceed 60 days. (e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer90 day period, then the ~~RFO Offeror~~ Company Securities shall ~~have~~ be re-offered to the ~~right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject~~ Option Holders under this Section 3.02 prior to any ~~of the restrictions set forth in~~ subsequent Transfer otherwise covered by this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period Section 3.02. The transactions contemplated by this Section 3.02 shall be ~~extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority~~ consummated in ~~connection~~ accordance with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section ~~3.3~~3.03. (f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.

Appears in 3 contracts

Samples: Stockholders' Agreement (Universal American Financial Corp), Stockholders' Agreement (Universal American Financial Corp), Stockholders Agreement (Welsh Carson Anderson & Stowe Ix Lp)

Right of First Offer. At any time prior to the earlier of (i) January 1, 2009 or (ii) a Termination Event, when the XxXxx Entities do not have the Right of First Refusal (other than with respect to a Permitted Transfer), the XxXxx Entities shall have, and each Stockholder hereby irrevocably grants to the XxXxx Entities, the rights (the "Right of First Offer") described in this Section 5.02: (a) ~~Other than Prohibited Transfers, if at any time after the Lock Up Period a Shareholder~~ A Selling Stockholder that desires to Transfer ~~other than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder~~ its Stock in compliance with this Section 5.02 must first give written notice (the ~~“RFO Offeror”~~"ROFO Notice") ~~fully complies with the terms of this Section 3.3; provided~~ to FFW stating that the ~~provisions~~ Selling Stockholder intends to Transfer Stock. The ROFO Notice shall identify the Qualified Transferee, if known, and specify the type and number of ~~this Section 3.3 shall not apply~~ shares of Stock to ~~Permitted Transfers~~be Transferred (the "ROFO Shares") and specify the proposed Sale Price. (b) The ~~RFO Offeror shall, prior to~~ ROFO Notice shall constitute the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth (i) the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable Selling Stockholder's binding offer to sell the ROFO Shares to the ~~RFO Offeree(s)~~ XxXxx Entities on the ~~RFO Ordinary Shares~~ terms set forth in the ~~RFO~~ ROFO Notice and this Agreement. The XxXxx Entities, or any of them, shall have 10 business days after delivery of the ROFO Notice (subject to any required regulatory approvals, provided that the appropriate XxXxx Entity is using commercially reasonable efforts to satisfy such regulatory condition as soon as reasonably practicable) (the "ROFO Exercise Period") to exercise its right to purchase all, but not less than all of, the ROFO Shares at the ~~same price per Ordinary Share~~ Sale Price and on upon the ~~same~~ other terms and conditions as set forth ~~therein~~in the ROFO Notice by written notice to the Selling Stockholder within the ROFO Exercise Period. (c) ~~The RFO Offeree(s) collectively~~ Failure to deliver such a notice within the ROFO Exercise Period shall ~~have the right to purchase (the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise~~ constitute waiver of the Right of First Offer with respect to the ~~RFO Offeror within 20~~ ROFO Shares, and the Selling Stockholder shall have ninety (~~twenty~~90) ~~Business Days from~~ calendar days thereafter to complete the ~~date of delivery~~ transfer of the ~~RFO Notice (~~ROFO Shares to a Qualified Transferee at a price no lower than the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof Sale Price and the ~~proportion thereof to be purchased by each RFO Offeree (~~other terms set forth in the ROFO Notice, or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree other terms that taken as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror whole are no less favorable to the ~~other RFO Offeree(s) (or if there is more than one other RFO Offeree~~Selling Stockholder; otherwise, in the ~~proportion (as nearly as may be)~~ ROFO Shares shall thereupon be again subject to the ~~number~~ Right of ~~Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise~~ First Offer described in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will this Section 5.02 before any transfer can be ~~deemed to have been declined~~made. (d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase Delivery of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days. (e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise a notice exercising the Right of First ~~Offer, then~~ Offer shall create a binding contract between the ~~RFO Offeror shall have~~ applicable XxXxx Entities and the ~~right~~ Selling Stockholder for ~~sixty (60) days thereafter (~~the ~~“Transfer Period”), to dispose~~ purchase and sale of the ~~RFO Ordinary~~ ROFO Shares ~~in one or more Transfers thereof without being subject to any of~~ at the ~~restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated~~ Sale Price and on ~~terms not more favorable to the purchasers thereof than~~ the terms ~~specified~~ and conditions in the ~~RFO~~ ROFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section ~~3.3~~5. (f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.

Appears in 3 contracts

Samples: Stockholders Agreement (Clearwire Corp), Stockholders Agreement (Clearwire Corp), Stock Purchase Agreement (Clearwire Corp)

Right of First Offer. ~~(a) Other than Prohibited Transfers, if at any time after the Lock Up Period a Shareholder desires~~ Subject to Transfer other than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder (the “RFO Offeror”) fully complies with the terms of this Section 3.3; provided that the provisions of this Section ~~3.3 shall not apply to Permitted Transfers. (b) The RFO Offeror shall~~2.8, prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth (i) the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein. (c) The RFO Offeree(s) collectively Tenant shall have ~~the~~ a one-time right ~~to purchase~~ of first offer (the “Right of First Offer”)) on the then-available portions of Floor 1 of Building A (each, ~~any or all~~ a “ROFO Space”) upon the following terms and conditions. This Right of First Offer is subject and subordinate to (i) the rights of third parties existing as of the ~~RFO Ordinary Shares by delivering~~ date of this Lease, (ii) the rights, if any, of each tenant in such ROFO Space granted in the Initial Lease-Up (as defined below) with respect to a ~~written notice~~ ROFO Space, and (iii) the right of Landlord or any affiliate of Landlord to use or occupy such ROFO Space. Landlord will notify Tenant of its plans to market a ROFO Space (the “~~RFO Exercise~~ROFO Notice”) ~~of exercise of~~ for lease to any party unrelated to Landlord (it being acknowledged and agreed that the Right of First Offer shall not be applicable to space Landlord intends to occupy and/or provide to affiliates of Landlord), which ROFO Notice shall specify the ~~RFO Offeror within 20 (twenty) Business Days from~~ location and square footage for such ROFO Space, Landlord’s estimate of the fair market rent for such ROFO Space, the date of ~~delivery~~ availability of ~~the RFO Notice (the “RFO Response Period”), irrevocably stating therein~~ such ~~portion~~ ROFO Space and all other material terms and conditions which will apply to such ROFO Space. The term of ~~the RFO Ordinary Shares as~~ any ROFO Space shall be ~~purchased, collectively, by~~ coterminous with the ~~RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and~~ Lease Term for the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined. (d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO NoticePremises; provided, however, that in the event less than thirty (30) full calendar months remain in the Lease Term as of the date of availability of such ~~period~~ ROFO Space, then (i) if the Extension Term has not yet been exercised, Tenant’s exercise of such Right of First Offer shall be ~~extended~~ subject to Tenant’s simultaneous exercise of the Extension Term (which shall thereupon be applicable to such ROFO Space) and (ii) if no Extension Term remains or is exercisable by Tenant, then this Section 2.8 shall be of no force or effect and Tenant shall have no further Rights of First Offer. Within ten (10) Business Days following its receipt of any ROFO Notice, Tenant shall have the right to accept the same by written notice to Landlord (the “ROFO Acceptance Notice”), provided that if Tenant disputes Landlord’s estimate of the fair market rent in the ROFO Acceptance Notice, the fair market rent for such ~~date~~ space shall be determined as ~~necessary~~ set forth in Section 4.7 below. If Tenant timely delivers a ROFO Acceptance Notice, Landlord and Tenant shall execute an amendment to ~~permit~~ the Lease incorporating the ROFO Space into the Premises upon the terms contained in the ROFO Notice within ten (10) Business Days following Landlord’s delivery to Tenant of a form therefor (and if the Landlord’s determination of fair market rent was disputed in the ROFO Notice and not agreed to as of the commencement of the term for such ROFO Space, then rent shall be Landlord’s determination of fair market rent until the finalization of the fair market rent appraisal, and any change in such rent amount shall be adjusted — with applicable credits or reimbursement for any underpayment or overpayment - thereafter). If Tenant fails to timely deliver a ROFO Acceptance Notice within said ten (10) Business Day period or fails to execute Landlord’s form of amendment for such ROFO Space within ten (10) Business Days of receipt from Landlord, Tenant shall be deemed to have waived its rights with respect to a ROFO Space and Landlord shall be entitled, but not required, to lease all ~~required approvals~~or any portion of such ROFO Space to any party or parties on such terms and conditions, ~~consents~~ including, without limitation, options to extend the term of such lease and/or expand the premises under such lease, and for such rent as Landlord determines, all in its sole discretion, and the Right of First Offer with respect to such ROFO Space in such ROFO Notice shall be of no further force or ~~authorizations from, or filings or registrations with~~effect. Notwithstanding any contrary provision of this Lease, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days. (e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, and any exercise by Tenant of any Right of First Offer shall be void and of no effect unless on the date Tenant timely delivers a ROFO Acceptance Notice to Landlord and on the commencement date of the amendment for a ROFO Space (as applicable): (i) this Lease is in full force and effect, (ii) no Event of Default has occurred under this Lease which remains continuing and uncured after any applicable notice and opportunity to cure and (iii) except with respect to a Permitted Transfer, Tenant shall not have assigned this Lease and there shall not be any sublease or subleases then in effect. Tenant acknowledges and agrees that Tenant’s Right of First Offer with respect to any space that is not subject to a third-party lease on the ~~RFO Offeror shall have the right for sixty (60) days thereafter~~ date hereof (the “~~Transfer Period~~Vacant Space”), ) shall not be of any force or effect until such time as such Vacant Space has been initially leased to ~~dispose~~ a third-party tenant after the date hereof (the “Initial Lease-Up”) and such lease (and any rights held by such tenant in any part of the ~~RFO Ordinary Shares in one or more Transfers thereof without being subject to any~~ Building consisting of ~~the restrictions set forth in this Article III; provided, however, that (i~~a ROFO Space) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3subsequently expired. (f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.

Appears in 3 contracts

Samples: Lease Agreement (Morphic Holding, Inc.), Lease Agreement (Morphic Holding, Inc.), Lease Agreement (Morphic Holding, Inc.)

Right of First Offer. ~~(a) Other than Prohibited Transfers~~If, if at any time ~~after~~ prior to the ~~Lock Up Period a Shareholder desires~~ consummation of an IPO, any Rollover Member (the “ROFO Seller”) proposes to Transfer ~~other than~~ Common Units pursuant to ~~any Permitted Transfer~~Section 10.02(b)(ii) or pursuant to Section 10.01(a) with unanimous Board approval, such Transfer shall be ~~permitted only if such Shareholder~~ subject to the following provisions: (a) The ROFO Seller shall deliver an irrevocable written notice (the “~~RFO Offeror~~ROFO Notice”) ~~fully complies with~~ to the ~~terms~~ Company and the other Common Members and the Specified Profits Members (the “ROFO Rightholders”) offering such Membership Interests first to the Company and then to such ROFO Rightholders, and specifying in reasonable detail the number of ~~this Section 3.3; provided that~~ Membership Interests proposed to be Transferred (the ~~provisions~~ “ROFO Interests”), the proposed purchase price therefor (the “ROFO Purchase Price”), and, if the January Capital Member is the ROFO Seller, whether or not such sale will include a sale of ~~this Section 3.3 shall not apply to Permitted Transfers~~Equity Securities in the January Capital Member (the “ROFO Purchase Terms”). (b) ~~The RFO Offeror shall~~For a period of fifteen (15) days after the ROFO Notice has been delivered to the Company (the “ROFO Option Period”), the Company shall have the right to elect to purchase all or any portion of the ROFO Interests for cash by delivering a written notice to the ROFO Seller prior to the ~~Transfer~~ expiration of ~~any Ordinary Shares~~ the ROFO Option Period, specifying the Company’s acceptance of the ROFO Purchase Terms (including, for the avoidance of doubt, the ROFO Purchase Price). (c) If, during the ROFO Option Period, the Company elects to ~~which~~ purchase less than all of the ROFO Interests included by the ROFO Seller in such ROFO Notice (or if the Company shall have delivered written confirmation to the ROFO Seller that it has irrevocably waived its rights under this Section ~~3.3 applies~~10.06 with respect to such transaction), ~~give~~ then, for a period of fifteen (15) days after the termination of the ROFO Option Period or the delivery of such written confirmation (the “ROFO Member Option Period”), each of the other ROFO Rightholders shall have the right to elect to purchase up to that number of the remaining ROFO Interests equal to the product of (i) the Percentage Interest of such ROFO Rightholder, and (ii) the number of ROFO Interests to be Transferred by such ROFO Seller (the “ROFO Pro Rata Portion”) (or such greater portion, as described in the last sentence of this clause (c)) for cash by delivering a written notice (a “~~RFO~~ ROFO Member Exercise Notice”) to the ROFO Seller prior to the expiration of the ROFO Member Option Period, specifying the Member’s acceptance of the ROFO Purchase Terms (including, for the avoidance of doubt, the ROFO Purchase Price). If the applicable ROFO Rightholders do not, in the aggregate, elect to purchase all of the remaining ROFO Interests based on their respective ROFO Pro Rata Portions, each applicable ROFO Rightholder electing pursuant to purchase its entire ROFO Pro Rata Portion of remaining ROFO Interests shall have the right to purchase all or any of the remaining ROFO Interests not elected to be purchased by the other ~~Shareholder~~ applicable ROFO Rightholders. (~~each~~d) If, an during the ROFO Member Option Period, ROFO Member Exercise Notices are delivered with respect to less than all of the ROFO Interests, then, notwithstanding the foregoing or anything to the contrary herein, the ROFO Rightholders shall automatically be deemed to forfeit their right to purchase the ROFO Interests and the ROFO Seller may thereupon, in its discretion, elect to Transfer to a third party all of the ROFO Interests or solely the remaining ROFO Interests (if the ROFO Seller determines to accept a partial exercise by the ROFO Rightholders pursuant to this Section 7.06) within one hundred twenty (120) days, or (as long as a definitive purchase agreement providing for such sale is entered into within such 120 days) such longer period as may be necessary to obtain approval for such transfer under applicable antitrust law (the “~~RFO Offeree~~Post-ROFO Period”) of the expiration of the ROFO Member Option Period; provided that neither (x) the purchase price nor (y) the terms and conditions, taken as a whole, of such sale as agreed to with the Transferee is more favorable to such Transferee than the ROFO Purchase Terms; provided, further that any such sale shall again be subject to this Section 10.06 if not consummated prior to the end of such Post-ROFO Period. (e) The closing of the sale by the ROFO Seller of any ROFO Interests to the Company and/or any ROFO Rightholder, as applicable, if any such parties duly exercise (and are not deemed to have forfeited) such rights under this Section 10.06 (a “ROFO Sale”), ~~setting forth~~ shall be held within thirty (30) days (or such later date as may be necessary to satisfy any applicable law) after the expiration of the later of the ROFO Option Period or the ROFO Member Option Period, as the case may be, or such other time as the Company or the ROFO Rightholders and the ROFO Seller, as applicable, shall mutually agree. At such closing the ROFO Seller shall deliver its ROFO Interests being purchased under this Section 10.06, duly endorsed, or accompanied by written instruments of transfer in form reasonably satisfactory to the proposed purchaser and duly executed by the ROFO Seller, and such ROFO Interests shall be free and clear of any liens (other than limitations on transfer pursuant to applicable securities laws) and the ROFO Seller shall so represent and warrant, and further represent and warrant that it is the sole record owner of such ROFO Interests. (f) Notwithstanding anything to the contrary herein, (i) any Transfer by the ~~number~~ ROFO Seller as to which the right of ~~Ordinary Shares proposed~~ first offer would apply under this Section 10.06 shall be subject to ~~be disposed of~~ Section 7.01(b) and (~~the “RFO Ordinary Shares”~~c), (ii) the ~~proposed purchase price per RFO Ordinary Share~~Company and the Members shall be deemed to have waived their rights of first offer hereunder if they fail to give notice within the time period prescribed in Section 10.06(c) and Section 10.06(d), ~~and payment and other material terms and conditions~~ respectively, and (iii) ~~an irrevocable~~ the rights of first offer ~~to sell to the RFO Offeree(s) the RFO Ordinary Shares~~ set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein. (c) The RFO Offeree(s) collectively shall have the right to purchase (the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but herein shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined. (d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days. (e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject apply to any ~~of the restrictions set forth in this Article III; provided, however, that (i) such~~ Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3. (f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section ~~2.2 hereof~~10.02(a), ~~and such director shall execute a letter of resignation~~Section 10.02(d), Section 10.02(e), Section 10.04, Section 10.05, Section 10.07, Section 10.08, or Section 10.09.

Appears in 3 contracts

Samples: Limited Liability Company Agreement (Endeavor Group Holdings, Inc.), Limited Liability Company Agreement (Endeavor Group Holdings, Inc.), Limited Liability Company Agreement (Endeavor Group Holdings, Inc.)

Right of First Offer. Subject to the terms and conditions specified in this Section 2.3, the Company hereby grants to each Major Holder a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined). A Major Holder who chooses to exercise the right of first offer may designate as purchasers under such right itself or its partners or Affiliates in such proportions as it deems appropriate. 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 its capital stock (“Shares”), the Company shall first make an offering of such Shares to each Major Holder in accordance with the following provisions: (a) ~~Other than Prohibited Transfers, if at any time after the Lock Up Period~~ The Company shall deliver a ~~Shareholder desires to Transfer other than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder~~ notice (the “RFO Offeror”) fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers. (b) The RFO Offeror shall, prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) to ~~each other Shareholder (each, an “RFO Offeree”), setting forth~~ the Major Holders stating (i) ~~the number of Ordinary Shares proposed~~ its bona fide intention to ~~be disposed of (the “RFO Ordinary~~ offer such Shares”), (ii) the ~~proposed purchase price per RFO Ordinary Share~~number of such Shares to be offered, ~~and payment and other material terms and conditions~~ and (iii) ~~an irrevocable~~ the price and terms, if any, upon which it proposes to offer ~~to sell to~~ such Shares. (b) Within 20 calendar days after delivery of the RFO ~~Offeree(s)~~ Notice, the ~~RFO Ordinary Shares set forth~~ Major Holder may elect to purchase or obtain, at the price and on the terms specified in the RFO ~~Notice~~ Notice, up to that portion of such Shares which equals the proportion that the number of shares of Common Stock issued and held, or issuable upon conversion and exercise of all convertible, exchangeable or exercisable securities then held, by such Major Holder bears to the total number of shares of Common Stock then outstanding (assuming full conversion and exercise of all convertible or exercisable securities). Such purchase shall be completed at the same ~~price per Ordinary Share~~ closing as that of any third party purchasers or at an additional closing thereunder. The Company shall promptly, in writing, inform each Major Holder that purchases all the Shares available to it (each, a “Fully-Exercising Holder”) of any other Major Holder’s failure to do likewise. During the 10-day period commencing after receipt of such information, each Fully-Exercising Holder shall be entitled to obtain that portion of the Shares for which Major Holders were entitled to subscribe but which were not subscribed for by the Major Holders that is equal to the proportion that the number of shares of Common Stock issued and on held, or issuable upon conversion and exercise of all convertible, exchangeable or exercisable securities then held, by such Fully-Exercising Holder bears to the ~~same terms~~ total number of shares of Common Stock issued and ~~conditions as set forth therein~~held, or issuable upon conversion and exercise of all convertible, exchangeable or exercisable securities then held, by all Fully Exercising Holders who wish to purchase some of the unsubscribed Shares. (c) The ~~RFO Offeree(s) collectively shall have~~ Company may, during the ~~right to purchase (~~45-day period following the ~~“Right of First Offer”), any or all~~ expiration of the ~~RFO Ordinary Shares by delivering a written notice (~~period provided in subsection 2.3(b) hereof, offer the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such remaining unsubscribed portion of the Shares to any person or persons at a price not less than, and upon terms no more favorable to the offeree than those specified in the RFO ~~Ordinary~~ Notice. If the Company does not enter into an agreement for the sale of the Shares as within such period, or if such agreement is not consummated within 60 days of the execution thereof, the right provided hereunder shall be ~~purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof~~ deemed to be ~~purchased by each RFO Offeree (or~~ revived and such ~~Affiliate(s)). Each RFO Offeree shall have the right, but~~ Shares shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered ~~by the RFO Offeror~~ unless first reoffered to the ~~other RFO Offeree(s) (or if there is more than one other RFO Offeree,~~ Major Holders in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declinedaccordance herewith. (d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase The right of ~~the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth~~ first offer in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days. (e) If the RFO Offeree(s) this Section 2.3 shall not ~~have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed~~ be applicable to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) ~~such Transfer~~ the issuance of securities that are exempt from the ~~RFO Ordinary Shares is consummated on terms not more favorable~~ definition of Additional Stock (as defined in the Restated Certificate) or (ii) the issuance of shares of Series G Preferred Stock or Series G-1 Preferred Stock pursuant to the ~~purchasers thereof than~~ Purchase Agreement, as may be amended from time to time. In addition to the ~~terms specified~~ foregoing, the right of first offer in this Section 2.3 shall not be applicable with respect to any Major Holder and any subsequent securities issuance, if (i) at the ~~RFO Notice~~ time of such subsequent securities issuance, the Major Holder is not an “accredited investor,” as that term is then defined in Rule 501(a) under the Securities Act, and (ii) ~~the RFO Offeror provides written confirmation~~ such subsequent securities issuance is otherwise being offered only to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3accredited investors. (f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.

Appears in 2 contracts

Samples: Investors’ Rights Agreement (Affirm Holdings, Inc.), Investors’ Rights Agreement (Affirm Holdings, Inc.)

Right of First Offer. (a) ~~Other than Prohibited Transfers, if at any time after the Lock Up Period a Shareholder desires to Transfer other than pursuant~~ Prior to any ~~Permitted Transfer~~Transfer of the Remaining Shares, Trumx xxxt first give written notice of his intent to make such Transfer ~~shall be permitted only if such Shareholder~~ (a "TRANSFER NOTICE") to Nash xxx Silvxxxxx xxxting forth the number of shares of Common Stock (the ~~“RFO Offeror”~~"FIRST OFFER SHARES") ~~fully complies with~~ that Trumx xxxires to transfer and the cash price that Trumx xxxposes to be paid for such First Offer Shares and the other terms and conditions of ~~this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers~~such proposed Transfer. (b) ~~The RFO Offeror shall~~Trumx xxxll afford Silvxxxxx xxx Nash (xxch individually a "FIRST OFFER STOCKHOLDER", ~~prior to~~ and collectively the ~~Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth (i~~"FIRST OFFER STOCKHOLDERS") the ~~number~~ right, but not the obligation, to purchase all or part of ~~Ordinary~~ the First Offer Shares ~~proposed to be disposed of~~ on a pro rata basis (the ~~“RFO Ordinary Shares”), (ii~~"FIRST OFFER OPTION") the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth ~~therein~~in the Transfer Notice. Notwithstanding anything to the contrary contained herein, the First Offer Stockholders will not elect to purchase a portion of the First Offer Shares in an amount less than 10,000 shares if the number of First Offer Shares is at least 10,000 shares in respect of a particular Transfer Notice and (ii) if the number of First Offer Shares is at least 10,000 in respect of a particular Transfer Notice and the First Offer Stockholders shall elect to purchase part of the First Offer Shares, then each First Offer Stockholder shall purchase such First Offer Shares in multiples of 1,000 shares. The number of shares of Common Stock that each First Offer Stockholder will be entitled to purchase pursuant to such First Offer Option will be determined by multiplying (i) the number of shares Trumx xxxns to sell as stated in the Transfer Notice by (ii) a fraction, the numerator of which shall equal the number of shares beneficially owned by such First Offer Stockholder as of the close of business on the day immediately prior to the date the Transfer Notice is delivered (the "TRANSFER NOTICE DATE") and the denominator of which shall equal the aggregate number of shares of Common Stock that are beneficially owned by the First Offer Stockholders as of the close of business on the day immediately prior to the Transfer Notice Date. Each First Offer Stockholder shall exercise the First Offer Option by delivering to Trumx xxxevocable written notice via facsimile transmission if reasonably practicable of the First Offer Stockholder's commitment to purchase all or part of his pro rata share of the First Offer Shares within two business days after receipt of the Transfer Notice (the "FIRST OFFER OPTION PERIOD"). Failure by either First Offer Stockholder to give such notice within such two-business-day period shall be deemed an election by such First Offer Stockholder not to purchase any of the First Offer Shares. (c) ~~The RFO Offeree(s) collectively shall have the right~~ If neither First Offer Stockholder elects to purchase (any First Offer Shares, Trumx xxx Transfer the ~~“Right of~~ First ~~Offer”),~~ Offer Shares in accordance with Section 2.2(e) below. If one First Offer Stockholder fails to purchase any or all of ~~the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise~~ his pro rata share of the ~~Right~~ First Offer Shares and the other First Offer Stockholder elects to purchase all of his pro rata share of the First Offer Shares, Trumx xxxll give notice of such failure to such other First Offer Stockholder. Such notice shall state the number of First Offer ~~to the RFO Offeror~~ Shares remaining that may be acquired by such First Offer Stockholder, which notice shall be made by telephone and confirmed in writing within ~~20 (twenty) Business Days~~ two days. Such First Offer Stockholder shall have two business days from the date ~~of delivery of the RFO Notice~~ such notice was confirmed in writing (~~the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall~~ which confirmation may be ~~purchased, collectively,~~ by ~~the RFO Offeree(s~~facsimile transmission) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase ~~(or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on~~ the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary remaining First Offer Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined. (d) If Delivery of written notice by a First Offer Stockholder accepting the ~~RFO Offeree(s~~First Offer Option pursuant to clauses (b) and (c) above shall ~~have delivered an RFO Exercise to~~ constitute a contract between such First Offer Stockholder, on the ~~RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound~~one hand, and ~~shall complete~~ Trumx, xx the other hand, for the purchase and sale ~~and purchase~~ of the ~~RFO Ordinary~~ number of First Offer Shares ~~within thirty (30) days thereafter upon~~ specified by such First Offer Stockholder on the terms and conditions set forth in the ~~RFO~~ Transfer Notice~~; provided, however, that such period~~ . The purchase of any shares pursuant to the exercise of the First Offer Option shall be ~~extended~~ completed not later than 8 business days following ~~such date as necessary~~ delivery of the Transfer Notice with respect to ~~permit all~~ the First Offer Shares, subject to receipt of any required material third-party or governmental approvals, ~~consents~~ compliance with applicable laws and the absence of any injunction or ~~authorizations from, or filings or registrations with, any Governmental Authority in connection with~~ similar legal order preventing such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 daystransaction. (e) If In the ~~RFO Offeree(s) shall~~ event that the First Offer Stockholders do not ~~have completed the purchase of~~ elect to acquire all of the ~~RFO Ordinary Shares within the RFO Purchase Period~~First Option Shares, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall Trumx xxxll have the right for ~~sixty (60)~~ a period of 45 days ~~thereafter (~~after the ~~“Transfer Period”), to dispose~~ termination of the ~~RFO Ordinary~~ First Offer Option Period to Transfer the First Offer Shares ~~in one or more Transfers thereof without being subject~~ not so acquired at a price and on terms and conditions no less favorable to ~~any of the restrictions~~ Trumx xxxn those set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer ~~Period shall be extended following such date as necessary~~ Notice or in any written counter-proposal delivered by a First Offer Stockholder to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration Trumx xx respect of ~~the~~ a particular Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3Notice. (f) ~~The RFO Offeror shall~~Subject to the other provisions of this Agreement, ~~upon the~~ this Section 2.2 shall not apply to any Transfer of the ~~RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required~~ Remaining Shares pursuant to ~~Section 2.2 hereof,~~ the terms of a merger or statutory share exchange between the Company and ~~such director shall execute~~ a ~~letter~~ third party or a liquidation of ~~resignation~~the Company.

Appears in 2 contracts

Samples: Stockholders Agreement (Financial Performance Corp), Stockholders Agreement (Trump Robert S)

Right of First Offer. ~~(a) Other than Prohibited Transfers, if at any time after the Lock Up Period a Shareholder desires to Transfer other than pursuant~~ Prior to any ~~Permitted Transfer, such~~ Transfer ~~shall be permitted only if such Shareholder~~ by the Fugro Member of all or any of its Class A-2 Units (the “~~RFO Offeror~~Subject Interest”) ~~fully complies~~ other than to a Permitted Transferee, the Fugro Member must first comply with ~~the terms of this Section 3.3; provided that~~ the provisions of this Section ~~3.3 shall not apply to Permitted Transfers.~~11.7: (ba) The ~~RFO Offeror shall, prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”)~~ Fugro Member shall first deliver to each ~~other Shareholder (each, an “RFO Offeree”), setting forth (i) the number of Ordinary Shares proposed to be disposed of~~ Class A Member (the “~~RFO Ordinary Shares~~Offerees”~~), (ii~~) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein. (c) The RFO Offeree(s) collectively shall have the right to purchase (the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “~~RFO Exercise~~Offer Notice”) that sets forth the number of ~~exercise~~ its Class A-2 Units represented by the Subject Interest, the amount that the Fugro Member proposes to be paid for the Subject Interest (the “Sale Price”), the manner of payment and the material terms of such sale. The Offer Notice shall constitute an irrevocable offer by the Fugro Member to sell to the Offerees the Subject Interest for cash at the Sale Price on the terms set forth in the Offer Notice. Each of the ~~Right of First Offer to~~ Offerees shall have until the ~~RFO Offeror within 20 (twenty)~~ 20th Business ~~Days from~~ Day following the ~~date of~~ delivery of the ~~RFO~~ Offer Notice (the “~~RFO Response~~ Offer Period”~~), irrevocably stating therein~~ ) in which to notify the Fugro Member that it accepts such offer as to all or any portion of the ~~RFO Ordinary Shares as~~ Subject Interest offered to such Offeree for the Sale Price (or the applicable portion thereof based on the portion of the Subject Interest such Offeree elects to purchase) and on the payment terms set forth in the Offer Notice, which notice shall specify the maximum portion of the Subject Interest it wishes to purchase. (b) If more than one Offeree elects to purchase all or any portion of the Subject Interest prior to the expiration of the Offer Period and such Offerees in the aggregate elect to purchase an amount that exceeds the Subject Interest, the Subject Interest shall be ~~purchased, collectively,~~ allocated among such Offerees pro rata according to their respective Class A Percentage Interests up to the maximum portion of the Subject Interest specified by each such Offeree in its notice until the ~~RFO Offeree(s~~entire Subject Interest shall have been so allocated or each Offeree shall have been allocated the maximum portion of the Subject Interest specified by each such Offeree in its notice. (c) ~~and/or~~ If one or more ~~wholly-owned Affiliates thereof and~~ Offerees accept such offer with respect to all but not less than all of the ~~proportion thereof to be purchased by each RFO Offeree (or~~ Subject Interest, a closing of the purchase of such ~~Affiliate(s)). Each RFO Offeree~~ Subject Interest shall ~~have~~ take place at the ~~right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based~~ principal office of the Company at 10:00 a.m. on the ~~number of Ordinary Shares held by such RFO Offeree as~~ 15th Business Day after the date on which the Offer Notice was delivered unless the parties agree on a ~~proportion~~ different place or time. The Sale Price shall be payable in accordance with the payment terms of the ~~number~~ Offer Notice. The definitive agreements providing for the purchase of ~~Ordinary Shares held by all RFO Offerees). To~~ the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered Subject Interest by the ~~RFO Offeror~~ Offerees shall include customary representations and warranties by the Fugro Member regarding its valid title to ~~the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se),~~ and ~~such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect~~ ownership of the ~~relevant Remaining RFO Ordinary Shares within 10~~ Subject Interest, free and clear of all liens, claims and encumbrances (~~ten~~excluding those arising under securities laws and this Agreement) ~~Business Days~~ and its authority, power and right to enter into and consummate the purchase of ~~such re-offer, after which time such re-offer shall lapse and~~ the ~~re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined~~Subject Interest. (d) If the ~~RFO Offeree(s)~~ Offerees do not elect to purchase all but not less than all of the Subject Interest for the Sale Price prior to expiration of the Offer Period, the Fugro Member shall have ~~delivered an RFO Exercise~~ the right, subject to the ~~RFO Offeror within~~ other provisions of this Article XI, to sell the ~~RFO Response Period~~ Subject Interest for ~~all~~ a period of 120 calendar days (the ~~RFO Ordinary Shares,~~ “Sale Period”) at a price per share no less than the ~~RFO Offeror~~ Sale Price and ~~RFO Offeree(s) shall be respectively bound, and shall complete~~ on other terms no more favorable to the ~~sale and purchase of~~ Transferees thereof than offered to the ~~RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth~~ Offerees in the ~~RFO~~ Offer Notice; provided, however, that ~~such period~~ the Fugro Member shall not be permitted to sell the Subject Interest to a Prohibited Transferee. The Fugro Member shall be ~~extended following such date as necessary~~ permitted to ~~permit all required approvals, consents~~ engage a qualified investment banking firm or ~~authorizations from, or filings or registrations with, any Governmental Authority~~ professional adviser in connection with such ~~purchase~~ proposed Transfer; provided that any fees and expenses payable to such investment bank or professional advisor shall be ~~obtained~~ borne solely by the Fugro Member; provided, further, that the Fugro Member shall not be charged any fees or ~~made, to~~ expenses for the ~~extent prior to the expiration~~ management time of the ~~RFO Purchase Period reasonably appropriate actions have been taken by~~ officers of the ~~RFO Offeree(s~~Company and its Subsidiaries or for any of the other assistance set out in Section 11.7(e) ~~to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days~~below. (e) If During the ~~RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase~~ Sale Period, ~~as extended as provided~~ the Company shall reasonably cooperate with the Fugro Member in ~~Section 3.3(d)~~connection with such proposed Transfer, or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offerincluding, ~~then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being~~ subject to ~~any of~~ the ~~restrictions set forth~~ potential Transferee executing and delivering to the Company a confidentiality agreement in ~~this Article III; provided~~form and substance reasonably acceptable to the Company, ~~however, that~~ by (i) ~~such Transfer~~ permitting any potential Transferee to conduct a due diligence review of the ~~RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice~~ Company, its Subsidiaries and their respective businesses, operations, prospects, assets, liabilities, financial condition and results of operations and (ii) making available the ~~RFO Offeror provides written confirmation~~ officers of the Company and its Subsidiaries for the purpose of making presentations to any such potential Transferee and answering questions posed by them, which, in any case, shall be during normal business hours, upon reasonable advance notice; provided that the Company will not be subject to a due diligence process which imposes an unreasonable burden to the ~~RFO Offeree(s~~Company or its operations. If the Fugro Member does not Transfer the Subject Interest before the end of the Sale Period, it may not sell any Subject Interest without repeating the foregoing procedures. Upon the consummation by the Fugro Member of any Transfer pursuant to this Section 11.7(d) ~~that such terms comply~~ of a Subject Interest representing a Class A/A-1/A-2 Percentage Interest of at least fifteen percent (15%), the Fugro Member and its Transferee may, by written notice to the Company given contemporaneously with ~~clause (i) hereof prior to~~ the consummation of such ~~sale; and provided further~~Transfer, ~~that~~ elect to have the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, Transferee succeed to the ~~extent prior to the expiration~~ specific rights and obligations of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end Fugro Member under this Agreement in place of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3. (f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereofFugro Member, and such ~~director~~ substitution of the Transferee for the Fugro Member shall ~~execute a letter of resignation~~take effect without any further action by the Company or the Members.

Appears in 2 contracts

Samples: Limited Liability Company Agreement (Hc2 Holdings, Inc.), Business Purchase Agreement (Hc2 Holdings, Inc.)

Right of First Offer. 13.1 If any AHG Shareholder (aeach, a “ROFO Seller”) ~~Other~~ wishes to directly Transfer (other than ~~Prohibited Transfers~~with respect to a Transfer permitted under Clauses 11.1.1 and 11.1.3) all or any portion of its Securities to a Third Party Purchaser (a “Prospective Buyer”) and if such Transfer of such Securities to a Prospective Buyer would, if when taken together with any Securities Transferred by such ROFO Seller in the prior twenty-four (24) months, represent a Beneficial Ownership of at ~~any time after~~ least five per cent. (5%) of the ~~Lock Up Period~~ Voting Shares in issue, such ROFO Seller shall not be entitled to effect such proposed Transfer until: 13.1.1 it has first issued written notice of the proposed Transfer (a ~~Shareholder desires~~ “ROFO Notice”) to the other AHG Shareholders (each such other AHG Shareholder, a “ROFO AHG Shareholder”) and the Company; and 13.1.2 the other provisions of this Clause 13 have been complied with. 13.2 The ROFO Notice shall set out: 13.2.1 the number and class of Securities that each ROFO Seller wishes to Transfer ~~other than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder~~ (the “~~RFO Offeror~~Subject Securities”); 13.2.2 each ROFO AHG Shareholder’s Proportionate Entitlement to acquire such Subject Securities; and 13.2.3 the price per Subject Security on which the ROFO Seller wishes to Transfer the Subject Securities. 13.3 Within ten (10) Business Days following the date of the ROFO Notice (the “ROFO Offer Period”), any ROFO AHG Shareholder (individually or in combination with any other ROFO AHG Shareholder) may elect to make an offer to purchase any number of the Subject Securities at the price set out in the ROFO Notice by issuing a written notice (a “ROFO Offer Notice”) ~~fully complies with~~ to the ~~terms~~ ROFO Seller and the Company setting out: 13.3.1 the cash price per Subject Security offered (which shall be no less than the price set out in the ROFO Notice); 13.3.2 the number of ~~this Section 3.3~~Subject Securities each ROFO AHG Shareholder wishes to purchase from the ROFO Seller, which may include additional Subject Securities which the ROFO AHG Shareholder is prepared to purchase in excess of its Proportionate Entitlement (if such indication is included, such notice shall also constitute an “Excess Securities Notice”); ~~provided~~ and 13.3.3 if the ROFO Notice indicates that ~~the provisions of this Section 3.3 shall not apply to Permitted Transfers. (b) The RFO Offeror shall, prior to~~ the Transfer of Subject Securities would result in the Prospective Buyer Beneficially Owning or controlling more than fifty per cent. (50%) of the outstanding Securities, whether such ROFO AHG Shareholder intends to exercise its tag along rights pursuant to Clause 14 if the ROFO Seller proceeds with the Transfer to the Prospective Buyer, (each such ROFO AHG Shareholder delivering a ROFO Offer Notice, a “ROFO Offeror”). 13.4 If a ROFO AHG Shareholder has not issued a ROFO Offer Notice by the end of the ROFO Offer Period in accordance with Clause 13.3, such ROFO AHG Shareholder shall be deemed to have waived all of its rights under this Clause 13 to make an offer for and/or to purchase any ~~Ordinary Shares to which this Section 3.3 applies~~Subject Securities set out in the relevant ROFO Notice. 13.5 Within ten (10) Business Days after the expiry of the ROFO Offer Period, ~~give~~ the ROFO Seller shall issue a written notice (each a “~~RFO~~ ROFO Sale Notice”) to each ~~other~~ ROFO Offeror (or combination of ROFO Offerors) (if any) setting out: 13.5.1 subject to Clause 13.5.2, confirmation that the offer contained in such ROFO Offeror’s ROFO Offer Notice has been accepted; 13.5.2 the amount of the Subject Securities to be purchased by such ROFO Offeror plus, in accordance with Clause 13.6, in respect of each ROFO Offeror that has indicated an interest in purchasing additional Subject Securities in excess of its Proportionate Entitlement the amount of Excess Subject Securities to which such ROFO Offeror is entitled; and 13.5.3 the price per Subject Security payable by such ROFO Offeror (as set out in the relevant ROFO Offer Notice). 13.6 In the event that a ROFO AHG Shareholder does not respond to a ROFO Notice or a ROFO Offeror does not agree to subscribe for all of its Proportionate Entitlement of the Subject Securities on offer (~~each~~such ROFO Offeror being a “Non-Fully Purchasing AHG Shareholder”) and the aggregate number of Subject Securities set out in all ROFO Offer Notices is less than the number of Subject Securities offered in the ROFO Notice (such excess Subject Securities being the “Excess Subject Securities”) then the ROFO Offerors that have indicated an interest in purchasing Subject Securities in excess of their Proportionate Entitlement pursuant to Clause 13.3.2 shall have the right pursuant to Clause 13.5.2 above, to purchase all or a portion of such Excess Subject Securities based upon their Proportionate Entitlement disregarding the Non-Fully Purchasing AHG Shareholders’ respective Proportionate Entitlements to acquire the Subject Securities, and the Company shall notify the relevant ROFO Offerors of the number of Subject Securities that have been allocated to them pursuant to their election pursuant to Clause 13.5.2. 13.7 Subject to Clauses 13.8 and 13.9 the offer of each ROFO Offeror (or combination of ROFO Offerors) contained in a ROFO Offer Notice or, if applicable, in an ~~“RFO Offeree”~~Excess Securities Notice shall be irrevocable and such ROFO Offeror (or combination of ROFO Offerors) shall, subject to receipt of any Mandatory Regulatory Consents, be bound and obligated to purchase the number of Subject Securities set out in the ROFO Sale Notice or, if applicable, in an Excess Securities Notice issued to such ROFO Offeror (or combination of ROFO Offerors). 13.8 If: 13.8.1 no ROFO Offer Notices are received by the ROFO Sellers in accordance with Clause 13.3 before the ROFO Offer Period has expired, ~~setting forth~~ the ROFO Seller shall be entitled to agree to Transfer all (but not a portion only) of the Subject Securities to a Prospective Buyer; or 13.8.2 the aggregate number of Subject Securities set out in (i) ~~the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”)~~all ROFO Sale Notices and, if applicable, (ii) all Excess Securities Notices is less than the ~~proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth~~ number of Subject Securities offered in the ~~RFO~~ ROFO Notice ~~at the same price per Ordinary Share and on the same terms and conditions as set forth therein.~~ (~~c) The RFO Offeree(s) collectively shall have the right to purchase (~~such excess Subject Securities being the “~~Right of First Offer~~Saleable Securities”), such ROFO Seller shall be entitled to agree to Transfer any ~~or all~~ of the ~~RFO Ordinary Shares by delivering~~ Saleable Securities to a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO OffereeProspective Buyer, in ~~the proportion~~ each case of 13.8.1 and 13.8.2: (~~as nearly as may be~~a) ~~to the number of Ordinary Shares held by them inter se),~~ within one hundred and ~~such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10~~ twenty (~~ten~~120) Business Days of the expiry of the ROFO Offer Period, subject to any extensions to account for any Mandatory Regulatory Consents to be obtained (such ~~re-offer~~one hundred and twenty (120)–Business Day period, ~~after which~~ as extended from time ~~such re-offer shall lapse and~~ to time, the ~~re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.~~“Permitted Sale Period”); and (db) If at a price which is not less than ninety-seven and a half per cent. (97.5%) of the ~~RFO Offeree(s) shall have delivered an RFO Exercise~~ price included in the ROFO Notice and on terms substantially not less favourable to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon Prospective Buyer than the terms set ~~forth~~ out in the ~~RFO~~ ROFO Notice~~; provided~~. 13.9 If a Transfer of Subject Securities to which this Clause 13 applies is not completed within the Permitted Sale Period, ~~however~~the ROFO Notice and all ROFO Offer Notices, ~~that such period~~ ROFO Sale Notices and Excess Securities Notices (if any) issued with respect to the relevant proposed Transfer shall be ~~extended following such date as necessary~~ null and void, and the ROFO Sellers and ROFO AHG Shareholders shall be required to ~~permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection~~ comply with ~~such purchase~~ the terms and conditions of this Clause 13 again should the ROFO Sellers wish to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days. (e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such consummate a Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3Subject Securities. (f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.

Appears in 2 contracts

Samples: Shareholder Agreement (Capital World Investors), Shareholders’ Agreement (Citadel Advisors LLC)

Right of First Offer. (a) ~~Other than Prohibited Transfers, if at any time~~ Following the date that is 24 months after the ~~Lock Up~~ first day of the Post-Call Option Period (such time period, the “ROFO Period”), any proposed Transfer of Shares (other than to a ~~Shareholder desires~~ Permitted Transferee or in a transaction pursuant to Section 3.5, Section 3.6 or Section 3.7) by Walgreens shall be subject to the right of first offer pursuant to, and Walgreens must first comply with the provisions of, this Section 3.4. In the event Walgreens proposes to Transfer any or all of its Shares (other than to a Permitted Transferee or in a transaction pursuant to ~~any Permitted Transfer~~Section 3.5, Section 3.6 or Section 3.7) during the ROFO Period (a “Sale”), then Walgreens shall furnish to Gibco a written notice of such proposed Transfer ~~shall be permitted only if such Shareholder~~ (~~the~~ a “~~RFO Offeror~~Sale Notice”) ~~fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall~~ not ~~apply~~ less than 30 Business Days prior to ~~Permitted Transfers~~any such proposed Transfer. (b) The RFO Offeror shall, prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth Sale Notice shall include: (i) (A) the number of ~~Ordinary~~ Shares proposed to be ~~disposed of~~ sold by Walgreens (the “~~RFO Ordinary~~ Subject Shares”), (iiB) ~~the proposed purchase price per RFO Ordinary Share, and payment and~~ all other material terms and ~~conditions~~ conditions, to the extent then determined by Walgreens, in connection with such proposed Transfer, (C) the identity of any prospective third party purchasers, if known and (~~iii~~D) the proposed Transfer date, to the extent then determined by Walgreens; and (ii) an ~~irrevocable~~ invitation for Gibco (on behalf of itself or on behalf of any one or more of the shareholders of the Gibco Principal Investors to whom Gibco has assigned its rights under this Section 3.4) to make an offer to ~~sell to~~ purchase all (but not less than all) of the ~~RFO Offeree(s~~Subject Shares for 100% cash consideration (unless otherwise agreed by Walgreens) ~~the RFO Ordinary Shares~~ and on any other terms and conditions set forth in the ~~RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein~~Sale Notice. (c) The RFO Offeree(s) collectively shall have the right to purchase (the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within Within 20 ~~(twenty)~~ Business Days ~~from~~ following the date of delivery of the ~~RFO~~ Sale Notice (the “~~RFO Response~~ Option Period”), ~~irrevocably stating therein such portion~~ Gibco (on behalf of ~~the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or~~ itself or on behalf of any one or more ~~wholly-owned Affiliates thereof~~ of the shareholders of the Gibco Principal Investors to whom Gibco has assigned its rights under this Section 3.4) may make an offer to purchase all (but not less than all) of the Subject Shares on the other terms and conditions set forth in the ~~proportion thereof~~ Sale Notice by delivering to Walgreens an irrevocable notice (the “Purchase Notice”), which Purchase Notice, in order to be ~~purchased by each RFO Offeree~~ valid, shall set forth the cash purchase price for the Subject Shares applicable to such offer and include customary documentation (which may consist in or include one or more “highly confident” letter(s) from bank(s) or other financial institution(s)), in the context of private acquisitions, establishing with reasonable confidence Gibco’s (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion shareholders of the ~~number~~ Gibco Principal Investors’) ability to finance the transaction. Any Purchase Notice so delivered shall be binding upon the delivering party and irrevocable upon delivery. Gibco (on behalf of ~~Ordinary Shares held by all RFO Offerees). To~~ itself or on behalf of any one or more of the ~~extent any RFO Offeree does not wish~~ shareholders of the Gibco Principal Investors to ~~purchase (or cause~~ whom Gibco has assigned its ~~wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”~~rights under this Section 3.4) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have waived all of its (and such shareholders of such Gibco Principal Investor’s) rights to purchase any Subject Shares under this Section 3.4 if a Purchase Notice that complies with the above requirements shall not have been ~~declined. (d) If the RFO Offeree(s) shall have~~ delivered ~~an RFO Exercise~~ to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent Walgreens prior to the expiration of the ~~RFO~~ Option Period. (d) In the event that Gibco (on behalf of itself or on behalf of any one or more of the shareholders of the Gibco Principal Investors to whom Gibco has assigned its rights under this Section 3.4) has delivered a valid Purchase ~~Period~~ Notice prior to the expiration of the Option Period, Walgreens shall be obligated to, within 10 Business Days, either accept or decline the offer set forth in the Purchase Notice. In the event that Walgreens shall have accepted, or shall not have declined, the offer set forth in such valid Purchase Notice within the 10 Business Day period referred to in the immediately preceding sentence, Walgreens and Gibco (on behalf of itself or on behalf of any one or more of the shareholders of the Gibco Principal Investors to whom Gibco has assigned its rights under this Section 3.4) shall negotiate in good faith definitive documentation for the purchase and sale of the Subject Shares on terms and conditions consistent with those contained in the Purchase Notice and on such other terms and conditions as may be agreed by Walgreens and Gibco (on behalf of itself or on behalf of such shareholders of the Gibco Principal Investors), with a view to execution and delivery of such definitive documentation as soon as reasonably ~~appropriate actions have been taken~~ practicable after the acceptance of such Purchase Notice or, in the absence of such acceptance, after such 10 Business Day period referred to in the immediately preceding sentence. The closing of the Transfer of such Subject Shares pursuant to such Purchase Notice shall take place within the time period set forth in the definitive documentation mutually agreed upon by Walgreens and the ~~RFO Offeree(s~~Person(s) that will acquire the Subject Shares (the “ROFO Purchaser”). Each of Walgreens, the Company, Gibco and the ROFO Purchaser (if not Gibco) agrees to ~~obtain such~~ use its reasonable best efforts to secure any regulatory approvals or other consents or approvals, ~~consents or authorizations~~and to comply with any Law necessary in connection with the offer, ~~or make~~ sale and purchase of such ~~filings or registrations; and provided further that no such extension shall exceed 60 days~~Subject Shares. (e) If In the ~~RFO Offeree(s~~event that (i) a valid Purchase Notice is not delivered in compliance with Section 3.4(c) or (ii) Walgreens declines the offer set forth in the applicable valid Purchase Notice in compliance with Section 3.4(d), then, during the 120 day period following the expiration of the Option Period or the date on which Walgreens declines the offer set forth in the applicable valid Purchase Notice, respectively, Walgreens may Transfer all (but not less than all) of the Subject Shares to a third party but only if the purchase price for such Transfer is the same as or higher than the purchase price specified in the Purchase Notice in the case of (ii) above and the other terms and conditions for such Transfer are not less favorable in the aggregate to Walgreens than the terms and conditions for the proposed Sale of the Subject Shares specified in the Sale Notice, in the case of clause (i) above, or the terms and conditions offered by the ROFO Purchaser pursuant to the applicable valid Purchase Notice, in the case of clause (ii) above (and any such Transfer shall not ~~have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed~~ be subject to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right ~~for sixty (60) days thereafter (the “Transfer Period”), to dispose~~ of ~~the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions~~ first offer set forth in this ~~Article III~~Section 3.4). If at the end of the 120 day period set forth above in this Section 3.4(e), Walgreens has not entered into a definitive agreement providing for the Transfer of the Subject Shares to a third party in accordance with the foregoing sentence (or, if at the end of 180 days following the date of the Sale Notice, such Transfer has not been completed), then it shall be necessary for a separate Sale Notice to be delivered, and the terms and provisions of this Section 3.4 separately complied with, in order for Walgreens to consummate a Transfer of Shares during the ROFO Period (other than a Transfer to a Permitted Transferee or in a transaction pursuant to Section 3.5, Section 3.6 or Section 3.7). (f) In connection with a proposed Transfer to which this Section 3.4 applies, Gibco may at any time at its option assign all or any portion of its rights under this Section 3.4 to, and substitute, one or more of the shareholders of Gibco for itself to act as the purchaser(s) or to exercise any other right of Gibco, or to satisfy any obligation of Gibco, under this Section 3.4; provided, however, that (i) notwithstanding any assignment of rights pursuant to this Section 3.4(f) (x) any notice required to be made by Walgreens pursuant to this Section 3.4 shall only be required to be made to Gibco, and Gibco shall be responsible for forwarding such ~~Transfer~~ notices to its permitted assigns and (y) any such permitted assigns shall not be relieved of ~~the RFO Ordinary Shares is consummated on terms not more favorable~~ any obligations it may have under this Section 3.4 as a result of Gibco failing to ~~the purchasers thereof than the terms specified in the RFO Notice~~ forward or such Person failing to receive such notices and (ii) ~~the RFO Offeror provides written confirmation~~ no assignment of rights pursuant to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section ~~3.3~~3.4(f) shall relieve Gibco of its obligations under this Agreement, including this Section 3.4(f). (f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.

Appears in 2 contracts

Samples: Shareholders’ Agreement (Walgreen Co), Purchase and Option Agreement (Walgreen Co)

Right of First Offer. (a) ~~Other than Prohibited Transfers~~Each of the following spaces in the Building (known as Suites 30, ~~if at any time after the Lock Up Period a Shareholder desires to Transfer other than pursuant to any Permitted Transfer~~20, ~~such Transfer shall be permitted only if such Shareholder (the~~ 18, 8, 4 and 2), as more particularly shown on Exhibit “RFO Offeror”) fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers. (b) The RFO Offeror shall, prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder B” attached hereto (each, an “RFO ~~Offeree~~Space” and collectively, the “RFO Spaces”), ~~setting forth~~ is on the date of this Amendment leased to other tenants (~~i) the number of Ordinary Shares proposed to be disposed of (~~each, a “Current Tenant” and collectively, the “~~RFO Ordinary Shares~~Current Tenants”). If, at the termination of any lease to any Current Tenant (~~ii)~~ including option terms and any additional terms that may be negotiated between Landlord and the ~~proposed purchase price per~~ applicable Current Tenant), Landlord intends to lease the applicable RFO ~~Ordinary Share~~Space, and ~~payment and other~~ provided that Landlord has not given Tenant notice of a material ~~terms and conditions and~~ non-monetary Event of Default or any monetary Event of Default more than two (~~iii~~2) ~~an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth~~ times in the ~~RFO Notice at~~ preceding 12-month period, that there then exists no Event of Default by Tenant under the ~~same price per Ordinary Share~~ Lease nor any event that with the giving of notice and/or the passage of time would constitute an Event of Default, and on that Tenant and Tenant’s Affiliates occupy all of the ~~same terms and conditions as set forth therein. (c) The RFO Offeree(s) collectively~~ Original Premises, Tenant shall have the one time right of first offer (“RFO Option”) with respect to ~~purchase~~ each RFO Space to lease all (but not less than all) of the ~~“Right~~ applicable RFO Space for a term of ~~First Offer”)~~not less than three (3) years (subject to subsection (d) below) and coterminous with the Term of this Lease, in the following manner: (b) Landlord shall notify Tenant when the applicable RFO Space first becomes available for lease by any ~~or all~~ party other than the applicable Current Tenant and Landlord intends to offer the RFO Space to lease, advising Tenant in writing of Landlord’s determination of market rental rate and other terms to be applicable to the lease of the RFO ~~Ordinary Shares by delivering~~ Space (which shall be market terms), for a ~~written notice~~ term coterminous with the Term of this Lease (“Landlord’s Notice of RFO Terms”). Subject to the ~~“RFO Exercise”) of exercise~~ terms of the ~~Right~~ Current Tenant’s lease, upon receipt of ~~First Offer~~ Landlord’s Notice of RFO Terms, Tenant may upon written request to Landlord and provided that Landlord accompanies Tenant, view the RFO ~~Offeror within 20~~ Space. Within twenty (~~twenty~~20) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offereebusiness days following Landlord’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to ~~the RFO Offeror~~ Tenant of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined. (d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days. (e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3. (f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.Landlord’s

Appears in 2 contracts

Samples: Lease Agreement (TELA Bio, Inc.), Lease Agreement (TELA Bio, Inc.)

Right of First Offer. (a) ~~Other than Prohibited Transfers~~If, if at any time ~~after~~ following the ~~Lock Up Period~~ 18-month anniversary of the Closing, a ~~Shareholder~~ Holder (a “Transferring Holder”) desires to ~~Transfer other than pursuant~~ sell any shares of its Preferred Stock to ~~any Permitted Transfer, such Transfer shall be permitted only if such Shareholder~~ a Third Party (the “~~RFO Offeror~~Offered Stock”), other than in a registered public offering pursuant to Section 2.1 or 2.2 or pursuant to clause (b), (c), (f) ~~fully complies with~~ or (g) of Section 7.1, such sale shall be subject to the ~~terms~~ right of first offer of each Series B Holder as set forth in this Section ~~3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers~~7.2. (b) The RFO Offeror shall, prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth (i) the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable Transferring Holder shall offer to sell to each Series B Holder, and each Series B Holder shall have the ~~RFO Offeree(s~~right, but not the obligation, to purchase from the Transferring Holder, that number of shares of Offered Stock equal to the aggregate number of shares of Offered Stock proposed to be sold by the Transferring Holder multiplied by such Series B Holder’s Offered Percentage. If any Series B Holder shall decline to purchase all of its Offered Percentage of the Offered Stock (the stock which any Series B Holder shall have declined to purchase pursuant to its rights under this Section 7.2(b) being referred to herein as the ~~RFO Ordinary Shares~~ “Refused Stock”), each Series B Holder that has elected to purchase its Offered Percentage of such Offered Stock may also purchase the aggregate number of shares of Refused Stock multiplied by such Series B Holder’s Offered Percentage; and the allocation of Refused Stock set forth in ~~the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein~~this Section 7.2(b) shall be repeated with respect to any shares of Refused Stock not allocated for purchase until all shares of Refused Stock have been allocated for purchase by Series B Holders or until no Series B Holder desires to purchase additional Refused Stock. (c) The ~~RFO Offeree(s) collectively~~ Transferring Holder shall give each Series B Holder at least 30 days prior written notice of any proposed sale of Offered Stock, which notice shall set forth the proposed terms and conditions of such sale, but shall include, at a minimum, the amount of the Offered Stock proposed to be sold, the proposed purchase price therefor and the timing and method of payment of the purchase price (the “Transfer Notice”). The Transfer Notice shall also state that the Series B Holders will have the right to participate, pursuant to Section 7.3, in any sale by the Transferring Holder of any Offered Stock that is not sold to the Series B Holders pursuant to Section 7.2. (d) Each Series B Holder shall be entitled to purchase its portion of the Offered Stock, as determined pursuant to Section 7.2(b), at the same price, on the same terms and at the same time as the Offered Stock is proposed to be sold to the other Series B Holders, which shall be at no lower price and on no less favorable terms to such Series B Holders than were set forth in the Transfer Notice, by the delivery of a written notice to the Transferring Holder, within 10 Business Days after the delivery of the Transfer Notice (such 10th Business Day, the “Last Transfer Election Date”), of the Series B Holder’s election to purchase such Offered Stock (the “Transfer Election Notice”). Any Series B Holder that fails to timely deliver a Transfer Election Notice shall be deemed to have declined to purchase all of its Offered Percentage of the Offered Stock. Each Transfer Election Notice shall set forth the maximum number of shares of Offered Stock which such Series B Holder desires to purchase, which number may be greater or less than such Series B Holder’s Offered Percentage, and such Transfer Election Notice shall constitute a binding commitment by such Series B Holder to purchase up to the number of shares of Offered Stock set forth in its Transfer Election Notice, which commitment may not be revoked without the written consent of the Transferring Holder. In allocating the Refused Stock pursuant to Section 7.2(b), the Transferring Holder shall not allocate to any Series B Holder a number of shares of Offered Stock that would result in such Series B Holder’s being required to purchase a greater number of shares of Offered Stock than that set forth in such Series B Holder’s Transfer Election Notice, without the consent of such Series B Holder. The Transferring Holder shall give written notice to each Series B Holder which has timely delivered a Transfer Election Notice of the number of shares of Offered Stock which such Series B Holder shall be required to purchase (the “~~Right of First Offer~~Transfer Purchase Notice”), ~~any or all~~ which Transfer Purchase Notice shall be delivered to each Series B Holder within five Business Days following the Last Transfer Election Date. The closing of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined. (d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the ~~RFO Ordinary Shares within thirty (30) days thereafter upon~~ Offered Stock shall take place on the ~~terms~~ date set forth in the ~~RFO~~ Transfer Purchase Notice~~; provided~~, ~~however, that such period~~ which shall be ~~extended~~ the same date for all Series B Holders that are purchasing Offered Stock and shall be a date that is no earlier than 15 Business Days following the date of the Transfer Purchase Notice, unless all such ~~date as necessary to permit all~~ purchasing Series B Holders otherwise agree (provided that, if regulatory approval is required ~~approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase~~ to be obtained ~~or made~~by any Series B Holder, to then the ~~extent prior to the expiration~~ closing of the ~~RFO~~ purchase by such Series B Holder shall take place on the later of the date set forth in the Transfer Purchase ~~Period reasonably appropriate actions have been taken by~~ Notice and five Business Days following receipt of regulatory approval). At such closing, the ~~RFO Offeree(s~~Transferring Holder shall deliver to each purchaser of shares of Offered Stock (x) a written instrument in which the Transferring Holder shall represent and warrant that it is conveying to ~~obtain~~ such ~~approvals~~purchaser good and valid title to such shares, ~~consents or authorizations~~free and clear of all liens, security interests, encumbrances and adverse claims of any kind and nature (other than those pursuant to this Agreement), and (y) the certificates representing such shares duly endorsed for transfer, or ~~make such filings or registrations;~~ accompanied by appropriate stock transfer powers duly executed, and ~~provided further that no such extension shall exceed 60 days~~with all necessary transfer tax stamps affixed thereto at the expense of the Transferring Holder. (e) If the ~~RFO Offeree(s~~entire amount of Offered Stock is not subscribed for by one or more of the Series B Holders (including, for avoidance of doubt, Permitted Transferees), the Transferring Holder may offer the shares of Offered Stock that have not been subscribed for by the Series B Holders (the “Balance of the Offered Stock”) to a Third Party. If the Third Party advises the Transferring Holder that it only wishes to purchase the original amount of Offered Stock, then, at the option of the Transferring Holder, (x) the right of first offer contained in this Section 7.2 shall not apply to the proposed sale of the Offered Stock, and the Transferring Holder shall be free to sell all, but not less than all, of the shares of Offered Stock to a single Third Party, or (y) the Transferring Holder may consummate the sale of the shares of Offered Stock subscribed for by the Series B Holders as set forth in paragraph (d) of this Section 7.2 and either retain or sell to one or more Third Parties all or a portion of the Balance of the Offered Stock. If the Third Party advises the Transferring Holder that it is willing to purchase less than the original amount of Offered Stock but wishes to purchase a greater number of shares than the Balance of the Offered Stock (such greater number of shares being referred to as the “Third Party Portion of the Offered Stock”), then the number of shares to be purchased by the Series B Holders shall be reduced so as to enable the Third Party to purchase the Third Party Portion of the Offered Stock (in which case the Transferring Holder may retain or sell to one or more Third Parties the Third Party Portion of the Offered Stock and, if the Third Party Portion of the Offered Stock is sold to such Third Party or Third Parties, the Transferring Holder shall sell the remaining portion of the Offered Stock to the Series B Holders that subscribed for shares of Offered Stock in accordance with their allocations as the same may have ~~completed~~ been reduced pursuant to this sentence). Any sale to the ~~purchase~~ Third Party shall be for at least the same price and on no less favorable terms to the Transferring Holder than were set forth in the Transfer Notice and no later than the 60th day following the Last Transfer Election Date, and subject to compliance with Section 7.3. If the Transferring Holder does not consummate such sale by such 60th day, the rights provided in this Section 7.2 shall be deemed to be revived with respect to the Offered Stock (or remaining shares of Offered Stock, as applicable), and such Offered Stock (or remaining shares of Offered Stock, as applicable) may not be sold unless first re-offered to the Series B Holders in accordance with this Section 7.2. Any Offered Stock purchased by any Series B Holder or such other Person or Persons shall be subject to the same rights and restrictions contained in this Agreement with respect to the Series B Preferred Stock or Series A Preferred Stock, as applicable, and, if the purchaser is a Person other than a Holder, it shall be a condition of such sale that such person execute and deliver a written agreement (which may be in the form of a counterpart to this Agreement) satisfactory to the Company by which such Person agrees to be bound, as a Series A Holder or Series B Holder, as applicable, by all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this ~~Section 3.3~~Agreement as if such Person had originally been a party hereto. (f) Notwithstanding anything in this Agreement to the contrary, a Transferring Holder may not Transfer any Offered Stock to a Third Party that is an IG Company without the prior written consent of Linde, which it may give or withhold at its discretion. (g) The ~~RFO Offeror shall~~election by any Series B Holder not to exercise its rights to purchase any Offered Stock under this Section 7.2 in any one instance shall not affect such Series B Holder’s right to participate in any subsequent proposed sale of Offered Stock. Any sale of Offered Stock by a Transferring Holder without first giving the Series B Holders the rights set forth in this Section 7.2 shall be void and of no force and effect, ~~upon~~ and the ~~Transfer~~ Company shall not register such sale on the books and records of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignationCompany.

Appears in 2 contracts

Samples: Investor Stockholders Agreement (Ikaria, Inc.), Investor Stockholders Agreement (Ikaria, Inc.)

Right of First Offer. (a) ~~Other than Prohibited Transfers~~Following the Closing Date, if at any ~~time after~~ member of the ~~Lock Up Period~~ WHP Group, on the one hand, or any member of the Express Group, on the other hand, identifies any Retail Opportunity that it intends to acquire or with respect to which it intends to enter into a ~~Shareholder desires~~ partnership, joint venture or other similar arrangement with respect to ~~Transfer other than pursuant to any Permitted Transfer~~the acquisition of Intellectual Property, excluding the Contributed Assets (each such ~~Transfer~~ opportunity, a “ROFO Opportunity”, and such person identifying the ROFO Opportunity, the “ROFO Party”) the ROFO Party shall ~~be permitted only if such Shareholder~~ provide written notice (the “~~RFO Offeror~~ROFO Notice”) ~~fully complies~~ to the Express Holder (in the case that a member of the WHP Group is the ROFO Party) or the WHP Holder (in the case that a member of the Express Group is the ROFO Party), as applicable (the party receiving such notice, the “ROFO Counterparty”), of such ROFO Opportunity (together with the material terms and conditions of, and any other pertinent information or document relating to, such ROFO Opportunity). Upon receipt of ~~this Section 3.3; provided~~ the ROFO Notice, the ROFO Counterparty shall have a right of first offer (“ROFO”) with respect to such ROFO Opportunity such that the ~~provisions of this Section 3.3 shall not apply~~ Express Group and the WHP Group can jointly pursue such ROFO Opportunity under a structure similar to ~~Permitted Transfers~~the Transactions (other than the transactions contemplated by the Investment Agreement). (b) ~~The RFO Offeror shall, prior to~~ In the ~~Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth~~ event (i) the ~~number of Ordinary Shares proposed~~ ROFO Counterparty provides written notice to ~~be disposed of (~~the ~~“RFO Ordinary Shares”),~~ ROFO Party that it declines the opportunity to jointly pursue such ROFO Opportunity or (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein. (c) The RFO Offeree(s) collectively shall have the right to purchase (the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined. (d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days ~~thereafter upon~~ following its receipt of the ROFO Notice either (x) the ROFO Counterparty fails to inform the ROFO Party that the ROFO Counterparty desires to jointly pursue the ROFO Opportunity with the ROFO Party or (y) the ROFO Party and the ROFO Counterparty, after using commercially reasonable efforts to negotiate, fail to reach an agreement on the terms and conditions of the ROFO Opportunity and the ROFO Party delivers written notice to the ROFO Counterparty that the ROFO Party has made a good faith determination that the parties will not reach an agreement on the terms and conditions of the ROFO Opportunity, such ROFO Opportunity shall be deemed a “Passed ROFO Opportunity” until the Passed ROFO Opportunity Cutoff Date. From the Passed ROFO Opportunity Start Date until the Passed ROFO Opportunity Cutoff Date, the ROFO Party shall be permitted to proceed with the applicable Passed ROFO Opportunity on its own or with a third party so long as such third-party transaction is on terms and conditions no more favorable to the third party than those set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection ROFO Notice with ~~such purchase to be obtained or made,~~ respect to the ~~extent~~ ROFO Counterparty. If the ROFO Party does not consummate the Passed ROFO Opportunity on or prior to the ~~expiration~~ Passed ROFO Opportunity Cutoff Date, such ROFO Opportunity will no longer be considered a Passed ROFO Opportunity; provided that if the ROFO Party has entered into a definitive agreement with a third party between the Passed ROFO Opportunity Start Date and the Passed ROFO Opportunity Cutoff Date providing for the consummation of such ROFO Opportunity, the ~~RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s)~~ ROFO Party is permitted to ~~obtain~~ fulfill its obligations under such ~~approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days~~definitive agreement. (ec) If Beginning on the ~~RFO Offeree(s~~third (3rd) ~~shall not have completed the purchase of all~~ anniversary of the ~~RFO Ordinary Shares~~ Closing Date, if the Express Group and the WHP Group have not jointly consummated at least two ROFO Opportunities within the ~~RFO Purchase Period~~three years since the Closing Date, ~~as extended as provided~~ either the Express Holder or the WHP Holder may elect to terminate the rights and obligations contained in this Section 7.9 and in Section ~~3.3(d), or together have failed~~ 7.11 upon written notice to ~~deliver RFO Exercises within~~ the ~~RFO Response Period for all of~~ other Member and the ~~RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty~~ Company (~~60) days thereafter (the~~ a “~~Transfer Period~~ROFO Termination Election”). Upon a ROFO Termination Election by either the Express Holder or the WHP Holder, ~~to dispose of~~ the ~~RFO Ordinary Shares in one or more Transfers thereof without being subject to any of~~ Express Holder and the ~~restrictions~~ WHP Holder hereby agree that the rights and obligations set forth in ~~this Article III; provided, however, that~~ (i) ~~such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice~~ this Section 7.9 and (ii) ~~the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation~~ Section 7.11 shall terminate and be of ~~such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents~~ no further force or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3effect. (f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.

Appears in 2 contracts

Samples: Limited Liability Company Agreement (Express, Inc.), Limited Liability Company Agreement (Express, Inc.)

Right of First Offer. (a) ~~Other than Prohibited Transfers, if at~~ In the event that any ~~time after the Lock Up Period~~ Unitholder (a ~~Shareholder~~ “Transferring Unitholder”) desires to ~~Transfer~~ transfer any or all of its Units (the “ROFO Units”) to any person other than to an Affiliate Transferee (the “Third Party Purchaser”) and other than pursuant to ~~any Permitted Transfer~~Section 4.03 or Section 4.04, ~~such Transfer~~ then the Transferring Unitholder shall ~~be permitted only if such Shareholder~~ first give written notice (the “~~RFO Offeror~~ROFO Notice”) ~~fully complies with~~ of such desire to the ~~terms of this Section 3.3; provided that~~ other Unitholders (the ~~provisions of this Section 3.3 shall not apply to Permitted Transfers~~“ROFO Unitholders”). (b) ~~The RFO Offeror shall~~Within thirty (30) days (the “ROFO Offer Period”) of receipt of the ROFO Notice by a ROFO Unitholder, ~~prior~~ such ROFO Unitholder shall have a right to ~~the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice~~ make an offer (a “~~RFO Notice~~ROFO Offer”) to ~~each other Shareholder (each~~purchase all, ~~an “RFO Offeree”)~~but not less than all, ~~setting forth (i)~~ of the ~~number of Ordinary Shares proposed to be disposed of~~ ROFO Units (the “~~RFO Ordinary Shares~~ROFO Sale”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein. (c) ~~The RFO Offeree(s) collectively shall have the right to purchase~~ Each ROFO Offer (the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”i) shall ~~immediately be re-~~set forth the proposed amount and form of consideration and terms and conditions of payment offered by the ~~RFO Offeror~~ ROFO Unitholder and a summary of any other material terms pertaining to the ~~other RFO Offeree(s~~transfer and (ii) must remain open for at least thirty (~~or if there is more than one other RFO Offeree, in~~ 30) days following the ~~proportion (as nearly as may be) to~~ date on which the ~~number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to~~ Transferring Unitholder receives the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declinedROFO Offer. (d) If the ~~RFO Offeree(s) shall have delivered an RFO Exercise~~ Transferring Unitholder does not receive any ROFO Offer from a ROFO Unitholder within the ROFO Offer Period, or if all ROFO Unitholders inform the Transferring Unitholder in writing that they will not be exercising their right of first offer rights hereunder, then the Transferring Unitholder may, subject to the ~~RFO Offeror within the RFO Response Period for~~ requirements of Section 4.05(h), transfer all ~~the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase~~ of the ~~RFO Ordinary Shares within thirty (30) days thereafter upon the~~ ROFO Units to a Third Party Purchaser at a price and on terms ~~set forth in the RFO Notice; provided, however, that~~ and conditions acceptable to such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 daysTransferring Unitholder. (e) If the ~~RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares~~ Transferring Unitholder receives a ROFO Offer within the ~~RFO Purchase~~ ROFO Offer Period, ~~as extended as provided~~ the Transferring Unitholder may accept or reject such ROFO Offer in ~~Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d~~its sole discretion. (f) ~~or declined in writing to exercise the Right of First~~ If a Transferring Unitholder accepts a ROFO Offer, then the ~~RFO Offeror~~ Transferring Unitholder and the ROFO Unitholder shall ~~have~~ negotiate in good faith to consummate the ~~right for sixty~~ ROFO Offer as promptly as reasonably practicable and in any event within forty-five (6045) days ~~thereafter~~ from the date of the ROFO Offer, and shall not transfer any ROFO Units described in such ROFO Offer to any Third Party Purchaser. (g) If the ~~“Transfer Period”~~Transferring Unitholder rejects a ROFO Offer from a ROFO Unitholder, then the Transferring Unitholder may, subject to the requirements of Section 4.05(h), ~~to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being~~ sell any ROFO Units which are not subject to any accepted ROFO Offer to a Third Party Purchaser at a price higher than that offered in all of the ~~restrictions~~ rejected ROFO Offers, and on such terms and conditions which, when taken as a whole, are at least as favorable in the aggregate to the Transferring Unitholder as those set forth in ~~this Article III; provided~~the most favorable rejected ROFO Offer (as determined by the Board acting in good faith). (h) The Transferring Unitholder may only sell ROFO Units to a Third Party Purchaser as permitted under Section 4.05(d) and Section 4.05(g), ~~however, that~~ and the Transferring Unitholder shall consummate such sale within one hundred and eighty (i180) ~~such Transfer~~ days of the ~~RFO Ordinary Shares is consummated on terms not more favorable to~~ conclusion of the ~~purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s)~~ ROFO Offer Period; provided that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent the Transferring Unitholder has used commercially reasonable efforts to obtain all required approvals and consents prior to the expiration of such 180-day period, the ~~Transfer Period reasonably appropriate actions have been taken~~ Transferring Unitholder may extend such 180-day period by ~~the RFO Offeror~~ up to 120 days if necessary to obtain any required regulatory approvals or third party consents. (i) If the Transferring Unitholder does not meet the deadlines described in Section 4.05(h), then any proposed transfer by such ~~approvals, consents or authorizations or make such filings or registrations;~~ Transferring Unitholder shall once again be subject to the terms and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions conditions of this Section ~~3.3~~4.05. (fj) ~~The RFO Offeror shall~~In the event of a potential sale by a Transferring Unitholder to a Third Party Purchaser pursuant to the terms of Section 4.05(h), the Managers and Officers shall (i) permit such potential Third Party Purchaser, after executing a confidentiality agreement in a form satisfactory to the Board, to conduct a due diligence review of the Company and its business, operations, prospects, assets, liabilities, financial condition, and results of operations, and (ii) make available the officers and technical personnel of the Company, during normal business hours, upon reasonable advance notice and at such Transferring Unitholder’s sole cost and expense, for the ~~Transfer~~ purpose of ~~the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof~~making presentations to, and answering questions from, such ~~director shall execute a letter of resignation~~potential Third Party Purchaser.

Appears in 2 contracts

Samples: Interim Sponsors Agreement (Dynegy Inc.), Interim Sponsors Agreement (Dynegy Inc.)

Right of First Offer. ~~(a) Other than Prohibited Transfers~~Subject to the terms and conditions specified in this Section 2.3, ~~if at any time after the Lock Up Period~~ each Investor Holder and Designated Executive hereby grants to each other Investor Holder and Designated Executive a ~~Shareholder desires to Transfer other than pursuant~~ right of first offer with respect to any ~~Permitted Transfer,~~ future Transfers by such ~~Transfer shall be permitted only if such Shareholder (the “RFO Offeror”) fully complies with the terms~~ Investor Holder or Designated Executive of ~~this Section 3.3~~Shares; provided that the ~~provisions~~ Investor Holders and Designated Executives shall not have any right of first offer with respect to any proposed Transfer by any Investor Holder or Designated Executives if the Transfer is, or the Transfer, taken together with all previous Transfers of the Investor Holders or the Designated Executives, is for Shares representing less than 10% of the shares of Class A Common Stock owned by the Investor Holders or the Designated Executives, respectively, on the date of this ~~Section 3.3~~ Agreement. Each time any Investor Holder or Designated Executive proposes to Transfer any Shares, such Investor Holder or Designated Executive (the "ROFO Party") shall ~~not apply~~ first offer to ~~Permitted Transfers~~sell such Shares to the other Investor Holders and Designated Executives (each, a "ROFO Offeree"), provided that no Investor Holder that is an Affiliate of the Investor Holder that is the ROFO Party shall constitute a ROFO Offeree, in accordance with the following provisions: (a) the ROFO Party shall deliver a written notice (a "ROFO Notice") stating its bona fide intention to Transfer such Shares and the number of Shares offered (the "Subject Shares"). (b) The RFO Offeror shall, prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth (i) the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, Each Investor Holder and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein. (c) The RFO Offeree(s) collectively Designated Executive that constitutes a ROFO Offeree shall have the right to purchase (the ~~“Right~~ number of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Subject Shares as shall be ~~purchased, collectively,~~ equal to (i) the aggregate number of Subject Shares multiplied by (ii) the ~~RFO~~ Investor Holder's or the Designated Executive's Proportionate Percentage. The amount of shares each Investor Holder and Designated Executive is entitled to purchase under this Section 2.3 shall be referred to as its "Pro Rata Amount". The ROFO Offeree or Offerees holding a majority of the Pro Rata Amounts that wish to exercise their rights pursuant to this Section 2.3 (the "Lead Offeree(s)") ~~and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree~~ shall have the ~~right~~right to determine the terms and conditions of the offer to be made pursuant to this Section 2.3. By written notification (the "ROFO Response Notice") delivered by the Lead Offeree within thirty (30) calendar days after delivery by the ROFO Party of the ROFO Notice, ~~but~~ such Lead Offeree shall ~~not be required,~~ make an offer to the ROFO Party (with a copy to the other ROFO Offerees) to purchase the Subject Shares, on the price and terms contained in the ROFO Response Notice, on behalf of all ROFO Offerees. (c) Within ten (10) calendar days after delivery by the Lead Offeree(s) of the ROFO Response Notice, each other ROFO Offeree shall notify the Lead Offeree(s) in writing of the portion of its Pro Rata Amount that such ROFO Offeree is electing to purchase on the price and terms contained in the ROFO Response Notice. In the event that any ROFO Offeree does not elect to purchase its Pro Rata Amount (or ~~cause its wholly-owned Affiliate(s~~any portion thereof) during such ten (10) calendar day period, then the Lead Offeree(s) shall be obligated to purchase all such unelected Pro Rata Amounts (if and to the extent the ROFO Party accepts the offer to purchase) ~~such RFO Offeree’s pro rata share (based~~ on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, terms and conditions set forth in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declinedROFO Response Notice. (d) By written notification (the "ROFO Decision Notice") delivered by the applicable ROFO Party within twenty (20) calendar days after delivery of the ROFO Response Notice, the ROFO Party may accept or reject the offer to purchase on the terms contained in the ROFO Response Notice. If the ~~RFO Offeree(s) shall have delivered an RFO Exercise~~ ROFO Party accepts such offer to ~~the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares~~purchase, the ~~RFO Offeror~~ ROFO Decision Notice will be deemed to constitute a valid, legally binding and ~~RFO Offeree(s) shall be respectively bound,~~ enforceable agreement between the ROFO Party and ~~shall complete~~ the participating ROFO Offerees for the sale and purchase of the ~~RFO Ordinary~~ Subject Shares. In the event that the ROFO Party rejects such offer to purchase or no ROFO Response Notice is received within the time period described in Section 2.3(b) above, the ROFO Party may Transfer or enter into a binding agreement to Transfer the Subject Shares to any third party purchaser at any time within ~~thirty~~ ninety (3090) days ~~thereafter upon~~ after the ~~terms set forth in the RFO Notice; provided, however, that~~ date of delivery of such ~~period shall be extended following such date as necessary to permit all required approvals, consents~~ rejection or ~~authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to~~ the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days. (e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period20 day period described in Section 2.3(b), as ~~extended as~~ applicable; provided ~~in Section 3.3(d)~~that any such binding agreement shall be consummated within 120 days after the end of such 90 day period, or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being but subject to ~~any~~ the provisions of ~~the restrictions set forth in this Article III; provided, however, that (i)~~ Section 2.4 below. Any such Transfer ~~of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof~~ shall be for consideration greater than ~~the terms~~ that specified in the ~~RFO Notice and~~ ROFO Response Notice. If the Subject Shares are not Transferred by or an agreement to transfer the Subject Shares is not entered into by the ROFO Party within such 90 day period (~~ii)~~ or in the ~~RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation~~ case of ~~such sale; and provided further~~an agreement, ~~that~~ the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have pursuant thereto has not been ~~taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at~~ consummated within 120 days after the end of ~~the Transfer Period, as extended as provided herein~~such 90 day period), the ~~RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted~~ right provided pursuant to ~~dispose of such RFO Ordinary Shares without again fully complying with the provisions of~~ this Section ~~3.3~~2.3 shall be deemed to be revived and the Subject Shares shall not be offered unless first reoffered to the ROFO Offerees in accordance herewith. (f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.

Appears in 2 contracts

Samples: Stock Purchase Agreement (Miller Douglas H), Stockholders' Agreement (Exco Resources Inc)

Right of First Offer. (a) Other than ~~Prohibited Transfers~~in connection with an IPO as contemplated by Section 4.4, ~~if at any time after the Lock Up Period~~ or in connection with a ~~Shareholder desires to Transfer other than pursuant to any Permitted~~ Foreclosure Transfer, ~~such Transfer shall be permitted only if such Shareholder (the “RFO Offeror”) fully complies with~~ and subject to the terms of ~~this~~ any applicable Operating Agreement, if any Party proposes to Transfer any of the Asset Interests held by such Party, including Blackstone pursuant to Section ~~3.3; provided that~~ 4.5 (a “ROFO Transferor”) to a Third Party purchaser, the ~~provisions of this Section 3.3 shall not apply to Permitted Transfers. (b) The RFO Offeror shall~~ROFO Transferor agrees that, ~~prior to~~ before entering into negotiations with a Third Party, the ~~Transfer of any Ordinary Shares to which this Section 3.3 applies, give written~~ Transferring Party will first provide notice (a “~~RFO~~ ROFO Notice”) to ~~each~~ the other ~~Shareholder~~ Parties (~~each,~~ the “ROFO Recipients”) that the ROFO Transferor proposes to pursue such a transaction. Each such ROFO Notice will invite the ROFO Recipient to submit to the ROFO Transferor an offer in writing (a “~~RFO Offeree~~ROFO Offer”), ~~setting forth~~ which offer shall (i) ~~the number of Ordinary Shares proposed to~~ be ~~disposed of (the “RFO Ordinary Shares”)~~irrevocable and in good faith, (ii) be for all cash (except SN may choose to fund a ROFO Offer with cash or SN Common Stock or a combination thereof) (any such ROFO Offer including SN Common Stock as consideration an “SN Equity Financed Offer”)), (iii) specify in reasonable detail the ~~proposed purchase price per RFO Ordinary Share, and payment and other~~ material terms and conditions ~~and~~ of such offer (~~iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares~~ including as set forth in Section 4.3(b) with respect to a SN Equity Financed Offer), (iv) shall provide for a closing date of no longer than ninety (90) days from the ~~RFO Notice~~ execution of a definitive purchase agreement and provide for no holdback or escrow of purchase price, and (v) shall remain open for acceptance by the ROFO Transferor for thirty (30) days after the ROFO Transferor’s receipt of such ROFO Offer, to purchase from the ROFO Transferor one hundred percent (100%) of the Asset Interests that are the subject of the ROFO Notice, which at the ~~same price per Ordinary Share and on~~ sole election of the ~~same terms and conditions~~ ROFO Transferor may be structured as ~~set forth therein. (c) The RFO Offeree(s) collectively shall have the right to~~ a purchase of Working Interests or equity interests of an entity holding Asset Interests (the “~~Right of First Offer~~ROFO Interests”)~~, any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First~~ . The ROFO Offer shall be submitted to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined. (d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares ROFO Transferor within thirty (30) days ~~thereafter~~ after the ROFO Recipient’s receipt of the ROFO Notice and shall include a proposed definitive purchase agreement that such ROFO Recipient is prepared to execute upon the acceptance by the ROFO Transferor of the ROFO Offer. Upon the receipt by the ROFO Transferor of any ROFO Offer, the ROFO Transferor and the applicable ROFO Recipient shall negotiate in good faith for a period of thirty (30) days regarding the ROFO Offer. In the event the Parties are unable to reach agreement during such period, the ROFO Transferor may elect by notice to such ROFO Recipient submitted at any time during the 30-day period following such negotiation period to accept or reject the ROFO Offer (it being understood that a failure of the ROFO Transferor to submit an unqualified acceptance notice within such 30-day period shall constitute a rejection of the ROFO Offer). If the ROFO Transferor timely submits an acceptance notice, the ROFO Transferor and the applicable ROFO Recipient shall in good faith negotiate a definitive purchase and sale agreement (which shall include the terms and conditions set forth in the ~~RFO Notice; provided~~ROFO Offer) and use their reasonable best efforts to consummate the purchase and sale of the ROFO Interests as promptly as practicable and in any event within ninety (90) days from the execution of a definitive purchase agreement. If only one ROFO Recipient timely submits a ROFO Offer, ~~however~~the ROFO Transferor may effectuate the sale of all the ROFO Interests to such ROFO Recipient alone. If neither ROFO Recipient timely submits a ROFO Offer or any ROFO Offer is rejected (or deemed rejected as described above) by the ROFO Transferor, ~~that such period shall be extended following such date~~ the ROFO Transferor may effectuate a sale of all the ROFO Interests to a Third Party so long as ~~necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or~~ (i) if a ROFO Offer was made, to the ~~extent prior to the expiration~~ Transfer price is at least one hundred percent (100%) of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days. (e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions offer price set forth in ~~this Article III; provided, however, that~~ such ROFO Offer (itaking into account Section 4.3(b) ~~such Transfer of~~ below) and the ~~RFO Ordinary Shares is consummated on~~ other terms and conditions offered to the Third Party are not materially more favorable to the ~~purchasers thereof~~ Third Party than ~~the terms specified in the RFO Notice~~ those of such ROFO Offer; and (ii) the ~~RFO Offeror provides written confirmation~~ execution of definitive documentation for the sale of such ROFO Interests to ~~the RFO Offeree(s~~such Third Party shall occur no later than two hundred and seventy (270) ~~that~~ days after a rejection (or deemed rejection) of such ~~terms comply~~ ROFO Offer. (b) In connection with ~~clause~~ any SN Equity Financed Offer: (i) ~~hereof prior~~ the determination of the value of SN Common Stock included in a SN Equity Financed Offer shall (i) apply an appropriate illiquidity discount, which may take into account, as applicable, the discounts applied to comparable private placements or block trades of comparable size as compared to the applicable market price of such securities and/or discounts applied to publicly traded common equity used as acquisition currency by relevant valuation methodologies customarily used by leading financial valuation firms in similar circumstances and (ii) be discounted for any adverse liquidity effects that are attributable to the payment of any applicable taxes associated with the receipt of such SN Common Stock, in each case (i) and (ii), as reasonably determined by the ROFO Transferor, provided, that no discount with respect to clause (ii) shall apply if the SN Equity Financed Offer includes a portion of cash consideration equal to or greater than the expected aggregate amount of tax payable by the ROFO Transferor, including Blackstone and any of its direct and indirect equity owners as a result of the consummation of such ~~sale;~~ SN Equity Financed Offer and ~~provided further,~~ assuming that the ~~Transfer Period~~ aggregate amount of such tax shall by computed using an assumed tax rate equal to the highest maximum combined marginal federal, state and local income tax rates applicable to an individual or corporate taxpayer resident in New York, NY; (ii) the ROFO Offer shall provide for a fixed value, including a fixed value for the portion of consideration represented by SN Common Stock, payable upon closing, unless otherwise agreed to by the ROFO Transferor; (iii) if the ROFO Transferor would beneficially own on a pro forma basis (calculated in accordance with clause (vi) below) more than 20% of the outstanding SN Common Stock, Xxxxxxx Energy shall provide representation rights for the Xxxxxxx Energy Board of Directors to the ROFO Transferor approximately equal to its pro forma beneficial ownership percentage of SN Common Stock following the consummation of any ROFO Offer pursuant to documentation reasonably acceptable to Blackstone; (iv) no Event of Default (as such term may be ~~extended following such date as necessary~~ then defined under the SN Credit Agreement) shall have occurred under the SN Credit Agreement; (v) Xxxxxxx Energy shall have a rating equal to ~~permit all required approvals, consents~~ or ~~authorizations from~~higher than “B3” (or the equivalent) by Xxxxx’x or its successors, or ~~filings~~ an equivalent rating by S&P or ~~registrations with~~Fitch, Inc. (or either of its successors); (vi) the resulting share issuance will not cause the ROFO Transferor to beneficially own more than 35% of outstanding SN Common Stock on a pro forma basis excluding any ~~Governmental Authority in connection with such Transfers to be obtained or made, to the extent~~ SN Common Stock owned prior to the ~~expiration of~~ Effective Date or issued to Blackstone or GSO pursuant to this Agreement after the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3.Effective Date; (fvii) ~~The RFO Offeror shall, upon~~ the ~~Transfer~~ SN Common Stock shall be listed on the New York Stock Exchange or the NASDAQ Stock Market (or their respective successors); and (viii) the SN Common Stock to be issued to the ROFO Transferor shall be entitled to the benefits of a registration rights agreement substantially similar in form and substance to the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignationRegistration Rights Agreement.

Appears in 2 contracts

Samples: Interim Investors Agreement, Interim Investors Agreement (Sanchez Energy Corp)

Right of First Offer. (a) ~~Other than Prohibited Transfers~~After the third anniversary of the Effective Date and prior to a Final Exit Event or an Initial Public Offering, if ~~at any time after~~ one or more Dragging Members proposes to effect a Drag-Along Transaction (such Dragging Member(s), individually or collectively as the ~~Lock Up Period a Shareholder desires to Transfer other than pursuant to any Permitted Transfer~~case may be, ~~such Transfer shall be permitted only if such Shareholder (~~the “~~RFO Offeror~~ROFO Initiator”~~) fully complies~~ ), then, prior to engaging in any discussions with any third party regarding a Drag-Along Transaction, the ROFO Initiator must comply with the ~~terms of this Section 3.3; provided that the~~ remaining provisions of this Section ~~3.3 shall not apply to Permitted Transfers~~9.7. (b) The ~~RFO Offeror shall,~~ ROFO Initiator first must deliver a notice to the other Common Unitholders stating its bona fide intention to effect a Drag-Along Transaction (the “ROFO Notice”). On or prior to the ~~Transfer~~ 60th day after receipt of ~~any Ordinary Shares~~ the ROFO Notice, each Common Unitholder receiving a ROFO Notice will have the right, but not the obligation, to ~~which this Section 3.3 applies~~offer, ~~give~~ by written notice to the ROFO Initiator and all other Common Unitholders (each Common Unitholder that makes such an offer, a “~~RFO Notice”) to each other Shareholder (each, an “RFO Offeree~~ROFO Offeror”), ~~setting forth~~ to purchase all, but not less than all, of the Common Units then held by all of the other Common Unitholders (i) including the ~~number of Ordinary Shares proposed to be disposed of~~ ROFO Initiator), which offer shall include a cash purchase price per Common Unit (the “~~RFO Ordinary Shares~~ROFO Offer Price”~~), (ii~~) ~~the proposed purchase price per RFO Ordinary Share, and payment~~ and other ~~material~~ terms and conditions ~~and~~ (~~iii) an irrevocable offer to sell to~~ the ~~RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein~~“ROFO Offer”). (c) The ~~RFO Offeree(s) collectively shall~~ ROFO Initiator will have 180 days following the ~~right~~ last day to ~~purchase~~ make a ROFO Offer (such 180th day, the “~~Right of First Offer~~ROFO Consummation Deadline”~~), any~~ ) to (i) accept and consummate the ROFO Offer from the ROFO Offeror that offers the highest ROFO Offer Price or ~~all~~ (ii) consummate a Drag-Along Transaction for consideration per Common Unit equal to at least 105% of the ~~RFO Ordinary Shares~~ highest ROFO Offer Price and on other terms (taken as a whole) reasonably determined by ~~delivering a written notice (~~the ~~“RFO Exercise”) of exercise of the Right of First Offer~~ ROFO Initiator to be no less favorable to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more ROFO Initiator than ~~one other RFO Offeree,~~ those contained in the ~~proportion (as nearly as may be) to~~ ROFO Offer that offers the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declinedhighest ROFO Offer Price. (d) If the ~~RFO Offeree(s~~ROFO Initiator (i) ~~shall have delivered an RFO Exercise~~ receives one or more ROFO Offers, (ii) fails to consummate the ~~RFO Offeror within~~ ROFO Offer that offers the ~~RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase~~ highest ROFO Offer Price prior to expiration of the ~~RFO Ordinary Shares within thirty~~ ROFO Consummation Deadline and (30iii) ~~days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary~~ fails to ~~permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent~~ consummate a Drag-Along Transaction prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days. (e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First OfferROFO Consummation Deadline, then the ~~RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”)~~ROFO Initiator cannot, individually or collectively, again cause a transaction that would permit any Common Unit holders to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with invoke the provisions of this Section ~~3.3. (f) The RFO Offeror shall, upon~~ 9.7 prior to the ~~Transfer~~ first anniversary of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignationROFO Notice.

Appears in 2 contracts

Samples: Limited Liability Company Agreement (Contango Oil & Gas Co), Limited Liability Company Agreement (Contango Oil & Gas Co)

Right of First Offer. (a) ~~Other than Prohibited Transfers~~Subject to the terms and conditions set forth in this Article IX, at least 30 days prior to any proposed Transfer of any Units, Unit Equivalents (if at permitted by their terms) or other equity securities (or interests therein) of Holdings LLC (“Subject Securities”) held by any ~~time after the Lock Up Period~~ Holder (excluding Transfers in a ~~Shareholder desires to Transfer other than~~ Public Sale or pursuant to ~~any~~ Section 5.2 or Transfers to a Permitted ~~Transfer~~Transferee), ~~such Transfer shall be permitted only if such Shareholder~~ the transferring Holder (the “~~RFO Offeror~~Transferring Holder”) ~~fully complies with~~ shall deliver a written notice (the “Offer Notice”) to Holdings LLC and each Major Member. The Offer Notice shall disclose in reasonable detail the identity of the prospective transferee(s) (if known), the number and type of Subject Securities to be transferred, the price and the other terms and conditions of the proposed Transfer. The Transferring Holder shall not consummate such proposed Transfer until at least 30 days after the delivery of the Offer Notice, unless the parties to the Transfer have been finally determined pursuant to this Section ~~3.3; provided that~~ 9.2 and (if applicable) Section 9.3 prior to the ~~provisions~~ expiration of ~~this Section 3.3 shall not apply~~ such 30-day period (the date of the first to ~~Permitted Transfers~~occur of (x) the expiration of such 30-day period after delivery of the Offer Notice or (y) such final determination is referred to herein as the “Authorization Date”). (b) ~~The RFO Offeror shall, prior~~ Holdings LLC may elect to purchase all or any portion of the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth (i) the number of Ordinary Shares proposed Subject Securities to be disposed of (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on transferred upon the same terms and conditions as those set forth ~~therein~~in the Offer Notice by delivering a written notice of such election to the Transferring Holder within 15 days after the Offer Notice has been given to Holdings LLC (the “Election Period”). Within 15 days following delivery of the Offer Notice, Holdings LLC shall deliver written notice (the “Available Unit Notice”) to each Major Member setting forth the number and type of Subject Securities which it has elected to purchase and the number and type of Subject Securities which are available for purchase by the Major Members (“Available Units”). Each Major Member shall then be entitled to purchase a portion of the Available Units by delivering written notice (the “Available Unit Purchase Notice”) to Holdings LLC and the Transferring Holder within 10 days following delivery of the Offer Notice setting forth the maximum number of Subject Securities of each class or series which such Major Member desires to purchase. (c) ~~The RFO Offeree(s~~Available Units of each class or series shall first be allocated to each such Major Member in an amount equal to the lesser of (1) ~~collectively~~ the maximum number specified by each such Major Member in such Major Member’s Available Unit Purchase Notice and (2) the product of the number of Available Units and such Major Member’s Universal Percentage. Available Units shall ~~have~~ thereafter be allocated to each Major Member who has not been allocated the ~~right to purchase~~ maximum number specified in such Member’s Available Purchase Notice (~~the~~ each a “~~Right of First Offer~~Remaining Major Member”), ~~any or all~~ each on a pro rata basis (calculated on the basis of ~~the RFO Ordinary Shares by delivering~~ a ~~written notice (the “RFO Exercise”) of exercise of the Right of First Offer~~ Remaining Major Member’s Universal Percentage in relation to the ~~RFO Offeror within 20 (twenty) Business Days from the date~~ aggregate Universal Percentages of ~~delivery of the RFO Notice (the “RFO Response Period”~~all Remaining Major Members); provided, ~~irrevocably stating therein such portion of the RFO Ordinary Shares as~~ in each case, that no allocation to any Major Member shall be ~~purchased, collectively,~~ greater than the maximum number specified by ~~the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof~~ each such Major Member in such Major Member’s Available Unit Purchase Notice. Any Available Units not elected to be purchased by ~~each RFO Offeree (or~~ the end of such ~~Affiliate(s)). Each RFO Offeree~~ 10-day period shall during the immediately following five-day period be reoffered by Holdings LLC to the Major Members who have ~~the right, but shall not be required,~~ elected to purchase ~~(or cause its wholly~~at least their full Universal Percentage of the Available Units and, if any of the Major Members indicates interest within said five-~~owned Affiliate(s) to purchase)~~ day period in acquiring additional Available Units in an amount in excess of the aggregate amount of Available Units remaining, such ~~RFO Offeree’s~~ remaining Available Units will be allocated among such Major Members, each as allocated on a pro rata ~~share~~ basis (~~based~~ calculated on the ~~number~~ basis of ~~Ordinary Shares held by such RFO Offeree as~~ a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining ~~RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror~~ Major Member’s Universal Percentage in relation to the ~~other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number~~ aggregate Universal Percentages of ~~Ordinary Shares held by them inter se~~all Remaining Major Members), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined. (d) If Holdings LLC and/or any of the ~~RFO Offeree(s~~Major Members have elected to purchase Subject Securities from the Transferring Holder under this Section 9.2, the Transfer of such Subject Securities shall be consummated as soon as practical after the delivery of the election notice(s) to the Transferring Holder, but in any event (subject to compliance with Section 9.3, if applicable) within 15 days after the Authorization Date. If Holdings LLC and the Major Members do not elect, in the aggregate, to purchase all of the Subject Securities offered in the Offer Notice from the Transferring Holder, then, subject to compliance with Section 9.3 (if applicable), the Transferring Holder shall have ~~delivered an RFO Exercise~~ the right, within the 90 days following the Authorization Date, to Transfer such Subject Securities that Holdings LLC and the Major Members have not elected to purchase to the ~~RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s~~Transferee(s) ~~shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth~~ specified in the ~~RFO~~ Offer Notice in the amounts specified in the Offer Notice at a price not less than the price per Subject Security specified in the Offer Notice and on other terms no more favorable in any material respect to the Transferee(s) thereof than specified in the Offer Notice~~; provided, however, that~~ . Any Subject Securities not so Transferred within such 90-day period shall be ~~extended following such date as necessary~~ reoffered to ~~permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase~~ Holdings LLC and the Major Members pursuant to ~~be obtained or made, to the extent~~ this Section 9.2 prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 daysany subsequent Transfer. (e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3. (f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.

Appears in 2 contracts

Samples: Limited Liability Company Agreement (ECPM Holdings, LLC), Limited Liability Company Agreement (ECPM Holdings, LLC)

Right of First Offer. (a) ~~Other than Prohibited Transfers~~From and after the date that the Common Stock of the Company is no longer registered under sections 12(b), 12(g), or 15(d) of the Exchange Act, if ~~at any time after the Lock Up Period a Shareholder desires~~ Xxxxxxxx proposes to Transfer ~~other than pursuant~~ to any ~~Permitted Transfer~~ROFO Purchaser in the aggregate five percent (5%) or more of the Common Stock outstanding (including, ~~such Transfer~~ for purposes of determining the five percent (5%) threshold, Warrants or other Convertible Securities Beneficially Owned by Xxxxxxxx) in a single transaction or a series of related transactions (a “ROFO Sale”), then Xxxxxxxx shall ~~be permitted only if such Shareholder~~ first furnish a written notice (the “~~RFO Offeror~~ROFO Initiation Notice”) ~~fully complies with~~ to the Company and the Warrant Agent, on behalf of the Significant Persons. The ROFO Initiation Notice shall state the number of shares of Common Stock or Warrants Xxxxxxxx intends to Transfer (the “ROFO Shares”), the proposed minimum cash purchase price therefor and a summary of the other terms of ~~this Section 3.3; provided that~~ the ~~provisions~~ proposed ROFO Sale. The Warrant Agent shall promptly, but in no event later than five (5) Business Days, following receipt of ~~this Section 3.3 shall not apply~~ the ROFO Initiation Notice provide such ROFO Initiation Notice to ~~Permitted Transfers~~each Significant Person. (b) ~~The RFO Offeror shall~~Each Significant Person shall have the right, ~~prior to~~ for a period of fifteen (15) Business Days after receipt of the ~~Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice~~ ROFO Initiation Notice by the Company (the “~~RFO Notice”) to each other Shareholder (each, an “RFO Offeree~~ROFO Period”), ~~setting forth (i)~~ to agree to purchase up to its pro rata share of the ~~number of Ordinary~~ ROFO Shares ~~proposed to be disposed of (the “RFO Ordinary Shares”), (ii)~~ at the proposed minimum purchase price ~~per RFO Ordinary Share,~~ and ~~payment and~~ on the other ~~material~~ terms ~~and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares~~ set forth in the ~~RFO~~ ROFO Initiation Notice ~~at the same price per Ordinary Share and on the same terms and conditions as set forth therein. (c) The RFO Offeree(s) collectively shall have the right to purchase~~ (the “~~Right of~~ First Offer”)~~, any or all of the RFO Ordinary Shares~~ . Such right shall be exercised by a Significant Person by delivering a written notice (the “~~RFO Exercise~~ROFO Notice”) to the Company and Xxxxxxxx within the ROFO Period specifying the number of ~~exercise~~ ROFO Shares that such Significant Person agrees to purchase. If any Significant Person does not accept all or any part of its pro rata share of the ~~Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice~~ ROFO Shares (the “~~RFO Response Period~~Rejected ROFO Shares”), ~~irrevocably stating therein such portion~~ then, upon the expiration of the ~~RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree~~ ROFO Period (or such ~~Affiliate(s~~earlier time period that all Significant Persons have delivered a ROFO Notice and there are Rejected ROFO Shares)~~). Each RFO Offeree~~ , all of the Significant Persons that accepted the First Offer in full shall have the right, ~~but~~ for a period of five (5) Business Days following the date on which the Company provides notice (the “ROFO Period Expiration Notice”) to such Significant Persons that the ROFO Period has expired (or that all Significant Persons have delivered a ROFO Notice and there are Rejected ROFO Shares) (the “Reallotment Period”), to agree to purchase any or all of the Rejected ROFO Shares at the minimum purchase price and on the other terms stated in the ROFO Initiation Notice. Such right shall ~~not~~ be ~~required,~~ exercised by delivering a written notice to the Company and Xxxxxxxx within the Reallotment Period specifying the number of Rejected ROFO Shares that such Significant Person agrees to purchase (the “Reallotment Notice”). The Warrant Agent shall promptly, but in no event later than two (2) Business Days, following expiration of the ROFO Period (or ~~cause its wholly-owned Affiliate(s~~such earlier time that all Significant Persons have delivered a ROFO Notice and there are Rejected ROFO Shares) provide the ROFO Period Expiration Notice to ~~purchase) such RFO Offeree’s pro rata share (based on~~ all Significant Persons who have accepted the First Offer. If the number of ~~Ordinary~~ Rejected ROFO Shares ~~held by such RFO Offeree as a proportion of~~ accepted exceeds the number of ~~Ordinary~~ Rejected ROFO Shares, then the Rejected ROFO Shares ~~held by all RFO Offerees). To~~ to be purchased shall be allocated pro rata among the ~~extent any RFO Offeree does not wish~~ Significant Persons who have delivered a Reallotment Notice, with no Significant Person being required to purchase more shares of Common Stock than it has agreed to purchase (~~or cause its wholly-owned Affiliate(s~~the “Reallocation Process”). (c) ~~to purchase)~~ If following the First Offer and the Reallocation Process all of ~~its pro rata portion~~ the ROFO Shares are not accepted for purchase, the Company shall have the right, for a period of ~~RFO Ordinary Shares, all~~ five (5) Business Days after expiration of ~~such remaining RFO Ordinary Shares~~ the Reallotment Period (the “~~Remaining RFO Ordinary Shares~~Company ROFO Period”~~) shall immediately be re-offered by~~ ), to agree to purchase such ROFO Shares at the ~~RFO Offeror to~~ proposed minimum purchase price and on the other ~~RFO Offeree(s) (or if there is more than one other RFO Offeree,~~ terms stated in the ~~proportion (as nearly as may be)~~ ROFO Initiation Notice. Such right shall be exercised by delivering a written notice to Xxxxxxxx within the Company ROFO Period specifying the number of ~~Ordinary~~ ROFO Shares ~~held by them inter se), and such other RFO Offeree(s) may accept by delivery~~ that the Company agrees to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declinedpurchase. (d) If effective acceptances are not received pursuant to Section 3.09(b) or Section 3.09(c) with respect to all of the ~~RFO Offeree(s) shall have delivered an RFO Exercise~~ ROFO Shares, then Xxxxxxxx may Transfer to a ROFO Purchaser all of the ROFO Shares not so accepted (the “Remaining ROFO Shares”), at a price not less than the proposed minimum purchase price, and on terms not more favorable to the ~~RFO Offeror within~~ ROFO Purchaser than the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the other terms ~~set forth~~ stated in the ~~RFO~~ ROFO Initiation Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days. (e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer takes place within thirty (30) Business Days after the expiration of the ~~RFO Ordinary Shares is consummated on terms not more favorable to~~ Company ROFO Period (the ~~purchasers thereof than the terms specified in the RFO Notice~~ “ROFO Sale Period”) and (ii) if the ~~RFO Offeror provides written confirmation~~ consideration to be paid in exchange for the Remaining ROFO Shares by a ROFO Purchaser pursuant to this Section 3.09(d) consists of or includes any consideration other than cash, Xxxxxxxx must provide the Company and the Warrant Agent with an appraisal of the non-cash consideration (as determined by an independent, nationally recognized investment bank selected by the Company), stating that the non-cash consideration has a value that, when added with the cash consideration to be paid for the Remaining ROFO Shares, is at least equal to the ~~RFO Offeree(s~~minimum purchase price set forth in the ROFO Initiation Notice. The Warrant Agent shall promptly, but in no event later than five (5) ~~that such terms comply with clause (i) hereof prior to the consummation~~ Business Days following receipt of such ~~sale;~~ appraisal, deliver such appraisal to all Significant Persons. If all or any part of the Remaining ROFO Shares are not Transferred by Xxxxxxxx during the ROFO Sale Period, the right of Xxxxxxxx to Transfer any such Remaining ROFO Shares shall expire and ~~provided further, that~~ the ~~Transfer Period~~ obligations set forth in this Section 3.09 with respect to such Remaining ROFO Shares shall be ~~extended following~~ reinstated. (e) The acceptance by any Significant Person or the Company of any offer to purchase ROFO Shares contemplated by this Section 3.09 shall be irrevocable, and the Significant Person or the Company delivering written notice of its acceptance thereof shall be bound by, and obligated to purchase the number of ROFO Shares specified in, such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If written notice at the ~~end~~ minimum purchase price and the other terms set forth in the ROFO Initiation Notice. For the avoidance of ~~the Transfer Period, as extended as provided herein~~doubt, the ~~RFO Offeror has not completed~~ failure of a Significant Person or the ~~Transfer of the RFO Ordinary Shares, the RFO Offeror~~ Company to timely accept any offer contemplated by this Section 3.09 shall ~~no longer~~ be ~~permitted to dispose~~ deemed a rejection of such ~~RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3~~offer. (f) The ~~RFO Offeror shall, upon the Transfer~~ consummation of the ~~RFO Ordinary~~ sales contemplated by clause (b) and (c) of this Section 3.09 shall take place at 10:00 a.m. local time at the offices of the Company on the thirtieth (30th) Business Day after the expiration of the ROFO Period (if all of the ROFO Shares are accepted pursuant to the First Offer), the Reallotment Period (if all of the Rejected ROFO Shares are accepted during the Reallotment Period) or the Company ROFO Period (if not all of the ROFO Shares are accepted pursuant to the First Offer and not all of the Rejected ROFO Shares are accepted during the Reallotment Period), or such other date as mutually agreed to by the parties to the sales contemplated by clause (b) and (c) of this Section 3.09, at which time each participating Significant Person or the Company, as applicable, shall deliver the appropriate consideration to Xxxxxxxx (by check or wire transfer in accordance with instructions included in the ROFO Initiation Notice), and Xxxxxxxx shall deliver to each participating Significant Person or the Company, as applicable, the certificates (if certificated) representing the ROFO Shares being sold, in each case, duly endorsed, or with stock (or equivalent) powers duly endorsed, free and clear of any liens, claims and encumbrances whatsoever (except those imposed by this Agreement and federal and any applicable state securities laws generally), with any stock (or equivalent) transfer tax stamps affixed, or other appropriate transfer instruments and documents of Transfer as the Significant Person or the Company, as applicable, shall reasonably request. (g) For purposes of this Section 3.09, the “pro rata share” of a Significant Person shall mean the product of: (i) the number of ROFO Shares or the Rejected ROFO Shares, ~~procure~~ as the ~~resignation~~ case may be, multiplied by (ii) a fraction, the numerator of ~~such~~ which is equal to the number of ~~directors nominated~~ shares of Common Stock represented by ~~it, if any~~the Warrants Beneficially Owned by such Significant Person and the denominator of which is equal to the aggregate number of shares of Common Stock represented by the Warrants Beneficially Owned by all Significant Persons permitted to participate in the First Offer or the Reallocation Process, as ~~would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation~~the case may be.

Appears in 2 contracts

Samples: Warrant Agreement (Nuverra Environmental Solutions, Inc.), Warrant Agreement (Nuverra Environmental Solutions, Inc.)

Right of First Offer. ~~(a) Other than Prohibited Transfers~~Subject to Section 4.1 and Section 7.1, ~~if at any time after the Lock Up Period a~~ and except as otherwise allowed under Section 4.2, no Shareholder ~~desires to Transfer other than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such~~ or Subordinate Shareholder (the “~~RFO Offeror~~Transferor”) ~~fully complies with~~ may, at any time, Transfer any Equity Securities legally or beneficially held by it, except pursuant to the ~~terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers.~~following provisions: (ba) ~~The RFO Offeror shall, prior~~ Prior to ~~the~~ consummating any such Transfer of ~~any Ordinary Shares to which this Section 3.3 applies~~the Equity Securities, ~~give~~ the Transferor shall deliver a written notice (the “~~RFO~~ Offer Notice”) to each other Shareholder (~~each, an~~ the “~~RFO Offeree~~Offerees”), setting forth ~~(i)~~ its bona fide intention to Transfer Equity Securities to a third party, the number and type of ~~Ordinary Shares proposed~~ Equity Securities to be ~~disposed of~~ Transferred (the “~~RFO Ordinary~~ Subject Shares”), the price at which such Transferor wishes to sell the Subject Shares (~~ii)~~ the ~~proposed purchase price per RFO Ordinary Share~~“Offer Price”), and ~~payment and~~ any other ~~material~~ terms ~~and conditions and~~ of the offer. (~~iii~~b) The Offer Notice shall constitute, for a period of 15 days from the date on which it shall have been deemed given, an irrevocable and exclusive offer to sell to ~~the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice~~ each Offeree (or any direct or indirect wholly-owned Subsidiary designated by an Offeree), at the ~~same price per Ordinary Share and on~~ Offer Price, a portion of the ~~same terms and conditions as set forth therein~~Subject Shares not greater than the proportion that the number of Equity Securities owned by such Offeree bears to the total number of Equity Securities owned by all the Offerees. (c) ~~The RFO Offeree(s~~Each Offeree (or a designated direct or indirect wholly-owned Subsidiary thereof) ~~collectively shall have~~ may accept the offer set forth in an Offer Notice by giving notice to the Transferor, prior to the expiration of such offer, specifying the maximum number of the Subject Shares that the Offeree wishes to purchase. Any Offeree may exercise the right to purchase (all or a portion of Equity Securities pursuant to this Section 4.3 by causing such Person(s) to which such Offeree would be permitted to Transfer Equity Securities pursuant to Section 4.2 to purchase such all or portion of Equity Securities directly from the ~~“Right of First Offer”)~~Transferor, ~~any or all of~~ if so specified in the ~~RFO Ordinary Shares by delivering a written~~ notice ~~(the “RFO Exercise”) of exercise of the Right of First Offer~~ given to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(sTransferor pursuant to this Section 4.3(c) and/or ~~one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s~~Section 4.3(d)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined. (d) If one or more Offerees do not agree to purchase all of the ~~RFO Offeree(s~~Subject Shares to which such Offerees are entitled (such shares not purchased, the “Offeree Remaining Shares” and together with Offeree Remaining Shares of all other Offerees, the “Aggregate Remaining Shares”), the Transferor shall promptly so notify each Offeree that has agreed to purchase all of the Subject Shares so entitled (each a “Second Round Offeree”), such notice to constitute an offer to sell, irrevocable for fifteen (15) ~~shall have delivered an RFO Exercise~~ days, to each such Offeree, at the Offer Price, a portion of the Aggregate Remaining Shares not greater than the proportion that the number of Equity Securities owned by such Second Round Offeree bears to the ~~RFO Offeror within the RFO Response Period for~~ total number of Equity Securities owned by all ~~the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase~~ of the ~~RFO Ordinary Shares within thirty (30) days thereafter upon~~ Second Round Offerees. Each Second Round Offeree shall notify the ~~terms set forth in the RFO Notice; provided~~Transferor, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of such offer, specifying the ~~RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s)~~ number of Aggregate Remaining Shares that such Offeree agrees to ~~obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days~~purchase. (e) If the ~~RFO Offeree(s) shall not have completed~~ Offerees in the aggregate agree to purchase of any or all of the ~~RFO Ordinary~~ Subject Shares pursuant to this Section 4.3, they shall pay in cash or immediately available funds for and the Transferor shall deliver valid title to, free and clear of any Lien, such Subject Shares, subject to receipt of any necessary or advisable third party approvals or any Governmental Approvals, within fifteen (15) days following completion of the ~~RFO Purchase Period, as extended as provided~~ procedures set forth in ~~Section 3.3(d),~~ subsection (b) and (d) hereof. (f) If the offers made by the Transferor to the Offerees pursuant to subsections (b) and (d) hereof expire without an agreement by one or ~~together have failed~~ more Offerees to ~~deliver RFO Exercises within the RFO Response Period for~~ purchase all of the ~~RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise~~ Subject Shares, the ~~Right of First Offer, then the RFO Offeror~~ Transferor shall have ~~the right for~~ sixty (60) days ~~thereafter~~ to enter into a definitive agreement with respect to such Transfer and ninety (90) days to effect the “Transfer ~~Period”~~of the balance of the Subject Shares to any third party or parties, for cash, at a price not less than the Offer Price, and upon terms not otherwise more favorable to the transferee or transferees than those specified in the Offer Notice, subject to the execution and delivery by such third party of an assignment and assumption agreement, in form and substance satisfactory to the other Shareholders, pursuant to which such third party shall assume all of the obligations of a party pursuant to or under this Agreement. In the event such Transfer is not consummated within such ninety (90) day period, the Transferor shall not be permitted to sell its Equity Securities pursuant to this Section 4.3 without again complying with each of the requirements of this Section 4.3; provided, that such ninety (90) day period should be extended automatically as necessary (i) to apply for and obtain any Governmental Approvals that are required to consummate such Transfer, so long as the Transferor is making good faith efforts to obtain such Governmental Approvals as soon as practicable in accordance with applicable Law and (ii) in the event that Section 4.4, 4.5, 4.6 or 4.7 applies, to complete the procedure as provided therein. If there is such extension, the relevant period will end on the fifth Business Day following the receipt of such Governmental Approvals. (g) The provisions of this Section 4.3 shall continue to be effective following the completion of an IPO; provided that, following the completion of the IPO, (i) this Section 4.3 shall not apply to any sale of any Equity Securities on the primary securities exchange or quotation system by or through which such Equity Securities are traded, by any Management Member or its Subordinated Shareholders in an amount generating gross sale proceeds to such Management Member and its Subordinated Shareholders in the aggregate of not more than US$1.0 million during any twelve-month period, and (ii) if the proposed Transfer would be a block trade or otherwise on the open market (whether pursuant to Rule 144 or otherwise), including without limitation a block trade to ~~dispose~~ a financial institution who will resell such Equity Securities as described in Section 4.1(a), then (x) the Offer Notice shall set forth the Transferor’s intention to sell on the open market in addition to the matters required to be set forth pursuant to Section 4.3(a) and (y) notwithstanding anything to the contrary in Sections 4.3(b) and (c), an Offeree’s notice setting forth its intention to accept the offer must be delivered to the Transferor within seventy-two hours of receipt of the ~~RFO Ordinary Shares in one~~ Offer Notice, and if an Offeree fails to deliver such notice within such period, the Offering Notice given to such Offeree shall expire upon expiration of such period and (z) Section 4.3(d) shall not apply. (h) Notwithstanding the foregoing, and whether or ~~more Transfers thereof without being subject to any~~ not an IPO is completed, each Shareholder’s right of ~~the restrictions~~ first offer set forth in this ~~Article III; provided, however, that (i)~~ Section 4.3 shall terminate in the event such ~~Transfer~~ Shareholder ceases to own at least 50% of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that Equity Securities owned by such ~~terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date~~ Shareholder as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3Closing Date. (f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.

Appears in 2 contracts

Samples: Shareholder Agreement, Shareholder Agreement (Yahoo Inc)

Right of First Offer. (a) ~~Other than Prohibited Transfers, if at~~ If any ~~time after the Lock Up Period a Shareholder~~ Manager desires to Transfer ~~other than pursuant to~~ all or any ~~Permitted Transfer, such Transfer shall be permitted only if such Shareholder (the “RFO Offeror”) fully complies with the terms~~ portion of ~~this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers. (b) The RFO Offeror shall, prior to the Transfer of any Ordinary~~ its Company Shares in a transaction to which this Section ~~3.3 applies~~4.1 applies (any such Manager, ~~give~~ a “ROFO Stockholder”), then each Principal Investor and MD Investor (each, a “ROFO Offeree”) shall have a right of first offer over such Company Shares, which shall be exercised in the following manner: 4.1.1. The ROFO Stockholder shall provide the ROFO Offerees with written notice (a “~~RFO~~ ROFO Notice”) of its desire to ~~each other Shareholder (each, an “RFO Offeree”), setting forth (i)~~ Transfer such Company Shares. The ROFO Notice shall specify the number and class of ~~Ordinary~~ Company Shares ~~proposed~~ the ROFO Stockholder wishes to ~~be disposed of (the “RFO Ordinary Shares”)~~Transfer, ~~(ii)~~ the proposed purchase price per ~~RFO Ordinary Share,~~ share (which purchase price shall be in cash or cash equivalents only) for each such class of Company Shares and ~~payment and~~ any other ~~material~~ terms and conditions ~~and (iii) an irrevocable offer to sell~~ material to the ~~RFO Offeree(s~~sale proposed by the ROFO Stockholder. 4.1.2. The ROFO Offerees shall have a period of up to ten (10) Business Days following receipt of the ~~RFO Ordinary~~ ROFO Notice (the “ROFO Election Period”), to elect to purchase (or to cause one or more of their Affiliates to purchase), in the aggregate, all, but not less than all, of such Company Shares on the terms and conditions set forth in the ~~RFO~~ ROFO Notice at by delivering to the ~~same price per Ordinary Share~~ ROFO Stockholder written notice thereof (such electing ROFO Offeree, a “ROFO Purchaser”). In the event that the aggregate number of Company Shares of an applicable class that the ROFO Purchasers have elected to purchase exceeds the aggregate number of Company Shares of such class subject to the ROFO Notice, the number of Company Shares shall be sold to the ROFO Purchasers as follows: (a) there shall be first allocated to each ROFO Purchaser a number of Company Shares of each applicable class equal to the lesser of (A) the number of Company Shares of such class elected to be purchased by such ROFO Purchaser and on (B) a number of Company Shares of such class equal to such ROFO Purchaser’s Pro Rata Portion; and (b) the ~~same terms and conditions~~ balance, if any, of Company Shares of each applicable class not allocated pursuant to clause (1) above shall be allocated to those ROFO Purchasers which offered to purchase a number of Company Shares of the applicable class in excess of such ROFO Purchasers’ respective Pro Rata Portions in proportion, as ~~set forth therein~~nearly as practicable, to the respective number of Company Shares of the applicable class which each ROFO Purchaser offered to purchase. (c) ~~The RFO Offeree(s) collectively shall have~~ If the right to purchase (the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, ROFO Offerees elect to purchase (or to cause ~~its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number~~ one or more of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) their Affiliates to purchase) all of ~~its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary~~ the Company Shares (which are the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect subject of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined. (d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror proposed Transfer within the ~~RFO Response Period for all the RFO Ordinary Shares~~ROFO Election Period, ~~the RFO Offeror and RFO Offeree(s)~~ such purchase shall be ~~respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares~~ consummated within thirty (30) days ~~thereafter upon~~ after the ~~terms set forth in~~ date on which each such ROFO Offeree notifies the ~~RFO Notice; provided, however, that~~ ROFO Stockholder of such ~~period shall be extended following such date as~~ election (subject to extension if necessary to permit the expiration or early termination of the HSR Waiting Period). Subject to Section 4.2, if the ROFO Offerees do not elect to purchase all ~~required approvals~~of the Company Shares within the ROFO Election Period, ~~consents or authorizations from~~the ROFO Stockholder may Transfer all of the Company Shares of each class specified in the ROFO Notice at any time within one hundred and twenty (120) days following such period at a price which is not less than the purchase price specified in the ROFO Notice and on terms and conditions no more favorable, ~~or filings or registrations with,~~ in any ~~Governmental Authority in connection with such purchase to be obtained or made~~material respect, to the ~~extent prior to~~ purchaser than those specified in the ~~expiration of~~ ROFO Notice, and thereafter the ~~RFO Purchase Period reasonably appropriate actions have been taken by~~ ROFO Stockholder may not Transfer any such Company Shares without first following the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days. (e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions procedures set forth in this ~~Article III; provided, however, that (i) such~~ Section 4.1. 4.1.3. In connection with the Transfer of all or any portion of a ROFO Stockholder’s Company Shares pursuant to this Section 4.1 to one or more ROFO Offerees, the ~~RFO Ordinary Shares is consummated on terms not more favorable~~ ROFO Stockholder shall only be required to represent and warrant as to its authority to sell, the ~~purchasers thereof than~~ enforceability of agreements against the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided furtherROFO Stockholder, that the ~~Transfer Period~~ Company Shares to be transferred shall be ~~extended following~~ free and clear of any liens, claims or encumbrances (other than restrictions imposed by this Agreement and pursuant to applicable federal, state and foreign securities laws), that it is the record and beneficial owner of such ~~date as~~ Company Shares and that it has obtained or made all necessary ~~to permit all required~~ consents, approvals, ~~consents~~ filings and notices from governmental authorities or ~~authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers~~ third parties to ~~be obtained or made, to~~ consummate the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) daysTransfer. 4.1.4. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the The provisions of this Section ~~3.3.~~ 4.1 shall not apply to Transfers of Company Shares (fi) ~~The RFO Offeror shall~~to Permitted Transferees in accordance with Section 3.2 (Permitted Transferees); (ii) pursuant to, or consequent upon the ~~Transfer~~ exercise of the ~~RFO Ordinary Shares, procure~~ drag-along rights set forth in Section 4.3 (Drag-Along Rights); (iii) consequent upon the ~~resignation~~ exercise of ~~such number of directors nominated by it, if any, as would be required~~ the tag-along rights set forth in Section 4.2 (Tag-Along Rights); (iv) pursuant to Section ~~2.2 hereof,~~ 5 (Options to Purchase and ~~such director shall execute~~ Sell Shares) or (v) pursuant to a ~~letter of resignation~~registered public offering.

Appears in 2 contracts

Samples: Management Stockholders’ Agreement (J Crew Group Inc), Management Stockholders’ Agreement (J. Crew Inc.)

Right of First Offer. (ai) ~~Other than Prohibited Transfers~~During any period between the expiration of the Restricted Period and the consummation of a Qualified Public Offering, if ~~at any time after the Lock Up Period~~ a ~~Shareholder desires to Transfer other than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder~~ Holder (the “~~RFO Offeror~~Transferring Holder”) ~~fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply~~ wishes to ~~Permitted Transfers. (b) The RFO Offeror shall, prior to the~~ effect a Transfer of ~~any Ordinary Shares to which this Section 3.3 applies~~its Common Shares, ~~give~~ then such Transferring Holder shall first deliver a written notice (the “~~RFO~~ ROFO Notice”) to ~~each other Shareholder~~ all Holders whose Proportionate Percentage is at least 5% (~~each, an~~ the “~~RFO Offeree~~ROFO Offerees”)~~, setting forth (i)~~ . Such ROFO Notice shall disclose the number of ~~Ordinary~~ Common Shares proposed to be ~~disposed of~~ Transferred (the “~~RFO Ordinary~~ Offered Shares”)) and the material terms of any offer the Transferring Holder has received or is contemplating, if applicable. (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein. (c) The RFO Offeree(s) collectively Each ROFO Offeree shall have the right ~~to purchase~~ (the “Right of First Offer”)) to provide the Transferring Holder, ~~any or~~ within 45 days of the date of the ROFO Notice, an irrevocable written offer to acquire all of the ~~RFO Ordinary~~ Offered Shares, upon the price, terms and conditions on which such ROFO Offeree is willing to purchase the Offered Shares ~~by delivering a written notice~~ (the “~~RFO Exercise~~Proposed Offer”). (iii) The Transferring Holder, in its sole discretion, may elect to accept any Proposed Offer by delivering an irrevocable written notice of acceptance (the “ROFO Acceptance Notice”) ~~of exercise of the Right of First Offer~~ to the ~~RFO Offeror~~ ROFO Offerees and the Company within ~~20 (twenty) Business Days from~~ 60 days after the date of ~~delivery of~~ the ~~RFO~~ ROFO Notice (the “~~RFO Response~~ ROFO Acceptance Period”)~~, irrevocably stating therein~~ ; provided that (A) if such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as Transferring Holder receives a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is Proposed Offer from more than one ~~other RFO~~ ROFO Offeree, such Transferring Holder may only accept the Proposed Offer with the most favorable terms and conditions (including price) in ~~the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se)~~its reasonable discretion, and (B) if such Transferring Holder (x) receives Proposed Offers with equivalent terms (including price, conditions and other ~~RFO Offeree(s~~terms and conditions) ~~may~~ from more than one ROFO Offeree and (y) elects to accept ~~by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days~~ one of such ~~re-offer~~Proposed Offers, ~~after which time~~ such ~~re-offer~~ Transferring Holder shall ~~lapse~~ accept all such Proposed Offers with equivalent terms and the ~~re-offer for~~ Offered Shares shall be allocated pro rata among such ~~Remaining RFO Ordinary Shares will be deemed to have been declined~~ROFO Offerees based on their respective ROFO Proportionate Percentages. (div) If The ROFO Offerees purchasing the ~~RFO Offeree(s) shall have delivered an RFO Exercise~~ Common Shares pursuant to ~~the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s~~this Section 4(c) shall be ~~respectively bound~~entitled to require the Transferring Holder to provide representations and warranties regarding (A) its power, authority and ~~shall complete~~ legal capacity to enter into such Transfer of Common Shares; (B) valid right, title and interest in such Common Shares and the ~~sale~~ Transferring Holder’s ownership of such Common Shares; (C) the absence of any Encumbrances on such Common Shares; and ~~purchase~~ (D) the absence of ~~the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided~~any violation, ~~however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from~~default, or ~~filings~~ acceleration of any agreement or ~~registrations with, any Governmental Authority in connection with~~ instrument pursuant to which such ~~purchase to be obtained~~ Transferring Holder or ~~made, to~~ the ~~extent prior to~~ assets of such Transferring Holder are bound as the ~~expiration~~ result of ~~the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain~~ such ~~approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days~~sale. (ev) If Subject to any Tag-Along Rights, after the ~~RFO Offeree(s) shall not have completed the purchase of all~~ termination of the ~~RFO Ordinary Shares within the RFO Purchase~~ ROFO Acceptance Period, ~~as extended as provided~~ the Transferring Holder may, during the 120 day period following the ROFO Acceptance Period, Transfer (or enter into an agreement to Transfer and at any time Transfer in ~~Section 3.3(d), or together have failed to deliver RFO Exercises within~~ accordance with such agreement) the ~~RFO Response Period for all of~~ Offered Shares at and upon the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, price and other material terms and conditions that ~~(i) such Transfer of the RFO Ordinary Shares is consummated on terms not~~ are more favorable to the ~~purchasers thereof~~ Transferring Holder than the ~~terms specified~~ most favorable Proposed Offer that the Transferring Holder received (such Transfer, the “Permitted ROFO Transfer”). If the Transferring Holder has not consummated a Permitted ROFO Transfer (or has not entered into an agreement with respect thereto) within such 120 period, the Transferring Holder shall not thereafter Transfer any Common Shares (including such Offered Shares), whether pursuant to a Proposed Offer or otherwise, without first providing a new ROFO Notice to the ROFO Offerees in the ~~RFO Notice~~ manner provided above, and ~~(ii) the RFO Offeror provides written confirmation~~ such proposed Transfer shall again be subject to the ~~RFO Offeree(s~~requirements of this Section 4(c). (vi) ~~that~~ Upon the closing of the sale of any Common Shares pursuant to this Section 4(c), the Transferring Holder shall deliver at such ~~terms comply~~ closing, against payment of the purchase price therefor, certificates representing those Common Shares to be sold, duly endorsed for transfer or accompanied by duly endorsed stock powers, and evidence of the absence of Encumbrances and adverse claims with ~~clause~~ respect thereto and of such other matters as are deemed necessary by the Company for the proper Transfer of such Common Shares on the books of the Company. (ivii) ~~hereof prior~~ Notwithstanding anything to the ~~consummation~~ contrary in this Agreement, this Section 4(c) shall not apply to (A) Permitted Transfers, (B) Transfers of ~~such sale; and provided further~~Common Shares made in a Qualified Public Offering, ~~that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from~~(C) Transfers of Common Shares made by Dragged Holders in a Drag-Along Transaction, or ~~filings or registrations with, any Governmental Authority~~ (D) Transfers of Common Shares made in connection with ~~such Transfers to be obtained or made, to~~ the ~~extent prior to the expiration~~ exercise of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3Tag-Along Rights. (f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.

Appears in 2 contracts

Samples: Stockholder Agreement (Popular Inc), Stockholder Agreement (Popular Inc)

Right of First Offer. Notwithstanding any provision of this ECR to the contrary, the following circumstances shall not be deemed a Transfer under this ECR and shall not be subject to Wal-Mart’s right of first refusal: (a) ~~Other~~ Any sale, conveyance, transfer or other assignment of Tract 2 in connection with Xxxxxx’x direct or indirect sale, conveyance, transfer and/or assignment to one or more third parties (whether affiliated or unaffiliated with Xxxxxx) of all or substantially all of its gas station parcels located adjacent to a Wal-Mart store and previously leased from Wal-Mart or purchased from Wal-Mart, or Wal-Mart’s affiliates (“Adjacent Sites”) (any such sale, conveyance transfer and/or assignment hereafter referred to as a “Permitted Transfer”); and/or (b) Xxxxxx mortgages, pledges, or otherwise encumbers all or any portion of its interest in Tract 2 in connection with any bona fide secured financing. Provided, any sale or other disposition as the result of a foreclosure sale by the secured lender or its assignee(s) in connection with the secured financing shall, upon the consummation of the transfer of title from Xxxxxx to a transferee following the foreclosure sale, terminate Wal-Mart’s right of first refusal and right of first offer with respect to Tract 2, provided Wal-Mart is provided written notice of such foreclosure sale no less than ~~Prohibited Transfers~~thirty (30) days prior to such date of foreclosure sale. Additionally, ~~if at any time after the Lock Up Period a Shareholder desires to Transfer other than pursuant~~ Wal-Mart’s right of first refusal or right of first offer shall not apply to any deed in lieu of foreclosure to the secured lender or its assignee(s), provided such right of first refusal and right of first offer shall apply to the immediately subsequent sale or transfer following such deed in lieu of foreclosure transfer, and none other, by such secured lender or its assignee. The occurrence of (i) Xxxxxx’x authorization of a plan to market all or substantially all of the Adjacent Sites for a Permitted Transfer, or (ii) Xxxxxx’x receipt of an unsolicited, bona fide formal written offer from any unaffiliated third party offering to enter into a Permitted Transfer (a “Third Party Offer”), with Xxxxxx which Xxxxxx intends to accept, shall each be referred to as a “ROFO Event”. Upon the occurrence of a ROFO Event, Xxxxxx shall give Wal-Mart written notice of the ROFO Event and provide Wal-Mart with a copy of any marketing or offering materials made available to third parties, and such ~~Transfer~~ financial information in Xxxxxx’x possession relating to the value of the Adjacent Sites or ROFO Event as reasonably requested by Wal-Mart in writing to enable Wal-Mart to estimate the value of the ROFO Event; provided that, for the avoidance of doubt, Xxxxxx shall not be ~~permitted only if such Shareholder (the “RFO Offeror”) fully complies~~ required to provide Wal-Mart with the terms of the Third Party Offer or any information received from a third party in connection with a Third Party Offer. Wal-Mart shall hold all information provided pursuant to this Section ~~3.3; provided that~~ 10.02 in confidence in accordance with Section 10.03 herein. Xxxxxx agrees not to enter into a legally binding definitive agreement for the ~~provisions~~ ROFO Event for a period of ~~this Section 3.3 shall not apply to Permitted Transfers.~~ ninety (b90) ~~The RFO Offeror shall, prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give~~ days after delivering written notice ~~(“RFO Notice”)~~ to ~~each other Shareholder (each, an “RFO Offeree”), setting forth (i)~~ Wal-Mart regarding the ~~number of Ordinary Shares proposed to be disposed of~~ occurrence thereof (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein. (c) The RFO Offeree(s) collectively shall have the right to purchase (the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Waiting Period”)~~, irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly~~. Wal-~~owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree~~ Mart shall have the right, but ~~shall~~ not ~~be required,~~ the obligation to ~~purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on~~ present Xxxxxx with a formal written offer for the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares ROFO Event (the “~~Remaining RFO Ordinary Shares~~Wal-Mart Offer”) during the Waiting Period. If submitted, the Wal-Mart Offer shall ~~immediately be re-offered by the RFO Offeror to the other RFO Offeree(s~~remain in effect for a period of one (1) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect year after expiration of the ~~relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re~~Waiting Period, unless revoked in writing by Wal-~~offer, after which time such re~~Mart prior to Xxxxxx’x acceptance thereof. In the event Wal-~~offer shall lapse and the re~~Mart fails to submit a Wal-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined. (d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent Mart Offer prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days. (e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Waiting Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror Xxxxxx shall have the right to accept an offer for ~~sixty~~ a ROFO Event from any third party (~~60) days thereafter (the~~ each an “~~Transfer Period~~Outside Offer”)~~, to dispose of~~ . In the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent event Wal-Mart submits a Wal-Mart Offer prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Waiting Period, ~~as extended as provided herein~~then for a period of one (1) year thereafter, ~~the RFO Offeror has~~ Xxxxxx shall not ~~completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer~~ be permitted to ~~dispose~~ accept an Outside Offer unless (i) the consummation of such ~~RFO Ordinary Shares without again fully complying~~ Outside Offer will result in Xxxxxx’x receipt of net consideration greater than the Wal-Mart Offer (provided Xxxxxx shall not be required to accept the Wal-Mart Offer in the event such acceptance would result in a breach of the fiduciary duties of Xxxxxx’x board of directors, as reasonably determined by Xxxxxx), or (ii) Wal-Mart withdraws the Wal-Mart Offer. Xxxxxx shall give Wal-Mart written notice of its acceptance of the Wal-Mart Offer, or rejection of the Wal-Mart Offer in the event Xxxxxx accepts an Outside Offer as permitted herein, within three (3) days after acceptance or rejection, as the case may be. Xxxxxx’x failure to accept an Outside Offer within one (1) year after the expiration of the Waiting Period shall reinstate the Waiting Period for an additional ninety (90) days and the cycle of one (1) year free-marketing periods, followed by the reinstatement of a ninety (90) day Waiting Period shall continue until Xxxxxx consummates a Permitted Transfer or Xxxxxx rescinds authorization for the Permitted Transfer. In addition, Xxxxxx’x failure to consummate an Outside Offer within one hundred eighty (180) days after acceptance of an Outside Offer shall reinstate Wal-Mart’s right to submit a Wal-Mart Offer with respect to any pending or future Permitted Transfer in accordance with the ~~provisions~~ requirements of this ~~Section 3.3.~~ section. If Xxxxxx accepts the Wal-Mart Offer, the parties shall consummate the Permitted Transfer substantially in accordance with the terms of the Wal-Mart Offer within sixty (f60) ~~The RFO Offeror shall~~days after Xxxxxx’x acceptance thereof. Notwithstanding any contrary provision of this Agreement, Wal-Mart’s option rights with respect to a Permitted Transfer shall be limited to only those rights set forth in this section. No ROFO Event shall be deemed to have occurred upon the granting of any mortgage or other security interest in Tract 2 in connection with any secured financing described in and subject to clause (b) above. No ROFO Event shall be deemed to have occurred as a result of a direct or indirect internal assignment or transfer of Tract 2 (including a leasehold interest in Tract 2) and/or equity interests in Xxxxxx to any current or future parent company of Xxxxxx or Affiliate, or any combination thereof (“In House Transfer”). Notwithstanding any provision of this Agreement to the contrary, any Permitted Transfer involving (i) a (A) reorganization or consolidation of, or merger with, of or into, Xxxxxx (or any current or future parent company or other entity which controls or ultimately controls Xxxxxx), or (B) transfer of any of the ~~RFO Ordinary Shares~~securities of, ~~procure the resignation of such number of directors nominated by it~~or change in control of, ~~if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.~~(1) Xxxxxx Oil Corporation (or any current or future parent company or other entity which controls or ultimately controls Xxxxxx Oil Corporation) or (2) following

Appears in 2 contracts

Samples: Agreement of Sale, Agreement of Sale (Murphy USA Inc.)

Right of First Offer. (a) ~~Other than Prohibited Transfers, if at~~ Prior to making any ~~time after the Lock Up Period a Shareholder desires to~~ Transfer (other than pursuant to ~~any~~ a Permitted Transfer~~, such Transfer shall be permitted only if such Shareholder~~ ) of Shares (the “RFO Offeror”) fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers. (b) The RFO Offeror shall, prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO OffereeSubject Shares”), a Non-voting Stockholder (an “Offering Stockholder”) shall deliver to Station and each other Non-voting Stockholder owning more than ten percent (10%) of the total outstanding number of Shares of Station at the time of such Transfer (the “Share Offerees”) a letter (the “Share Offer Letter”) signed by such Offering Stockholder setting ~~forth~~ forth: (i) the ~~number~~ prospective purchase price per Share in cash for the Subject Shares; (ii) such Offering Stockholder’s offer, irrevocable by its terms for thirty (30) Business Days following the delivery of ~~Ordinary Shares proposed to be disposed of~~ the Share Offer Letter (such period, the “~~RFO Ordinary Shares~~Share Offer Period”), ~~(ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer~~ to sell to the ~~RFO Offeree(s)~~ Share Offerees, all but not less than all the ~~RFO Ordinary Shares~~ Subject Shares, for a purchase price per Share equal to the purchase price per Share in cash set forth in such Share Offer Letter (the ~~RFO Notice at the same price per Ordinary~~ “Share ~~and on the same terms and conditions as set forth therein.~~Offer”); and (ciii) ~~The RFO Offeree(s~~closing arrangements and, to the extent such date is determinable, a closing date (which shall be subject to the attainment of approvals from the applicable Gaming Authorities) ~~collectively~~ for any purchase and sale that may be effected by the Share Offerees pursuant to this Section 3.4.1. During the Share Offer Period, the Share Offerees shall have the right to enter into definitive agreements to purchase (all but not less than all the ~~“Right of First~~ Subject Shares for the same price per Share set forth in the Share Offer~~”), any or all of~~ . If more than one Share Offeree elects to purchase the ~~RFO Ordinary~~ Subject Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the ~~proportion thereof~~ aggregate number of Subject Shares elected to be purchased by ~~each RFO Offeree (or~~ all Share Offerees exceeds the actual number of Subject Shares, the Subject Shares shall be allocated among such ~~Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s~~ Share Offerees pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) according to the number of ~~Ordinary~~ non-voting Shares ~~held~~ of Station owned by ~~them inter se), and~~ each such ~~other RFO Offeree(s) may accept by delivery~~ Share Offeree relative to the ~~RFO Offeror~~ aggregate number of ~~an RFO Exercise in respect~~ non-voting Shares of Station owned by all such Share Offerees, up to the number of Subject Shares elected to be purchased by such Share Offeree. If, upon the expiration of the ~~relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days~~ Share Offer Period, the Share Offerees elect to not exercise the right of ~~such re-offer, after which time such re-~~first offer ~~shall lapse and~~ with respect to all of the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined. (d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Subject Shares, the ~~RFO Offeror and RFO Offeree(s~~Offering Stockholder may sell all, but not less than all, of such Subject Shares to a third party for not less than ninety-five percent (95%) ~~shall be respectively bound, and shall complete the sale and purchase~~ of the ~~RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth~~ purchase price per Share contained in ~~the RFO Notice~~such Share Offer; provided, however, that any such ~~period shall be extended following~~ third party must execute a joinder agreement to this agreement in a form reasonably satisfactory to a Supermajority of the Board of Directors pursuant to which such ~~date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase~~ third party agrees to be ~~obtained~~ a “Station Stockholder” for all purposes hereunder. Prior to consummating any such sale, the Offering Stockholder shall, upon request from the Share Offerees or ~~made~~Station, provide the requesting party with reasonable supporting documentation with respect to the ~~extent prior~~ price per Share of any such sale so as to demonstrate such Offering Stockholder’s compliance with the ~~expiration~~ provisions of the ~~RFO Purchase Period reasonably appropriate actions have been taken by~~ preceding sentence. Station shall provide such third party reasonable access to its books and records during reasonable business hours and upon reasonable advance notice at the ~~RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations;~~ sole cost and ~~provided further that no such extension shall exceed 60 days. (e) If the RFO Offeree(s) shall not have completed the purchase of all~~ expense of the ~~RFO Ordinary Shares~~ inspecting third party. If such sale has not been completed within ~~the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all~~ two hundred seventy (270) calendar days of the ~~RFO Ordinary~~ closing date proposed in the Share Offer Letter, the Subject Shares ~~as contemplated in Section 3.3(d) or declined in writing to exercise~~ covered by such Share Offer may not thereafter be sold by such Offering Stockholder unless the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions procedures set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period Section 3.4.1 shall ~~be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations~~ have again been complied with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3. (f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.

Appears in 2 contracts

Samples: Equityholders Agreement (Fertitta Frank J Iii), Equityholders Agreement (Station Casinos Inc)

Right of First Offer. (a) ~~Other than Prohibited Transfers, if at~~ If any ~~time after the Lock Up Period~~ Stockholder or Stockholders acting in concert (a ~~Shareholder desires~~ “Transferor”) desire to Transfer (other than pursuant to ~~any~~ an Exempt Transfer) Company Securities that represent, in the aggregate, more than 5% of the then outstanding shares of Common Stock (assuming conversion in full of all outstanding Preferred Shares and NVC Shares, and irrespective of the Conversion Limitation), such Transferor shall give each Stockholder (other than the Transferor and its Permitted Transferees, as applicable) that, together with its Permitted Transferees, holds more than 5% of the then outstanding shares of Common Stock (for this purpose, shares of Common Stock held by a Person shall include shares issuable upon exercise of Company stock options, or directly or indirectly through conversion or exchange of outstanding Preferred Shares and NVC Shares, held by such Person, and irrespective of the Conversion Limitation) and the Company (collectively, the “Option Holders”) prior written notice of such proposed Transfer, ~~such Transfer~~ which notice shall (i) specify the amount and type of Company Securities to be ~~permitted only if such Shareholder~~ Transferred (the “~~RFO Offeror~~Subject Securities”), the consideration to be received therefor, and the other material terms on which the Transferor proposes to Transfer the Subject Securities and (ii) contain the offer described below (collectively, the “Transferor’s Notice”). The Transferor’s Notice shall contain an offer to sell (the “Option”) ~~fully complies~~ the Subject Securities to the Option Holders in accordance with this Article 3 for the consideration and on the other terms ~~of this Section 3.3~~specified in the Transferor’s Notice; provided that to the ~~provisions~~ extent such consideration shall consist of ~~this Section 3.3~~ anything other than cash, each Option Holder shall be entitled, at its option, to instead pay in cash the value of such consideration as determined by mutual agreement of all such Option Holders so electing to pay cash and the Transferor, or if such agreement is not ~~apply~~ reached within 5 days of receipt of the Transferor’s Notice, as determined by an investment banker or appraiser of national reputation reasonably acceptable to ~~Permitted Transfers~~both the Transferor and such Option Holders (the fees and expenses of which shall be shared equally by the Transferor, on the one hand, and all such Option Holders requesting such valuation, on the other hand), in which case the date of the Transferor’s Notice shall be deemed the date the cash value of such consideration is so determined. (b) The ~~RFO Offeror shall~~Company, ~~prior to~~ at the ~~Transfer~~ election of ~~any Ordinary Shares to which~~ the Board (acting by majority vote, excluding, for purposes of this Section ~~3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth~~ (i) if the Transferor is an Investor (or Permitted Transferee thereof), any Investor Designee designated to the Board by such Investor pursuant to Article 2 hereof (and if such Transferor is WCAS (or Permitted Transferee thereof), also excluding Xxxxxxx Xxxxxxx if he is then an Investor Designee of WCAS), and (ii) if the Transferor is Xxxxxxx Xxxxxxx or any of his Permitted Transferees or Affiliates, and Xxxxxxx Xxxxxxx is then a director of the Company, Xxxxxxx Xxxxxxx), shall have the first right and option, exercisable at any time within the first [__] days following the date of the Transferor’s Notice, to exercise the Option to purchase from the Transferor the Subject Securities pursuant to the Option. If the Option is not exercised by the Company within the first [__] days after the date of the Transferor’s Notice, then the other Option Holders shall have the right and option, exercisable at any time within the first [__] days following the date of the Transferor’s Notice, to exercise the Option and purchase from the Transferor the Subject Securities pursuant to the Option, in which event, such other Option Holders may elect to purchase the Subject Securities in the proportions upon which they mutually agree or, if they are unable to agree upon an allocation of such Subject Securities among themselves, then in the proportion that the number of ~~Ordinary~~ shares of Common Stock held by each such Option Holder which desires to participate in the purchase of such Company Securities pursuant to the Option bears to the aggregate number of shares of Common Stock held by all such Option Holders that desire to participate in the purchase of such Company Securities pursuant to the Option. For purposes of the foregoing sentence, shares of Common Stock held by a Person shall include shares issuable upon exercise of Company stock options, or directly or indirectly through conversion or exchange of outstanding Preferred Shares ~~proposed to be disposed of (the “RFO Ordinary~~ and NVC Shares”), ~~(ii) the proposed purchase price per RFO Ordinary Share~~held by such Person, and ~~payment and other material terms and conditions and (iii)~~ irrespective of the Conversion Limitation. Acceptance of the Option by an ~~irrevocable offer to sell~~ Option Holder shall be in a writing delivered to the ~~RFO Offeree(s)~~ Transferor and the ~~RFO Ordinary Shares set forth in~~ Company, which shall deliver copies thereof to the ~~RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein~~other Option Holders. (c) ~~The RFO Offeree(s) collectively shall have~~ If the ~~right to purchase (the “Right of First Offer”), any or~~ Option is accepted in a manner such that all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, Company Securities covered by the ~~RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof~~ Transferor’s Notice are to be purchased by ~~each RFO Offeree~~ the Option Holders, the Transferor shall, subject to Section 3.03, Transfer such Company Securities free of all liens and encumbrances (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held other than restrictions imposed by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may bethis Agreement) to the ~~number~~ respective Option Holder purchasers thereof against delivery by the Option Holder purchaser of ~~Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery~~ the applicable consideration payable to the ~~RFO Offeror of an RFO Exercise in respect~~ Transferor therefor. Unless, through exercise of the ~~relevant Remaining RFO Ordinary Shares within 10~~ Option, all the Company Securities proposed to be transferred in the Transferor’s Notice are to be acquired by one or more Option Holders, the Transferor may, subject to Section 3.03, either (~~ten~~i) ~~Business Days of such re-offer, after which time such re-offer shall lapse and~~ Transfer the ~~re-offer~~ Company Securities subscribed for ~~such Remaining RFO Ordinary Shares will be deemed to have been declined. (d) If~~ by the ~~RFO Offeree(s) shall have delivered an RFO Exercise~~ Option Holders at the applicable purchase price therefor to the ~~RFO Offeror within~~ Option Holders or (ii) Transfer the ~~RFO Response Period for all~~ Subject Securities that were subject to the ~~RFO Ordinary Shares,~~ Option to a third party Transferee at the ~~RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and~~ same purchase ~~of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms~~ price set forth in the ~~RFO~~ Transferor’s Notice (or at a higher price) and on terms and conditions no less favorable to the Transferor than the terms and conditions set forth in the Transferor’s Notice; provided, however, that such ~~period~~ Transfer shall ~~be extended following such~~ occur no later than 90 days after the date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the ~~RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain~~ Transferor’s Notice. If such ~~approvals, consents or authorizations, or make~~ Transfer does not occur within such filings or registrations; and provided further that no such extension shall exceed 60 days. (e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer90 day period, then the ~~RFO Offeror~~ Company Securities shall ~~have~~ be re-offered to the ~~right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject~~ Option Holders under this Section 3.02 prior to any ~~of the restrictions set forth in~~ subsequent Transfer otherwise covered by this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period Section 3.02. The transactions contemplated by this Section 3.02 shall be ~~extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority~~ consummated in ~~connection~~ accordance with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section ~~3.3~~3.03. (f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.

Appears in 2 contracts

Samples: Stockholders Agreement (Perry Corp), Stockholders' Agreement (Barasch Richard A)

Right of First Offer. Subject to the terms and conditions specified in this Section 2.3, the Company hereby grants the participation rights set forth in this Section 2.3 to (A) each Major Holder, (B) Cisco Systems so long as (i) Cisco continues to hold at least 180,729 shares (as adjusted for stock splits, stock dividends, reclassification and the like) of Registrable Securities and (ii) the Company has not delivered written notice to Cisco that the Board of Directors of the Company has made a Cisco Competitor Determination a right of first offer with respect to future sales by the Company of its Shares (as hereinafter defined), (C) each X. Xxxx Price Investor and Fidelity Investor, so long as the X. Xxxx Price Investors and Fidelity Investors, respectively, continue to hold in the aggregate at least 700,000 shares (as adjusted for stock splits, stock dividends, reclassification and the like) of Registrable Securities and (D) each Janus Capital Investor, so long as the Janus Capital Investors continue to hold in the aggregate at least 315,000 shares (as adjusted for stock splits, stock dividends, reclassification and the like) of Registrable Securities and (E) each Xxxxxxx Investor, so long as the Xxxxxxx Investors continue to hold in the aggregate at least 160,000 shares (as adjusted for stock splits, stock dividends, reclassification and the like) of Registrable Securities (each of the Investors described in (A), (B), (C), (D) or (E) above, a “Participation Rights Holder”). For purposes of this Section 2.3, Participation Rights Holder includes any Affiliated Persons of a Participation Rights Holder and a Participation Rights Holder who chooses to exercise the right of first offer may designate as purchasers under such right itself or its Affiliated Persons, in such proportions as it deems appropriate. Each time the Company proposes to offer any shares of, or securities convertible into or exercisable for any shares of, any class of its capital stock (“Shares”), the Company shall first make an offering of such Shares to each Participation Rights Holder in accordance with the following provisions: (a) ~~Other than Prohibited Transfers~~The Company shall deliver a notice by certified mail (“Notice”) to the Participation Rights Holders stating (i) its bona fide intention to offer such Shares, (ii) the number of such Shares to be offered, and (iii) the price and terms, if ~~at any time after the Lock Up Period a Shareholder desires~~ any, upon which it proposes to ~~Transfer other than pursuant to any Permitted Transfer,~~ offer such Transfer shall be permitted only if such Shareholder (the “RFO Offeror”) fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted TransfersShares. (b) ~~The RFO Offeror shall~~Within fifteen (15) calendar days after delivery of the Notice, ~~prior~~ each Participation Rights Holder may elect to purchase or obtain, at the price and on the terms specified in the Notice, up to that portion of such Shares which equals the proportion that the number of shares of Common Stock issuable, directly or indirectly, upon conversion of all outstanding shares of Preferred Stock then held by such Participation Rights Holder bears to the ~~Transfer~~ aggregate number of shares of Common Stock then outstanding and all shares of Common Stock issuable, directly or indirectly, upon conversion of all outstanding shares of Preferred Stock (assuming full exercise, and conversion to Common Stock, of all outstanding warrants, options and other rights to acquire Preferred Stock) and full exercise of all outstanding warrants, options and other rights to acquire Common Stock. Such purchases shall be completed at the same closing as that of any ~~Ordinary Shares~~ third party purchasers or at an additional closing thereunder. The Company shall promptly, in writing, inform each Participation Rights Holder that purchases all the shares available to ~~which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder~~ it (each, an a “~~RFO Offeree~~Fully-Exercising Holder”)) of any other Participation Rights Holder’s failure to do likewise. During the ten (10) day period commencing after receipt of such information, ~~setting forth (i)~~ each Fully-Exercising Holder shall be entitled to obtain that portion of the Shares for which Participation Rights Holders were entitled to subscribe but which were not subscribed for by the Participation Rights Holders that is equal to the proportion that the number of ~~Ordinary Shares proposed to be disposed~~ shares of ~~(the “RFO Ordinary Shares”)~~Common Stock issued and held, ~~(ii) the proposed purchase price per RFO Ordinary Share~~or issuable upon conversion of Preferred Stock then held, ~~and payment and other material terms and conditions and (iii) an irrevocable offer to sell~~ by such Fully-Exercising Holder bears to the ~~RFO Offeree(s) the RFO Ordinary~~ total number of shares of Common Stock issued and held, or issuable upon conversion of Preferred Stock then held, by all such Fully Exercising Investors who desire to purchase Shares ~~set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein~~for which Participation Rights Holders did not subscribe. (c) The ~~RFO Offeree(s) collectively shall have~~ Company may, during the ~~right to purchase~~ forty five (45)-day period following the ~~“Right of First Offer”), any or all~~ expiration of the ~~RFO Ordinary Shares by delivering a written notice (~~period provided in subsection 2.3(b) hereof, offer the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such remaining unsubscribed portion of the ~~RFO Ordinary~~ Shares as to any person or persons at a price not less than, and upon terms no more favorable to the offeree than those specified in the Notice. If the Company does not enter into an agreement for the sale of the Shares within such period, or if such agreement is not consummated within forty five (45) days of the execution thereof, the right provided hereunder shall be ~~purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof~~ deemed to be ~~purchased by each RFO Offeree (or~~ revived and such ~~Affiliate(s)). Each RFO Offeree shall have the right, but~~ Shares shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered ~~by the RFO Offeror~~ unless first reoffered to the ~~other RFO Offeree(s) (or if there is more than one other RFO Offeree,~~ Participation Rights Holders in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declinedaccordance herewith. (d) If The right of first offer in this Section 2.3 shall not be applicable to (i) the ~~RFO Offeree(s~~issuance of securities excluded from the definition of “Additional Stock” under Article IV, Section (B)(4)(d)(i)(B)(1)-(8) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the ~~RFO Ordinary Shares within thirty~~ Company’s Amended and Restated Certificate of Incorporation or (30ii) ~~days thereafter upon~~ the ~~terms set forth~~ issuance of securities that Participation Rights Holders holding a majority of the Registrable Securities held by Participation Rights Holders agree in writing to exclude from the ~~RFO Notice~~provisions of this Section 2.3; provided, however, notwithstanding any such waiver (or waiver of such provisions pursuant to Section 3.4), in the event that ~~such period~~ a Participation Rights Holders actually purchases Shares in any transaction contemplated by this Section 2.3, then each other Participation Rights Holders shall be ~~extended following such date as necessary~~ permitted to ~~permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made,~~ participate on a pro rata basis relative to the ~~extent prior~~ Participation Rights Holders purchasing the largest proportion of such Participation Rights Holder’s pro rata share. In addition to the ~~expiration~~ foregoing, the right of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days. (e) If the RFO Offeree(s) first offer in this Section 2.3 shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject be applicable with respect to any ~~of the restrictions set forth in this Article III; provided~~Participation Rights Holder and any particular subsequent securities issuance, ~~however, that~~ if (i) at the time of such ~~Transfer of~~ subsequent securities issuance, the ~~RFO Ordinary Shares~~ Participation Rights Holder is ~~consummated on terms~~ not ~~more favorable to~~ an “accredited investor,” as that term is then defined in Rule 501(a) under the ~~purchasers thereof than the terms specified in the RFO Notice~~ Securities Act, and (ii) such subsequent securities issuance is otherwise being offered only to accredited investors; provided, that notwithstanding the ~~RFO Offeror provides written confirmation to~~ foregoing the ~~RFO Offeree(s) that such terms comply with clause (i) hereof prior to~~ exclusion of any Participation Rights Investor from any particular securities issuance shall not affect the ~~consummation~~ right of such ~~sale; and provided further, that the Transfer Period shall be extended following such date as necessary~~ Participation Rights Investor to ~~permit all required approvals, consents or authorizations from, or filings or registrations with,~~ participate in any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3other securities issuance. (f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.

Appears in 2 contracts

Samples: Investors’ Rights Agreement (Apptio Inc), Investors’ Rights Agreement (Apptio Inc)

Right of First Offer. (ai) ~~Other than Prohibited Transfers~~If, ~~if at~~ any ~~time after~~ Ordinary Shareholder, or any Preferred Shareholder proposes to sell any Equity Securities of the ~~Lock Up Period~~ Company (such holder, a ~~Shareholder desires to Transfer other than pursuant to any Permitted Transfer~~“Transferor”), ~~such Transfer~~ then the Transferor shall ~~be permitted only if such Shareholder~~ give Yang Lei (the “~~RFO Offeror~~ROFO Right Holder”) ~~fully complies with~~ a written notice of the Transferor’s intention to make the Transfer (the “Transfer Notice”), which shall include a description of the Equity Securities of the Company proposed to be transferred including specifying the number of Equity Securities and the material terms ~~of this Section 3.3; provided that~~ and conditions, including the ~~provisions of this Section 3.3 shall not apply~~ price, pursuant to ~~Permitted Transfers~~which the Transferor proposes to Transfer the Equity Securities (the “Offered Shares”). (bii) The ~~RFO Offeror shall, prior~~ Transfer Notice shall constitute the Transferor’s offer to Transfer the Equity Securities to the ~~Transfer~~ ROFO Right Holder, which offer shall be irrevocable for a period of ~~any Ordinary Shares to which this Section 3.3 applies, give written notice~~ fifteen (~~“RFO Notice”~~15) ~~to each other Shareholder (each, an “RFO Offeree”), setting forth (i) the number of Ordinary Shares proposed to be disposed of~~ days (the “~~RFO Ordinary~~ ROFO Notice Period”). (iii) Upon receipt of the Transfer Notice, the ROFO Right Holder shall have the right until the end of the ROFO Notice Period, through Gold Guard Investments Limited or any other offshore entity wholly owned by him, to offer to purchase the following amount of Offered Shares (whichever is less, the “ROFO Shares”)): (x) 85,772,389 Shares which represents 5% of all issued and outstanding Ordinary Shares (on a fully diluted and as-converted basis) of the Company upon the closing of the transaction under the ESOP Subscription SPA, or (iiy) all of the ~~proposed purchase~~ Offered Shares, at the same price ~~per RFO Ordinary Share,~~ and ~~payment and other~~ subject to the same material terms and conditions ~~and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth~~ as described in the ~~RFO~~ Transfer Notice at by notifying the ~~same price per Ordinary Share~~ Transferor and on the ~~same terms~~ Company in writing (a “ROFO Offer Notice”) before expiration of the ROFO Notice Period. Any ROFO Offer Notice so delivered shall be binding upon delivery and ~~conditions as set forth therein~~irrevocable by the ROFO Right Holder. (civ) ~~The RFO Offeree(s) collectively shall have~~ If the ~~right to purchase (the “~~ROFO Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree Holder does not ~~wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares~~deliver a ROFO Offer Notice during the ROFO Notice Period, ~~all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”)~~ he shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined. (d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days. (e) If the RFO Offeree(s) shall not have completed the purchase of waived all of his rights to purchase the ~~RFO Ordinary~~ ROFO Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of under this Section 3.3. (f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.7.2A.

Appears in 2 contracts

Samples: Shareholder Agreement (Hello Inc. /Cayman Islands/), Shareholder Agreement (Hello Inc. /Cayman Islands/)

Right of First Offer. 6.1 Until the earlier of the seventh (7th) anniversary of the Closing Date or the date on which BP Pipelines or one of its Affiliates ceases to control the General Partner, BP Pipelines hereby agrees, and will cause its direct and indirect Subsidiaries (other than the Partnership Group) (each a “Potential BP Seller”) to agree, that if any Potential BP Seller decides to attempt to Transfer (other than to another Affiliate of BP Pipelines) any of the Subject Assets (in whole or in part) (each a “ROFO Asset”), such Potential BP Seller will: (a) ~~Other than Prohibited Transfers~~notify the Partnership of its desire to sell such ROFO Asset in writing, ~~if at any time after~~ including a customary description of the ~~Lock Up Period a Shareholder desires to Transfer other than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder~~ ROFO Asset (the “~~RFO Offeror~~ROFO Notice”~~) fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers.~~); (b) ~~The RFO Offeror shall~~allow the Partnership up to forty five (45) days from its receipt of the ROFO Notice to make a binding written offer regarding the ROFO Asset, prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth (i) the number of Ordinary Shares containing all material commercial and legal terms regarding such proposed ~~to be disposed of~~ sale and purchase transaction (the “~~RFO Ordinary Shares~~ROFO Offer”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein.; (c) ~~The RFO Offeree(s~~following receipt of the ROFO Offer, negotiate with the Partnership exclusively and in good faith for a period of sixty (60) ~~collectively~~ days from the date on which BP Pipelines receives a ROFO Offer complying with Section 6.1(b) (if any) (the “Negotiation Period”) in order to give the Partnership an opportunity to enter into definitive documentation for the purchase and sale of the ROFO Asset on terms that are mutually acceptable to such Potential BP Seller and the Partnership; provided that, if such Potential BP Seller has not received a ROFO Offer in accordance with Section 6.1(b) or if the Partnership and such Potential BP Seller have not entered into a letter of intent or a definitive agreement with respect to the ROFO Asset within the Negotiation Period (as the same may be extended by a mutual written agreement of the Partnership and such Potential BP Seller), such Potential BP Seller shall have the right to ~~purchase (~~Transfer such ROFO Asset to a third party following the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, failure by the ~~RFO Offeree(s~~Partnership to deliver a ROFO Offer in compliance with Section 6.1(b) ~~and/or one~~ or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined. (d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the ~~RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s)~~ Negotiation Period, respectively, on any terms that are acceptable to ~~obtain~~ such ~~approvals, consents or authorizations, or make~~ Potential BP Seller and such ~~filings or registrations; and provided further that no such extension shall exceed 60 days~~third party. ~~(e) If~~ 6.2 The Parties acknowledge that any Transfer of any Subject Asset pursuant to the ~~RFO Offeree(s) shall not have completed~~ Partnership’s right of first offer under Section 6.1 is subject to the ~~purchase~~ terms of all of existing agreements with respect to such Subject Assets, including any terms in such existing agreements that would preempt, supersede or impair the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable rights granted to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3. (f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required Partnership pursuant to Section ~~2.2 hereof~~6.1 with respect to any Subject Asset, and ~~such director~~ shall ~~execute a letter~~ be subject to and conditioned on the obtaining of ~~resignation~~any and all necessary consents of security holders, governmental authorities, lenders or other third parties.

Appears in 2 contracts

Samples: Omnibus Agreement (BP Midstream Partners LP), Omnibus Agreement (BP Midstream Partners LP)

Right of First Offer. ~~(a) Other than Prohibited Transfers, if at any time after~~ For the ~~Lock Up Period a Shareholder desires to Transfer other than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder (~~period beginning on the ~~“RFO Offeror”) fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers. (b) The RFO Offeror shall~~Closing Date and for six months thereafter, prior to any non-public equity offering of the ~~Transfer~~ Company (such non-public equity offering other than an issuance of ~~any Ordinary Shares~~ stock pursuant to ~~which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth~~ (i~~) the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”~~), (ii), (iii) or (iv) below, a "PIPE") other than an issuance of stock (i) pursuant to the Company's stock option plans and employee stock purchase plans, (ii) in connection with (a) the exercise of warrants or (b) pursuant to the terms of any class or series of debentures, stock or any other options, warrants or other convertible securities, outstanding on the date hereof, (iii) in connection with bank credit agreements and equipment and/or land lease lines with a non-equity financing purpose or (iv) in connection with an acquisition, merger, partnering, licensing or strategic transactions, the Company shall first offer to the Subscriber and all other Preferred Stock holders the opportunity to purchase the shares proposed to be offered in the PIPE pro rata based upon the number of shares of Preferred Stock held. Subscriber's pro-rata share shall be calculated by dividing the number of shares of Preferred Stock held by the Subscriber by the number of shares of Preferred Stock then outstanding. The Company must offer the Subscriber twenty days in advance of an offering of a PIPE generally ("Offer Period") the opportunity to purchase ~~price per RFO Ordinary Share, and payment and other material~~ shares on the terms and conditions to be offered generally ("PIPE Notice"). The PIPE Notice must state the type and ~~(iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same~~ price ~~per Ordinary Share and on the same terms and conditions as set forth therein. (c) The RFO Offeree(s) collectively shall have the right to purchase (the “Right of First Offer”), any or all~~ of the ~~RFO Ordinary Shares by delivering a written notice (~~shares offered, the ~~“RFO Exercise”) of exercise~~ name and address of the ~~Right of First Offer to~~ escrow agent for the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof transaction and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of ~~Ordinary Shares held by such RFO Offeree as a proportion~~ shares the Subscriber is eligible to purchase. To participate the Subscriber must during the Offer Period notify the Company of the number of ~~Ordinary Shares held by all RFO Offerees)~~shares to be purchased (pursuant to the PIPE Notice) and deliver a certified check addressed to the escrow agent for the aggregate purchase price of the shares. To the extent ~~any RFO Offeree~~ the Subscriber does not ~~wish~~ purchase the offered shares, the Company may sell such shares to ~~purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (~~third parties on the ~~“Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree,~~ terms and conditions contained in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer PIPE Notice for such Remaining RFO Ordinary Shares will be deemed to have been declined. (d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) 30 business days ~~thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended~~ following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the ~~RFO Purchase Period reasonably appropriate actions have been taken by~~ Offer Period. Failure to sell all the ~~RFO Offeree(s)~~ shares to ~~obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days. (e) If the RFO Offeree(s)~~ third parties shall not ~~have completed~~ enable the ~~purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed~~ Subscriber to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3rescind its purchase. (f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.

Appears in 2 contracts

Samples: Subscription Agreement (Immtech International Inc), Subscription Agreement (Immtech International Inc)

Right of First Offer. (a) ~~Other than Prohibited Transfers~~Subject to Section 4.01, if at any ~~time~~ Shareholder proposes to Transfer all or any portion of its Shares (such Shareholder, the “Transferring Shareholder”), each other Shareholder (collectively, the “ROFO Shareholders”) shall have a right of first offer over such Shares, in accordance with the following provisions: (i) The Transferring Shareholder shall provide each ROFO Shareholder with a written notice (an “Offer Notice”) of its desire to Transfer such Shares as soon as reasonably practicable prior to the anticipated Transfer date. The Offer Notice shall specify the number of Shares the Transferring Shareholder wishes to Transfer, the proposed purchase price and any other terms and conditions material to the sale proposed by the Transferring Shareholder. The offer set forth in the Offer Notice shall remain open and irrevocable during the Offer Acceptance Period (as defined below) and, to the extent such offer is accepted during such period, until the consummation of the Transfer contemplated by such offer). (ii) Each ROFO Shareholder shall have a period of up to twenty (20) Business Days following delivery of the Offer Notice (the “Offer Acceptance Period”) to elect to purchase (or to cause one or more of its Affiliates to purchase) up to its Pro Rata Portion of such Shares on the terms and conditions set forth in the Offer Notice by delivering to the Transferring Shareholder a written notice indicating the amount of Shares over which such right is exercised. (iii) If any ROFO Shareholder elects to purchase (or to cause one or more of its Affiliates to purchase) any of the Shares which are the subject of the proposed Transfer within the Offer Acceptance Period, such purchase shall be consummated within twenty (20) Business Days after the ~~Lock Up~~ expiration of the Offer Acceptance Period, or if applicable, the Re-Allotment Period a (as defined below), whichever is later; provided, that such twenty (20) Business Day period may be extended at the written request of any ROFO Shareholder ~~desires~~ for up to ~~Transfer other than~~ ninety (90) calendar days in order for such ROFO Shareholder to obtain any governmental approvals required for such purchase. (iv) If any ROFO Shareholder fails to exercise its right of first offer pursuant to this Section 4.02 or exercises such right with respect to less than its Pro Rata Portion, the Transferring Shareholder shall deliver a written notice (the “Second Notice”) thereof within five (5) days after the expiration of the Offer Acceptance Period to each ROFO Shareholder that elected to purchase its entire Pro Rata Portion (the “Exercising Shareholder”). Each Exercising Shareholder shall have a right of re-allotment and may, by delivery of a written notice to the Transferring Shareholder within ten (10) days following delivery of the Second Notice (the “Re-Allotment Period”), elect to purchase up to an additional number of offered Shares equal to the product of (A) the number of unpurchased offered Shares multiplied by (B) a fraction, the numerator of which is the number of unpurchased offered Shares that the Exercising Shareholder elects to purchase (or cause one or more of its Affiliates to purchase) and the denominator of which is the aggregate number of unpurchased offered Shares that all of the Exercising Shareholders elect to purchase (or cause one or more of their respective Affiliates to purchase), and each Exercising Shareholder may specify in such written notice the maximum number of Shares that it elects to purchase. (v) If none of the ROFO Shareholders elects to purchase any ~~Permitted Transfer~~Shares offered pursuant to the Offer Notice within the Offer Acceptance Period, or the ROFO Shareholders (including for the avoidance of doubt the Exercising Shareholders) elect to purchase less than all of such Shares, then the Transferring Shareholder shall have a period of ninety (90) days thereafter to identify and negotiate with a third party regarding the Transfer of the remaining Shares, which Transfer shall be ~~permitted only if such~~ in accordance with Section 4.03; provided, that in no event shall the Transferring Shareholder (initiate discussions or negotiations with a third party regarding the ~~“RFO Offeror”) fully complies with~~ Transfer of the ~~terms~~ offered Shares prior to the expiration of ~~this Section 3.3; provided that~~ the ~~provisions of this Section 3.3 shall not apply to Permitted Transfers~~Re-Allotment Period. (b) ~~The RFO Offeror shall, prior to~~ In connection with the Transfer of all or any ~~Ordinary~~ portion of a Shareholder’s Shares pursuant to this Section 4.02, the Transferring Shareholder shall only be required to represent and warrant as to its authority to sell, the enforceability of agreements against such Shareholder, that the Shares to ~~which~~ be Transferred are free and clear of any Liens (other than restrictions imposed by this Agreement and pursuant to applicable laws), that it is the record owner of such Shares and that it has obtained or made all necessary consents, approvals, filings and notices from or with governmental authorities or third parties to consummate the Transfer. The Transferring Shareholder and the ROFO Shareholders shall each be responsible for the fees and expenses incurred by it in connection with any Transfer pursuant to this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth (i) the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein4.02. (c) The RFO Offeree(s) collectively shall have the right to purchase (the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined. (d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days. (e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section ~~3.3. (f) The RFO Offeror shall, upon the Transfer~~ 4.02 shall not apply to any proposed Transfers of ~~the RFO Ordinary Shares, procure the resignation of such number of directors nominated~~ Shares by ~~it, if any, as would be required~~ a Tagging Shareholder pursuant to Section ~~2.2 hereof, and such director shall execute a letter of resignation~~4.03.

Appears in 2 contracts

Samples: Shareholders Agreement (Zhou Xin), Shareholders Agreement (Sina Corp)

Right of First Offer. (a) ~~Other than Prohibited Transfers~~Except for a Permissible Transfer, if if, at any time after the ~~Lock Up Period~~ date hereof, a Shareholder (the “ROFO Seller”) desires to Transfer any or all of its shares of Capital Stock of the Company (the “Offered Securities”) other than pursuant to ~~any Permitted Transfer~~Section 4 or a Sale of the Company approved by the requisite vote of the members on the Company’s Board of Directors and the Shareholders, then such ~~Transfer~~ ROFO Seller shall ~~be permitted only if such Shareholder~~ deliver a written notice to the other Preferred Shareholders (the “~~RFO Offeror~~Offer Notice”) ~~fully complies with~~ of the ROFO Seller’s desire to Transfer such Offered Securities. The Offer Notice shall disclose (i) the identity of the Proposed Transferee, if any, (ii) the number of Offered Securities proposed to be Transferred, (iii) the terms and conditions of ~~this Section 3.3; provided that~~ the ~~provisions~~ proposed Transfer of ~~this Section 3.3 shall not apply~~ the Offered Securities, including the price per share to ~~Permitted Transfers~~be paid, and (iv) any other material facts relating to the proposed Transfer. (b) ~~The RFO Offeror shall~~Upon receipt of the Offer Notice, ~~prior~~ each Preferred Shareholder shall have the right and option to elect to purchase, at the price and on the terms stated in the Offer Notice, such Preferred Shareholders’ pro rata portion of the total number of Offered Securities equal to the ~~Transfer~~ product obtained by multiplying (i) the Offered Securities, by (ii) a fraction, the numerator of which is the number of shares held by such Preferred Shareholder (calculated on an as converted basis) and the denominator of which is the sum of the total number of shares of Capital Stock of the Company at that time owned by such Preferred Shareholder and all other Preferred Shareholders electing to purchase Offered Securities (calculated on an as converted basis) in accordance with Section 6(c). If (x) any ~~Ordinary Shares~~ Preferred Shareholder has delivered an Offer Acceptance (as defined below) providing for such Preferred Shareholder to ~~which this Section 3.3 applies~~purchase its full pro rata portion of the Offered Securities (each such Preferred Shareholder, ~~give~~ a “Pro Rata Purchaser”) and (y) not all of the Offered Securities have been proposed to be purchased pursuant to all Offer Acceptances, then the Company shall deliver a written notice (the “~~RFO~~ Supplemental Offer Notice”) to ~~each other Shareholder~~ the Pro Rata Purchasers within five (~~each, an “RFO Offeree”), setting forth~~ 5) days after the expiration of the ten (i10) the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth Business Day period described in ~~the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein.~~ clause (c) ~~The RFO Offeree(s) collectively~~ below, and all Pro Rata Purchasers shall have the right to purchase any remaining Offered Securities, which shall, if necessary, be allocated pro rata among the Pro Rata Purchasers according to their holdings of the Company’s shares of Capital Stock (~~the “Right of First Offer”~~determined on an as converted basis), which right to purchase shall be exercised by a Pro Rata Purchaser delivering a supplemental written notice (a “Supplemental Offer Acceptance”) to the Company within five (5) days after delivery of the Supplemental Offer Notice setting forth the greatest number of remaining Offered Securities such Pro Rata Purchaser desires to purchase. Notwithstanding any or provision of this Section 6 to the contrary, if the Preferred Shareholders collectively fail to elect to purchase all of the ~~RFO Ordinary Shares~~ Offered Securities, then no Preferred Shareholder shall have the right to purchase any Offered Securities. (c) Any election to purchase Offered Securities shall be made by ~~delivering a~~ written notice (~~the~~ an “~~RFO Exercise~~Offer Acceptance”) ~~of exercise of the Right of First Offer~~ to the ~~RFO Offeror~~ ROFO Seller and the Company within 20 ten (~~twenty~~10) Business Days ~~from the date of~~ following delivery of the ~~RFO~~ Offer Notice (stating the ~~“RFO Response Period”)~~greatest number of Offered Securities such Preferred Shareholder is willing to purchase. Thereupon, ~~irrevocably stating therein such portion~~ or, if applicable, the day after the expiration of the ~~RFO Ordinary Shares as~~ five (5) day period for delivery of the Supplemental Offer Acceptance, the ROFO Seller shall ~~be purchased~~sell the Offered Securities to any Preferred Shareholder which has timely delivered an Offer Acceptance, ~~collectively, by~~ at the ~~RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof~~ price and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, terms stated in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declinedOffer Notice. (d) If the ~~RFO Offeree(s) shall have delivered an RFO Exercise~~ Preferred Shareholders fail to ~~the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and~~ purchase ~~of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth~~ in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days. (e) If the RFO Offeree(s) shall not have completed the purchase of aggregate all of the ~~RFO Ordinary Shares within~~ Offered Securities, the ~~RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all~~ ROFO Seller may proceed with a sale of the ~~RFO Ordinary Shares as contemplated in~~ Offered Securities within ninety (90) Business Days after the Offer Notice, subject to full compliance with Section ~~3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”)~~7 hereof, to ~~dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to~~ any ~~of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable~~ Person reasonably acceptable to the ~~purchasers thereof than~~ Company for the price and on the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) daysOffer Notice. If at the ~~end of the Transfer Period, as extended as provided herein, the RFO Offeror has~~ Offered Securities are not ~~completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted~~ sold pursuant to ~~dispose of such RFO Ordinary Shares without again fully complying with~~ the provisions of this Section ~~3.3~~6 such Capital Stock shall again be subject to the restrictions contained in this Agreement and shall not be Transferred, except in compliance with the applicable provisions of this Agreement. (f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.

Appears in 2 contracts

Samples: Shareholder Agreements (Realpage Inc), Shareholder Agreements (Realpage Inc)

Right of First Offer. Subject to the terms and conditions of this Section 2.5 and applicable securities laws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to (i) each Pharma Holder holding at least 10% of the outstanding Class A Common Stock, and (ii) Xxxxxx, for so long as Xxxxxx holds at least 10% of the outstanding Class A Common Stock (collectively, the “ROFO Holders”). (a) ~~Other than Prohibited Transfers, if at any time after the Lock Up Period a Shareholder desires to Transfer other than pursuant to any Permitted Transfer, such Transfer~~ The Company shall ~~be permitted only if such Shareholder~~ give notice (the “~~RFO Offeror~~Offer Notice”) ~~fully complies with~~ to each ROFO Holder, stating (i) its bona fide intention to offer such New Securities, (ii) the ~~terms~~ number of ~~this Section 3.3; provided that~~ such New Securities to be offered, and (iii) the ~~provisions of this Section 3.3 shall not apply~~ price and terms, if any, upon which it proposes to ~~Permitted Transfers~~offer such New Securities. (b) ~~The RFO Offeror shall, prior~~ By notification to the ~~Transfer~~ Company within twenty (20) days after the Offer Notice is given, each ROFO Holder may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of ~~any Ordinary Shares~~ such New Securities which equals the proportion that the Capital Stock then held by such ROFO Holder bears to ~~which this Section 3.3 applies~~the total Capital Stock. At the expiration of such twenty (20) day period, ~~give written notice (“RFO Notice”)~~ the Company shall promptly notify each ROFO Holder that elects to ~~each other Shareholder~~ purchase or acquire all the shares available to it (each, an a “~~RFO Offeree~~Fully Exercising ROFO Holder”)) of any other ROFO Holder’s failure to do likewise. During the ten (10) day period commencing after the Company has given such notice, ~~setting forth (i)~~ each Fully Exercising ROFO Holder may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of ~~Ordinary Shares proposed~~ shares specified above, up to ~~be disposed~~ that portion of (the ~~“RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer~~ New Securities for which ROFO Holders were entitled to ~~sell~~ subscribe but that were not subscribed for by ROFO Holders which is equal to the ~~RFO Offeree(s~~proportion that the Capital Stock then held by such Fully Exercising ROFO Holder bears to the Capital Stock then held by all Fully Exercising ROFO Holders who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Section 2.5(b) shall occur within the ~~RFO Ordinary Shares set forth in~~ later of ninety (90) days of the ~~RFO~~ date that the Offer Notice at is given and the ~~same price per Ordinary Share and on the same terms and conditions as set forth therein~~date of initial sale of New Securities pursuant to Section 2.5(c). (c) ~~The RFO Offeree(s) collectively shall have~~ If all New Securities referred to in the ~~right to purchase (the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First~~ Offer ~~to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO~~ Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof are not elected to be purchased ~~by each RFO Offeree~~ or acquired as provided in Section 2.5(b), the Company may, during the ninety (~~or such Affiliate(s)). Each RFO Offeree shall have~~ 90) day period following the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion expiration of the ~~number~~ periods provided in Section 2.5(b), offer and sell the remaining unsubscribed portion of ~~Ordinary Shares held by all RFO Offerees)~~such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. To If the ~~extent any RFO Offeree~~ Company does not ~~wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all~~ enter into an agreement for the sale of ~~its pro rata portion of RFO Ordinary Shares~~the New Securities within such period, ~~all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (~~or if ~~there~~ such agreement is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined. (d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares not consummated within thirty (30) days ~~thereafter upon~~ of the ~~terms set forth in~~ execution thereof, the ~~RFO Notice; provided, however, that such period~~ right provided hereunder shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase deemed to be ~~obtained or made,~~ revived and such New Securities shall not be offered unless first reoffered to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days. (e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided ROFO Holders in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply accordance with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section ~~3.3~~2.5. (f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.

Appears in 1 contract

Samples: Stockholders' Agreement (Acasti Pharma Inc.)

Right of First Offer. ~~(a) Other than Prohibited Transfers~~Low-End Fractional Interests. Majority -------------------------------------------------- Shareholder agrees that the Company shall have a right of first offer with respect to becoming the exclusive developer, if marketer and seller of Low-End Fractional Interests at MountainStar during the term of the Non-competition Agreement. Prior to commencing development of any ~~time after~~ plat at MountainStar that will include Low-End Fractional Interests, Majority Shareholder shall cause TII to first offer to Company the ~~Lock Up Period a Shareholder desires~~ right to ~~Transfer other than~~ purchase and develop the pads slated for Low-End Fractional Interests pursuant to ~~any Permitted Transfer, such Transfer shall be permitted only if such Shareholder (~~the ~~“RFO Offeror”) fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply~~ then existing development plan by delivering to ~~Permitted Transfers. (b) The RFO Offeror shall, prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written~~ Company a notice (~~“RFO~~ a "Low-End Fractional Notice”") ~~to each other Shareholder (each, an “RFO Offeree”), setting forth~~ specifying: (i) ------------------------- the number and location of ~~Ordinary Shares proposed~~ pads subject to ~~be disposed of (~~the ~~“RFO Ordinary Shares”)~~Low-End Fractional Notice, (ii) the ~~proposed purchase~~ price per ~~RFO Ordinary Share~~pad (including without limitation, ~~and payment and other material terms and conditions and~~ the utility hook-up fees, an estimated range for improvement fees, if any, payable in respect of such pads), (iii) ~~an irrevocable offer to sell to~~ the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein. (c) The RFO Offeree(s) collectively shall have the right to purchase (the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion TII Pad Cost (as ~~nearly as may be) to the number of Ordinary Shares held by them inter se~~defined below), and ~~such other RFO Offeree(s~~(iv) ~~may accept by delivery to~~ and latest date on which the ~~RFO Offeror of an RFO Exercise in respect~~ closing of the ~~relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days~~ sale of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined. (d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within pads must occur. Within thirty (30) days ~~thereafter upon~~ after it receives the Low-End Fractional Notice, Company must either (x) accept the offer reflected by the Low-End Fractional Notice by delivering to TII an acceptance notice, (y) deliver a notice to TII invoking the Low-End Fractional Valuation Procedure (as described below), or (z) do nothing. If Company does nothing, the right of first offer set evidenced by this subsection (b) shall terminate with respect to the pads covered by such Low-End Fractional Notice and any subsequent Low-End Fractional pads to be developed at MountainStar, and TII shall be permitted to develop, construct, market and sell Low-End Fractional Interests with respect to all such pads. If Company delivers an acceptance notice or invokes the Low-End Fractional Valuation Procedure, such action shall constitute an irrevocable obligation to purchase all the pads subject to such Low-End Fractional Notice on the terms in such notice, except as the price may be modified by the Low-End Fractional Valuation Procedure, and further represents an irrevocable commitment to develop, construct, market and sell such pads as Low-End Fractional Interests consistent with the schedule and requirements set forth in the ~~RFO Notice; provided, however, that such period shall be extended following such date as necessary~~ then existing development plan for MountainStar. If Company fails to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration complete development and construction of the ~~RFO Purchase Period reasonably appropriate actions have been taken by~~ Low End Fractional pads within the ~~RFO Offeree(s)~~ schedule and requirements of the development plan, then in addition to ~~obtain such approvals~~any other rights available to TII, ~~consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days.~~ Company's right of first offer in this subsection (~~e) If the RFO Offeree(s~~b) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3terminate. (f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.

Appears in 1 contract

Samples: Agreement and Plan of Merger and Reorganization (Cendant Corp)

Right of First Offer. (ai) ~~Other than Prohibited Transfers~~Subject to subsection (vii) below, ~~if at~~ any ~~time after the Lock Up Period a Shareholder desires~~ Common Holder desiring to ~~Transfer other than pursuant~~ transfer, prior to any ~~Permitted Transfer~~Separation Event, ~~such Transfer shall be permitted only if such Shareholder~~ Investment Units or Common Stock, whether held separately or as part of one or more Investment Units and after a Separation Event any Common Stock (~~the “RFO Offeror”) fully complies with the terms~~ hereinafter for purposes of this Section ~~3.3~~1(b) only, the "Securities"), held by such Common Holder (the "Seller") shall give written notice (the "Sales Notice") to the other Common Holders that the Seller desires to effect such a transfer (a "Sale") and setting forth the number of Investment Units or shares of Common Stock proposed to be transferred by the Seller. (ii) The receipt of the Sales Notice by each other Common Holder party to this Shareholders Agreement shall constitute an offer (the "Offer") by the Seller to sell to such Common Holder or group of Common Holders for cash the Securities subject to the Sale, subject to the Seller's approval of the terms and conditions of the Bid (as defined below). Each Common Holder, or any group of one or more Common Holders, receiving an Offer shall have a 15-day period (the "Order Period") in which to give a written notice (a "Bid") to the Seller prior to the expiration of such 15-day period, which written notice shall set the price per Security that such Common Holder or group of Common Holders proposes to pay (the "Proposed Sales Price") and such other terms and conditions it or they propose with respect to the Sale; ~~provided that~~ provided, however, a Bid must be for all of the Securities the Seller proposes to transfer as stated in the Sales Notice. (iii) Upon the receipt of all Bids, if any, the Seller shall have the right to solicit offers for the Securities subject to the Sale from any non-affiliated third-party (a "Third-Party Offer") for a period of 90 days from the date the Order Period expires. To the extent the Seller receives a Third-Party Offer and such Third-Party Offer contains a Proposed Sales Price in excess of the highest Sales Price received by Seller pursuant to the Bids made by the Common Holders or group of Common Holders, then Seller shall have the right to sell the Securities to the Third-Party pursuant to its Offer. If no Bids are delivered during the Order Period then the Seller shall be entitled to accept, in its sole discretion, any Third-Party Offer it so chooses. If such sale pursuant to a Third-Party Offer is not consummated within 120-days from receipt of the Third-Party Offer, and no Bids of Common Holders are accepted by the Seller within 10 days following the expiration of the 90-day period described in the first sentence of this subparagraph (iii), then the provisions of this Section ~~3.3~~ 1(b) shall ~~not apply~~ be reinstated as to ~~Permitted Transfers~~any other transfers proposed to be made by the Seller. (biv) The ~~RFO Offeror shall, prior~~ Common Holders or group of Common Holders providing a Bid to the ~~Transfer~~ Seller during the Order Period as to all of ~~any Ordinary Shares~~ the Securities subject to the Sale, and which ~~this Section 3.3 applies~~Bid is accepted by the Seller, ~~give~~ shall be required to purchase and pay for all the Securities accepted pursuant to their Bid within a 30-day period from the date on which the buying Common Holder (or group of Common Holders) receives written notice ~~(“RFO Notice”)~~ of the Seller's acceptance of the Bid; provided that if the purchase and sale of such Securities is subject to ~~each other Shareholder (each~~any prior regulatory approval, ~~an “RFO Offeree”), setting forth (i)~~ the ~~number~~ time period during which such purchase and sale may be consummated shall be extended until the expiration of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth thereinfive Business Days after all such approvals shall have been received. (cv) ~~The RFO Offeree(s) collectively shall have~~ Subject to the ~~right to purchase (the “Right~~ transfer restrictions of ~~First Offer”~~Section 1(a)(ii), ~~any~~ the Seller may transfer Investment Units or ~~all~~ shares in accordance with subsection (b)(iii) for consideration other than cash to an unaffiliated third-party only if the Seller has first obtained and delivered to each of the ~~RFO Ordinary Shares by delivering a written notice (~~Common Holders an opinion of an independent investment banking firm of national standing indicating that the ~~“RFO Exercise”) of exercise~~ fair market value of the ~~Right of First Offer~~ per share non-cash consideration that the Seller proposes to accept as consideration for such Investment Units or shares, together with any per share cash consideration, is at least equal to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, highest proposed Sale Price received by the ~~RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof~~ Seller pursuant to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered Bids made by the ~~RFO Offeror to the other RFO Offeree(s) (~~Common Holders or ~~if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number~~ group of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declinedCommon Holders. (dvi) If Notwithstanding any provision of this Section 1(b), no action may be taken by the ~~RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares~~Seller, the ~~RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete~~ other Common Holders or the ~~sale and purchase~~ Company that would cause a violation of the ~~RFO Ordinary Shares within thirty~~ provisions of Section 2. (30vii) ~~days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period~~ The Company shall ~~be extended following such date as~~ take all reasonable steps necessary to ~~permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority~~ ensure application is made for the appropriate permissions from the Bermuda authorities in connection with ~~such purchase to be obtained or made, to the extent~~ any Transfer complying with this Agreement. The Company hereby acknowledges that no prior ~~to the expiration~~ approval of the ~~RFO Purchase Period reasonably appropriate actions have been taken by~~ Bermuda Monetary Authority is necessary for any Transfer between Persons who are designated as non-residents of Bermuda for the ~~RFO Offeree(s) to obtain such approvals~~purposes of the Exchange Control Act, ~~consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days~~1972. (eviii) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the The provisions of this Section ~~3.3.~~1(b) shall not apply to: (fA) ~~The RFO Offeror shall, upon the~~ a Transfer of shares of Common Stock to an Affiliate of the ~~RFO Ordinary Shares, procure the resignation~~ Seller; (B) a Transfer of ~~such number~~ shares of ~~directors nominated~~ Common Stock to another Common Holder; (C) a Transfer of Investment Units to a Common Holder holding Investment Units; (D) a Transfer by itone or more Common Holders of a majority of all shares of Common Stock (and, if ~~any~~prior to a Separation Event, ~~as would be~~ Investment Units) then outstanding to any Person or Persons; (E) a Transfer required by the provisions of Section 1(c) or Section 2; (F) a Transfer permitted by the provisions of Section 1(d); (G) a Transfer pursuant to ~~Section 2.2 hereof~~an effective registration statement with respect to the Common Stock to be transferred; or (H) a Transfer on or after June 12, ~~and such director shall execute a letter of resignation.~~2002; or

Appears in 1 contract

Samples: Shareholders Agreement (Cga Group LTD)

Right of First Offer. (a) ~~Other than Prohibited Transfers~~Promptly after determining that Shipper or any of its Affiliates expects to undertake or participate in any development, ~~if at any time after~~ drilling and production activities on the ~~Lock Up Period~~ ROFO Properties (unless such ROFO Properties are covered by a ~~Shareholder desires~~ Conflicting Dedication), Shipper must deliver a notice of such planned development, drilling and production activities, including the information required to ~~Transfer other than pursuant to any Permitted Transfer~~be provided in a Development Report set forth in Section 3.1(b)(i) through Section 3.1(b)(v) (each, ~~such Transfer shall be permitted only if such Shareholder (the~~ a “~~RFO Offeror~~ROFO Notice”~~) fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers~~). (b) ~~The RFO Offeror~~ Gatherer shall have 45 Days following receipt of a ROFO Notice to make an offer to Shipper to provide Gathering Services with respect to some or all of the ROFO Properties covered in such ROFO Notice (the “Subject ROFO Properties”). If Gatherer elects to make an offer, Gatherer shall, ~~prior~~ on or before 45 Days following Gatherer’s receipt of a ROFO Notice, deliver to ~~the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written~~ Shipper a notice (the “~~RFO Notice~~ROFO Offer”) ~~to each other Shareholder (each, an “RFO Offeree”),~~ setting ~~forth~~ forth: (i) the ~~number of Ordinary Shares~~ proposed Fees for the Gathering Services to be ~~disposed of (the “RFO Ordinary Shares”),~~ provided; (ii) the ~~proposed purchase price per RFO Ordinary Share~~existing operations, ~~and payment and other material terms and conditions and~~ under construction or planned facilities needed to provide Gathering Services to the Subject ROFO Properties and; (iii) ~~an irrevocable offer~~ the schedule for completing the construction and installation of such planned facilities and all planned Receipt Points and Delivery Point facilities, in each case, for the Planned Well Pads and Planned Xxxxx included in the ROFO Offer. In the event Gatherer has questions or desires additional reasonable information in connection with the preparation of such ROFO Offer, Shipper agrees to ~~sell~~ promptly provide such information to the ~~RFO Offeree(s)~~ extent it or its Affiliates has such information and, if requested by Gatherer, to promptly make representatives of Shipper and/or its Affiliates who are knowledgeable with the ~~RFO Ordinary Shares set forth~~ ROFO Notice and any underlying assumptions and information reasonably available during normal business hours to meet with Gatherer so that Gatherer is in the ~~RFO Notice at~~ position of submitting a better informed ROFO Offer within the ~~same price per Ordinary Share and on the same terms and conditions as set forth therein~~foregoing 45-Day period; provided, however, if Shipper fails to promptly provide such reasonable information and/or make such representatives reasonably available to Gatherer after Gatherer’s request, such 45-Day period will be extended by one Day for each Day of delay by Shipper in promptly providing such reasonable information and/or making such representatives reasonably available. (c) ~~The RFO Offeree(s) collectively~~ Within 30 Days following receipt of Gatherer’s ROFO Offer, Shipper shall ~~have~~ notify Gatherer whether or not it accepts Gatherer’s ROFO Offer; provided that the ~~right~~ failure of Shipper to ~~purchase (the “Right~~ timely notify Gatherer of ~~First Offer”), any or all~~ its acceptance of ~~the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First~~ Gatherer’s ROFO Offer ~~to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as~~ shall be ~~purchased, collectively,~~ deemed a rejection by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all Shipper of such ~~remaining RFO Ordinary Shares (~~ROFO Offer. For the ~~“Remaining RFO Ordinary Shares”)~~ avoidance of doubt, Shipper shall ~~immediately~~ be ~~re-offered by the RFO Offeror~~ under no obligation to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declinedany ROFO Offer from Gatherer. (d) If ~~the RFO Offeree(s) shall have delivered~~ Shipper accepts a ROFO Offer (such ROFO Properties described in an ~~RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares~~accepted ROFO Offer, the ~~RFO Offeror~~ “Dedicated ROFO Properties”), then (i) Shipper will be deemed to have (A) dedicated such Dedicated ROFO Properties under this Agreement, (B) dedicated and ~~RFO Offeree(s) shall be respectively bound~~committed to deliver to Gatherer under this Agreement, as and ~~shall complete the sale and purchase~~ when produced all of the ~~RFO Ordinary Shares within thirty~~ Gas and/or Liquid Condensate, as applicable, owned by Shipper and/or its Affiliates thereafter produced during the Term from such Dedicated ROFO Properties and (30C) ~~days~~ committed to deliver to Gatherer under this Agreement, as and when produced, all Third Party Gas and/or Liquid Condensate, as applicable, under the Control of Shipper and/or its Affiliates that is thereafter ~~upon~~ produced during the Term from the lands covered by such Dedicated ROFO Properties and (ii) the Parties will amend this Agreement to incorporate the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 daysaccepted ROFO Offer. (e) If ~~the RFO Offeree(s) shall~~ Shipper does not accept or is deemed to have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First not accepted a ROFO Offer, then ~~the RFO Offeror~~ Shipper shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable no further obligations hereunder with respect to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3Subject ROFO Properties. (f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.

Appears in 1 contract

Samples: Gathering Agreement (CNX Midstream Partners LP)

Right of First Offer. (ai) ~~Other than Prohibited Transfers~~During any period between the expiration of the Restricted Period and the consummation of a Qualified Public Offering, if ~~at any time after the Lock Up Period~~ a ~~Shareholder desires to Transfer other than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder~~ Holder (the “~~RFO Offeror~~Transferring Holder”) ~~fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply~~ wishes to ~~Permitted Transfers. (b) The RFO Offeror shall, prior to the~~ effect a Transfer of ~~any Ordinary Shares to which this Section 3.3 applies~~its Common Shares, ~~give~~ then such Transferring Holder shall first deliver a written notice (the “~~RFO~~ ROFO Notice”) to ~~each other Shareholder~~ all Holders whose Proportionate Percentage is at least 5% (~~each, an~~ the “~~RFO Offeree~~ROFO Offerees”)~~, setting forth (i)~~ . Such ROFO Notice shall disclose the number of ~~Ordinary~~ Common Shares proposed to be ~~disposed of~~ Transferred (the “~~RFO Ordinary~~ Offered Shares”)) and the material terms of any offer the Transferring Holder has received or is contemplating, if applicable. (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein. (c) The RFO Offeree(s) collectively Each ROFO Offeree shall have the right ~~to purchase~~ (the “Right of First Offer”)) to provide the Transferring Holder, ~~any or~~ within 45 days of the date of the ROFO Notice, an irrevocable written offer to acquire all of the ~~RFO Ordinary~~ Offered Shares, upon the price, terms and conditions on which such ROFO Offeree is willing to purchase the Offered Shares ~~by delivering a written notice~~ (the “~~RFO Exercise~~Proposed Offer”). (iii) The Transferring Holder, in its sole discretion, may elect to accept any Proposed Offer by delivering an irrevocable written notice of acceptance (the “ROFO Acceptance Notice”) ~~of exercise of the Right of First Offer~~ to the ~~RFO Offeror~~ ROFO Offerees and the Company within ~~20 (twenty) Business Days from~~ 60 days after the date of ~~delivery of~~ the ~~RFO~~ ROFO Notice (the “~~RFO Response~~ ROFO Acceptance Period”)~~, irrevocably stating therein~~ ; provided that (A) if such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as Transferring Holder receives a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is Proposed Offer from more than one ~~other RFO~~ ROFO Offeree, such Transferring Holder may only accept the Proposed Offer with the most favorable terms and conditions (including price) in ~~the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se)~~its reasonable discretion, and (B) if such Transferring Holder (x) receives Proposed Offers with equivalent terms (including price, conditions and other ~~RFO Offeree(s~~terms and conditions) ~~may~~ from more than one ROFO Offeree and (y) elects to accept ~~by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days~~ one of such ~~re-offer~~Proposed Offers, ~~after which time~~ such ~~re-offer~~ Transferring Holder shall ~~lapse~~ accept all such Proposed Offers with equivalent terms and the ~~re-offer for~~ Offered Shares shall be allocated pro rata among such ~~Remaining RFO Ordinary Shares will be deemed to have been declined~~ROFO Offerees based on their respective ROFO Proportionate Percentages. (div) If The ROFO Offerees purchasing the ~~RFO Offeree(s) shall have delivered an RFO Exercise~~ Common Shares pursuant to ~~the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s~~this Section 4(c) shall be ~~respectively bound~~entitled to require the Transferring Holder to provide representations and warranties regarding (A) its power, authority and ~~shall complete~~ legal capacity to enter into such Transfer of Common Shares; (B) valid right, title and interest in such Common Shares and the ~~sale~~ Transferring Holder’s ownership of such Common Shares; (C) the absence of any Encumbrances on such Common Shares; and ~~purchase~~ (D) the absence of ~~the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided~~any violation, ~~however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from~~default, or ~~filings~~ acceleration of any agreement or ~~registrations with, any Governmental Authority in connection with~~ instrument pursuant to which such ~~purchase to be obtained~~ Transferring Holder or ~~made, to~~ the ~~extent prior to~~ assets of such Transferring Holder are bound as the ~~expiration~~ result of ~~the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain~~ such ~~approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days~~sale. (ev) If Subject to any Tag-Along Rights, after the ~~RFO Offeree(s) shall not have completed the purchase of all~~ termination of the ~~RFO Ordinary Shares within the RFO Purchase~~ ROFO Acceptance Period, ~~as extended as provided~~ the Transferring Holder may, during the 120 day period following the ROFO Acceptance Period, Transfer (or enter into an agreement to Transfer and at any time Transfer in ~~Section 3.3(d), or together have failed to deliver RFO Exercises within~~ accordance with such agreement) the ~~RFO Response Period for all of~~ Offered Shares at and upon the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, price and other material terms and conditions that ~~(i) such Transfer of the RFO Ordinary Shares is consummated on terms not~~ are more favorable to the ~~purchasers thereof~~ Transferring Holder than the ~~terms specified~~ most favorable Proposed Offer that the Transferring Holder received (such Transfer, the “Permitted ROFO Transfer”). If the Transferring Holder has not consummated a Permitted ROFO Transfer (or has not entered into an agreement with respect thereto) within such 120 day period, the Transferring Holder shall not thereafter Transfer any Common Shares (including such Offered Shares), whether pursuant to a Proposed Offer or otherwise, without first providing a new ROFO Notice to the ROFO Offerees in the ~~RFO Notice~~ manner provided above, and such proposed Transfer shall again be subject to the requirements of this Section 4(c). (iivi) the ~~RFO Offeror provides written confirmation~~ closing of the sale of any Common Shares pursuant to this Section 4(c), the Transferring Holder shall deliver at such closing, against payment of the purchase price therefor, certificates representing those Common Shares to be sold, duly endorsed for transfer or accompanied by duly endorsed stock powers, and evidence of the absence of Encumbrances and adverse claims with respect thereto and of such other matters as are deemed necessary by the Company for the proper Transfer of such Common Shares on the books of the Company. (vii) Notwithstanding anything to the ~~RFO Offeree(s~~contrary in this Agreement, this Section 4(c) ~~that such terms comply with clause~~ shall not apply to (iA) ~~hereof prior to the consummation~~ Permitted Transfers, (B) Transfers of ~~such sale; and provided further~~Common Shares made in a Qualified Public Offering, ~~that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from~~(C) Transfers of Common Shares made by Dragged Holders in a Drag-Along Transaction, or ~~filings or registrations with, any Governmental Authority~~ (D) Transfers of Common Shares made in connection with ~~such Transfers to be obtained or made, to~~ the ~~extent prior to the expiration~~ exercise of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3Tag-Along Rights. (f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.

Appears in 1 contract

Samples: Stockholder Agreement (EVERTEC, Inc.)

Right of First Offer. (a) ~~Other than Prohibited Transfers~~If, ~~if at any time after the Lock Up Period a Shareholder~~ prior to an IPO, an Investor desires to Transfer ~~other than pursuant~~ any or all of such Investor’s Common Shares to ~~any Permitted~~ a Third Party Purchaser (for purposes of this Section 3.4, the Investor desiring to so Transfer, the “Selling ROFO Investor”) and the Selling ROFO Investor is permitted to Transfer such ~~Transfer~~ Common Shares under Section 3.1 (such Transfer, a “Proposed ROFO Transfer”), then, in each case, such Selling ROFO Investor shall ~~be permitted only if such Shareholder~~ submit a written notice (the “RFO Offeror”) fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers. (b) The RFO Offeror shall, prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO ROFO Notice”) to each other ~~Shareholder~~ Investor (~~each,~~ the “ROFO Holders”) of its desire to Transfer such Common Shares. Any such ROFO Notice shall provide each ROFO Holder with an ~~“RFO Offeree”), setting forth (i)~~ opportunity to make a cash offer to purchase the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Common Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein. (c) The RFO Offeree(s) collectively shall have the right to purchase (the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO ROFO Notice (the “~~RFO Response Period~~ROFO Offered Shares”). Within (a) thirty (30) days following receipt of the ROFO Notice, any ROFO Holder may deliver to the Selling ROFO Investor a binding irrevocable written offer (the “ROFO Offer”) to purchase all, but not less than all, of the ROFO Offered Shares. Any such ROFO Offer shall include the material terms and conditions, including the aggregate cash purchase price (the “ROFO Offer Price”), ~~irrevocably stating therein such portion~~ upon which the ROFO Holder is willing to acquire all of the ~~RFO Ordinary~~ ROFO Offered Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as at a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined. (d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares closing within thirty (30) days ~~thereafter~~ of the Selling ROFO Investor’s acceptance of the ROFO Offer upon customary closing conditions. If more than one ROFO Holder delivers a ROFO Offer, then the Selling ROFO Investor, if it desires to accept a ROFO Offer, must accept the ROFO offer that contains the highest ROFO Offer Price (the “Winning ROFO Offer” and the Investor that submitted such offer, the “Winning ROFO Investor”). The Selling ROFO Investor will have fifteen (15) days following receipt of the ROFO Offer to accept in writing (the “ROFO Acceptance Notice”) the ROFO Offer and the sale of the ROFO Offered Shares pursuant to the terms contained in the ROFO Acceptance Notice. If the Selling ROFO Investor timely delivers a ROFO Acceptance Notice, each of the Selling ROFO Investor and the ROFO Holder will use reasonable best efforts to consummate the transaction contemplated by the ROFO Offer within thirty (30) days of such acceptance. If the Selling ROFO Investor does not timely deliver a ROFO Acceptance Notice or affirmatively declines in writing such ROFO Offer, then the ROFO Holder’s offer set forth in the ~~RFO Notice;~~ ROFO Offer shall immediately terminate. Upon such termination, the Selling ROFO Investor shall have the option for the subsequent 180 days (provided~~, however~~, that such 180-day period ~~shall~~ may be extended ~~following such date as~~ at the election of the Selling ROFO Investor for a period of up to 90 days to the extent necessary to ~~permit all~~ obtain any required regulatory approvals~~, consents~~ ) to Transfer such ROFO Offered Shares to a Third Party Purchaser or ~~authorizations from, or filings or registrations with~~any Investor (other than the Winning ROFO Investor) (subject to compliance by the Selling ROFO Investor with Section 3.2 and the remainder of this Section 3.4). Notwithstanding the foregoing, any ~~Governmental Authority~~ ROFO Offered Shares Transferred pursuant to this Section 3.4 may not be Transferred to a Third Party Purchaser or an Investor (other than the Winning ROFO Investor) upon terms that are more favorable in the aggregate to the purchaser of such ROFO Offered Shares than specified in the Winning ROFO Offer or at a price that is less than the ROFO Offer Price contained in the Winning ROFO Offer. In the event that the Selling ROFO Investor shall not have Transferred all of the ROFO Offered Shares within such 180-day period (as extended to the extent necessary to obtain any required regulatory approvals), the Selling ROFO Investor shall not sell any such ROFO Offered Shares without again first offering such Common Shares to the ROFO Holders in the manner provided pursuant to this Section 3.4. For the avoidance of doubt, if a Selling ROFO Investor is not required to deliver a ROFO Notice in connection with ~~such purchase to be obtained or made, to the extent prior to the expiration~~ a Transfer of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days. (e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First OfferCommon Shares, then ~~the RFO Offeror~~ such Selling ROFO Investor shall ~~have the right for sixty (60) days thereafter (the “~~be permitted to Transfer ~~Period”), to dispose of the RFO Ordinary~~ such Common Shares ~~in one or more Transfers thereof~~ without ~~being subject to any of~~ complying with the restrictions set forth in this ~~Article III; provided~~Section 3.4. Notwithstanding anything to the contrary in this Section 3.4, ~~however, that (i) such~~ a Proposed Transfer may not contain provisions related to any property of the ~~RFO Ordinary~~ Selling ROFO Investor other than Common Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken held by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3Selling ROFO Investor. (fb) ~~The RFO Offeror shall,~~ This Section 3.4 shall terminate upon the ~~Transfer~~ occurrence of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignationan IPO.

Appears in 1 contract

Samples: Stockholders Agreement (Sundance Energy Inc.)

Right of First Offer. (ai) ~~Other than Prohibited Transfers~~Before the consummation of a Qualified Public Offering, if ~~at any time after the Lock Up Period~~ a ~~Shareholder desires to Transfer other than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder~~ Major Stockholder (the “~~RFO Offeror~~Transferring Holder”) ~~fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply~~ wishes to ~~Permitted Transfers. (b) The RFO Offeror shall, prior to the~~ effect a Transfer of ~~any Ordinary~~ its Common Shares ~~to which this Section 3.3 applies~~or securities convertible into or exchangeable into or exercisable for Common Shares, ~~give~~ then such Transferring Holder shall first deliver a written notice (the “~~RFO~~ ROFO Notice”) to ~~each~~ the Company and the other ~~Shareholder~~ Major Stockholder or Major Stockholders, as applicable (~~each, an~~ the “~~RFO Offeree~~ROFO Offerees”)~~, setting forth (i)~~ . Such ROFO Notice shall disclose the number of ~~Ordinary~~ Common Shares or securities convertible into or exchangeable into or exercisable for Common Shares proposed to be ~~disposed of~~ Transferred (the “~~RFO Ordinary~~ Offered Shares”)) and the material terms of any offer the Transferring Holder has received or is contemplating, if applicable. (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein. (c) The RFO Offeree(s) collectively Each ROFO Offeree shall have the right ~~to purchase~~ (the “Right of First Offer”)) to provide the Transferring Holder, ~~any or all~~ within 20 days after the date of the ~~RFO Ordinary~~ delivery of the ROFO Notice, with an irrevocable written offer to acquire the Offered Shares, upon the price, terms and conditions on which such ROFO Offeree is willing to purchase the Offered Shares ~~by delivering a written notice~~ (the “~~RFO Exercise~~Proposed Offer”). (iii) The Transferring Holder, in its sole discretion, may elect to accept any Proposed Offer by delivering an irrevocable written notice of acceptance (the “ROFO Acceptance Notice”) ~~of exercise of the Right of First Offer~~ to the ~~RFO Offeror~~ ROFO Offerees within 20 ~~(twenty) Business Days from~~ days after the date of ~~delivery of~~ the ~~RFO~~ ROFO Notice (the “~~RFO Response~~ ROFO Acceptance Period”), ~~irrevocably stating therein~~ provided that (A) if such ~~portion~~ Transferring Holder receives a Proposed Offer from more than one ROFO Offeree, such Transferring Holder may only accept the Proposed Offer with the most favorable terms and conditions (including price) in its reasonable discretion; (B) if such Transferring Holder receives Proposed Offers with equivalent terms (including price and other terms and conditions) from the ROFO Offerees (including the Company) and elects to accept one of such Proposed Offers, such Transferring Holder shall accept the Company’s Proposed Offer and, if the Company does not offer to purchase all of the ~~RFO Ordinary~~ Offered Shares, the Transferring Holder shall accept the other Proposed Offers, and the remaining Offered Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror allocated to the other ~~RFO Offeree(s~~ROFO Offerees on a pro rata basis; and (C) if such Transferring Holder receives Proposed Offers with equivalent terms (~~or if there is more~~ including price and other terms and conditions) from the ROFO Offerees (other than the Company) and elects to accept one ~~other RFO Offeree~~of such Proposed Offers, in such Transferring Holder shall accept all of the ~~proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se)~~Proposed Offers, and the Offered Shares shall be allocated to such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declinedROFO Offerees on a pro rata basis. (div) If The ROFO Offerees purchasing the ~~RFO Offeree(s) shall have delivered an RFO Exercise~~ Common Shares pursuant to ~~the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s~~this Section 4(b) shall be ~~respectively bound~~entitled to require the Transferring Holder to provide representations and warranties regarding (A) its power, authority and ~~shall complete~~ legal capacity to enter into such Transfer of Common Shares; (B) valid right, title and interest in such Common Shares and the ~~sale and purchase~~ Transferring Holder’s ownership of such Common Shares; (C) the ~~RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that~~ absence of any Encumbrances on such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrationsCommon Shares; and ~~provided further that no~~ (D) the absence of any violation, default or acceleration of any agreement or instrument pursuant to which such ~~extension shall exceed 60 days~~Transferring Holder or the assets of such Transferring Holder are bound as the result of such sale. (ev) If Subject to any Tag-Along Rights, after the ~~RFO Offeree(s) shall not have completed the purchase of all~~ termination of the ~~RFO Ordinary Shares within the RFO Purchase~~ ROFO Acceptance Period, ~~as extended as provided in Section 3.3(d)~~the Transferring Holder, during the 120-day period following the ROFO Acceptance Period or ~~together have failed~~ the 180-day period following the ROFO Acceptance Period if the Transferring Holder has entered into an agreement to ~~deliver RFO Exercises within~~ Transfer during the ~~RFO Response Period for all of~~ 120 days following the ~~RFO Ordinary~~ ROFO Acceptance Period, may Transfer the Offered Shares ~~as contemplated in Section 3.3(d) or declined in writing to exercise~~ at and upon the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, price and other material terms and conditions that ~~(i) such Transfer of the RFO Ordinary Shares is consummated on terms not~~ are more favorable to the ~~purchasers thereof~~ Transferring Holder than the ~~terms specified~~ most favorable Proposed Offer that the Transferring Holder received (such Transfer, the “Permitted ROFO Transfer”). If the Transferring Holder has not consummated a Permitted ROFO Transfer within such 120-day period or 180-day period, as applicable, the Transferring Holder shall not thereafter Transfer any Common Shares (including such Offered Shares), whether pursuant to a Proposed Offer or otherwise, without first providing a new ROFO Notice to the ROFO Offerees in the ~~RFO Notice~~ manner provided above, and ~~(ii) the RFO Offeror provides written confirmation~~ such proposed Transfer shall again be subject to the ~~RFO Offeree(s~~requirements of this Section 4(b). (vi) ~~that~~ Upon the closing of the sale of any Common Shares pursuant to this Section 4(b), the Transferring Holder shall deliver at such ~~terms comply~~ closing, against payment of the purchase price therefor, certificates representing those Common Shares to be sold, duly endorsed for Transfer or accompanied by duly endorsed stock powers, and evidence of the absence of Encumbrances with ~~clause~~ respect thereto and of such other matters as are deemed reasonably necessary by the Company for the proper Transfer of such Common Shares on the books of the Company. (ivii) ~~hereof prior~~ Notwithstanding anything to the ~~consummation~~ contrary in this Agreement, this Section 4(b) shall not apply to (A) Permitted Transfers, (B) Transfers of ~~such sale; and provided further~~Common Shares made in a Qualified Public Offering, ~~that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents~~ (C) Transfers of Common Shares made by Dragged Holders in a Drag-Along Transaction or ~~authorizations from, or filings or registrations with, any Governmental Authority~~ (D) Transfers of Common Shares made in connection with ~~such Transfers to be obtained or made, to~~ the ~~extent prior to the expiration~~ exercise of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3Tag-Along Rights. (f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.

Appears in 1 contract

Samples: Stockholder Agreement (Affinion Group Holdings, Inc.)

Right of First Offer. Subject to the terms and conditions specified in this Agreement, Spectrum hereby grants to SBC and Telmex, as long as SBC and Telmex own all of the shares of Series B Preferred Stock issued to them upon the closing under the Stock Purchase Agreements of even date herewith between SBC and NAS and between Telmex and NAS (the "Preferred Shares") or all of the shares of Common Stock issued upon conversion of such Preferred Shares (or a greater number of shares of Preferred Stock or shares of Common Stock than originally issued upon such closing or conversion), a right of first offer with respect to future sales by Spectrum of any shares of Common Stock or other securities of NAS (the "TRANSFER SHARES") owned of record or beneficially by Spectrum on or after the date hereof. (a) ~~Other than Prohibited Transfers~~In the event Spectrum proposes to sell any TRANSFER SHARES, ~~if at~~ it shall give SBC, Telmex and any ~~time after the Lock Up Period a Shareholder desires to Transfer other than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder~~ Transferees (as defined in Section 3.5) written notice (the ~~“RFO Offeror”~~"Notice") ~~fully complies with~~ of its intention stating: (i) a description of the TRANSFER SHARES it proposes to sell, (ii) the number of TRANSFER SHARES it proposes to sell, and (iii) the price per share at which, and other terms ~~of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply~~ on which, it proposes to ~~Permitted Transfers~~sell such TRANSFER SHARES. (b) ~~The RFO Offeror shall~~Within 10 Business Days after the Notice is given, ~~prior~~ SBC, Telmex and the Transferees may elect to purchase, at the ~~Transfer of any Ordinary Shares~~ price specified in the Notice, up to ~~which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth (i)~~ the number of ~~Ordinary Shares~~ shares of the TRANSFER SHARES proposed to be ~~disposed of~~ sold. An election to purchase (the ~~“RFO Ordinary Shares”)~~"Election") shall be made in writing and must be given to Spectrum within such 10 Business Day period. Unless otherwise agreed by SBC, ~~(ii)~~ Telmex and the Transferees, if more than one of SBC, Telmex and any Transferee desires to purchase TRANSFER SHARES and there are insufficient TRANSFER SHARES to accommodate all proposed ~~purchase price per RFO Ordinary Share~~purchases, the SBC, Telmex and ~~payment~~ Transferee purchases shall be on a pro rata basis based on the number of shares of NAS Preferred Stock and ~~other material terms and conditions and (iii) an irrevocable offer~~ NAS Common Stock they own at such time. The closing of the sale of TRANSFER SHARES by Spectrum to ~~sell~~ SBC and/or Telmex and/or any Transferee shall take place within 30 days after the Election is made, provided that the 30 day period shall be extended to the ~~RFO Offeree(s)~~ extent necessary to accommodate the ~~RFO Ordinary Shares set forth in~~ receipt of any necessary regulatory approvals for the ~~RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein~~sale. (c) ~~The RFO Offeree(s) collectively~~ Spectrum shall have 90 days after the last date on which SBC's and Telmex's right of first offer lapsed to enter into an agreement (pursuant to which the sale of TRANSFER SHARES covered thereby shall be closed, if at all, within 45 days from the execution thereof) to sell the TRANSFER SHARES which SBC, Telmex and the Transferees did not elect to purchase (under this Agreement, at or above the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof price and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined. (d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days. (e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not materially more favorable to the purchasers ~~thereof~~ of such securities than the terms specified in the ~~RFO~~ initial Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority given in connection with such ~~Transfers to be obtained or made, to~~ sale. In the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror event Spectrum has not ~~completed~~ entered into an agreement to sell the ~~Transfer of~~ TRANSFER SHARES within such 90 day period (or sold and issued the ~~RFO Ordinary Shares,~~ TRANSFER SHARES in accordance with the ~~RFO Offeror shall no longer be permitted to dispose~~ foregoing within 45 days from the date of such ~~RFO Ordinary Shares~~ agreement), Spectrum shall not thereafter issue or sell any TRANSFER SHARES without ~~again fully complying~~ first offering such TRANSFER SHARES to SBC, Telmex and the Transferees in the manner provided in this Agreement. (d) Notwithstanding any other provision hereof, Spectrum shall have the right to sell or otherwise transfer any TRANSFER SHARES without compliance with ~~the~~ any other provisions of this Section ~~3.3. (f) The RFO Offeror shall, upon the Transfer~~ 1 to any person or entity who is a general partner or limited partner of Spectrum as of the ~~RFO Ordinary Shares, procure the resignation~~ date hereof (each of such ~~number of directors nominated~~ persons or entities, a "Permitted Transferee") who or which agrees to be bound by ~~it, if any, as would be required pursuant to Section 2.2~~ the provisions hereof~~, and such director shall execute a letter of resignation~~.

Appears in 1 contract

Samples: Right of First Offer Agreement (SBC Communications Inc)

Right of First Offer. (a) ~~Other~~ If any Stockholder (other than ~~Prohibited Transfers~~a Sponsor) desires to Transfer all or any portion of its Company Shares in a transaction to which this Section 4.3 applies (any such Stockholder, a “ROFO Stockholder”), then each Sponsor and MD Investor (each, a “ROFO Offeree”) shall have a right of first offer over such Company Shares, which shall be exercised in the following manner: (i) The ROFO Stockholder shall provide the ROFO Offerees with written notice (a “ROFO Notice”) of its desire to Transfer such Company Shares. The ROFO Notice shall specify the number and class of Company Shares the ROFO Stockholder wishes to Transfer, the proposed purchase price per share (which purchase price shall be in cash or cash equivalents only) for each such class of Company Shares and any other terms and conditions material to the sale proposed by the ROFO Stockholder; (ii) The ROFO Offerees shall have a period of up to ten (10) Business Days following receipt of the ROFO Notice (the “ROFO Election Period”), to elect to purchase (or to cause one or more of their Affiliates to purchase), in the aggregate, all, but not less than all, of such Company Shares on the terms and conditions set forth in the ROFO Notice by delivering to the ROFO Stockholder written notice thereof (such electing ROFO Offeree, a “ROFO Purchaser”). In the event that the aggregate number of Company Shares of an applicable class that the ROFO Purchasers have elected to purchase exceeds the aggregate number of Company Shares of such class subject to the ROFO Notice, the number of Company Shares shall be sold to the ROFO Purchasers as follows: (1) there shall be first allocated to each ROFO Purchaser a number of Company Shares of each applicable class equal to the lesser of (A) the number of Company Shares of such class elected to be purchased by such ROFO Purchaser and (B) a number of Company Shares of such class equal to such ROFO Purchaser’s Pro Rata Portion; and (2) the balance, if any, of Company Shares of each applicable class not allocated pursuant to clause (1) above shall be allocated to those ROFO Purchasers which offered to purchase a number of Company Shares of the applicable class in excess of such ROFO Purchasers’ respective Pro Rata Portions in proportion, as nearly as practicable, to the respective number of Company Shares of the applicable class which each ROFO Purchaser offered to purchase. (iii) If the ROFO Offerees elect to purchase (or to cause one or more of their Affiliates to purchase) all of the Company Shares which are the subject of the proposed Transfer within the ROFO Election Period, such purchase shall be consummated within thirty (30) days after the date on which each such ROFO Offeree notifies the ROFO Stockholder of such election (subject to extension if necessary to permit the expiration or early termination of the HSR Waiting Period). Subject to Section 4.4, if the ROFO Offerees do not elect to purchase all of the Company Shares within the ROFO Election Period, the ROFO Stockholder may Transfer all of the Company Shares of each class specified in the ROFO Notice at any time ~~after~~ within one hundred and twenty (120) days following such period at a price which is not less than the ~~Lock Up Period a Shareholder desires~~ purchase price specified in the ROFO Notice and on terms and conditions no more favorable, in any material respect, to the purchaser than those specified in the ROFO Notice, and thereafter the ROFO Stockholder may not Transfer ~~other than pursuant to~~ any ~~Permitted Transfer,~~ such ~~Transfer shall be permitted only if such Shareholder (~~Company Shares without first following the ~~“RFO Offeror”) fully complies with the terms of~~ procedures set forth in this Section ~~3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers~~4.3. (b) ~~The RFO Offeror shall, prior to~~ In connection with the Transfer of all or any ~~Ordinary~~ portion of a ROFO Stockholder’s Company Shares pursuant to this Section 4.3 to one or more ROFO Offerees, the ROFO Stockholder shall only be required to represent and warrant as to its authority to sell, the enforceability of agreements against the ROFO Stockholder, that the Company Shares to ~~which~~ be transferred shall be free and clear of any liens, claims or encumbrances (other than restrictions imposed by this ~~Section 3.3 applies~~Agreement and pursuant to applicable federal, ~~give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”~~state and foreign securities laws), ~~setting forth (i)~~ that it is the ~~number~~ record and beneficial owner of ~~Ordinary~~ such Company Shares ~~proposed~~ and that it has obtained or made all necessary consents, approvals, filings and notices from governmental authorities or third parties to ~~be disposed of (~~consummate the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth thereinTransfer. (c) The RFO Offeree(s) collectively shall have the right to purchase (the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined. (d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days. (e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section ~~3.3.~~ 4.3 shall not apply to Transfers of Company Shares (fi) ~~The RFO Offeror shall~~to Permitted Transferees in accordance with Section 4.2 (Permitted Transferees); (ii) pursuant to, or consequent upon the ~~Transfer~~ exercise of the ~~RFO Ordinary Shares, procure~~ drag-along rights set forth in Section 4.5 (Drag-Along Rights); (iii) consequent upon the ~~resignation~~ exercise of ~~such number of directors nominated by it, if any, as would be required~~ the tag-along rights set forth in Section 4.4 (Tag-Along Rights) or (iv) pursuant to ~~Section 2.2 hereof, and such director shall execute~~ a ~~letter of resignation~~registered public offering.

Appears in 1 contract

Samples: Stockholders' Agreement (J. Crew Inc.)

Right of First Offer. ~~(a) Other than Prohibited Transfers, if at any time after the Lock Up Period~~ If LMI proposes to sell or otherwise dispose of all or a Shareholder desires to Transfer other than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder (the “RFO Offeror”) fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers. (b) The RFO Offeror shall, prior to the Transfer portion of any ~~Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder~~ of the Other Interests described in Exhibit A-3 (each, a "Transfer Interest") or if Liberty Media proposes to sell or otherwise dispose of LMI in a transaction in which LMI would own any Transfer Interest at the time of such sale or disposition, in either case to an ~~“RFO Offeree”~~unaffiliated third party, then, except as otherwise contemplated by paragraph 1 or as provided below, LMI or Liberty Media, as applicable (the "seller"), will deliver to New United a written offer (the "Offer") setting forth the price (istated as an amount of cash) ~~the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment~~ and other material terms on which the seller would agree to sell the Transfer Interest or LMI (the "Offered Interest"). The parties then will negotiate the terms and conditions on which New United would purchase the Offered Interest, such negotiation to be conducted on an exclusive basis for a period of 30 days after New United's receipt of the Offer. New United and seller will each have the right to require that the consideration for the Offered Interest consist solely of newly issued shares of New United Class C Stock (~~iii~~and, if applicable as provided below, New United Class A Stock and New United Class B Stock) ~~an irrevocable offer~~ and seller will have the right to ~~sell~~ require that the transaction be tax-free to it and its affiliates, in which event the parties will take all reasonable action to assure that the transaction can be structured as a tax-free transaction. The number of shares of New United common stock to be issued to the ~~RFO Offeree(s~~seller in exchange for the Offered Interest will be determined as follows: (a) if the ~~RFO Ordinary Shares~~ Offered Interest consists of one or more Transfer Interests, the number of shares of New United Class C Stock will be equal to the value of those Transfer Interests as set forth in the ~~RFO Notice~~ Offer or otherwise agreed by seller and New United, divided by the per share value of the New United Class C Stock derived using the Sum of the Parts methodology described in paragraph 5; and (b) if the Offered Interest is LMI, the number of shares of New United Class C Stock and, if applicable, New United Class A Stock and New United Class B Stock will equal: (i) a number of shares of, respectively, New United Class A Stock, New United Class B Stock and New United Class C Stock equal to the number of shares of New United Class A Stock, New United Class B Stock and New United Class C Stock, respectively, owned directly or indirectly by LMI at the time of the transfer, plus (ii) with respect to any Transfer Interests owned directly or indirectly by LMI at the time of such transfer, the number of shares of New United Class C Stock determined for such Transfer Interests in the manner provided in the foregoing clause (a), plus (iii) if LMI owns directly or indirectly any other assets at the time of such transfer, a number of shares of New United Class C stock equal to the value of such assets as set forth in the Offer or otherwise agreed by seller and New United, divided by the Average Market Price (as defined in paragraph 5 below) of a share of New United Class A Stock as of the date of the closing of the transfer of LMI to New United. If the seller and New United have not reached agreement within the 30-day period described above, the seller will be free, for a period of 120 days after the end of that period, to sell the Offered Interest to a third party for the same or a higher price ~~per Ordinary Share~~ and on ~~the same~~ other terms and conditions that are no less favorable, taken as ~~set forth therein. (c) The RFO Offeree(s) collectively shall have the right to purchase (the “Right of First Offer”)~~a whole, in any ~~or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer~~ material respect to the ~~RFO Offeror within 20 (twenty) Business Days from~~ seller than those that were described in the ~~date of delivery of the RFO Notice (the “RFO Response Period”)~~last written offer made by New United, irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is ~~more than one other RFO Offeree~~no such offer, in the ~~proportion~~ Offer. The 120-day period will be extended for up to an additional 60 days in the event any required governmental approvals, waivers or consents have not been obtained, or applicable waiting periods have not expired or terminated without litigation having been commenced that remains outstanding, within the 120-day period. If the seller and New United have reached agreement, but the transaction pursuant to which the Offered Interest is to be transferred has not been completed within 120 days after the date of such agreement (or such earlier or later date as ~~nearly as~~ the parties may ~~be) to the number of Ordinary Shares held by them inter se~~agree), subject to extension as provided in the preceding sentence for a transfer to a third party, or such agreement is terminated, and the failure of such ~~other RFO Offeree(s)~~ transaction to be consummated or the termination of such agreement is not the result of any breach by the seller of its obligations under such agreement, then the seller may ~~accept by delivery to the RFO Offeror~~ at any time thereafter sell or otherwise dispose of ~~an RFO Exercise in respect~~ all or any of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined. (d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase Offered Interest free of the ~~RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth~~ requirements of this Agreement. New United will use its reasonable efforts to assist Liberty Media and LMI in ~~the RFO Notice; provided, however, that such period shall be extended following such date as~~ obtaining all necessary ~~to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority~~ governmental and other approvals in connection with ~~such purchase~~ a permitted transfer to ~~be obtained or made~~a third party, and Liberty Media, LMI and New United will use their respective reasonable efforts in obtaining all necessary governmental and other approvals in connection with a transfer to New United pursuant to an exercise of New United's right of first offer. The right of first offer contemplated by this Agreement will not apply to (x) any transaction pursuant to a Partner Purchase Right (and New United will acquire any Offered Interest transferred to it pursuant to the ~~extent prior to the expiration~~ right of ~~the RFO Purchase Period reasonably appropriate actions have been taken~~ first offer contemplated by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days. (e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being this paragraph 4 subject to any applicable Partner Purchase Right), (y) a transfer of LMI's interest in Jupiter Programming described in footnote 8 of Exhibit A-3, and (z) a direct or indirect transfer to an affiliate of Liberty Media or LMI (an "Affiliate Transferee") or any Permitted Liberty Transfer, provided in the case of this clause (z), New United retains the right of first offer as to the Other Interests unimpaired by such transfer, and the transferee in any such transfer enters into an agreement providing the right of first offer to New United. As used in this paragraph 4, an "affiliate" of any entity means any entity controlling, controlled by, or under common control with, such entity, provided that neither AT&T Corp. nor any of its subsidiaries (except Liberty Media, any other member of the ~~restrictions set forth in this Article III; provided, however, that~~ Liberty Media Group (~~i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified~~ as defined in the ~~RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation~~ certificate of ~~such sale; and provided further~~incorporation of AT&T Corp.), that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3. (f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.LMI and

Appears in 1 contract

Samples: Amended and Restated Agreement (Unitedglobalcom Inc)

Right of First Offer. (ai) ~~Other than Prohibited Transfers~~Subject to subsection (vii) below, ~~if at~~ any ~~time after the Lock Up Period a Shareholder desires~~ Common Holder desiring to ~~Transfer other than pursuant~~ transfer, prior to any ~~Permitted Transfer~~Separation Event, ~~such Transfer shall be permitted only if such Shareholder~~ Investment Units or Common Stock, whether held separately or as part of one or more Investment Units and after a Separation Event any Common Stock (~~the “RFO Offeror”) fully complies with the terms~~ hereinafter for purposes of this Section ~~3.3~~only, the "Securities"), held by such Common Holder (the "Seller") shall give written notice (the "Sales Notice") to the other Common Holders that the Seller desires to effect such a transfer (a "Sale") and setting forth the number of Investment Units or shares of Common Stock proposed to be transferred by the Seller. (ii) The receipt of the Sales Notice by each other Common Holder party to this Shareholders Agreement shall constitute an offer (the "Offer") by the Seller to sell to such Common Holder or group of Common Holders for cash the Securities subject to the Sale, subject to the Seller's approval of the terms and conditions of the Bid (as defined below). Each Common Holder, or any group of one or more Common Holders, receiving an Offer shall have a 15-day period (the "Order Period") in which to give a written notice (a "Bid") to the Seller prior to the expiration of such 15-day period, which written notice shall set the price per Security that such Common Holder or group of Common Holders proposes to pay (the "Proposed Sales Price") and such other terms and conditions it or they propose with respect to the Sale; ~~provided that~~ provided, however, a Bid must be for all of the Securities the Seller proposes to transfer as stated in the Sales Notice. (iii) Upon the receipt of all Bids, if any, the Seller shall have the right to solicit offers for the Securities subject to the Sale from any non-affiliated third-party (a "Third-Party Offer") for a period of 90 days from the date the Order Period expires. To the extent the Seller receives a Third-Party Offer and such Third-Party Offer contains a Proposed Sales Price in excess of the highest Sales Price received by Seller pursuant to the Bids made by the Common Holders or group of Common Holders, then Seller shall have the right to sell the Securities to the Third-Party pursuant to its Offer. If no Bids are delivered during the Order Period then the Seller shall be entitled to accept, in its sole discretion, any Third-Party Offer it so chooses. If such sale pursuant to a Third-Party Offer is not consummated within 120-days from receipt of the Third-Party Offer, and no Bids of Common Holders are accepted by the Seller within 10 days following the expiration of the 90-day period described in the first sentence of this subparagraph (iii), then the provisions of this Section ~~3.3~~ 1(b) shall ~~not apply~~ be reinstated as to ~~Permitted Transfers~~any other transfers proposed to be made by the Seller. (biv) The ~~RFO Offeror shall, prior~~ Common Holders or group of Common Holders providing a Bid to the ~~Transfer~~ Seller during the Order Period as to all of ~~any Ordinary Shares~~ the Securities subject to the Sale, and which ~~this Section 3.3 applies~~Bid is accepted by the Seller, ~~give~~ shall be required to purchase and pay for all the Securities accepted pursuant to their Bid within a 30-day period from the date on which the buying Common Holder (or group of Common Holders) receives written notice ~~(“RFO Notice”)~~ of the Seller's acceptance of the Bid; provided that if the purchase and sale of such Securities is subject to ~~each other Shareholder (each~~any prior regulatory approval, ~~an “RFO Offeree”), setting forth (i)~~ the ~~number~~ time period during which such purchase and sale may be consummated shall be extended until the expiration of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth thereinfive Business Days after all such approvals shall have been received. (cv) ~~The RFO Offeree(s) collectively shall have~~ Subject to the ~~right to purchase (the “Right~~ transfer restrictions of ~~First Offer”~~Section 1(a)(ii), ~~any~~ the Seller may transfer Investment Units or ~~all~~ shares in accordance with subsection (b)(iii) for consideration other than cash to an unaffiliated third-party only if the Seller has first obtained and delivered to each of the ~~RFO Ordinary Shares by delivering a written notice (~~Common Holders an opinion of an independent investment banking firm of national standing indicating that the ~~“RFO Exercise”) of exercise~~ fair market value of the ~~Right of First Offer~~ per share non-cash consideration that the Seller proposes to accept as consideration for such Investment Units or shares, together with any per share cash consideration, is at least equal to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, highest proposed Sale Price received by the ~~RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof~~ Seller pursuant to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered Bids made by the ~~RFO Offeror to the other RFO Offeree(s) (~~Common Holders or ~~if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number~~ group of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declinedCommon Holders. (dvi) If Notwithstanding any provision of this Section 1(b), no action may be taken by the ~~RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares~~Seller, the ~~RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete~~ other Common Holders or the ~~sale and purchase~~ Company that would cause a violation of the ~~RFO Ordinary Shares within thirty~~ provisions of Section 2. (30vii) ~~days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period~~ The Company shall ~~be extended following such date as~~ take all reasonable steps necessary to ~~permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority~~ ensure application is made for the appropriate permissions from the Bermuda authorities in connection with ~~such purchase to be obtained or made, to the extent~~ any Transfer complying with this Agreement. The Company hereby acknowledges that no prior ~~to the expiration~~ approval of the ~~RFO Purchase Period reasonably appropriate actions have been taken by~~ Bermuda Monetary Authority is necessary for any Transfer between Persons who are designated as non-residents of Bermuda for the ~~RFO Offeree(s) to obtain such approvals~~purposes of the Exchange Control Act, ~~consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days~~1972. (eviii) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the The provisions of this Section ~~3.3.~~1(b) shall not apply to: (fA) ~~The RFO Offeror shall, upon the~~ a Transfer of shares of Common Stock to an Affiliate of the ~~RFO Ordinary Shares, procure the resignation~~ Seller; (B) a Transfer of ~~such number~~ shares of ~~directors nominated~~ Common Stock to another Common Holder; (C) a Transfer of Investment Units to a Common Holder holding Investment Units; (D) a Transfer by itone or more Common Holders of a majority of all shares of Common Stock (and, if ~~any~~prior to a Separation Event, ~~as would be~~ Investment Units) then outstanding to any Person or Persons; (E) a Transfer required by the provisions of Section 1(c) or Section 2; (F) a Transfer permitted by the provisions of Section 1(d); (G) a Transfer pursuant to ~~Section 2.2 hereof~~an effective registration statement with respect to the Common Stock to be transferred; (H) a Transfer on or after the fifth anniversary of the date of this Agreement; or (I) a Transfer made by Xxxxxxx X. Price to one or more employees (listed on Schedule II hereto on the date hereof as such schedule may be amended or supplemented from time to time) of the Company and its affiliates no later than January 30, ~~and such director shall execute a letter of resignation~~1999.

Appears in 1 contract

Samples: Shareholders Agreement (Cga Group LTD)

Right of First Offer. (a) ~~Other than Prohibited Transfers~~Subject to Section 9.2 and Section 9.3(d) (but in addition to Section 9.4), if at any time ~~after~~ any member of the ~~Lock Up Period a Shareholder~~ Oaktree Group desires to (i) Transfer ~~other than pursuant~~ any portion of its interests in the JV Interests to a Third Party or (ii) effect a Change of Control with respect to it or any ~~Permitted Transfer~~Affiliate which owns JV Interests, then Oaktree shall first provide DGOC with notice (a “ROFO Notice”) which sets forth Oaktree’s bona fide intention to Transfer such ~~Transfer shall~~ JV Interests to a Third Party and specifying the portion of such JV Interests to be ~~permitted only if such Shareholder~~ Transferred (the “~~RFO Offeror~~ROFO Interest”~~) fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers~~). (b) ~~The RFO Offeror shall~~For a period of 10 Business Days following its receipt of a ROFO Notice (the “ROFO Offer Period”), ~~prior~~ DGOC will have the right, but not the obligation, to ~~the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice~~ make a first offer (a “~~RFO Notice~~ROFO Offer”) to ~~each other Shareholder~~ Oaktree, by delivering to Oaktree a written offer (~~each~~the “ROFO Offer Letter”) for the DGOC Group to acquire all, ~~an “RFO Offeree”)~~but not less than all, ~~setting forth~~ of the ROFO Interest, which ROFO Offer Letter shall (i) ~~the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”), (ii)~~ set forth the proposed purchase price ~~per RFO Ordinary Share,~~ for the ROFO Interest (the “ROFO Offered Price”) and ~~payment and~~ any other material terms and conditions of DGOC’s offer and (~~iii~~ii) an be irrevocable ~~offer~~ for 15 Business Days after receipt by Oaktree (the “ROFO Acceptance Period”). Subject to ~~sell~~ Section 9.3(c)(ii), if DGOC has not delivered a ROFO Offer within the ROFO Offer Period it shall be deemed to have waived all of its rights under this Section 9.3 to purchase the ~~RFO Offeree(s) the RFO Ordinary Shares set forth~~ ROFO Interest described in the ~~RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein~~applicable ROFO Notice. (c) ~~The RFO Offeree(s) collectively shall have~~ Prior to the ~~right to purchase (the “Right of First Offer”), any or all~~ expiration of the ~~RFO Ordinary Shares~~ ROFO Acceptance Period, Oaktree shall notify DGOC whether it elects to accept the ROFO Offer; provided, that a failure by ~~delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer~~ Oaktree to ~~the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as~~ so notify DGOC shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to be a rejection of the ROFO Offer. (i) If Oaktree accepts the ROFO Offer, the Parties shall cooperate with each other in good faith to consummate the purchase of the ROFO Interest as promptly as practicable following the acceptance of the ROFO Offer. (ii) If Oaktree rejects (or is deemed to have ~~been declined~~rejected) the ROFO Offer, then, for a period of 180 days following the conclusion of the ROFO Acceptance Period (subject to reasonable extension for any required regulatory approvals), the members of the Oaktree Group may thereafter Transfer the ROFO Interest to a Third Party at a price no less than the ROFO Offered Price; provided, that Oaktree agrees to provide notice to DGOC at least 10 Business Days prior to its execution of any definitive agreement with respect to any such Transfer. If applicable members of the Oaktree Group have not closed the Transfer of the ROFO Interests to a Third Party within such 180-day period (subject to reasonable extension for any required regulatory approvals), then any proposed Transfer of JV Interests shall once again be subject to the terms and conditions of this Section 9.3. (d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase DGOC or any other DGOC Operator has been removed as Operator of a majority of the ~~RFO Ordinary Shares within thirty~~ JX Xxxxx pursuant to Section 5.1(c) (30or DGOC or any other DGOC Operator is for any other reason no longer the Operator of a majority of such JX Xxxxx) ~~days thereafter upon the terms set forth~~ that are included in the ~~RFO Notice; provided, however,~~ JV Interests that ~~such period shall be extended following such date as necessary to permit all required approvals, consents~~ Oaktree (or ~~authorizations from, or filings or registrations with,~~ any ~~Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration~~ other member of the ~~RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s~~Oaktree Group) desires to ~~obtain such approvals~~Transfer to a Third Party hereunder, ~~consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days. (e) If the RFO Offeree(s)~~ then DGOC shall not have ~~completed~~ a right of first offer with respect to such Transfer by the ~~purchase of all~~ members of the ~~RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all~~ Oaktree Group of ~~the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right~~ any portion of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified their interests in the ~~RFO Notice and (ii) the RFO Offeror provides written confirmation~~ such JV Interests to ~~the RFO Offeree(s) that such terms comply with clause (i) hereof prior~~ a Third Party pursuant to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section ~~3.3~~9.3. (f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.

Appears in 1 contract

Samples: Participation Agreement (Diversified Energy Co PLC)

Right of First Offer. ~~(a) Other than Prohibited Transfers, if~~ Should the board of directors of Valero GP determine at any time after the ~~Lock Up Period~~ Closing Date (either throuxx xx xxxolicited bona fide offer from a ~~Shareholder desires to Transfer other than pursuant to~~ Person that is not an Affiliate of the Valero Group (a "Third Party Offer") or through an offer solicited by any ~~Permitted Transfer, such Transfer shall be permitted only if such Shareholder (~~of the ~~“RFO Offeror”~~MLP Parties) ~~fully complies with the terms of this Section 3.3; provided~~ that the provisions of this Section 3.3 shall not apply to Permitted Transfers. (b) The RFO Offeror shall, prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth (i) the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth it is in the ~~RFO Notice at~~ best interests of the ~~same price per Ordinary Share and on the same terms and conditions as set forth therein. (c) The RFO Offeree(s) collectively shall have the right~~ MLP Parties to ~~purchase (the “Right of First Offer”),~~ divest any or all of the ~~RFO Ordinary Shares by delivering a written notice~~ Tank Assets (the ~~“RFO Exercise”~~"Offered Assets"), Valero GP shall promptly notify VRC of such determination and delivex xx XXX all information prepared by or on behalf of Valero GP relating to the potential divestiture. As soon as practicaxxx xxx xn any event within 30 days after receipt of such notification and information, VRC shall notify Valero GP that either (a) ~~of exercise~~ VRC has elected not to pursue the opportunxxx xx xxquire the Offered Assets, in which case the MLP shall be free to offer and divest the Offered Assets to (1) the Person that initiated the Third Party Offer (the "Third Party Offeror") or (2) a Person that is not an Affiliate of the ~~Right of First~~ Valero Group (a "NonAffiliate Purchaser"), or (b) VRC has elected to pursue the opportunity to acquire the Offered Assets, in which event the following procedures shall be followed: (i) VRC shall submit a good faith offer to Valero GP to acquire the Offered Assets (the "Offer") on thx xxxxx xnd for the consideration stated in the Offer; (ii) VRC and Valero GP shall negotiate in good faith for 90 days after rxxxxxx xx such Offer to by Valero GP, the ~~RFO Offeror within 20 (twenty) Business Days from~~ terms on which the ~~date of delivery~~ Offered Assets will be acxxxxxx xx VRC. Valero GP shall provide all information concerning the operxxxxxx xxd finances of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly Offered Assets as may ~~be) to the number of Ordinary Shares held~~ be reasonably requested by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declinedVRC. (dA) If ~~the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror~~ VRC and Valero GP agree on such terms within ~~the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase~~ 90 days after xxx xxxxipt by Valero GP of the ~~RFO Ordinary Shares within thirty (30) days thereafter upon~~ Offer, VRC shall acquire the Offexxx Xxxxxs on such terms ~~set forth in the RFO Notice~~after such agreement has been reached; provided, however, that the acquisition consideration to be paid by VRC may not be less than the acquisition consideration offered in the Third Party Offer. (B) If VRC and Valero GP are unable to agree on the terms of an axxxxxxxxxn during such 90-day period, the MLP is free to divest the Offered Assets to (1) the Third Party Offeror within 180 days of the termination of such 90-day period; provided that such Third Party Offer is not less than 95% of the acquisition consideration last offered by VRC or (2) a NonAffiliate Purchaser; provided that any such divestiture to a NonAffiliate Purchaser must be for an acquisition consideration of not less than 95% of the acquisition consideration last offered by VRC and on the same material terms and conditions as last offered by VRC; provided, further, that if such NonAffiliate Purchaser shall offer less than 95% of the acquisition consideration last offered by VRC or offer to purchase the Tank Assets on terms and conditions materially less favorable to the MLP than those last offered by VRC, the MLP must first give VRC notice and a right to match the offer from the NonAffiliate Purchaser during a 15-day period after notification of same from MLP to VRC. (C) During such 90-day period Valero GP shall be ~~extended following such date as necessary~~ free to ~~permit all required approvals~~make capital expenditurxx xx xxxntain the Offered Assets. (iii) If, ~~consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to~~ after the expiration of the ~~RFO Purchase Period reasonably appropriate actions have been taken by~~ 180-day period referred to in clause (ii)(B) above, no NonAffiliate Purchaser or Third Party Offeror has acquired the ~~RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations;~~ Offered Assets and ~~provided further~~ Valero GP confirms its determination that ~~no such extension shall exceed 60 days. (e) If~~ it is in the ~~RFO Offeree(s) shall not have completed the purchase of all~~ best xxxxxxxxs of the ~~RFO Ordinary Shares within~~ MLP Parties to divest the ~~RFO Purchase Period~~Offered Assets, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror Valero GP shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this ~~Section 3.3.~~SECTION 0(x) xxxx again; provided that if Valero GP and VRC are unable to reach agreement during the 00-xxx xxriod referenced in clause (ii)(B) above, the parties will engage an independent investment banking firm of national reputation to determine the value of the Offered Assets and shall furnish VRC and Valero GP with its opinion of such value within 30 days of xxx xxxxxement. VRC and Valero GP shall share equally the fees and expenses of such xxxxxxxxnt banking firm. Upon receipt of such opinion, Valero GP will have the option to (fA) ~~The RFO Offeror shall, upon~~ caxxx xxx XLP to divest the ~~Transfer~~ Offered Assets for an amount equal to the value as determined by such investment banking firm on terms substantially similar to the relevant terms of this Agreement or (B) decline to divest the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignationOffered Assets.

Appears in 1 contract

Samples: Contribution Agreement (Valero L P)

Right of First Offer. (a) ~~Other than Prohibited Transfers~~JMB shall not cause or permit JMB Partner to, ~~if at~~ and JMB Partner shall not, make or permit to occur any ~~time after the Lock Up Period a Shareholder desires to~~ Transfer ~~other than pursuant~~ of any of its Class A Units or make or respond to any ~~Permitted Transfer, such Transfer shall be permitted only if such Shareholder (the “RFO Offeror”) fully complies~~ offers to do so except in compliance with ~~the terms of this Section 3.3; provided that~~ the provisions of this Section ~~3.3 shall not apply to Permitted Transfers~~3. (b) ~~The RFO Offeror shall, prior~~ JMB and JMB Partner may make or permit to occur any Transfer of all or any portion of the Class A Units issued to JMB Partner to (i) any Person in connection with a registered public offering made pursuant to the provisions of the registration rights agreement, dated as of the date hereof, relating to the Class A Units, (ii) any Wholly Owned Affiliate of JMB or JMB Partner or any JMB Controlled Affiliate or (iii) its constituent members (on a ratable basis); provided, however, that no such Transfer shall be consummated (A) except in compliance with all applicable provisions of Article 9 of the WFP Partnership Agreement and (B) in the case of such a Transfer by JMB Partner described in clauses (ii) or (iii) above, unless such Wholly Owned Affiliate, JMB Controlled Affiliate or each such member (other than any member Controlled by the Partnership) shall have executed and delivered to each of the parties to this agreement (other than JMB or JMB Partner) a written instrument pursuant to which such Wholly Owned Affiliate, JMB Controlled Affiliate or member assumes (in respect of the Class A Units Transferred to it) all the obligations of JMB Partner under this Section 3 and Section 10 of this agreement. In addition, if JMB Partner shall have made a Transfer of Class A Units of the character described in clause (iii) above to JMB in compliance with all applicable provisions of this agreement and Article 9 of the WFP Partnership Agreement, JMB may Transfer all or part of such Class A Units to its constituent partners (on a ratable basis and without requiring such Partners to deliver the instrument described in clause (B) above); provided, however, that any ~~Ordinary Shares~~ such Transfer shall be made only in compliance with all applicable provisions of Article 9 of the WFP Partnership Agreement. (c) If JMB Partner shall determine to ~~which this Section 3.3 applies~~offer to make any Transfer (other than a Transfer by JMB or JMB Partner of the character described in subsection 3(b) above) of any Class A Units or to respond to any offer received by it with respect thereto, it shall first give ~~written~~ each of the Founding Limited Partners a notice (~~“RFO~~ an "Offer Notice”") ~~to each other Shareholder (each, an “RFO Offeree”), setting forth~~ specifying (i) the number of ~~Ordinary Shares proposed~~ Class A Units it desires to ~~be disposed of (the “RFO Ordinary Shares”)~~Transfer, (ii) the ~~proposed~~ date (which shall be at least thirty-one (31) days after the date of the Offer Notice) on which such Transfer is contemplated to occur, (iii) the purchase price per ~~RFO Ordinary Share, and payment and other material terms and conditions~~ Class A Unit (the "Unit Price") that JMB Partner is willing to accept for Transfer of such Class A Units and (~~iii~~iv) if JMB Partner is willing to provide any purchase money financing in respect of such Transfer, the terms thereof that would be acceptable to JMB Partner. Each Founding Limited Partner shall have the right (the "First Offer Right"), exercisable by written notice (each, an ~~irrevocable offer~~ "Exercise Notice") to ~~sell~~ JMB Partner (a copy of which shall be provided concurrently to each other Founding Limited Partner) given not later than fifteen (15) days after the ~~RFO Offeree(s)~~ effective date under Section 19 hereof of the ~~RFO Ordinary Shares~~ Offer Notice, to purchase from JMB Partner its Ratable Percentage of the Class A Units identified in the Offer Notice for the Unit Price set forth in the ~~RFO Notice at~~ Offer Notice; provided, however, that if any Founding Limited Partner shall fail or decline to exercise the ~~same price per Ordinary Share and on the same terms and conditions as set forth therein. (c) The RFO Offeree(s) collectively shall have the right to purchase (the “~~First Offer Right ~~of First Offer”), any or all~~ for its full Ratable Percentage of the ~~RFO Ordinary Shares by delivering a written notice (~~Class A Units identified in the ~~“RFO Exercise”) of exercise of~~ Offer Notice, the ~~Right of~~ First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise Right in respect of the ~~relevant Remaining RFO Ordinary Shares~~ portion thereof not so exercised may be exercised by the other Founding Limited Partners (on a ratable basis or such other basis as they shall agree) by the sending of an additional Exercise Notice to JMB Partner within 10 thirty (~~ten~~30) ~~Business Days~~ days after the effective date under Section 19 hereof of ~~such re-offer, after which time such re-offer shall lapse and~~ the ~~re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined~~Offer Notice as against all Founding Limited Partners. (d) If the ~~RFO Offeree(s)~~ Founding Limited Partners shall not have ~~delivered an RFO~~ given Exercise ~~to the RFO Offeror within the RFO Response Period for~~ Notices in respect of all ~~the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase~~ of the ~~RFO Ordinary Shares~~ Class A Units identified in the Offer Notice within such thirty (30) ~~days~~ day period, JMB Partner shall thereafter ~~upon~~ have the ~~terms~~ right to Transfer all such Class A Units to any Person for cash or on the financing terms, if any, specified in the Offer Notice, at a purchase price per Class A Unit of not less than 95% of the Unit Price set forth in the ~~RFO~~ Offer Notice~~; provided~~, ~~however, that~~ provided such ~~period~~ sale shall be ~~extended~~ consummated not later than one hundred twenty (120) days following ~~such~~ the effective date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration under Section 19 hereof of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 daysOffer Notice as against all Founding Limited Partners. (e) ~~If the RFO Offeree(s) shall not have completed the purchase~~ The closing of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “any Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the ~~purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation~~ Founding Limited Partners pursuant to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section ~~3.3~~3 shall take place at the office of JMB Partner in Chicago, Illinois, or such other place in Chicago, Illinois, or New York City as shall be designated by JMB Partner on a date not later than the date set forth in the Offer Notice as the anticipated closing date. At such closing, JMB Partner shall deliver or cause to be delivered to each of the applicable purchasers, against receipt (by delivery of immediately available funds) of the purchase price owing to JMB Partner hereunder, an instrument in form reasonably acceptable to such purchaser assigning to such purchaser all JMB Partner's rights in and to the Class A Units specified in the Exercise Notice or Exercise Notices of such purchaser. Any and all transfer or similar taxes in respect of such transfer shall be paid by JMB Partner. All Class A Units so transferred by JMB Partner shall be free and clear of any claims or security interests of any Person (and the instrument of assignment shall contain a warranty to such effect by JMB Partner). (f) ~~The RFO Offeror shall~~Notwithstanding anything to the contrary herein contained, ~~upon~~ no term or provision of this Section 3 that may be or become inconsistent with the ~~Transfer~~ provisions of Section 9-1.1 of the ~~RFO Ordinary Shares~~Estates, ~~procure~~ Powers and Trusts Law of the ~~resignation~~ State of ~~such number~~ New York, or any successor statute thereto in effect during the term of ~~directors nominated by it~~this agreement, ~~if any~~shall be operative following twenty-one years after the death of the last to die of those descendants of Xxxx X. Xxxxxxxxxxx, ~~as would be required pursuant to Section 2.2 hereof~~Xx., ~~and such director shall execute a letter~~ in being on the date of ~~resignation~~this agreement.

Appears in 1 contract

Samples: Transaction Agreement (JMB 245 Park Avenue Associates LTD)

Right of First Offer. No Shareholder shall Transfer any of its Company Shares other than to a Permitted Transferee, except as set forth below: (a) ~~Other than Prohibited Transfers, if at any time after the Lock Up Period~~ If either Shareholder (a ~~Shareholder desires~~ "ROFO Seller") proposes to Transfer ~~other than pursuant~~ any or all of such ROFO Seller's Company Shares, prior to any ~~Permitted Transfer~~Transfer of Company Shares, such ~~Transfer~~ ROFO Seller shall ~~be permitted only if such~~ deliver to the other Shareholder (the ~~“RFO Offeror”~~"ROFO Recipient") ~~fully complies with~~ written notice (the "ROFO Notice"), stating such ROFO Seller's intention to effect such a Transfer, the number of Company Shares subject to such Transfer (the "ROFO Shares"), the price per ROFO Share or the formula by which such price per ROFO Share is to be determined (which price must consist of only cash consideration) (the "ROFO Price") and the other material terms and conditions of ~~this Section 3.3; provided~~ the proposed Transfer. The ROFO Notice may require that the ~~provisions~~ ROFO Seller and ROFO Recipient enter into a definitive agreement with respect to any sale of ~~this Section 3.3 shall not apply~~ the ROFO Shares to ~~Permitted Transfers~~the ROFO Recipient on a date that is no less than thirty (30) days and no later than sixty (60) days after the date of the ROFO Notice. (b) The ~~RFO Offeror shall~~ROFO Recipient will have the right, ~~prior to the Transfer~~ exercisable by delivery of ~~any Ordinary Shares to which this Section 3.3 applies, give~~ an irrevocable written ~~notice (“RFO Notice”) to each other Shareholder~~ offer (each, a "ROFO Offer Notice") to the ROFO Seller within thirty (30) days after receipt of the ROFO Notice, to make an ~~“RFO Offeree”)~~offer to purchase all, ~~setting forth (i)~~ but not less than all, of the ~~number of Ordinary~~ ROFO Shares ~~proposed to be disposed of (the “RFO Ordinary Shares”), (ii) the proposed~~ for a purchase price ~~per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell~~ equal to the ~~RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share~~ ROFO Price and on the ~~same~~ other proposed terms and conditions as set forth ~~therein~~in the ROFO Notice (each, a "ROFO Offer"). (c) ~~The RFO Offeree(s) collectively shall have the right to purchase (the “Right of First Offer”), any or all~~ Following delivery of the ~~RFO Ordinary~~ ROFO Offer Notice, if applicable, the ROFO Recipient will purchase the ROFO Shares by delivering ~~a written notice (the “RFO Exercise”) of exercise of the Right of First Offer~~ cash equal to the ~~RFO Offeror within 20 (twenty) Business Days from~~ aggregate ROFO Price due for such ROFO Shares by wire transfer to an account designated in writing by the ~~date of~~ ROFO Seller against delivery of certificates or other instruments representing the ~~RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary~~ ROFO Shares ~~as shall be~~ so purchased, ~~collectively, by~~ it being understood that the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all consummation of such ~~remaining RFO Ordinary Shares (~~sale shall occur only after the ~~“Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree,~~ receipt of required authorizations as set forth in ~~the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se~~Section 3.3(e), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined. (d) If ~~the RFO Offeree(s) shall have~~ no ROFO Offer Notice is delivered ~~an RFO Exercise~~ to the ~~RFO Offeror within~~ ROFO Seller, or if the ~~RFO Response Period~~ ROFO Recipient elects not to make an offer to purchase all of the ROFO Shares pursuant to this Section 3.3, then the ROFO Seller shall be permitted for a period of six (6) months from the date the ROFO Offer Notice was due to be received by the ROFO Seller to sell to a Third Party not less than all of the ~~RFO Ordinary Shares~~ROFO Shares at a price not less than that contained in the ROFO Notice and otherwise on other terms and conditions not materially less favorable to the ROFO Seller than those contained in the ROFO Notice. Promptly after such sale to such Third Party, the ~~RFO Offeror~~ ROFO Seller will notify the ROFO Recipient of the closing thereof and ~~RFO Offeree(s) shall be respectively bound,~~ will furnish such evidence of the completion and ~~shall complete the~~ time of completion of such sale and ~~purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon~~ the terms ~~set forth in the RFO Notice; provided, however, that~~ and conditions of such ~~period shall~~ sale as may reasonably be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken requested by the ~~RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days~~ROFO Recipient. (e) If Upon exercise by the ~~RFO Offeree(s) shall not have completed the purchase~~ ROFO Recipients of ~~all~~ their rights of ~~the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in~~ first offer under this Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made3.3, to the extent ~~prior to the expiration of the Transfer Period reasonably appropriate actions have been taken~~ an offer or offers are received by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary ROFO Seller for all ROFO Shares, the ~~RFO Offeror~~ ROFO Recipients and the ROFO Seller shall ~~no longer~~ be ~~permitted~~ legally obligated to ~~dispose~~ consummate the purchase contemplated thereby and shall use their reasonable best efforts to secure any governmental authorization required, to comply as soon as reasonably practicable with all applicable Laws and to take all such other actions and to execute such additional documents as are reasonably necessary or appropriate in connection therewith and to consummate the purchase of ~~such RFO Ordinary~~ the ROFO Shares ~~without again fully complying with the provisions of this Section 3.3~~as promptly as practicable. (f) ~~The RFO Offeror shall~~In the event that such Transfer is not consummated under Sections 3.3(c) or (d), ~~upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to~~ then this Section ~~2.2 hereof,~~ 3.3 shall again apply and such ~~director~~ ROFO Seller shall ~~execute a letter of resignation~~not Transfer such Company Shares without again complying with this Section 3.3.

Appears in 1 contract

Samples: Shareholders Agreement (Itau Unibanco Holding S.A.)

Right of First Offer. ~~(a) Other than Prohibited Transfers~~6.1 Except as otherwise provided in this Amended Agreement or upon the mutual agreement of the Shareholders, ~~if at any time after~~ the Lock Up Period a Shareholder desires to Transfer other than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder (the “RFO Offeror”) fully complies with the terms of this Section 3.3; provided Shareholders agree that ~~the provisions of this Section 3.3~~ they shall not ~~apply to Permitted Transfers.~~ sell, give, encumber, pledge or otherwise transfer, assign or dispose of either voluntarily or by operation of law, all or any part of their shares in VisEra Cayman and/or withdraw from VisEra Cayman within the first three (b3) The RFO Offeror shall, prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth (i) the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein. (c) The RFO Offeree(s) collectively shall have the right to purchase (the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days years from the date of ~~delivery~~ incorporation of VisEra Taiwan, unless VisEra Cayman has completed an Initial Public Offering in any jurisdiction, at which time this provision shall terminate. 6.2 The Shareholders agree that they will not sell, give, encumber, pledge or otherwise transfer, assign or dispose of, either voluntarily or by operation of law, all or any part of the ~~RFO Notice~~ stock which either of them now owns or may hereafter acquire in VisEra Cayman without first offering such stock to the other Shareholder as provided herein. 6.3 After three (3) years from the date of incorporation of VisEra Taiwan: (a) If either initial Shareholder desires to withdraw from VisEra Cayman, the withdrawing Shareholder shall first provide the non-withdrawing Shareholder with written notice of its intention to withdraw and shall offer (the “~~RFO Response Period~~Offer”)) its shares to the non-withdrawing Shareholder, ~~irrevocably stating therein such portion of~~ whereupon the ~~RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly~~non-~~owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree~~ withdrawing Shareholder shall have the irrevocable first right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined. (d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares exercisable within thirty (30) days ~~thereafter upon~~ of the ~~terms~~ withdrawing Shareholder to so withdraw, to purchase the entire equity interest of the withdrawing Shareholder in VisEra Cayman at a price per share equal to the proportionate Book Value Per Share (in the aggregate, the “Offer Price”). For purposes of this Amended Agreement the “Book Value Per Share” shall mean the book value set forth in VisEra Cayman’s most recent quarterly financial statements, defined in accordance with the ~~RFO Notice; provided~~ROC Generally Accepted Accounting Principles, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken divided by the ~~RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days. (e) If~~ number of shares of common stock of VisEra Cayman on the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation date of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3financial statements. (f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.

Appears in 1 contract

Samples: Shareholders’ Agreement (Omnivision Technologies Inc)

Right of First Offer. ~~(a) Other than Prohibited Transfers~~Subject to Section 4.1 and Section 7.1, ~~if at any time after the Lock Up Period a Shareholder desires to Transfer other than pursuant to any Permitted Transfer~~and except as otherwise allowed under Section 4.2, ~~such Transfer shall be permitted only if such~~ no Shareholder (the “~~RFO Offeror~~Transferor”) ~~fully complies with~~ may, at any time, Transfer any Equity Securities legally or beneficially held by it, except pursuant to the ~~terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers.~~following provisions: (ba) ~~The RFO Offeror shall, prior~~ Prior to ~~the~~ consummating any such Transfer of ~~any Ordinary Shares to which this Section 3.3 applies~~the Equity Securities, ~~give~~ the Transferor shall deliver a written notice (the “~~RFO~~ Offer Notice”) to each other Shareholder (~~each, an~~ the “~~RFO Offeree~~Offerees”), setting forth ~~(i)~~ its bona fide intention to Transfer Equity Securities to a third party, the number of ~~Ordinary Shares proposed~~ Equity Securities to be ~~disposed of~~ Transferred (the “~~RFO Ordinary~~ Subject Shares”), the price at which such Transferor wishes to sell the Subject Shares (~~ii)~~ the ~~proposed purchase price per RFO Ordinary Share~~“Offer Price”), and ~~payment and~~ any other ~~material~~ terms ~~and conditions and~~ of the offer. (~~iii~~b) The Offer Notice shall constitute, for a period of 15 days from the date on which it shall have been deemed given, an irrevocable and exclusive offer to sell to ~~the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice~~ each Offeree (or any direct or indirect wholly-owned Subsidiary designated by an Offeree), at the ~~same price per Ordinary Share~~ Offer Price, a portion of the Subject Shares not greater than the proportion that the number of Equity Securities owned by such Offeree (and on all Affiliates thereof) bears to the ~~same terms~~ total number of Equity Securities owned by all the Offerees (and ~~conditions as set forth therein~~Affiliates thereof). (c) ~~The RFO Offeree(s) collectively shall have the right to purchase~~ Each Offeree (~~the “Right of First Offer”), any~~ or ~~all of the RFO Ordinary Shares by delivering~~ a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one designated direct or ~~more~~ indirect wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(sSubsidiary thereof) may accept the offer set forth in an Offer Notice by ~~delivery~~ giving notice to the ~~RFO Offeror~~ Transferor, prior to the expiration of ~~an RFO Exercise in respect~~ such offer, specifying the maximum number of the ~~relevant Remaining RFO Ordinary~~ Subject Shares ~~within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and~~ that the ~~re-offer for such Remaining RFO Ordinary Shares will be deemed~~ Offeree wishes to ~~have been declined~~purchase. (d) If one or more Offerees do not agree to purchase all of the ~~RFO Offeree(s~~Subject Shares to which such Offerees are entitled (such shares not purchased, the “Offeree Remaining Shares” and together with Offeree Remaining Shares of all other Offerees, the “Aggregate Remaining Shares”), the Transferor shall promptly so notify each Offeree that has agreed to purchase all of the Subject Shares so entitled (each a “Second Round Offeree”), such notice to constitute an offer to sell, irrevocable for fifteen (15) ~~shall have delivered an RFO Exercise~~ days, to each such Offeree, at the Offer Price, a portion of the Aggregate Remaining Shares not greater than the proportion that the number of Equity Securities owned by such the Second Round Offeree bears to the ~~RFO Offeror within the RFO Response Period for~~ total number of Equity Securities owned by all ~~the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase~~ of the ~~RFO Ordinary Shares within thirty (30) days thereafter upon~~ Second Round Offerees. Each Second Round Offeree shall notify the ~~terms set forth in the RFO Notice; provided~~Transferor, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of such offer, specifying the ~~RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s)~~ number of Aggregate Remaining Shares that such Offeree agrees to ~~obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days~~purchase. (e) If the ~~RFO Offeree(s) shall not have completed~~ Offerees in the aggregate agree to purchase of any or all of the ~~RFO Ordinary~~ Subject Shares pursuant to this Section 4.3, they shall pay in cash or immediately available funds for and the Transferor shall deliver valid title to, free and clear of any Lien, such Subject Shares, subject to receipt of any necessary or advisable third party approvals or any Governmental Approvals, within fifteen (15) days following completion of the ~~RFO Purchase Period, as extended as provided~~ procedures set forth in ~~Section 3.3(d),~~ subsection (b) and (d) hereof. (f) If the offers made by the Transferor to the Offerees pursuant to subsections (b) and (d) hereof expire without an agreement by one or ~~together have failed~~ more Offerees to ~~deliver RFO Exercises within the RFO Response Period for~~ purchase all of the ~~RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise~~ Subject Shares, the ~~Right of First Offer, then the RFO Offeror~~ Transferor shall have ~~the right for~~ sixty (60) days ~~thereafter~~ to enter into a definitive agreement with respect to such Transfer and ninety (90) days to effect the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the ~~RFO Ordinary~~ balance of the Subject Shares ~~is consummated on~~ to any third party or parties, for cash, at a price not less than the Offer Price, and upon terms not otherwise more favorable to the ~~purchasers thereof~~ transferee or transferees than ~~the terms~~ those specified in the ~~RFO Notice~~ Offer Notice, subject to the execution and delivery by such third party of an assignment and assumption agreement, in form and substance satisfactory to the other Shareholders, pursuant to which such third party shall assume all of the obligations of a party pursuant to or under this Agreement. In the event such Transfer is not consummated within such ninety (90) day period, the Transferor shall not be permitted to sell its Equity Securities pursuant to this Section 4.3 without again complying with each of the requirements of this Section 4.3; provided, that such ninety (90) day period should be extended automatically as necessary (i) to apply for and obtain any Governmental Approvals that are required to consummate such Transfer, so long as the Transferor is making good faith efforts to obtain such Governmental Approvals as soon as practicable in accordance with applicable Law and (ii) in the ~~RFO Offeror provides written confirmation~~ event that Section 4.4, 4.5, 4.6 or 4.7 applies, to complete the ~~RFO Offeree(s) that~~ procedure as provided therein. If there is such ~~terms comply with clause (i) hereof prior to~~ extension, the ~~consummation~~ relevant period will end on the fifth Business Day following the receipt of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty Approvals. (30g) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the The provisions of this Section ~~3.3. (f) The RFO Offeror shall~~4.3 shall continue to be effective following the completion of an IPO; provided that, ~~upon~~ following the ~~Transfer~~ completion of the ~~RFO Ordinary Shares~~IPO, ~~procure~~ (i) this Section 4.3 shall not apply to any sale of any Equity Securities on the ~~resignation~~ primary securities exchange or quotation system by or through which such Equity Securities are traded, by any Management Member in an amount generating gross sale proceeds to such Management Member of ~~such number of directors nominated by it~~not more than US$1.0 million during any twelve-month period, and (ii) if ~~any, as~~ the proposed Transfer would be ~~required~~ a block trade or otherwise on the open market (whether pursuant to ~~Section 2.2 hereof~~Rule 144 or otherwise), ~~and such director shall execute~~ including without limitation a ~~letter of resignation.~~block trade to

Appears in 1 contract

Samples: Shareholders Agreement (Yahoo Inc)

Right of First Offer. ~~(a) Other than Prohibited Transfers, if at~~ Prior to making any ~~time after the Lock Up Period a Shareholder desires to Transfer other than pursuant to any Permitted~~ Transfer, ~~such Transfer shall be permitted only if such Shareholder~~ a holder of Interests (the “~~RFO Offeror~~Disposing Interest Holder”) fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers. (b) The RFO Offeror shall, prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give will deliver a written notice (the “~~RFO~~ Interest Sale Notice”) to ~~each~~ the Company and the other ~~Shareholder (each, an “RFO Offeree”), setting forth (i)~~ Interest Holders disclosing the ~~number of Ordinary Shares~~ Interests proposed to be ~~disposed of~~ Transferred (the “~~RFO Ordinary Shares~~Offered Interests”)~~, (ii)~~ . The Disposing Interest Holder agrees not to consummate any such Transfer until the ~~proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell~~ parties to the ~~RFO Offeree(s)~~ Transfer have been finally determined pursuant to this Section 7.6 (the ~~RFO Ordinary Shares set forth in~~ “Interest Authorization Date”). The Company and the ~~RFO Notice at~~ Interest Holders may elect to purchase all or a portion of the ~~same price per Ordinary Share and on the same~~ Offered Interests upon such terms and conditions as set forth ~~therein. (c) The RFO Offeree(s) collectively shall have~~ in a written notice of such election to the ~~right to purchase~~ Disposing Interest Holder (the “~~Right~~ Offer Notice”) within 30 days after the receipt of ~~First Offer”)~~the Interest Sale Notice by the Company. If the Company and one or more Interest Holders elect to purchase the Offered Interests, ~~any or~~ the Company shall be entitled to purchase all of the ~~RFO Ordinary Shares by delivering a written notice (~~Offered Interests it elects to purchase, and the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as remaining Offered Interests shall be ~~purchased, collectively, by~~ allocated among the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s electing Interest Holders pro rata ~~share (~~based on the number of ~~Ordinary Shares~~ Interests held by each of them, or in such ~~RFO Offeree~~ other proportions as ~~a proportion~~ they may agree. If (i) the Interest Holders and/or the Company have not elected to purchase all, and not less than all, of the ~~number~~ Offered Interests within 35 days of ~~Ordinary Shares held by all RFO Offerees). To~~ receipt of the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered Interest Sale Notice by the ~~RFO Offeror to~~ Company, (ii) the ~~other RFO Offeree(s) (or if there is more than one other RFO Offeree, in~~ Disposing Interest Holder has accepted the ~~proportion (as nearly as may be) to~~ offer by the ~~number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to~~ Company and/or the ~~RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse~~ Interest Holders and the ~~re-offer for such Remaining RFO Ordinary Shares will be deemed to~~ Company or the Interest Holders have been declined. (d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days. (e) If the RFO Offeree(s) shall not ~~have completed~~ consummated the purchase of ~~all~~ such shares within 55 days of the ~~RFO Ordinary Shares within~~ receipt of the ~~RFO Purchase Period, as extended as provided in Section 3.3(d)~~Interest Sale Notice by the Company, or ~~together have failed to deliver RFO Exercises within~~ (iii) the ~~RFO Response Period for all of~~ Disposing Interest Holder has not accepted the ~~RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise~~ offer by the ~~Right of First Offer~~Company and/or the Interest Holders, ~~then~~ the ~~RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”)~~Disposing Interest Holder may, ~~to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being~~ subject to ~~any~~ the provisions of Section 7.1 above, Transfer the ~~restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated~~ Offered Interests at a price and on terms ~~not~~ no more favorable to the ~~purchasers~~ transferee(s) thereof than ~~the terms~~ those specified in the ~~RFO Notice and (ii)~~ Interest Sale Notice, during the ~~RFO Offeror provides written confirmation~~ 180-day period immediately following the Interest Authorization Date. Any Interests not transferred within such 180-day period will be subject to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section ~~3.3~~7.6 upon subsequent Transfer. (f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.

Appears in 1 contract

Samples: Operating Agreement

Right of First Offer. 27.1 Tenant (or an Affiliate of Tenant) shall have a first right of offer to lease additional space on the sixth (6th) floor (the “Additional Space”) in the Building, provided: (a) ~~Other than Prohibited Transfers~~This right of first offer is subordinate to the rights of all future tenants in such space, ~~if at any time after the Lock Up Period a Shareholder desires~~ to Transfer other than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder (the “RFO Offeror”) fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers.renew or extend their leases; (b) The RFO Offeror shall, prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth (i) the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth Tenant is not then in ~~the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein.~~monetary default; (c) ~~The RFO Offeree(s~~Tenant has not previously assigned the Lease, nor is it then subletting in excess of fifty percent (50%) ~~collectively shall have the right to purchase (the “Right of First Offer”), any or all~~ of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.Premises; (d) If Tenant must lease all of the ~~RFO Offeree(s~~Additional Space offered; (e) ~~shall have delivered an RFO Exercise~~ This right of first offer must be exercised with at least three (3) years remaining in the Lease Term, or the Renewal Term, as applicable (and, notwithstanding the provisions of Article XXVI above, Tenant can simultaneously exercise its Option to Renew with respect to the ~~RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s~~Renewal Term in order to comply with such three (3) ~~shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice~~year requirement; provided, however, that in such event, the fair market rental rate shall not be determined until the time period ~~shall~~ has occurred after which Tenant would otherwise be ~~extended following such date as necessary~~ entitled to ~~permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase~~ exercise its Option to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days.Renew); (ef) ~~If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended~~ Tenant exercises its option as provided in this Section ~~3.3(d), or together have failed~~ by delivering to ~~deliver RFO Exercises~~ Landlord written notice of its intention within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty ten (6010) days ~~thereafter (~~after Landlord has notified Tenant that the ~~“Transfer Period”)~~Additional Space is available. Landlord’s notice shall specify the size of such space and shall constitute an offer by Landlord to lease such space to Tenant upon the terms of this Lease, ~~to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that~~ except (i) ~~such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified~~ as otherwise provided in ~~the RFO Notice~~ this Article, and (ii) the ~~RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale~~Lease Term may not be co-terminus; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3. (f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.and

Appears in 1 contract

Samples: Office Lease Agreement (Synchronoss Technologies Inc)

Right of First Offer. (a) ~~Other than Prohibited Transfers, if~~ If at any time ~~after the Lock Up Period~~ a ~~Shareholder~~ Member that is not in material default under this Agreement (a “Selling Member”) desires to ~~Transfer~~ transfer all or any part of its Membership Units (other than pursuant to ~~any~~ a Permitted Transfer), ~~such Transfer~~ the Selling Member shall ~~be permitted only if such Shareholder~~ submit a written offer (the “~~RFO Offeror~~Offer”) ~~fully complies with~~ to the other Members other than the Selling Member (the “Remaining Members”) to the effect that the Selling Member wishes to sell such Membership Units (the “Offered Membership Units”) stating the price, the number of Membership Units and other material terms upon which the Selling Member wishes to dispose of the Offered Membership Units, and offering to sell the Offered Membership Units to each Remaining Members on the terms of set forth in the Offer and in accordance with this Section ~~3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers~~9.9. (b) ~~The RFO Offeror shall~~Subject to Section 9.9(c) below, ~~prior~~ each Remaining Member shall initially have the right to purchase up to that portion of the Offered Membership Units as shall be equal to the ~~Transfer~~ Offered Membership Units multiplied by a fraction, the numerator of ~~any Ordinary Shares~~ which shall be the Percentage Interest of such Remaining Member and the denominator of which shall be the Percentage Interests of all of the Remaining Members. The amount of such Offered Membership Units that each Remaining Member is entitled to ~~which~~ purchase under this Section ~~3.3 applies, give written notice (~~9.9 shall be referred to as its “~~RFO Notice~~Pro Rata Fraction.”) to each other Shareholder (each, an “RFO Offeree”), setting forth (i) the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein. (c) The ~~RFO Offeree(s) collectively~~ Remaining Members shall have a right of oversubscription such that, if any Remaining Member fails to accept the Offer as to all or any portion of its Pro Rata Fraction, the other Remaining Members shall, among them, have the right to purchase (up to the ~~“Right~~ balance of ~~First Offer”)~~such Offered Membership Units not so purchased. The other Remaining Members may exercise such right of oversubscription by accepting the Offer as to more than their Pro Rata Fraction. If, ~~any or all~~ as a result thereof, such oversubscriptions exceed the total number of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise Offered Membership Units available in respect of such oversubscription privilege, the ~~relevant~~ oversubscribing Remaining ~~RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer~~ Members shall ~~lapse and the re-offer for such Remaining RFO Ordinary Shares will~~ be ~~deemed~~ cut back with respect to ~~have been declined~~oversubscriptions on a pro rata basis in accordance with their respective Pro Rata Fractions or as they may otherwise agree among themselves. (d) If Those Remaining Members who elect to purchase the ~~RFO Offeree(s)~~ Offered Membership Units shall ~~have delivered an RFO Exercise~~ provide written notice of their election to the ~~RFO Offeror within~~ Company and the ~~RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares~~ Selling Member within thirty (30) days ~~thereafter upon~~ of the ~~terms set forth~~ date the Offer was made (the “ROFO Election Period”). Such communications shall, when taken in conjunction with the ~~RFO Notice; provided~~Offer, ~~however~~be deemed to constitute a valid, ~~that~~ legally binding and enforceable agreement for the sale and purchase of such ~~period~~ Offered Membership Units. Sales of such Offered Membership Units to be sold to the Remaining Members pursuant to this Section 9.9 shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to made at the ~~extent prior to the expiration~~ offices of the ~~RFO Purchase Period reasonably appropriate actions have been taken by~~ Company within sixty (60) days following the ~~RFO Offeree(s)~~ date the Offer was made. For the avoidance of doubt, while there shall be only two Members of the Company, the one Remaining Member may only purchase all, but not less than all, the Offered Membership Units pursuant to ~~obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days~~this Section 9.9. (e) If the ~~RFO Offeree(s) shall~~ Remaining Members do not ~~have completed the~~ elect to purchase of all of the ~~RFO Ordinary Shares within~~ Offered Membership Units, then the ~~RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for~~ Selling Member may sell all of the ~~RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty~~ Offered Membership Units at any time within one hundred twenty (60120) days ~~thereafter (~~after the ~~“Transfer~~ ROFO Election Period~~”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject~~ . Such sale may be to any of Person, at not less than the ~~restrictions set forth in this Article III; provided~~price and upon substantially similar other terms and conditions, ~~however~~if any, ~~that (i) such Transfer of the RFO Ordinary Shares is consummated on terms~~ not more favorable to ~~the purchasers thereof~~ such Person than ~~the terms~~ those specified in the ~~RFO Notice and~~ Offer. If the Offered Membership Units are sold pursuant to this Section 9.9 to any purchaser who is not a party to this Agreement, the purchaser of such Offered Membership Units (i) shall execute a counterpart of this Agreement as a precondition of the purchase of such Offered Membership Units, (ii) ~~the RFO Offeror provides written confirmation~~ any Offered Membership Units sold to ~~the RFO Offeree(s) that~~ such ~~terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period~~ purchaser shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers continue to be ~~obtained or made,~~ subject to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this ~~Section 3.3.~~ Agreement, and (fiii) ~~The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of~~ such ~~number of directors nominated by it, if any, as would~~ purchaser shall be required ~~pursuant~~ to ~~Section 2.2 hereof~~demonstrate to the Managing Member, ~~and~~ in their sole discretion, that such ~~director shall execute a letter of resignation~~purchaser has the financial ability to fund any required Capital Contributions associated with such Offered Membership Units.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Badlands Power Fuels, LLC)

Right of First Offer. Any proposed transfer by Transferee of Voting Securities issuable upon conversion of the Preferred Stock in a Permitted Offering pursuant to Section 5.3(a)(iv) shall be subject to a right of first offer on the part of ATI, as follows: (a) ~~Other than Prohibited Transfers, if at any time after the Lock Up Period~~ Transferee shall deliver to ATI a ~~Shareholder desires to Transfer other than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder~~ notice (~~the “RFO Offeror”~~a "ROFO Notice") ~~fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers. (b) The RFO Offeror shall,~~ 10 days prior to the ~~Transfer~~ delivery of ~~any Ordinary Shares~~ a request pursuant to ~~which this~~ Section ~~3.3 applies, give written notice (“RFO Notice”~~6.1(a) to ~~each~~ file a registration statement, which ROFO Notice shall set forth, among other ~~Shareholder (each, an “RFO Offeree”), setting forth~~ things: (i) the ~~number~~ identity of ~~Ordinary Shares~~ the prospective managing underwriter for the proposed ~~to be disposed of (the “RFO Ordinary Shares”)~~offering, (ii) the proposed ~~purchase~~ price per ~~RFO Ordinary Share~~share to public and net proceeds per share to Transferee, ~~and payment and~~ (iii) the number of shares of Common Stock issuable upon conversion of the Preferred Stock to be registered for sale, (iv) the identity (if known) of any Person that has expressed an interest in purchasing in excess of 1% of the Common Stock issuable upon conversion of the Preferred Stock in the proposed offering, (v) any other material terms and conditions of the proposed offering, (vi) the closing date for the proposed offering (which date shall not be less than 30 days from the date on which the ROFO Notice is delivered), and (~~iii~~vii) a statement from the managing underwriter that it is highly confident that the proposed offering can be underwritten on the terms and conditions set forth in the ROFO Notice. The ROFO Notice shall constitute an irrevocable offer to ~~sell~~ ATI, upon the terms specified therein, to purchase the shares of Common Stock issuable upon conversion of the Preferred Stock. 103 (b) ATI may elect, at its option, to purchase all, but not less than all, of the Registrable Shares referred to in the ROFO Notice at a price per share equal to the ~~RFO Offeree(s) the RFO Ordinary Shares set forth~~ net proceeds per share referred to in the ~~RFO~~ ROFO Notice at by delivering to Transferee written notice of its election (a "Notice of Election") within 10 days after receipt of the ~~same price per Ordinary Share and~~ ROFO Notice. Such Notice of Election shall constitute a binding obligation on the ~~same~~ part of ATI, subject to standard terms and conditions ~~as set forth therein~~for a stock purchase agreement between an issuer and a significant shareholder, to purchase such Voting Securities. Such Notice of Election shall include the proposed date for the closing of the purchase, which shall be no later than 21 days following the delivery of such Notice of Election. ATI may designate a third party to exercise its right of first offer. (c) ~~The RFO Offeree(s) collectively shall have~~ If ATI or its designee does not exercise the foregoing right ~~to purchase (~~of first offer within such 10-day period, Transferee may proceed with the ~~“Right of First Offer”), any or all of~~ proposed offering as described in the ~~RFO Ordinary Shares by delivering a written notice (~~ROFO Notice. Such offering must be closed within 90 days after the ~~“RFO Exercise”) of exercise of~~ date the ~~Right of First Offer~~ Registration Statement is filed with the SEC and the price per share to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof public and the ~~proportion thereof~~ net proceeds per share to ~~be purchased by each RFO Offeree (~~Transferee must equal or exceed such ~~Affiliate(s))~~terms as set forth in ROFO Notice. Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined. (d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively boundTransferee shall, and shall ~~complete~~ cause its managing underwriters to, use best efforts to cause the ~~sale and purchase~~ filing of the ~~RFO Ordinary Shares~~ Registration Statement and the closing of the offering pursuant thereto to occur as quickly as possible. If the offering is not completed within ~~thirty (30) days thereafter upon~~ such 90-day period or if market conditions cause the managing underwriter to reduce the proposed price per share to the public or the net proceeds to Transferee or otherwise to materially revise the terms set forth in the ~~RFO~~ ROFO Notice~~; provided~~, ~~however, that such period~~ Transferee shall ~~be extended following such date as necessary~~ promptly so notify ATI and ATI shall again have a right of first offer pursuant to ~~permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection~~ paragraph (b) above with ~~such purchase to be obtained or made,~~ respect to the ~~extent prior to the expiration~~ shares of Common Stock issuable upon conversion of the ~~RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s)~~ Preferred Stock referred to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days. (e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3. (f) The RFO Offeror shallROFO Notice, upon the ~~Transfer of the RFO Ordinary Shares~~revised terms, ~~procure the resignation of~~ except that such ~~number of directors nominated by it, if any, as would~~ new right must be ~~required pursuant to Section 2.2 hereof, and~~ exercised within three business days after such ~~director shall execute a letter of resignation~~notification.

Appears in 1 contract

Samples: Limited Partnership Agreement (Airtouch Communications)

Right of First Offer. (ai) ~~Other than Prohibited Transfers~~Subject to subsection (vii) below, ~~if at~~ any ~~time after the Lock Up Period a Shareholder desires~~ Common Holder desiring to ~~Transfer other than pursuant~~ transfer, prior to any ~~Permitted Transfer~~Separation Event, ~~such Transfer shall be permitted only if such Shareholder~~ Investment Units or Common Stock, whether held separately or as part of one or more Investment Units and after a Separation Event any Common Stock (~~the “RFO Offeror”) fully complies with the terms~~ hereinafter for purposes of this Section ~~3.3~~1(b) only, the "Securities"), held by such Common Holder (the "Seller") shall give written notice (the "Sales Notice") to the other Common Holders that the Seller desires to effect such a transfer (a "Sale") and setting forth the number of Investment Units or shares of Common Stock proposed to be transferred by the Seller. (ii) The receipt of the Sales Notice by each other Common Holder party to this Shareholders Agreement shall constitute an offer (the "Offer") by the Seller to sell to such Common Holder or group of Common Holders for cash the Securities subject to the Sale, subject to the Seller's approval of the terms and conditions of the Bid (as defined below). Each Common Holder, or any group of one or more Common Holders, receiving an Offer shall have a 15-day period (the "Order Period") in which to give a written notice (a "Bid") to the Seller prior to the expiration of such 15-day period, which written notice shall set the price per Security that such Common Holder or group of Common Holders proposes to pay (the "Proposed Sales Price") and such other terms and conditions it or they propose with respect to the Sale; ~~provided that~~ provided, however, a Bid must be for all of the Securities the Seller proposes to transfer as stated in the Sales Notice. (iii) Upon the receipt of all Bids, if any, the Seller shall have the right to solicit offers for the Securities subject to the Sale from any non-affiliated third-party (a "Third-Party Offer") for a period of 90 days from the date the Order Period expires. To the extent the Seller receives a Third-Party Offer and such Third-Party 3 6 Offer contains a Proposed Sales Price in excess of the highest Sales Price received by Seller pursuant to the Bids made by the Common Holders or group of Common Holders, then Seller shall have the right to sell the Securities to the Third-Party pursuant to its Offer. If no Bids are delivered during the Order Period then the Seller shall be entitled to accept, in its sole discretion, any Third-Party Offer it so chooses. If such sale pursuant to a Third-Party Offer is not consummated within 120-days from receipt of the Third-Party Offer, and no Bids of Common Holders are accepted by the Seller within 10 days following the expiration of the 90-day period described in the first sentence of this subparagraph (iii), then the provisions of this Section ~~3.3~~ 1(b) shall ~~not apply~~ be reinstated as to ~~Permitted Transfers~~any other transfers proposed to be made by the Seller. (biv) The ~~RFO Offeror shall, prior~~ Common Holders or group of Common Holders providing a Bid to the ~~Transfer~~ Seller during the Order Period as to all of ~~any Ordinary Shares~~ the Securities subject to the Sale, and which ~~this Section 3.3 applies~~Bid is accepted by the Seller, ~~give~~ shall be required to purchase and pay for all the Securities accepted pursuant to their Bid within a 30-day period from the date on which the buying Common Holder (or group of Common Holders) receives written notice ~~(“RFO Notice”)~~ of the Seller's acceptance of the Bid; provided that if the purchase and sale of such Securities is subject to ~~each other Shareholder (each~~any prior regulatory approval, ~~an “RFO Offeree”), setting forth (i)~~ the ~~number~~ time period during which such purchase and sale may be consummated shall be extended until the expiration of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth thereinfive Business Days after all such approvals shall have been received. (cv) ~~The RFO Offeree(s) collectively shall have~~ Subject to the ~~right to purchase (the “Right~~ transfer restrictions of ~~First Offer”~~Section 1(a)(ii), ~~any~~ the Seller may transfer Investment Units or ~~all~~ shares in accordance with subsection (b)(iii) for consideration other than cash to an unaffiliated third-party only if the Seller has first obtained and delivered to each of the ~~RFO Ordinary Shares by delivering a written notice (~~Common Holders an opinion of an independent investment banking firm of national standing indicating that the ~~“RFO Exercise”) of exercise~~ fair market value of the ~~Right of First Offer~~ per share non-cash consideration that the Seller proposes to accept as consideration for such Investment Units or shares, together with any per share cash consideration, is at least equal to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, highest proposed Sale Price received by the ~~RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof~~ Seller pursuant to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered Bids made by the ~~RFO Offeror to the other RFO Offeree(s) (~~Common Holders or ~~if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number~~ group of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declinedCommon Holders. (dvi) If Notwithstanding any provision of this Section 1(b), no action may be taken by the ~~RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares~~Seller, the ~~RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete~~ other Common Holders or the ~~sale and purchase~~ Company that would cause a violation of the ~~RFO Ordinary Shares within thirty~~ provisions of Section 2. (30vii) ~~days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period~~ The Company shall ~~be extended following such date as~~ take all reasonable steps necessary to ~~permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority~~ ensure application is made for the appropriate permissions from the Bermuda authorities in connection with ~~such purchase to be obtained or made, to the extent~~ any Transfer complying with this Agreement. The Company hereby acknowledges that no prior ~~to the expiration~~ approval of the ~~RFO Purchase Period reasonably appropriate actions have been taken by~~ Bermuda Monetary Authority is necessary for any Transfer between Persons who are designated as non-residents of Bermuda for the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days. (e) If the RFO Offeree(s) shall not have completed the purchase of all purposes of the ~~RFO Ordinary Shares within the RFO Purchase Period~~Exchange Control Act, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.31972. (f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.

Appears in 1 contract

Samples: Shareholders Agreement (Cga Group LTD)

Right of First Offer. Each Lender must provide PW Partners and KLIM with ten (a10) Other than Prohibited Transfers, if at any time after the Lock Up Period a Shareholder desires to Transfer other than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder (the “RFO Offeror”) fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers. (b) The RFO Offeror shall, Business Days prior ~~to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give~~ written notice ~~(“RFO Notice”)~~ of an intention to each other Shareholder (each, an “RFO Offeree”), setting forth (i) the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein. (c) The RFO Offeree(s) collectively shall have the right to purchase (the “Right of First Offer”), assign any or all of its Loans and/or Term Commitments and the ~~RFO Ordinary Shares by delivering a written notice~~ terms of such proposed assignment. PW Partners and KLIM shall have no less than five (~~the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty~~5) Business Days from the date of delivery of such notice to respond to and/or accept such Lender’s proposed assignment on the ~~RFO Notice (the “RFO Response Period”)~~terms offered; provided that if both PW Partners and KLIM accept such Lender’s proposed assignment, ~~irrevocably stating therein such portion of the RFO Ordinary Shares as~~ each shall be ~~purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof~~ entitled to ~~be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required,~~ accept up to ~~purchase (or cause~~ its ~~wholly-owned Affiliate(s) to purchase) such RFO Offeree’s~~ pro rata share (based on the ~~number~~ amount of ~~Ordinary Shares held by~~ Loans it holds at such ~~RFO Offeree as a proportion~~ time) of the ~~number of Ordinary Shares held by all RFO Offerees)~~proposed assignment. Neither PW Partners nor KLIM shall be obligated to purchase any such Loans and/or Term Commitments. To the extent ~~any RFO Offeree does~~ PW Partners or KLIM has not ~~wish to purchase~~ responded within five (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten5) Business Days of receiving such ~~re-offer~~notice, ~~after which time such re-offer~~ PW Partners and/or KLIM shall ~~lapse and the re-offer for such Remaining RFO Ordinary Shares will~~ be deemed to have ~~been declined. (d) If~~ declined to purchase such Loans and/or Term Commitment. To the ~~RFO Offeree(s) shall have delivered an RFO Exercise~~ extent PW Partners and/or KLIM do not agree to ~~the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and~~ purchase ~~of the RFO Ordinary Shares within thirty (30) days thereafter upon the~~ such Loans and/or Term Commitment on terms set forth in such Lender’s request, such Lender may assign to any Eligible Assignee in accordance with this Section 10.6 on the ~~RFO Notice; provided, however, that~~ same terms of such ~~period~~ proposed assignment to PW Partners and KLIM. Any such assignment to PW Partners or KLIM pursuant to this clause (viii) shall be ~~extended following such~~ evidenced by an Assignment and Assumption and all other requirements, as applicable, set forth in clause (iv) above. Subject to acceptance and recording thereof by the Administrative Agent pursuant to paragraph (c) of this Section 10.6, from and after the effective date ~~as necessary~~ specified in each Assignment and Assumption, the assignee thereunder shall be a party to ~~permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made~~this Agreement and, to the extent ~~prior to the expiration~~ of the ~~RFO Purchase Period reasonably appropriate actions have been taken~~ interest assigned by ~~the RFO Offeree(s) to obtain~~ such ~~approvals~~Assignment and Assumption, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days. (e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the ~~right for sixty (60) days thereafter (~~rights and obligations of a Lender under this Agreement, and the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or madeassigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 2.13, 2.14 and 10.5 with respect to facts and circumstances occurring prior to the ~~expiration~~ effective date of such assignment; provided, that except to the ~~Transfer Period reasonably appropriate actions have been taken~~ extent otherwise expressly agreed by the ~~RFO Offeror to obtain~~ affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this paragraph shall be treated for purposes of this Agreement as a sale by such ~~approvals, consents or authorizations or make~~ Lender of a participation in such ~~filings or registrations;~~ rights and ~~provided further that no such extension shall exceed thirty~~ obligations in accordance with paragraph (30d) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section ~~3.3~~10.6. (f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.

Appears in 1 contract

Samples: Credit Agreement (Town Sports International Holdings Inc)

Right of First Offer. Subject to the terms and conditions of this Section 9, and except for any securities offered pursuant to this offering or in a Qualified Public Offering, the Company hereby grants to Purchaser a right of first offer with respect to future sales by the Company of its Common Stock or securities convertible into or exercisable for any shares of its Common Stock (such Common Stock or securities, the "Applicable Securities"). In the event Company proposes a sale of Applicable Securities, the Company shall first make an offering of such Applicable Securities to each Purchaser in accordance with the following provisions: (a) ~~Other than Prohibited Transfers, if at any time after~~ the ~~Lock Up Period~~ Company shall deliver a Shareholder desires to Transfer other than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder (the “RFO Offeror”) fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers. (b) The RFO Offeror shall, prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (~~“RFO~~ the "First-Offer Notice”") to each ~~other Shareholder (each, an “RFO Offeree”), setting forth~~ Purchaser stating (i) the ~~number of Ordinary Shares proposed~~ Company's bona fide intention to ~~be disposed of (the “RFO Ordinary Shares”)~~offer such Applicable Securities, (ii) the ~~proposed purchase price per RFO Ordinary Share~~16 17 number of shares of such Applicable Securities to be offered, ~~and payment and other material terms and conditions~~ and (iii) ~~an irrevocable~~ the price for which it proposes to offer such Applicable Securities; (b) within ten (10) calendar days after mailing of the Notice, Purchasers may elect to ~~sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice~~ purchase, at the ~~same~~ price ~~per Ordinary Share~~ and on the ~~same~~ terms ~~and conditions as set forth therein.~~specified in the First-Offer Notice, Applicable Securities having an aggregate purchase price of up to 150% of the principal amount of the Notes held by Purchasers; (c) ~~The RFO Offeree(s~~the Company may, during the 120-day period following the expiration of the ten (10) ~~collectively shall~~ day period provided in Section 9(b) hereof, offer any Applicable Securities which have not been subscribed for pursuant to Section 9(b) hereof to any person or entity at a price not less than, and upon terms no more favorable to the offeree than, those specified in the First-Offer Notice. If the Company does not consummate the proposed sale of the Applicable Securities within such period, the right to purchase (the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as provided hereunder shall be ~~purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof~~ deemed revived and ~~the proportion thereof to be purchased by each RFO Offeree (or~~ such ~~Affiliate(s)). Each RFO Offeree shall have the right, but~~ Applicable Securities shall not be ~~required,~~ offered unless first reoffered to ~~purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion~~ holders of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, Notes in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declinedaccordance herewith. (d) If Notwithstanding any other provision herein, the ~~RFO Offeree(s~~right of first offer pursuant to this Section 9 shall not apply (i) ~~shall have delivered an RFO Exercise~~ to the ~~RFO Offeror within~~ issuance of up to 15.79 shares of Common Stock (or rights or options therefor) (adjusted to reflect subsequent stock splits, stock dividends or stock distributions) issued after the ~~RFO Response Period for all the RFO Ordinary Shares~~date hereof to employees, ~~the RFO Offeror and RFO Offeree(s) shall be respectively bound~~officers, ~~and shall complete the sale and purchase~~ directors, or consultants of the ~~RFO Ordinary Shares within thirty~~ Company (30either directly or pursuant to a stock option plan or restricted stock plan approved by the shareholders and directors of the Company); (ii) ~~days thereafter upon~~ to shares issued or issuable by the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority Company in connection with ~~such purchase to be obtained~~ any merger or ~~made~~reorganization transaction in which the Company is the surviving company, or (iii) to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 daysQualified Public Offering. (e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3. (f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.

Appears in 1 contract

Samples: Subscription Agreement (Adstar Com Inc)

Right of First Offer. ~~(a) Other~~ Notwithstanding the provisions of Section 12.1 to the contrary, but subject to the provisions of Section 12.3, the Americana Partners may Transfer all, but not less than ~~Prohibited Transfers~~all, ~~if at any time after the Lock Up Period a Shareholder desires to Transfer other than~~ of their Interest, pursuant to ~~any Permitted Transfer, such Transfer shall be permitted only if such Shareholder (the “RFO Offeror”) fully complies with the terms of this Section 3.3; provided that~~ the provisions of this Section ~~3.3 shall not apply to Permitted Transfers~~12.2. (ba) ~~The RFO Offeror shall~~If at any time during the Call Period, ~~prior~~ the Americana Partners have not received a bona fide written offer from a Person not Affiliated with the Americana Partners to acquire all (and not less than all) of their Interest (for all purposes of Section 12, such Interests of the Americana Partners shall be determined on a collective basis) at a price greater than the Call Option Price, Integrated has not furnished a Call Notice pursuant to Section 12.1, and the Americana Partners desire to Transfer all, but not less than all, of ~~any Ordinary Shares~~ their Interest (the "ROFO Interest"), the Americana Partners shall provide written notice of such desire to Integrated ("ROFO Notice"), which notice shall state that the Americana Partners desire to Transfer all of their Interest in accordance with this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth (i) the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share12.2, and ~~payment and other material terms and conditions and (iii)~~ such ROFO Notice shall constitute an irrevocable offer to sell the entire ROFO Interest to Integrated at a price equal to the ~~RFO Offeree(s)~~ Call Option Price. Integrated shall have the ~~RFO Ordinary Shares~~ irrevocable and exclusive option to acquire the ROFO Interest on the terms and conditions set forth in this Section 12.2(a). The option of Integrated to purchase the ~~RFO~~ ROFO Interest shall be exercised by delivery of a written notice (the "Response Notice") to the Americana Partners and the Partnership within [ORIGINAL TEXT REDACTED] following receipt of the ROFO Notice at (the ~~same price per Ordinary Share and on the same terms and conditions as set forth therein. (c) The RFO Offeree(s) collectively~~ "ROFO Option Period"). Integrated shall have the right to purchase (the ~~“Right of First Offer”~~ROFO Interest for a price equal to the Call Option Price. If Integrated elects to acquire the ROFO Interest pursuant to this Section 12.2(a), ~~any~~ then at the closing of such Transfer, Integrated shall deliver by a certified or ~~all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer~~ bank's cashier's check, cash or wire transfer, an amount equal to the ~~RFO Offeror within 20 (twenty) Business Days from~~ Call Option Price to the ~~date of~~ Americana Partners against the simultaneous delivery of the ~~RFO Notice (the “RFO Response Period”)~~ROFO Interest, ~~irrevocably stating therein~~ free and clear of all liens, charges, pledges and other encumbrances and accompanied by transfer powers duly endorsed for transfer, any and all documentation evidencing such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), ROFO Interest and such other ~~RFO Offeree(s) may accept~~ documentation as reasonably requested by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined. (d) Integrated. If ~~the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO~~ Integrated did not deliver a Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent Notice prior to the expiration of the ~~RFO Purchase~~ ROFO Option Period ~~reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations;~~ and ~~provided further that no such extension shall exceed 60 days. (e) If the RFO Offeree(s) shall not have completed the purchase~~ within [ORIGINAL TEXT REDACTED] of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the ROFO Option Period the Americana Partners obtain a bona fide written offer from a Person not Affiliated with the Americana Partners to acquire all of its Interest and notifies Integrated in writing of such proposed Transfer ~~Period reasonably appropriate actions have been taken by~~ (a "Third Party Offer"), then the ~~RFO Offeror~~ Americana Partners may Transfer the ROFO Interest subject to ~~obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days~~the provisions of Section 12.3. If at ninety (90) days after the ~~end~~ expiration of the ~~Transfer Period, as extended as provided herein,~~ ROFO Option Period the ~~RFO Offeror has~~ Americana Partners have not ~~completed~~ received a bona fide written offer from a Person not Affiliated with the ~~Transfer~~ Americana Partners and have not notified Integrated of the ~~RFO Ordinary Shares~~same, ~~the RFO Offeror shall no longer~~ then any such Transfer will again be ~~permitted~~ subject to ~~dispose of such RFO Ordinary Shares without again fully complying with~~ the provisions of this Section ~~3.3~~12.2 and the Americana Partners shall be required to deliver a new ROFO Notice in connection therewith. (fb) ~~The RFO Offeror shall~~If prior to sending a ROFO Notice to Integrated pursuant to Section 12.2(a) or after the expiration of ninety (90) days after a ROFO Option Period, ~~upon~~ Integrated has not furnished a Call Notice pursuant to Section 12.1 and the Americana Partners have obtained a Third Party Offer to purchase the ROFO Interest at a price greater than the Call Option Price, then any Transfer of the ~~RFO Ordinary Shares~~ROFO Interest by the Americana Partners shall be subject to the provisions of Section 12.3, ~~procure~~ without first having to comply with the ~~resignation~~ provisions of ~~such number of directors nominated by it, if any, as would be required pursuant to~~ Section ~~2.2 hereof, and such director shall execute a letter of resignation~~12.2(a).

Appears in 1 contract

Samples: Limited Partnership Agreement (Coolbrands International Inc)

Right of First Offer. (a) ~~Other than Prohibited Transfers, if at~~ If any ~~time after~~ Investor (the ~~Lock Up Period a Shareholder~~ “Transferring Holder”) desires to Transfer (including indirectly by any of their direct or indirect equityholders) any Partnership Securities or shares of Common Stock, or any Series B Preferred Units (i) to address a Regulatory Concern (as defined in the Purchase Agreement), or (ii) pursuant to a Transfer approved by ENLK, in each of clauses (i) and (ii), pursuant to Section 5.05 of the Purchase Agreement (as applicable, the “ROFO Securities”), to a Person that is not a Permitted Transferee of such Transferring Holder (other than pursuant to ~~any Permitted~~ Section 7.5), then each non-transferring Investor (each, a “ROFO Offeree”) shall have a right of first offer over such ROFO Securities, which shall be exercised in the following manner: (i) The Transferring Holder shall provide the ROFO Offeree with written notice (a “ROFO Notice”) of its desire to Transfer the ROFO Securities. The ROFO Notice shall set forth the number and type of ROFO Securities the Transferring Holder wishes to Transfer, ~~such Transfer~~ the form of consideration to be received in respect thereof and any other terms and conditions material to the sale. (ii) The ROFO Offeree shall ~~be permitted only if such Shareholder~~ have a period of up to 15 Business Days following receipt of the ROFO Notice (the “~~RFO Offeror~~ROFO Election Period”) ~~fully complies~~ to give the Transferring Holder a binding written offer (the “ROFO Offer”) to purchase (or, at the option of the ROFO Offeree, to cause one or more of its Affiliates to purchase) all but not less than all of the ROFO Securities described in the ROFO Notice on the terms and subject to the conditions set specified in the ROFO Notice. The ROFO Offer shall include the price per ROFO Security, including the form of consideration in respect thereof (the “Transfer Consideration”) and shall remain open and binding for 15 Business Days or such greater period of time as may be specified in the ROFO Offer. (iii) If any ROFO Offeree makes a ROFO Offer within the ROFO Election Period and the Transferring Holder accepts such ROFO Offer during the period described in Section 7.4(a)(ii) above, such purchase shall be consummated on the later of (A) a mutually agreed Business Day within 15 days of the date on which the Transferring Holder notifies such ROFO Offeree of such acceptance, and (B) the fifth Business Day following the expiration or termination of all applicable periods under the requirements of the HSR Act or applicable foreign antitrust laws or satisfaction of other applicable legal requirements. (iv) If no ROFO Offeree makes a ROFO Offer within the ROFO Election Period, or if the Transferring Holder does not accept the ROFO Offer, the Transferring Holder may Transfer all of the ROFO Securities specified in the ROFO Notice at any time within 120 days following the delivery of the ROFO Offer, or if no ROFO Offer was delivered, within 150 days of the delivery of the ROFO Notice (subject to extension as necessary to comply with the requirements of the HSR Act or applicable foreign antitrust laws or other applicable legal requirements) (A) at a price that is not less than 103% of the purchase price specified in the ROFO Offer and on economic terms and conditions that, taken as a whole, are not more favorable to the purchaser than those specified in the ROFO Offer (it being understood and agreed that the purchase price per ROFO Security shall be determined without regard to any agreed upon survival of representations or warranties, covenants, escrows or holdbacks or indemnification obligations that the Transferring Holder may agree to), or (B) if no ROFO Offer was delivered, at a price determined by the Transferring Holder, and on such other terms and conditions that are not more favorable to the purchaser than those specified in the ROFO Notice. Following the expiration of any time periods set forth in this Section ~~3.3; provided that~~ 7.4(a)(iv), the ~~provisions of~~ Transferring Holder may not Transfer any such ROFO Securities without first following the procedures set forth in this Section ~~3.3 shall not apply to Permitted Transfers~~7.4. (b) The ~~RFO Offeror shall, prior~~ receipt of Transfer Consideration by any Transferring Holder selling ROFO Securities pursuant to ~~the Transfer of any Ordinary Shares to which~~ this Section ~~3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth~~ 7.4 shall be deemed a representation and warranty by such Transferring Holder that: (i) ~~the number of Ordinary Shares proposed~~ such Transferring Holder has full right, title and interest in and to ~~be disposed of (the “RFO Ordinary Shares”),~~ such ROFO Securities; (ii) ~~the proposed purchase price per RFO Ordinary Share,~~ such Transferring Holder has all necessary power and ~~payment~~ authority and ~~other material terms and conditions~~ has taken all necessary actions to sell such ROFO Securities as contemplated by this Section 7.4; and (iii) ~~an irrevocable offer to sell to~~ such ROFO Securities are free and clear of any and all liens, encumbrances and other restrictions (other than the ~~RFO Offeree(s) the RFO Ordinary Shares~~ Transfer restrictions set forth ~~in the RFO Notice at the same price per Ordinary Share~~ herein, and ~~on the same terms and conditions as set forth therein~~restrictions created by any applicable federal or state securities laws). (c) ~~The RFO Offeree(s) collectively shall have~~ For the ~~right to purchase (the “Right~~ avoidance of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined. (d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Sharesdoubt, the ~~RFO Offeror and RFO Offeree(s~~requirements of this Section 7.4 shall (i) ~~shall be respectively bound, and shall complete~~ only apply for so long as the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days. (e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the transfer restrictions set forth in ~~this Article III; provided, however, that (i) such Transfer~~ Section 5.05 of the ~~RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified~~ Purchase Agreement are in ~~the RFO Notice~~ effect and (ii) not apply to any Foreclosure Transfer or any Transfer or resale by the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration applicable secured party of the Securities subject to such Foreclosure Transfer ~~Period reasonably appropriate actions~~ so long as the transfer restrictions set forth in Section 5.05 of the Purchase Agreement are no longer in effect or have been ~~taken by the RFO Offeror~~ waived with respect to ~~obtain~~ such ~~approvals~~Foreclosure Transfer, ~~consents~~ Transfer or ~~authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period~~resale, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3applicable. (f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.

Appears in 1 contract

Samples: Coordination and Securityholders’ Agreement (Enfield Holdings Advisors, Inc.)

Right of First Offer. (a) ~~Other than Prohibited Transfers~~Provided that (i) the Lease is in full force and effect, (ii) Tenant is not then in default under the monetary or material non-monetary terms of the Lease, after receipt of notice of default from Landlord and expiration of applicable grace periods (if any); and (iii) Tenant is then in actual physical occupancy of at least one hundred percent (100%) of the Premises, if ~~at any time after~~ on or before March 31, 2011, Landlord determines to offer for lease to the ~~Lock Up Period~~ public a ~~Shareholder desires to Transfer other than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder~~ portion of the twenty fourth (24th) floor of the Building identified on Exhibit B hereto and consisting of 7,375 rentable square feet (the “~~RFO Offeror~~ROFO Space”), Landlord shall, before entering into a written lease of the ROFO Space with a third xxxxx tenant, first send a notice to Tenant (the “Offer Notice”) ~~fully complies~~ stating that Landlord intends to offer for lease all or a portion of the ROFO Space. Tenant shall then have the right, exercisable within ten (10) days after Tenant’s receipt of the Offer Notice, time being of the essence, to notify Landlord in writing of Tenant’s desire to lease the ROFO Space set forth in the Offer Notice on the following terms: (i) Base Rent $114,312.50 per annum, with annual cumulative increases of 2.5% on January 1st of each year during the term; (ii) A Work Contribution payable in accordance with paragraph 33 of this Agreement, in the amount of $110,625; (iii) Additional Rent to be paid in accordance with the Lease, as amended hereby, including but not limited to, Operating Expenses; (iv) Tenant’s Proportionate Share for the ROFO Space shall be 1.35%; (v) There shall be no free rent or rent abatement; (vi) The ROFO Space shall not be subject to re-measurement; and (vii) The ROFO Space shall be delivered in an “as is” condition (collectively, the “Offer Terms”). If Tenant timely exercises such right, on the date upon which Landlord delivers vacant, broom-clean possession of the ROFO Space to Tenant (the “ROFO Space Inclusion Date”), the ROFO Space shall be added to and included within the Premises upon all of the Offer Terms and, to the extent not in conflict with the Offer Terms, on the terms and conditions set forth in the Lease, as amended hereby (it being understood that if and to the extent of any inconsistency between the Offer Terms and the terms set forth in this ~~Section 3.3; provided that~~ Lease, the Offer Terms shall prevail as to the lease of the ROFO Space). In the event Tenant fails to exercise its right of first offer within such ten (10) day period, Landlord shall have no further obligation to offer the ROFO Space to Tenant for lease, and shall thereafter be free for the remainder of the Term to lease the ROFO Space to any third party at such rent and upon such conditions as Landlord may determine in its sole and absolute discretion and this Article shall be of no force or effect with respect to the ROFO Space. The provisions of this ~~Section 3.3~~ paragraph 34 shall ~~not apply~~ be of no force and effect from and after April 1 2011, if being agreed that from and after such date, Landlord shall thereafter be free for the remainder of the Term to ~~Permitted Transfers~~lease the ROFO Space to any third party at such rent and upon such conditions as Landlord may determine in its sole and absolute discretion, without first offering said Space to Tenant. (b) ~~The RFO Offeror shall, prior~~ Time is of the essence with respect to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth (i) the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth thereinprovisions of this Article. (c) ~~The RFO Offeree(s) collectively shall have~~ With respect to the ~~right~~ ROFO Space, Landlord represents and warrants to ~~purchase~~ Tenant that there are no existing options, rights of first offer and/or rights of first refusal and/or expansion rights and other like rights heretofore granted by Landlord to any other parties (~~the “Right of First Offer”), any or all~~ including tenants of the ~~RFO Ordinary Shares by delivering a written notice (~~Building under leases of space in the ~~“RFO Exercise”~~Building) ~~of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from~~ in existence on the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declinedhereof. (d) If Promptly after Tenant’s timely exercise of the ~~RFO Offeree(s)~~ right of first offer set forth herein, Landlord and Tenant shall ~~have delivered~~ enter into an ~~RFO Exercise~~ amendment to the ~~RFO Offeror within~~ Lease, as amended hereby, prepared by Landlord confirming the ~~RFO Response Period for all~~ terms upon which Landlord shall lease to Tenant the ~~RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s)~~ ROFO Space (which terms shall be ~~respectively bound~~on the Offer Terms), ~~and~~ but the failure to do so shall ~~complete~~ not impair, affect or reduce the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection parties’ obligations with ~~such purchase to be obtained or made,~~ respect to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days. (e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation lease of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3ROFO Space. (f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.

Appears in 1 contract

Samples: Sublease (Targacept Inc)

Right of First Offer. (a) ~~Other than Prohibited Transfers, if at~~ If any ~~time after~~ Investor (the ~~Lock Up Period a Shareholder~~ "Transferring Holder") desires to Transfer (including indirectly by any of their direct or indirect equityholders) any Partnership Securities or shares of Common Stock, or any Series B Preferred Units (i) to address a Regulatory Concern (as defined in the Purchase Agreement), or (ii) pursuant to a Transfer approved by ENLK, in each of (i) and (ii), pursuant to Section 5.05 of the Purchase Agreement (as applicable, the "ROFO Securities"), to a Person that is not a Permitted Transferee of such Transferring Holder (other than pursuant to ~~any Permitted~~ Section 7.5), then each non-transferring Investor (each, a "ROFO Offeree") shall have a right of first offer over such ROFO Securities, which shall be exercised in the following manner: (i) The Transferring Holder shall provide the ROFO Offeree with written notice (a "ROFO Notice") of its desire to Transfer the ROFO Securities. The ROFO Notice shall set forth the number and type of ROFO Securities the Transferring Holder wishes to Transfer, the form of consideration to be received in respect thereof and any other terms and conditions material to the sale. (ii) The ROFO Offeree shall have a period of up to 15 Business Days following receipt of the ROFO Notice (the "ROFO Election Period") to give the Transferring Holder a binding written offer (the "ROFO Offer") to purchase (or, at the option of the ROFO Offeree, to cause one or more of its Affiliates to purchase) all but not less than all of the ROFO Securities described in the ROFO Notice on the terms and subject to the conditions set specified in the ROFO Notice. The ROFO Offer shall include the price per ROFO Security, including the form of consideration in respect thereof (the "Transfer Consideration") and shall remain open and binding for 15 Business Days or such ~~Transfer~~ greater period of time as may be specified in the ROFO Offer. (iii) If any ROFO Offeree makes a ROFO Offer within the ROFO Election Period and the Transferring Holder accepts such ROFO Offer during the period described in Section 7.4(a)(ii) above, such purchase shall be ~~permitted only~~ consummated on the later of (A) a mutually agreed Business Day within 15 days of the date on which the Transferring Holder notifies such ROFO Offeree of such acceptance, and (B) the fifth Business Day following the expiration or termination of all applicable periods under the requirements of the HSR Act or applicable foreign antitrust laws or satisfaction of other applicable legal requirements. (iv) If no ROFO Offeree makes a ROFO Offer within the ROFO Election Period, or if ~~such Shareholder~~ the Transferring Holder does not accept the ROFO Offer, the Transferring Holder may Transfer all of the ROFO Securities specified in the ROFO Notice at any time within 120 days following the delivery of the ROFO Offer, or if no ROFO Offer was delivered, within 150 days of the delivery of the ROFO Notice (~~the “RFO Offeror”) fully complies~~ subject to extension as necessary to comply with the requirements of the HSR Act or applicable foreign antitrust laws or other applicable legal requirements) (A) at a price that is not less than 103% of the purchase price specified in the ROFO Offer and on economic terms and conditions that, taken as a whole, are not more favorable to the purchaser than those specified in the ROFO Offer (it being understood and agreed that the purchase price per ROFO Security shall be determined without regard to any agreed upon survival of representations or warranties, covenants, escrows or holdbacks or indemnification obligations that the Transferring Holder may agree to), or (B) if no ROFO Offer was delivered, at a price determined by the Transferring Holder, and on such other terms and conditions that are not more favorable to the purchaser than those specified in the ROFO Notice. Following the expiration of any time periods set forth in this Section ~~3.3; provided that~~ 7.4(a)(iv), the ~~provisions of~~ Transferring Holder may not Transfer any such ROFO Securities without first following the procedures set forth in this Section ~~3.3 shall not apply to Permitted Transfers~~7.4. (b) The ~~RFO Offeror shall, prior~~ receipt of Transfer Consideration by any Transferring Holder selling ROFO Securities pursuant to ~~the Transfer of any Ordinary Shares to which~~ this Section ~~3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth~~ 7.4 shall be deemed a representation and warranty by such Transferring Holder that: (i) ~~the number of Ordinary Shares proposed~~ such Transferring Holder has full right, title and interest in and to ~~be disposed of (the “RFO Ordinary Shares”),~~ such ROFO Securities; (ii) ~~the proposed purchase price per RFO Ordinary Share,~~ such Transferring Holder has all necessary power and ~~payment~~ authority and ~~other material terms and conditions~~ has taken all necessary actions to sell such ROFO Securities as contemplated by this Section 7.4; and (iii) ~~an irrevocable offer to sell to~~ such ROFO Securities are free and clear of any and all liens, encumbrances and other restrictions (other than the ~~RFO Offeree(s) the RFO Ordinary Shares~~ Transfer restrictions set forth ~~in the RFO Notice at the same price per Ordinary Share~~ herein, and ~~on the same terms and conditions as set forth therein~~restrictions created by any applicable federal or state securities laws). (c) ~~The RFO Offeree(s) collectively shall have~~ For the ~~right to purchase (the “Right~~ avoidance of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined. (d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Sharesdoubt, the ~~RFO Offeror and RFO Offeree(s)~~ requirements of this Section 7.4 shall ~~be respectively bound, and shall complete~~ only apply for so long as the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days. (e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the transfer restrictions set forth in ~~this Article III; provided, however, that (i) such Transfer~~ Section 5.05 of the ~~RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified~~ Purchase Agreement are in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3effect. (f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.

Appears in 1 contract

Samples: Coordination and Securityholders' Agreement (Goldman Sachs Group Inc)

Right of First Offer. (a) ~~Other than Prohibited Transfers, if at any time after the Lock Up Period a Shareholder desires~~ Without prejudice to Transfer other than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder (the “RFO Offeror”) fully complies with the terms of this Section 3.3; provided that the provisions of ~~this Section 3.3~~ Clause 6.5, if any Selling Shareholder proposes to Transfer all or part of its ROFO Shares ("Transfer Shares”), then, the Selling Shareholder shall first give a written notice (“ROFO Offer Notice”) of such proposed Transfer to the Offerees. Each Offeree (including an Affiliate of such Offeree) shall have the right but not ~~apply~~ an obligation to ~~Permitted Transfers.~~purchase all (and not less than all) the Transfer Shares (“ROFO Right”) (b) ~~The RFO Offeror shall~~Within 15 (fifteen) days (“ROFO Response Period”) of receipt of such notice, ~~prior~~ each of the Offerees shall be entitled to (directly and/or through an Affiliate) (“ROFO Exercising Offeree”) respond to the ~~Transfer~~ ROFO Offer Notice by way of ~~any Ordinary Shares to which this Section 3.3 applies, give written~~ notice (“~~RFO Notice”) to each other Shareholder (each, an “RFO Offeree~~Response”), ~~setting forth~~ offering to purchase all (iand not less than all) the ~~number of Ordinary Shares proposed to be disposed of~~ Transfer Shares, and shall set out the price per Transfer Share offered by them (~~the~~ “~~RFO Ordinary Shares~~ROFO Price”), ~~(ii)~~ the ~~proposed~~ payment mechanism and all other terms at which the Offeree is willing to purchase ~~price per RFO Ordinary Share~~the Transfer Shares.. Two or more Offerees may jointly deliver a ROFO Notice, and ~~payment and other material terms and conditions and (iii) an irrevocable~~ in such joint offer, they may agree on any inter-se proportion or manner in which the ROFO Shares shall be acquired by them, provided that, the offer ~~to sell to~~ given under a joint notice shall be valid only if the ~~RFO Offeree(s)~~ price offered by all ROFO Exercising Offeree in such joint notice is the ~~RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein~~same. (c) ~~The RFO~~ Within 45 (forty-five) days from expiry of the ROFO Response Period, the Selling Shareholder shall communicate in writing to (i) the ROFO Exercising Offeree(s) ~~collectively shall have~~ whose Response has been accepted by the ~~right to purchase~~ Selling Shareholder (~~the~~ “~~Right of First Offer~~Identified Shareholder”), ~~any or all of~~ its decision to Transfer the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Transfer Shares held by ~~such RFO Offeree as a proportion of~~ it at the ~~number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase~~ ROFO Price (~~or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the~~ “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.ROFO (d) ~~If the RFO Offeree(s) shall have delivered an RFO Exercise~~ Without prejudice to the ~~RFO Offeror within~~ above, if more than one Offeree has exercised its ROFO Right (under separate Responses): (i) the ~~RFO Response Period for all~~ Selling Shareholder may issue the ~~RFO Ordinary Shares~~ROFO Acceptance Notice to only 1 (one) ROFO Exercising Offeree, in which case the ~~RFO Offeror and RFO Offeree(s~~Selling Shareholder may Transfer the ROFO Shares to such Identified Shareholder, so long as the ROFO Price offered by such Identified Shareholder is not less favourable than the ROFO Price offered by any other ROFO Exercising Offeree whose proposal has not been accepted by the Selling Shareholder; (ii) the Selling Shareholder may issue the ROFO Acceptance Notice to more than 1 (one) ROFO Exercising Offerree, in which case the Selling Shareholder shall ~~be respectively bound~~Transfer the Transfer Shares to the said Identified Shareholder to whom it has issued the ROFO Acceptance Notice(s), ~~and shall complete~~ on the ~~sale and purchase~~ basis of ~~the RFO Ordinary Shares within thirty~~ their proportionate shareholding (30on a Fully Diluted Basis) ~~days thereafter upon the terms set forth~~ in the ~~RFO Notice; provided, however, that such period shall be extended following such date as necessary~~ Company (unless agreed to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken otherwise by the ~~RFO Offeree(s) to obtain~~ Selling Shareholder and such ~~approvals~~ROFO Exercising Offerees), ~~consents or authorizations, or make~~ so long as the ROFO Price offered by such ~~filings or registrations; and provided further that no such extension shall exceed 60 days~~Identified Shareholders are not less favourable than the ROFO Terms offered by any other ROFO Exercising Offeree whose proposal has not been accepted by the Selling Shareholder. (e) If ~~the RFO Offeree(s) shall not have completed the purchase of all~~ any of the ~~RFO Ordinary~~ ROFO Shares ~~within~~ have not been purchased by the ~~RFO Purchase Period, as extended as provided~~ Offerees in ~~Section 3.3(d~~accordance with Clauses 6.6 (a) through (d), or ~~together have failed to deliver RFO Exercises within~~ if the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to Transferor does not accept any of the ~~restrictions set forth in this Article III; provided~~ROFO Prices, ~~however~~then, ~~that (i) such Transfer~~ after the expiry of the ~~RFO Ordinary Shares is consummated on terms not more favorable to~~ period mentioned in Clause 6.6(c) above, the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period Transferor shall be ~~extended following such date as necessary~~ entitled to ~~permit~~ Transfer all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration (and not less than all) of the Transfer ~~Period reasonably appropriate actions have been taken by~~ Shares, provided that any such Transfer shall only be undertaken above the ~~RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end~~ highest of the ROFO Prices (but in no event below the highest of the ROFO Prices) and on such terms and conditions which are no less favourable than those offered in the Responses (if Responses are provided) or at such terms and conditions as it deems fit in its sole discretion (if no Responses are provided). In the event that such Transfer ~~Period, as extended as provided herein~~is not consummated within a period of 180 (one hundred eighty) days after the expiry of the notice period mentioned in Clause 6.6(c), the ~~RFO Offeror has~~ Selling Shareholder shall not ~~completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer~~ be permitted to ~~dispose of such RFO Ordinary~~ sell the ROFO Shares without again ~~fully~~ complying with each of the ~~provisions~~ requirements of this ~~Section 3.3~~Clause 6.6. Any acquirer of the ROFO Shares pursuant to this Clause 6.6 (including any Offeree or any third party acquirer acquiring such ROFO Shares) shall execute a Deed of Adherence and be bound by the lock-in obligations applicable on such ROFO Shares and the lock-in obligations on the corresponding Yum Lock-in Shares, as set out in Clause 6.5 and shall be deemed to be a Locked-in Shareholder in relation to the ROFO Shares so acquired. (f) ~~The RFO Offeror shall~~Notwithstanding anything contained in this Agreement, ~~upon~~ each Shareholder hereby undertakes and covenants that, during the ~~Transfer~~ subsistence of ~~the RFO Ordinary Shares~~this Agreement, ~~procure the resignation of~~ it shall comply with its obligations under any agreement executed by such ~~number of directors nominated by it,~~ Shareholder (if any), ~~as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation~~the Company and/or the Target Company with Yum (including the Yum Documents).

Appears in 1 contract

Samples: Shareholders Agreement

Right of First Offer. (a) ~~Other than Prohibited Transfers~~Except as otherwise expressly permitted by Sections 7.2, ~~if at any time after~~ 7.3 or 7.4, during the ~~Lock Up Period~~ period from the date hereof until the earlier to occur of the completion of an IPO and the fifth anniversary of the date on which a ~~Shareholder desires to Transfer other than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder~~ Notice of Exercise is given (the ~~“RFO Offeror”) fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers. (b) The RFO Offeror shall~~"ROFO Period"), prior to ~~the~~ any Holder proposing to effect a Transfer of Common Stock to any ~~Ordinary Shares to which this Section 3.3 applies, give written notice~~ Person not an Affiliate of the Transferor (~~“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”~~a "Third-Party Sale"), ~~setting forth~~ such Holder (the "Offering Stockholder") will deliver to BDPI a written Notice (an "Offer Notice") specifying (i) the ~~number~~ aggregate amount of ~~Ordinary Shares proposed~~ cash consideration (the "Offer Price") for which the Offering Stockholder proposes to sell the Common Stock to be ~~disposed of~~ offered in such Third-Party Sale (the ~~“RFO Ordinary Shares”~~"Offered Stock"), (ii) the ~~proposed purchase price per RFO Ordinary Share~~identity of the purchaser in such Third-Party Sale (if then known), ~~and payment and other material terms and conditions~~ and (iii) ~~an irrevocable offer~~ all other material terms of the proposed Third-Party Sale. (b) Prior to ~~sell~~ negotiating (or committing to negotiate) with any third party in respect of a possible sale Third-Party Sale of any Common Stock, the Offering Stockholder will negotiate with BDPI in good faith concerning the possible sale to BDPI of the Common Stock proposed or otherwise intended to be sold in a Third Party Sale for a period of 30 calendar days following the date on which BDPI receives the Offer Notice. If BDPI delivers to the ~~RFO Offeree(s~~Offering Stockholder a written Notice (an "Acceptance Notice") within such 30 calendar day period (such period being referred to herein as the ~~RFO Ordinary Shares~~ "ROFO Acceptance Period") stating that BDPI is willing to purchase all of the Offered Stock for the Offer Price and on the other terms set forth in the ~~RFO Notice at~~ Offer Notice, the ~~same price per Ordinary Share~~ Offering Stockholder will sell all of the Offered Stock to BDPI, and BDPI will purchase such Offered Stock from the Offering Stockholder, on the ~~same~~ proposed terms and subject to the conditions as set forth ~~therein~~below. (c) The ~~RFO Offeree(s) collectively shall have~~ consummation of any purchase of the ~~right~~ Offered Stock by BDPI pursuant to ~~purchase~~ this Section 7.5 (the ~~“Right of First Offer”), any or all of~~ "ROFO Closing") will occur no more than 90 calendar days following the ~~RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of~~ delivery of the ~~RFO~~ Acceptance Notice (such 90 calendar day period being referred to herein as the ~~“RFO Response~~ "ROFO Closing Period”)") at 10:00 a.m. (Eastern Time) at the offices of Xxxxx, ~~irrevocably stating therein~~ Day, Xxxxxx & Xxxxx at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such ~~portion~~ other time of ~~the RFO Ordinary Shares~~ day and place as ~~shall~~ may be ~~purchased, collectively,~~ mutually agreed upon by the ~~RFO Offeree(s~~Offering Stockholder and BDPI. At the ROFO Closing, (i) ~~and/or~~ BDPI will deliver to the Offering Stockholder by certified or official bank check or wire transfer to an account designated by the Offering Stockholder an amount in immediately available funds equal to the Offer Price, (ii) the Offering Stockholder will deliver one or more ~~wholly-owned Affiliates thereof and~~ certificates evidencing the ~~proportion thereof to be purchased by each RFO Offeree~~ Common Stock, together with such other duly executed instruments or documents (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered executed by the ~~RFO Offeror~~ Offering Stockholder) as may be reasonably requested by BDPI to acquire the Offered Stock free and clear of any and all claims, liens, pledges, charges, encumbrances, security interests, options, trusts, commitments and other ~~RFO Offeree(s)~~ restrictions of any kind whatsoever (collectively, "Encumbrances"), except for Encumbrances created by this Agreement, federal or ~~if there is more than one other RFO Offeree,~~ state securities laws or BDPI or as specified in the ~~proportion~~ Offer Notice (~~as nearly as may be) to the number of Ordinary Shares held by them inter se~~"Permitted Encumbrances"), and ~~such other RFO Offeree(s~~(iii) ~~may accept by delivery to~~ the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares Offering Stockholder will be deemed to ~~have been declined~~represent and warrant to BDPI that, upon the ROFO Closing, the Offering Stockholder will convey and Blackstone will acquire the entire record and beneficial ownership of, and good and valid title to, the Offered Stock, free and clear of any and all Encumbrances, except for Permitted Encumbrances. (d) If ~~the RFO Offeree(s) shall have delivered an RFO Exercise~~ no Acceptance Notice relating to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, proposed Third-Party Sale is delivered to the ~~extent~~ Offering Stockholder prior to the expiration of the ~~RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations~~ROFO Acceptance Period, or make such filings or registrations; and provided further that no such extension shall exceed 60 days. (e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares an Acceptance Notice is ~~consummated on terms not more favorable~~ so delivered to the ~~purchasers thereof than~~ Offering Stockholder but the ~~terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation~~ ROFO Closing fails to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent occur prior to the expiration of the ~~Transfer~~ ROFO Closing Period ~~reasonably appropriate actions have been taken~~ (unless BDPI was ready, willing and able prior to the expiration of the ROFO Closing Period to consummate the transactions to be consummated by ~~the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If~~ BDPI at the ~~end of the Transfer Period, as extended as provided herein~~ROFO Closing), the ~~RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares~~ Offering Stockholder may (without again fully complying with the provisions of this Section 3.3. (f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by itaffecting its rights, if any, ~~as would be required pursuant~~ arising out of such failure) consummate the Third-Party Sale, but only (i) during the 90 calendar day period immediately following the expiration of the ROFO Acceptance Period (in the event that no Acceptance Notice was timely delivered to ~~Section 2.2 hereof~~the Offering Stockholder) or the 90 calendar day period immediately following the expiration of the ROFO Closing Period (in the event that an Acceptance Notice was timely delivered to the Offering Stockholder but the ROFO Closing failed timely to occur), (ii) at a price at least equal to the Offer Price, (iii) upon other terms not materially less favorable to the Offering Stockholder than those set forth in the Offer Notice, (iv) if the transferee in the Third-Party Sale enters into an Assumption Agreement, and ~~such director shall execute~~ (v) if the Third-Party Sale is not to or with a ~~letter of resignation~~Competitor or for consideration other than cash. (e) This Section 7.5 will not apply to any transaction in which the consideration payable in the Third-Party Sale is other than cash.

Appears in 1 contract

Samples: Acquisition Agreement (Collins & Aikman Corp)

Right of First Offer. (a) ~~Other than Prohibited Transfers, if at~~ If any ~~time after the Lock Up Period a~~ Shareholder ~~desires~~ proposes to Transfer ~~other than pursuant to~~ any ~~Permitted Transfer~~Shares held by it in the Company, ~~such Transfer~~ each of the Series A Preferred Shareholders shall ~~be permitted only if such Shareholder~~ have a right of first offer (the “~~RFO Offeror~~First Offer Right”) ~~fully complies~~ with ~~the terms of~~ respect to such Transfer as provided in this ~~Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers~~subclause 12.4. (b) ~~The RFO Offeror shall~~If any Shareholder (the “Transferor”) proposes to Transfer any Shares held by it in the Company or any interest herein, ~~prior to~~ the ~~Transfer of any Ordinary Shares to which this Section 3.3 applies, give~~ Transferor shall send a written notice (the “~~RFO~~ Transfer Notice”) to ~~each~~ the Series A Preferred Shareholders, which notice shall state: (i) the name of the Transferor; (ii) the type and number of the Shares in the Company to be Transferred (the“Sale Shares”); (iii) the price that the Transferor is prepared to accept for the Sale Shares (the“Sale Price”); and (iv) the other ~~Shareholder~~ terms and conditions of the proposed Transfer. (~~each, an~~ c) For a period of fifteen (15) Business Days from date of their receipt of the Transfer Notice (the “~~RFO Offeree~~Offer Period”), ~~setting~~ the Series A Preferred Shareholders shall have the right, exercisable through the delivery of an Acceptance Notice as provided in subclause 12.4(d) to purchase any or all of the Sale Shares at a purchase price equal to the Sale Price (calculated on a pro rata basis if the other SeriesA Preferred Shareholders are also purchasing all the Sale Shares) and upon the other material terms and conditions set forth in the Transfer Notice. Each of the Series A Preferred Shareholders shall have the right to purchase a number of Sale Shares (such Shareholder’s “First Offer Allocation”) equal to the total number of Sale Shares multiplied by a fraction, the numerator of which is the number of Ordinary Shares held by or issuable to such Series A Preferred Shareholders and the denominator of which is the total number of Ordinary Shares held by or issuable to all Series A Preferred Shareholders, in each case on an as-converted but otherwise non-diluted basis. In addition, in the event that one or more other Series A Preferred Shareholders (“Non-Electing Offerees”) declines or is deemed pursuant to subclause 12.4(d) to have waived its First Offer Right, each other Series A Preferred Shareholder electing to exercise its First Offer Right (an “Electing Recipient”) shall have the right to purchase all or a portion of the Sale Shares constituting the aggregate First Offer Allocations of the Non-Electing Offerees (the “Excess Sale Shares”) (the “Excess Sale Shares Allocation”). (d) The First Offer Right of each Series A Preferred Shareholder under subclause 12.4(c) shall be exercisable by delivering a written notice of exercise (an “Acceptance Notice”) within the Offer Period to the Transferor, with a copy to each of the other Shareholders. Each Acceptance Notice shall include a statement of (i) the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein. (c) The RFO Offeree(s) collectively shall have the right to purchase (the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by or issuable to such ~~RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly~~Series A Preferred Shareholder on an as-~~owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re~~converted but otherwise non-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined. (d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days. (e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3. (f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.diluted basis and

Appears in 1 contract

Samples: Subscription Agreement

Right of First Offer. If Liberty proposes to sell or otherwise dispose of LMI in a transaction in which LMI would own any of the Other Interests or any of the Additional Interests at the time of such sale or disposition or if LMI proposes to sell or otherwise dispose of all or a portion of any of the Other Interests or any of the Additional Interests described in paragraph 2 of Exhibit A (subject to any right of first offer or refusal, purchase option or similar right described in Exhibit A), if they have not been acquired by Telewest prior to Closing (collectively a "Transfer Interest"), to an unaffiliated third party, then, except as otherwise contemplated by paragraph 1 or unless the sale or other disposition is a "Permitted Liberty Transfer" (as defined below) or is a transfer of LMI's interest in Jupiter Programming described in footnote 10 of Exhibit B, Liberty or LMI, as applicable (the "seller"), will deliver to United a written offer (the "Offer") setting forth the price (stated as an amount of cash) and other material terms on which the seller would agree to sell the Transfer Interest. The parties then will negotiate the terms and conditions on which United would purchase the Transfer Interest, such negotiation to be conducted on an exclusive basis for a period of 30 days after United's receipt of the Offer. With respect to such sale and purchase, United will have the right to pay, and the seller will have the right to require United to pay, the consideration for the Transfer Interest wholly in Class B Stock in a transaction that is tax-free to the seller, and the parties will take all reasonable action to assure that the transaction can be structured as a tax free transaction. The number of shares of Class B Stock to be issued to the seller in exchange for the Transfer Interest will be determined as follows: (a) if one or more Other ~~than Prohibited Transfers~~Interests comprise the Transfer Interest, ~~if at any time after~~ the ~~Lock Up Period a Shareholder desires~~ number of shares will be equal to ~~Transfer other than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder (~~the ~~“RFO Offeror”) fully complies with~~ agreed value of those interests divided by the ~~terms~~ per share value of ~~this Section 3.3~~Class B Stock derived using the Sum of the Parts methodology described in paragraph 5 of Exhibit A; ~~provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers.~~ (b) ~~The RFO Offeror shall~~if one or more Additional Interests comprise the Transfer Interest, ~~prior~~ the number of shares will be equal to the agreed value of those interests divided by the Average Market Price (as defined in paragraph 5 of Exhibit A) of Class A common stock of United ("Class A Stock") as of the date of the closing of the transfer of the Additional Interest(s); (c) if the Transfer Interest is comprised of ~~any Ordinary Shares~~ one or more Other Interests and one or more Additional Interests, the number of shares will be equal to ~~which this Section 3.3 applies, give written notice (“RFO Notice”)~~ the sum of the shares attributable to each ~~other Shareholder~~ of those interests, determined in accordance with the foregoing clauses (~~each, an “RFO Offeree”~~a) and (b), ~~setting forth~~ as applicable; and (d) if the right of first offer is exercised with respect to LMI and LMI owns shares of Class B Stock at the time of the transfer to United, the number of shares of Class B Stock will be equal to the sum of (i) the number of ~~Ordinary Shares proposed to be disposed~~ shares of (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice Class B Stock owned by LMI at the same price per Ordinary Share and on the same terms and conditions as set forth therein. (c) The RFO Offeree(s) collectively shall have the right to purchase (the “Right of First Offer”), any or all time of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined. (d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days. (e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice transfer and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3. (f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of ~~directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter~~ shares of ~~resignation.~~Class B Stock issuable

Appears in 1 contract

Samples: Acquisition Agreement (Unitedglobalcom Inc)

Right of First Offer. (a) Other than Prohibited Transfers, if at any time after the Lock Up Period a Shareholder desires to Transfer other than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder (the “RFO Offeror”) fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers. (b) The RFO Offeror shall, prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth So long as (i) Tenant does not then have under sublease in excess of 10,000 rentable square feet of the ~~number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”),~~ Premises and (ii) no Event of Default is in existence as of the ~~proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer~~ date Tenant notifies Landlord of Tenant's desire to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein. (c) The RFO Offeree(s) collectively shall have the right to purchase (the “exercise its "Right of First Offer”" (as defined below), Tenant shall have a right of first offer (the "Right of First Offer") to rent any ~~or all~~ portion of the ~~RFO Ordinary Shares by delivering a written notice~~ eleventh (11th) floor of the Building (the ~~“RFO Exercise”~~"ROFO Premises") ~~of exercise~~ if the ROFO Premises become available during the Term (including the Renewal Period), subject to the terms and conditions set forth below. Notwithstanding anything contained herein to the contrary, all or any portion of the ROFO Premises will not be considered available and subject to Tenant's Right of First Offer if (x) any tenant of the Building occupying the ROFO Premises (a "Pre-existing Tenant") pursuant to ~~the RFO Offeror within 20 (twenty) Business Days from~~ a lease in effect as of the date of ~~delivery~~ "Landlord's Notice" (as defined below) has a right to extend or renew the term of its lease, (y) Landlord and the Pre-existing Tenant agree to extend the term of such existing lease or enter into a new lease for all or any portion of the ~~RFO Notice~~ ROFO Premises, or (z) any other tenant in the ~~“RFO Response Period”), irrevocably stating therein~~ Building having the right to lease or occupy all or any portion of the ROFO Premises exercises its right to lease such portion of the ~~RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one~~ ROFO Premises (including any extension or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all renewal of such ~~remaining RFO Ordinary Shares (~~lease) if the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined. (d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days. (e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3. (f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.ROFO Premises become

Appears in 1 contract

Samples: Lease Agreement (Coolsavings Inc)

Right of First Offer. (a) ~~Other than Prohibited Transfers~~During the period commencing from the date hereof and ending on the date of an Initial Public Offering of KMOC Common Stock, if ~~at any time after the Lock Up Period a Shareholder~~ BFTC desires to ~~Transfer~~ sell shares of KMOC Common Stock other than pursuant to ~~any Permitted Transfer~~an Initial Public Offering, ~~such Transfer shall be permitted only if such Shareholder (the “RFO Offeror”) fully complies with the terms of this Section 3.3; provided that the~~ Articles VII or VIII hereof or pursuant to existing tag along or drag along provisions ~~of this Section 3.3 shall not apply to Permitted Transfers. (b) The RFO Offeror shall, prior to the Transfer of any Ordinary Shares~~ to which ~~this Section 3.3 applies,~~ BFTC may be subject. BFTC shall first give written notice (~~“RFO~~ a "Transfer Notice”") to KMOC, Waldo and each ~~other Shareholder (each, an “RFO Offeree”), setting forth~~ Original Noteholder containing (i) the number of ~~Ordinary Shares~~ shares of KMOC Common Stock proposed to be ~~disposed of~~ transferred (the ~~“RFO Ordinary~~ "Offered Shares”"), (ii) the ~~proposed~~ purchase price ~~per RFO Ordinary Share~~(the "First Offer Price") which BFTC proposes to be paid for the Offered Shares, ~~and payment and other material terms and conditions~~ and (iii) an ~~irrevocable~~ offer to sell all of the Offered Shares in the following order of priority: first to KMOC; then, if and to the ~~RFO Offeree(s~~extent that KMOC does not elect to purchase all of the Offered Shares, pro rata to each Original Noteholder on the basis of the Principal amount of Investor Notes held by such Original Noteholder; and lastly, to Waldo to the extent that there remain Offered Shares which neither KMOC nor the Original Noteholders elect to purchase. (b) KMOC, Waldo and the ~~RFO Ordinary~~ Original Noteholders (collectively. the "Offerees") shall have a period of 30 days after the date of receipt of the Transfer Notice (the "Response Period") to accept the offer made pursuant to the Transfer Notice to purchase all of the Offered Shares ~~set forth~~ at the First Offer Price by delivering written notice of acceptance to BFTC within the Response Period; provided, however, that in order for this option to be deemed exercised prior to the end of the Response Period, BFTC shall have received acceptances from the Offerees (the "Accepting Offerees") to purchase shares which in the ~~RFO Notice at~~ aggregate must be greater than or equal to the ~~same price per Ordinary Share and on~~ number of shares offered for sale in the ~~same terms and conditions as set forth therein~~Transfer Notice. (c) The ~~RFO Offeree(s) collectively shall have the right to purchase (the “Right of First Offer”), any or all~~ closing of the ~~RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise~~ sale of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Offered Shares will be ~~deemed~~ held at KMOC's principal office in New York on a date mutually agreed upon by the Accepting Offerees and BFTC which is not less than 10 days nor more than 50 days after the end of the Response Period. At the closing, the Offerees will deliver the consideration in accordance with the terms of the offer set forth in the Transfer Notice, and BFTC will deliver the Offered Shares to ~~have been declined~~the Offerees, duly indorsed for transfer, free and clear of all liens, claims and encumbrances. (d) If If, at the ~~RFO Offeree(s) shall~~ end of the Response Period, the Offerees have ~~delivered an RFO Exercise~~ not given notice of their decision to purchase all of the ~~RFO Offeror within the RFO Response Period for all the RFO Ordinary~~ Offered Shares, ~~the RFO Offeror and RFO Offeree(s)~~ then BFTC shall be ~~respectively bound, and shall complete~~ entitled for a period of 90 days beginning the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to day after the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days. (e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period ~~for all of~~ to sell the ~~RFO Ordinary~~ Offered Shares ~~as contemplated in Section 3.3(d) or declined in writing to exercise~~ at a price not lower than the ~~Right of~~ First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated Offer Price and on terms not more favorable to the ~~purchasers~~ transferee than were contained in the Transfer Notice. Promptly after any sale pursuant to this Section 9.3, BFTC shall notify KMOC of the consummation thereof ~~than~~ and shall furnish such evidence of the completion (including time of completion) of such sale and of the terms ~~specified in the RFO Notice and~~ thereof as KMOC may request. (iie) ~~the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further~~If, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of ~~the Transfer Period~~any such 90-day period provided for in this Section 9.3, ~~as extended as provided herein, the RFO Offeror~~ BFTC has not completed the ~~Transfer~~ sale of the ~~RFO Ordinary~~ Offered Shares, ~~the RFO Offeror~~ BFTC shall no longer be permitted to ~~dispose~~ sell any of such ~~RFO Ordinary~~ Offered Shares pursuant to this Section 9.3 without again fully complying with the provisions of this Section ~~3.3~~3.2 and all the restrictions on sale, transfer, assignment or other disposition contained in this Agreement shall again be in effect. (f) ~~The RFO Offeror shall~~Notwithstanding the foregoing, ~~upon~~ in the ~~Transfer~~ event that the Accepting Offerees fail to close the purchase of all of the ~~RFO Ordinary Shares~~Offered Shares on the date mutually agreed upon by the Accepting Offerees and BFTC, ~~procure~~ BFTC shall be entitled, for a period of 120 days from the ~~resignation~~ closing date originally agreed upon, to sell the Offered Shares at any reasonably negotiated price to any third party without having to further comply with the provisions of ~~such number~~ this Section 9.3; provided, however, that if the failure to close the purchase of ~~directors nominated~~ all of the Offered Shares on the date mutually agreed upon by ~~it, if any, as would be required~~ the Accepting Offerees and BFTC was due to the failure of an Accepting Offeree to close the purchase of the amount of Offered Shares it agreed to purchase pursuant to Section ~~2.2 hereof~~9.3(b), the other Accepting Offerees may allocate among themselves, in the order of priority set forth in Section 9.3(a)(iii), such remaining Offered Shares for which financing was not obtained and ~~such director~~ shall ~~execute~~ have a ~~letter~~ period of ~~resignation~~10 additional days from the originally agreed upon closing date to effectuate the purchase of all of the Offered Shares before the provisions of this Section 9.3(f) shall apply.

Appears in 1 contract

Samples: Voting and Transfer Agreement (Khanty Mansiysk Oil Corp)

Right of First Offer. If the Company proposes to offer or sell any New Securities, each Purchaser shall have a right of first offer with respect to such New Securities (the “Offered Securities”). If any Purchaser elects to exercise the right of first offer it may designate as purchasers under such right itself or its partners or affiliates, in such proportions among itself and such partners or affiliates as it deems appropriate. Each time the Company proposes to offer any Offered Securities, the Company shall first make an offering of such Offered Securities to the Purchasers in accordance with the following provisions: (a) ~~Other than Prohibited Transfers, if at any time after the Lock Up Period~~ The Company shall deliver a ~~Shareholder desires to Transfer other than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder~~ notice (the “RFO Offeror”) fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers. (b) The RFO Offeror shall, prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) to each ~~other Shareholder (each, an “RFO Offeree”), setting forth~~ Purchaser stating (i) ~~the number of Ordinary Shares proposed~~ its bona fide intention to ~~be disposed of (the “RFO Ordinary Shares”)~~offer such Offered Securities, (ii) the ~~proposed purchase price per RFO Ordinary Share~~number of such Offered Securities to be offered, ~~and payment and other material terms and conditions~~ and (iii) ~~an irrevocable~~ the price and terms, if any, upon which it proposes to offer ~~to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein~~such Offered Securities. (cb) ~~The RFO Offeree(s~~Within fifteen (15) collectively shall have the right to purchase (the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of calendar days after delivery of the RFO ~~Notice (the “RFO Response Period”)~~Notice, ~~irrevocably stating therein~~ such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, Purchaser may elect to purchase (or ~~cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based~~ obtain, at the price and on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined. (d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days. (e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice, up to that portion of such Offered Securities which equals the proportion that (A) the total number of Ordinary Shares then held by such Purchaser bears to (B) the total number of Ordinary Shares then held by all the shareholders with right of first offer with respect to such Offered Securities (such shareholders, including such Purchaser, collectively, the “RFO Holders”). At the expiration of such fifteen (15) day period, the Company shall promptly notify each RFO Holder that elects to purchase or acquire all the New Securities available to it, (each, a “Fully Exercising Holder”) of any other RFO Holder’s failure to do likewise. During the ten (10) day period commencing after the Company has given such notice, each Fully Exercising Holder may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of Offered Securities specified above, up to that portion of the Offered Securities for which RFO Holders were entitled to subscribe but that were not subscribed for by such RFO Holders which is equal to the proportion that (x) the total number of Ordinary Shares then held by such Fully Exercising Holder bears to (y) the total number of Ordinary Shares then held by all Fully Exercising Holders who wish to purchase such unsubscribed Offered Securities. The closing of any sale pursuant to this Section 5.07(b) shall occur within 60 days of the later of (x) the date that the RFO Notice is given and (y) the date of initial sale of Offered Securities pursuant to this Section 5.07(b). (c) For purposes of this Section 5.07, “New Securities” means, collectively, equity securities of the Company, whether or not currently authorized, as well as rights, options, or warrants to purchase such equity securities, or securities of any type whatsoever that are, or may become, convertible or exchangeable into or exercisable for such equity securities, other than shares issued (i) by reason of a dividend, stock split, split-up or other distribution on shares, (ii) to employees or directors of, or consultants to, the Company or any of its Affiliates pursuant to a plan, agreement or arrangement approved by the Board in exchange for their services, (iii) as a result of Founder Loan Conversions, (iv) upon the exercise of the Warrants, or (v) any securities issued pursuant to the acquisition of another corporation or entity by the Company or any of its Subsidiaries by consolidation, merger, purchase of assets, or other reorganization, or other transactions as approved by the Board. (d) The rights of each Purchaser under this Section 5.07 shall terminate on the earliest of (i) the 12-month anniversary of the Closing Date if the vesting condition of the Tranche II Warrants, as set forth in Section 2(b) thereof, fails to be satisfied, (ii) the ~~RFO Offeror provides written confirmation to~~ 24-month anniversary of the ~~RFO Offeree(s~~Closing Date if the vesting condition of the Tranche III Warrants, as set forth in Section 2(b) ~~that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further~~thereof, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers fails to be ~~obtained or made~~satisfied, to (iii) the ~~extent prior to the expiration~~ third anniversary of the ~~Transfer Period reasonably appropriate actions have been taken by~~ Closing Date, and (iv) the ~~RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at~~ date on which the ~~end~~ Purchasers collectively hold less than 5% of the ~~Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO~~ Company’s total Ordinary Shares ~~without again fully complying with the provisions of this Section 3.3~~on a Fully Diluted Basis. (f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.

Appears in 1 contract

Samples: Share Subscription and Warrant Purchase Agreement (The9 LTD)

Right of First Offer. ~~(a) Other than Prohibited Transfers, if at~~ Before any ~~time after~~ Shares may be Transferred by the ~~Lock Up Period a Shareholder desires to Transfer other than~~ Investor pursuant to a Permitted Public Transfer (excluding any ~~Permitted Transfer~~Transfer pursuant to paragraph (d) of Exhibit C), ~~such Transfer~~ the Investor shall be permitted only if such Shareholder (the “RFO Offeror”) fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers. (b) The RFO Offeror shall, prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give deliver a written notice (a “~~RFO~~ ROFO Notice”) to ~~each other Shareholder~~ the Company, which shall confirm the Investor’s bona fide intention to Transfer Shares (~~each~~such shares, an the “~~RFO Offeree~~ROFO Shares”~~), setting forth~~ ) in a Permitted Public Transfer. During the period of ten (i10) Business Days following the ~~number~~ delivery of ~~Ordinary Shares proposed~~ the ROFO Notice to ~~be disposed of~~ the Company (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein. (c) The RFO Offeree(s) collectively shall have the right to purchase (the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response ROFO Negotiation Period”), ~~irrevocably stating therein such~~ the Investor shall, if so requested by the Company, negotiate exclusively with the Company in good faith with respect to a transaction in which the Investor shall Transfer all or a portion of the ~~RFO Ordinary~~ ROFO Shares as to the Company, in lieu of an effective Permitted Public Transfer for such ROFO Shares. For the avoidance of doubt, the Investor shall ~~be purchased~~not have any obligation to Transfer any ROFO Shares to the Company, ~~collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof~~ and the ~~proportion thereof~~ Company shall not have any obligation to ~~be purchased by each RFO Offeree (~~purchase any ROFO Shares from the Investor, unless the Company and the Investor mutually agree to such a transaction in writing. If, following the expiration of the ROFO Negotiation Period, the Company and the Investor have not agreed in writing for the Investor to Transfer all or ~~such Affiliate(s)). Each RFO Offeree~~ a portion of the ROFO Shares to the Company, then the Investor shall have the right, ~~but shall not be required, to purchase~~ during a period of six (~~or cause its wholly-owned Affiliate(s~~6) ~~to purchase) such RFO Offeree’s pro rata share (based on~~ months following the ~~number of Ordinary Shares held by such RFO Offeree as a proportion~~ end of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares ROFO Negotiation Period (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined. (d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days. (e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer ROFO Open Period”), subject to ~~dispose~~ the terms and conditions of this Agreement (including Section 4.4), to Transfer all of the ~~RFO Ordinary~~ ROFO Shares in ~~one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III~~a Permitted Public Transfer; provided, however, that (ix) ~~such Transfer~~ if the ROFO Shares are comprised of the ~~RFO Ordinary~~ Registrable Shares ~~is consummated on terms not more favorable~~ (as defined in Exhibit C), and (y) if the Investor demands, pursuant to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation Registration Rights, a registration of such ~~sale; and provided further~~ROFO Shares or the filing of a Prospectus Supplement (as defined in Exhibit C) with respect to such ROFO Shares during the ROFO Open Period, ~~that~~ then the ~~Transfer~~ ROFO Open Period shall ~~be extended~~ end six (6) months following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the ~~extent prior to the expiration~~ effectiveness of the ~~Transfer Period reasonably appropriate actions have been taken~~ applicable Registration Statement or Prospectus Supplement filed by the ~~RFO Offeror~~ Company pursuant to ~~obtain such approvals, consents~~ or ~~authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days.~~ as contemplated by Exhibit C. If at the Investor desires to Transfer any ROFO Shares following the end of the ~~Transfer Period~~ROFO Open Period in a Permitted Public Transfer, ~~as extended as provided herein,~~ then the ~~RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror~~ Investor shall ~~no longer~~ be ~~permitted~~ required to ~~dispose of such RFO Ordinary Shares without again fully complying~~ comply with the ~~provisions of~~ procedures set forth under this Section ~~3.3. (f) The RFO Offeror shall, upon~~ 4.6 again by delivering a new ROFO Notice to the ~~Transfer of~~ Company and provide the ~~RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required~~ Company with another ROFO Negotiation Period pursuant to this Section ~~2.2 hereof, and such director shall execute a letter of resignation~~4.6.

Appears in 1 contract

Samples: Investment and Strategic Cooperation Agreement (Janus Capital Group Inc)

Right of First Offer. (a) ~~Other~~ A Shareholder Group (the “Seller”) which desires to sell all or any part of the Shares or Related Shares held by the Seller (provided that any sale of a part of Seller’s holdings must be for Shares representing not less than ~~Prohibited Transfers, if~~ 10% of the outstanding Shares or Related Shares) at any time ~~after~~ during which the ~~Lock Up~~ Hold Period a is not in effect shall first offer to sell such Shares or Related Shares to the other Shareholder ~~desires to Transfer other than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder~~ Group (the “~~RFO Offeror~~Other Shareholder”~~) fully complies~~ ). Any such sale of Shares is subject to any pledges, charges, mortgages or other encumbrances granted to banks or other lenders in connection with ~~the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers~~Project Debt Financing. (b) ~~The RFO Offeror shall, prior to~~ Notice of the ~~Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice~~ offer (the “~~RFO~~ Notice”) shall be sent to ~~each other Shareholder (each~~the Other Shareholders, ~~an “RFO Offeree”), setting forth (i)~~ shall set out the number of ~~Ordinary~~ Shares ~~proposed~~ or Related Shares that the Seller desires to ~~be disposed of~~ sell (the “~~RFO Ordinary~~ Seller’s Shares”), ~~(ii) the proposed purchase price per RFO Ordinary Share,~~ and ~~payment and other material terms and conditions and (iii) an irrevocable~~ shall irrevocably offer to sell the Seller’s Shares for cash, to the ~~RFO Offeree(s)~~ Other Shareholders at the ~~RFO Ordinary Shares~~ price set forth in the ~~RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein~~Notice. (c) ~~The RFO Offeree(s) collectively~~ Upon the Notice being given, the Other Shareholder shall have the right to accept the offer to purchase ~~(the “Right of First Offer”)~~in accordance with such Notice all, ~~any or all~~ but not less than all, of the ~~RFO Ordinary~~ Seller’s Shares ~~by delivering a written notice (~~during the ~~“RFO Exercise”) of exercise of the Right of First~~ Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion Period (as ~~nearly as may be) to the number of Ordinary Shares held by them inter se~~defined below), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined. (d) Within 40 Business Days of having been given the Notice (the “Offer Period”) the Other Shareholder may give to the Seller a notice in writing (an “Acceptance Notice”) accepting the offer contained in the Notice. If the ~~RFO Offeree(s) shall have delivered an RFO Exercise~~ Other Shareholder is willing to purchase all of the ~~RFO Offeror within the RFO Response Period for all the RFO Ordinary~~ Seller’s Shares, the ~~RFO Offeror~~ transaction of purchase and ~~RFO Offeree(s)~~ sale shall be ~~respectively bound, and shall complete the sale and purchase~~ completed within 40 Business Days of the ~~RFO Ordinary Shares within thirty (30) days thereafter upon~~ expiry of the ~~terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary~~ Offer Period subject to ~~permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made,~~ extension to the extent ~~prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s)~~ necessary to obtain ~~such~~ required regulatory approvals~~, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days~~. (e) If the ~~RFO Offeree(s) shall~~ Other Shareholder does not ~~have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided~~ give notice in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying accordance with the provisions of Section that it is willing to purchase all of the Seller’s Shares, the rights of the Other Shareholders to purchase the Seller’s Shares shall cease and the Seller may sell the Seller’s Shares to any Person or Persons within 120 days after the expiry of the Offer Period, subject to extension for up to 30 days to the extent necessary to obtain required regulatory approvals and for a price and on other terms no more favourable to such Persons than those set out in the Notice, provided that prior to or concurrent with such sale: (1) the Other Shareholder consents to such Person or Persons becoming a Shareholder, such consent not to be unreasonably withheld; and (2) such Person or Persons agree to be bound by the terms of this Agreement and enter into an agreement with the Other Shareholder and the Corporation in respect thereof, all in form and on terms satisfactory to the Other Shareholder, acting reasonably. If the Seller’s Shares are not sold within the 120 day period, subject to extension for up to 30 days to the extent necessary to obtain required regulatory approvals, the rights of the Other Shareholder pursuant to this Section ~~3.3~~shall again take effect with respect to any sale of Shares of the Seller, and so on from time to time. (f) ~~The RFO Offeror shall~~Notwithstanding the provisions of Section , ~~upon the Transfer~~ before consenting to any transfer of the ~~RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required~~ Seller’s Shares to any other Person pursuant to the provisions of this Section, the Other Shareholder shall be entitled to require proof that the transfer was completed at a price and on other terms no more favourable to such Person than those that would have been applicable had the Other Shareholder agreed to purchase the Seller’s Shares. (g) All Notices, Acceptance Notices or other notices given under this Section ~~2.2 hereof,~~ shall be given concurrently to the Shareholders and ~~such director shall execute a letter of resignation~~to the Corporation.

Appears in 1 contract

Samples: Share Purchase Agreement (Baja Mining Corp.)

Right of First Offer. (a) ~~Other than Prohibited Transfers, if at~~ If EFS seeks to sell or Transfer any ~~time after the Lock Up Period a Shareholder desires to Transfer other than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder~~ Units (the “~~RFO Offeror~~Offered Units”) ~~fully complies~~ other than to an Affiliate, then EFS must first make an offering of the Offered Units to the other Members (other than any Major Breaching Member) in accordance with the ~~terms of this Section 3.3; provided that the~~ following provisions of this Section ~~3.3 shall not apply to Permitted Transfers~~7.02. (b) ~~The RFO Offeror shall, prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies,~~ EFS will give written notice (the “~~RFO~~ Offering Notice”) to ~~each~~ the other ~~Shareholder~~ Members (~~each, an “RFO Offeree”), setting forth (i~~other than any Major Breaching Member) stating its bona fide intention to Transfer the Offered Units and specifying the number of ~~Ordinary Shares proposed~~ Offered Units that EFS proposes to ~~be disposed~~ Transfer the Offered Units. The Offering Notice will constitute EFS’s offer to review bids for the Transfer of the Offered Units to the other Members (other than any Major Breaching Member), which offer will remain outstanding for a period of 30 days (the “~~RFO Ordinary Shares~~ROFO Notice Period”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein. (c) ~~The RFO Offeree(s~~Upon receipt of the Offering Notice, each Member (other than any Major Breaching Member) ~~collectively shall~~ will have until the ~~right~~ end of the ROFO Notice Period to offer to purchase all (~~the “Right of First Offer”), any or all~~ but not less than all) of the ~~RFO Ordinary Shares~~ Offered Units by delivering a written notice (~~the~~ a “~~RFO Exercise~~ROFO Offer”) to EFS that it offers to purchase such Offered Units at a price specified in such ROFO Offer. Any ROFO Offer so delivered will be irrevocable and binding upon delivery, by the delivering Member and, if within 30 days of ~~exercise of~~ receiving the ~~Right of First~~ ROFO Offer EFS provides written notice to such delivering Member that it elects to sell the ~~RFO Offeror~~ Offered Units to such delivering Member (which election will be irrevocable), will obligate such delivering Member to purchase (and EFS to sell) the Offered Units at the price set forth in the applicable ROFO Offer within ~~20 (twenty) Business Days from~~ 60 days after the ~~date of delivery of the RFO Notice~~ delivering Member receives EFS’s notice (the “~~RFO Response Period~~ROFO Closing Date”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined. (d) If (x) EFS does not elect to accept a ROFO Offer in accordance with Section 7.02(c), (y) no Member delivers a ROFO Offer or (z) EFS receives a ROFO Offer but (A) EFS does not receive payment in full of the ~~RFO Offeree(s~~purchase price for all of the Offered Units on the ROFO Closing Date or (B) ~~shall have delivered~~ the Transfer of all of the Offered Units is not consummated for any reason, including the failure to obtain any governmental approvals required in connection with the Transfer of the Offered Units by the ROFO Closing Date, but other than due to a breach by EFS of its obligation to consummate the sale of the Offered Units, then EFS may, during the 180-day period following the expiration of the ROFO Notice Period (which period may be extended for a reasonable time not to exceed an ~~RFO Exercise~~ additional 45 days to the ~~RFO Offeror within~~ extent reasonably necessary to obtain any required government approvals) (the ~~RFO Response Period for~~ “ROFO Transfer Period”), Transfer all ~~the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase~~ of the ~~RFO Ordinary Shares within thirty~~ Offered Units to any Person (30subject to, for the avoidance of doubt, Section 7.01(b)): (i) ~~days thereafter upon~~ in the event EFS received a ROFO Offer but did not accept any ROFO Offer, subject to terms and conditions (including price) in the aggregate no more favorable to the transferee than those set forth in the ~~RFO Notice~~best ROFO Offer; ~~provided~~and (ii) in all other cases, ~~however, that such period shall be extended following such date as necessary~~ subject to ~~permit all required approvals, consents or authorizations from, or filings or registrations with,~~ any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; terms and ~~provided further that no such extension shall exceed 60 days~~conditions (including price). (e) If EFS does not Transfer the ~~RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares~~ Offered Units within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the ROFO Transfer Period, ~~as extended as~~ the rights provided ~~herein,~~ hereunder will be deemed to be revived and the ~~RFO Offeror has~~ Offered Units will not ~~completed~~ be offered to any Person unless first re-offered to the ~~Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying~~ Members in accordance with ~~the provisions of~~ this Section ~~3.3~~7.02. For the avoidance of doubt, if there are no other Members that are not Major Breaching Members, then EFS will not be required to comply with this Section 7.02. (f) The ~~RFO Offeror shall~~provisions of this Section 7.02 shall apply mutatis mutandis to Transfers of Units proposed to be made by any Person that is a direct or indirect Transferee of EFS or any of its Affiliates. (g) The Members will take all actions as may be reasonably necessary to consummate the sale contemplated by this Section 7.02, ~~upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any,~~ including entering into agreements and delivering certificates and instruments and consents as ~~would~~ may be ~~required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation~~deemed necessary or appropriate.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Arc Logistics Partners LP)

Right of First Offer. ‌ (a) Transfer Notice. Other than ~~Prohibited Transfers~~the Xxxxxxx Investor, ~~if at~~ the Monarch Investor, the Owl Creek Investor or any ~~time after the Lock Up Period~~ of their respective Affiliates, no Investor (a ~~Shareholder desires~~ “ROFO Transferor”) shall be permitted to Transfer Common Shares representing 1% or more of the outstanding Common Shares, in one or a series of related transactions (other than to any of its Affiliates, in any Transfer that is subject to or pursuant to Section 3.2, in a Drag-Along Sale or in an Initial Public Offering) to any ~~Permitted Transfer~~Person (a “Proposed ROFO Transferee”), and any such proposed Transfer shall be permitted only if such Shareholder (the “RFO Offeror”) fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers. (b) The RFO Offeror shallnull and void ab initio, unless, prior to the ~~Transfer~~ consummation of ~~any Ordinary Shares to which this Section 3.3 applies~~such Transfer, ~~give~~ the ROFO Transferor delivers a written notice (a “~~RFO~~ ROFO Offer Notice”) at least ten Business Days prior to the date that such Transfer is to be consummated (provided, that such notice period (as it may be extended pursuant to this proviso, the “ROFO Offer Period”) shall be extended if the Board determines in good faith that any Qualifying Investor possesses material non-public information about the Company that would prevent such Qualifying Investor from purchasing Common Shares of the Company during the ROFO Offer Period) to each ~~other Shareholder~~ Qualifying Investor (or, at the election of the ROFO Transferor, to the Company for further delivery to each‌ Qualifying Investor) (each, an a “~~RFO~~ ROFO Offeree”~~), setting~~ ) that sets forth (i) the number of ~~Ordinary~~ Common Shares proposed to be ~~disposed of~~ Transferred by the ROFO Transferor (the “~~RFO Ordinary~~ Offer Shares”), ) and (ii) the ~~proposed~~ purchase price per ~~RFO Ordinary Share~~Common Share (the “Sale Price”), the form of consideration and the terms and conditions of payment offered by the Proposed ROFO Transferee, and ~~payment and~~ any other material terms and conditions of the proposed Transfer (including a description of any non-cash consideration in sufficient detail to permit a valuation thereof) (collectively, the “ROFO Offer Terms”). Each ROFO Offer Notice shall constitute a binding, irrevocable and ~~(iii) an irrevocable~~ exclusive offer by such ROFO Transferor to sell to the ~~RFO Offeree(s) the RFO Ordinary~~ ROFO Offerees (pro rata in accordance with their holdings of Common Shares ~~set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions~~ as set forth ~~therein. (c~~below) ~~The RFO Offeree(s) collectively shall have~~ the ~~right to purchase (~~Offer Shares at the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based Sale Price on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined. (d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the material terms set forth in the ~~RFO~~ Offer Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days. (e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3. (f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.

Appears in 1 contract

Samples: Stockholders Agreement

Right of First Offer. (a) ~~Other than Prohibited Transfers, if~~ If at any time after the Lock Up Period a Shareholder desires to Transfer other than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder (the “RFO Offeror”) fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers. (b) The RFO Offeror shall, Effective Date but prior to the earlier of the registration of the Common Stock owned by AIP or when that Common Stock becomes freely tradeable, AIP has a bona fide intent to complete a Transfer with respect to any shares of Common Stock owned by AIP, AIP shall first give the Buyer a right of first offer to purchase the shares of Common Stock that AIP wishes to Transfer. AIP shall do so by notifying Larry Hershfield (an "Intention to Sell") of AIP's intention to Trxxxxxx xxx xxxxxs of Common Stock. Thereafter, AIP shall negotiate in good faith for the sale of its shares of Common Stock with the Buyer for a period of twenty-four (24) hours. During the twenty-four (24) hour period following receipt of the Intention to Sell, AIP shall not engage in any discussions, written or oral, regarding the Transfer of its shares of Common Stock with any ~~Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) to each~~ other Shareholder (each, an “RFO Offeree”), setting forth (i) the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein. (c) The RFO Offeree(s) collectively shall have the right to purchase (the “Right of First Offer”), any person or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined. (d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days. (e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) daysentity. If at the end of the ~~Transfer Period, as extended as provided herein~~twenty-four (24) hour period after receipt of the Intention to Sell, the ~~RFO Offeror has not completed~~ parties have been unable to reach agreement as to the ~~Transfer~~ terms of such purchase, AIP shall be free to negotiate with third parties for the sale of such shares of Common Stock, and subject to Section 3.3 below hereof, may enter into agreements with respect to same. AIP and Buyer shall consummate any purchase of Common Stock agreed upon during the twenty-four (24) hour period within three (3) days of such agreement to purchase; (b) If at any time after the earlier of the ~~RFO Ordinary Shares~~registration of the Common Stock owned by AIP or when that Common Stock becomes freely tradeable, AIP has a bona fide intent to complete a Transfer with respect to any shares of Common Stock owned by AIP, AIP shall first give the ~~RFO Offeror~~ Buyer a right of first offer to purchase the shares of Common Stock that AIP wishes to Transfer. AIP shall ~~no longer be permitted~~ do so by notifying Larry Hershfield of AIP's Intention to ~~dispose~~ Sell. Thereafter, AIP shall xxxxxxxxx xx xxod faith for the sale of ~~such RFO Ordinary Shares without again fully complying~~ its shares of Common Stock with the ~~provisions~~ Buyer for a period of ~~this Section 3.3.~~ one (f1) ~~The RFO Offeror shall, upon~~ hour on sales less than 1,000,000 shares and twenty-four (24) hours on sales of 1,000,000 or more shares (the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation."3.2

Appears in 1 contract

Samples: Stockholders Agreement (Aip LLC)

Right of First Offer. 16.5.1. For so long as Subtenant has not assigned this Sublease or sub-sublet any of the Sublease Premises (a) Other than Prohibited Transfers, if at any time after the Lock Up Period a Shareholder desires to Transfer other than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder (the “RFO Offeror”) fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to excepting Permitted Transfers. (b) The RFO Offeror shall, prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), ~~setting forth (i) the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share,~~ and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein. (c) The RFO Offeree(s) collectively shall have the right to purchase (the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror subject to the other ~~RFO Offeree(s~~restrictions set forth herein, Subtenant shall have a right of first offer (“ROFO”) ~~(or if there is more than one other RFO Offeree,~~ as to any rentable premises immediately adjacent to then-applicable Sublease Premises located in the ~~proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect~~ balance of the ~~relevant Remaining RFO Ordinary Shares within 10~~ Xxxxxxxxx Premises for which Sublandlord is seeking a third-party subtenant (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined. (d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice“Available ROFO Premises”); provided, however, that in no event shall Sublandlord be required to lease any Available ROFO Premises to Tenant for any period past the date on which this Sublease expires or is terminated pursuant to its terms (provided that if Tenant has any remaining Renewal Option hereunder, then the term may extend to the end of such ~~period~~ extension period), nor shall Subtenant have any ROFO with respect to any such Available ROFO Premises if the term that Sublandlord is offering therefor extends beyond the date on which this Sublease expires or is terminated pursuant to its terms. To the extent that Sublandlord renews or extends a then-existing sublease with any then-existing subtenant or sub-subtenant of any space, or enters into a new sublease with such then-existing subtenant or sub-subtenant for the same premises, the affected space shall not be deemed to be Available ROFO Premises. In addition, notwithstanding anything to the contrary contained herein, any space involved in (a) a Permitted Transfer by Sublandlord, (b) a surrender of space by Sublandlord to Overlandlord, (c) a subletting to any Affiliate or portfolio company of Sublandlord or to any company with which Sublandlord does business, or (d) a licensing of desk space (i.e., non-demised space) by 126547966 v6 Sublandlord, shall not be deemed to be Available ROFO Premises. In the event Sublandlord intends to market Available ROFO Premises, Sublandlord shall provide written notice thereof to Subtenant (the “Notice of Marketing”), which shall identify the applicable Available ROFO Premises that Sublandlord desires to market and the material economic terms and conditions on which Sublandlord proposes to market the same. 16.5.2. Within five (5) business days following its receipt of a Notice of Marketing, Subtenant shall advise Sublandlord in writing whether Subtenant elects to sublease all (not just a portion) of the Available ROFO Premises described in the Notice of Marketing on all (but not less than all) of the terms and conditions specified in the Notice of Marketing. If Subtenant fails to notify Sublandlord of Subtenant’s election within such five (5) business day period, then Subtenant shall be deemed to have elected not to sublease the applicable Available ROFO Premises. 16.5.3. If Subtenant timely notifies Sublandlord that Subtenant elects to sublease all of the applicable Available ROFO Premises described in the Notice of Marketing on all of the terms and conditions set forth therein, then the applicable Available ROFO Space shall be added to the Sublease Premises on the terms and conditions described above and shall be co-terminous with the remaining term of the Sublease, provided that there is then one (1) or more years remaining in the term of the Sublease (as extended ~~following~~ pursuant to 16.5.1 above). 16.5.4. If Subtenant fails to notify Sublandlord of Subtenant’s election to sublease the applicable Available ROFO Premises within the five (5)-business day period described above, then Sublandlord shall have the right to consummate a sublease of all (but not less than all) of the applicable Available ROFO Premises at base rent not less than eighty-five percent (85%) of that stated in the Notice of Marketing and otherwise on substantially the same economic terms set forth in the Notice of Marketing. If Sublandlord does not sublease all of the applicable Available ROFO Premises within one hundred eighty (180) days after Subtenant’s election (or deemed election) not to sublease the applicable Available ROFO Premises, then the ROFO shall be fully reinstated with respect to such ~~date as necessary~~ Available ROFO Premises (to ~~permit all required approvals~~the extent the same remain Available ROFO Premises), ~~consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made~~and, to the extent ~~prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals~~that Subtenant remains eligible for ROFO rights hereunder, ~~consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days. (e) If the RFO Offeree(s)~~ Sublandlord shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter ~~(the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to~~ sublease any of the ~~restrictions~~ applicable Available ROFO Premises (to the extent the same remain Available ROFO Premises) without first complying with the procedures set forth in this ~~Article III; provided~~Section 16.5. 16.5.5. Notwithstanding anything in this Section 16.5 to the contrary, ~~however~~Subtenant shall not exercise the ROFO during such period of time that Subtenant is in default under any provision of this Sublease beyond the applicable notice or cure period, ~~that (i) such Transfer~~ or otherwise in default in the payment of money under this Sublease. Any 126547966 v6 attempted exercise of the ~~RFO Ordinary Shares~~ ROFO during a period of time in which Subtenant is ~~consummated on terms~~ so in default shall be void and of no effect. In addition, Subtenant shall not be entitled to exercise the ROFO if Sublandlord has given Subtenant two (2) or more ~~favorable to~~ notices of default under this Sublease, whether or not the ~~purchasers thereof than~~ defaults are cured, during the ~~terms specified in the RFO Notice and~~ twelve (ii12) ~~the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof~~ month period prior to the ~~consummation~~ date on which Subtenant seeks to exercise the ROFO, or if any Event of Default under this Sublease has ever occurred, whether or not a cure of such ~~sale;~~ Event of Default has been accepted by Sublandlord. 16.5.6. Notwithstanding anything in this Sublease to the contrary, Subtenant shall not assign or transfer the ROFO, either separately or in conjunction with an assignment or transfer of Subtenant’s interest in the Sublease, without Sublandlord’s prior written consent, which consent Sublandlord may withhold in its sole and ~~provided further~~absolute discretion. 16.5.7. Notwithstanding anything in this Sublease to the contrary, any proper exercise of a ROFO shall be subject to the consent of Overlandlord in accordance with Article 12 of the Original Xxxxxxxxx, and if Overlandlord rejects any subleasing of such Available ROFO Premises, Subtenant shall have no further ROFO right hereunder. 16.5.8. If Subtenant exercises the ROFO, Sublandlord does not guarantee that the ~~Transfer Period~~ Available ROFO Premises will be available on the anticipated commencement date for the sublease as to such Available ROFO Premises due to a holdover by any then-existing occupants of such Available ROFO Premises or for any other reason beyond Sublandlord’s reasonable control. 16.5.9. Notwithstanding anything in this Sublease to the contrary, Subtenant shall not have the right to exercise the ROFO, and Sublandlord shall not be ~~extended following such date as necessary~~ obligated to ~~permit all required approvals~~deliver any Notice of Marketing, ~~consents or authorizations from, or filings or registrations with, any Governmental Authority~~ if there are less than twelve (12) months remaining in ~~connection with such Transfers to be obtained or made~~the term of this Sublease (including, to the extent ~~prior~~ then-exercised, any Renewal Term), or if the term that Sublandlord is offering for such Available ROFO Premises extends beyond the date on which this Sublease expires or is terminated pursuant to its terms. 16.5.10. Notwithstanding anything in this Sublease to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty contrary (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with except for the provisions of ~~this~~ Section ~~3.3. (f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it~~16.5.4 above), if ~~any~~Subtenant elects (or is deemed to elect) not to sublease any applicable Available ROFO Premises, ~~as would be required pursuant to Section 2.2 hereof, and such director~~ then Subtenant shall ~~execute a letter of resignation~~have no further ROFO right hereunder.

Appears in 1 contract

Samples: Sublease (Radius Health, Inc.)

Right of First Offer. (a) ~~Other than Prohibited Transfers~~Pursuant to the Memorandum Opinion and Order of the Federal Communications Commission (the "FCC") adopted on June 16, ~~if at any time after~~ 2000 in connection with the ~~Lock Up Period a Shareholder desires~~ merger of GTE and Xxxx Atlantic Corporation (the "FCC ORDER"), GTE and its Affiliates have agreed, in the circumstances therein described, and subject to ~~Transfer other than pursuant~~ the terms and conditions thereof and to any ~~Permitted Transfer~~modification made by the FCC thereto or any waivers granted by the FCC with respect thereto, to offer shares of Class B Common Stock to Genuity prior to offering to sell such ~~Transfer~~ shares (or any shares into which they have been converted) to any other Person. In the event GTE and its Affiliates are required to offer shares of Class B Common Stock to Genuity under the FCC Order, GTE and its Affiliates shall ~~be permitted only if~~ so offer such ~~Shareholder (the “RFO Offeror”) fully complies~~ shares, and Genuity may accept such offer and purchase such shares, in accordance with the ~~terms~~ procedures, for the price, and upon payment of the consideration as set forth in this Section ~~3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers~~5.1. (b) In the event GTE and its Affiliates are required to offer shares of Class B Common Stock to Genuity, they shall notify Genuity in writing at the address set forth in Section 6.5 hereof (a "FIRST OFFER NOTICE") of the number of shares of Class B Common Stock being offered and of the offer price (determined as hereinafter set forth as of a date reasonably proximate to the date of the First Offer Notice). The ~~RFO Offeror shall~~First Offer Notice shall set forth in reasonable detail the calculation of the offer price as of such reasonably proximate date. Genuity shall have 90 days from the date that it receives the First Offer Notice to notify GTE and its Affiliates at the addresses set forth in Section 6.5 of its intention to accept the offer as to all the shares of Class B Common Stock covered thereby or to reject the offer (without prejudice to Genuity's right to offer a lower price or to offer to purchase fewer shares). In the event Genuity does not accept the offer as to all the shares of Class B Common Stock covered thereby, GTE and its Affiliates shall thereafter be free to dispose of such shares in such manner as they choose (subject to compliance with applicable law, including the FCC Order) without interference or objection from Genuity. In the event that Genuity elects to so exercise its rights, Genuity shall have 180 days from the date that it received the First Offer Notice to make any financial or other arrangements and to consummate the purchase of all of the offered shares of Class B Common Stock pursuant to the First Offer Notice at the offer price, recalculated as of a date (the "PRICING DATE") that is five business days prior to the ~~Transfer~~ closing date of ~~any Ordinary Shares to which this Section 3.3 applies~~the purchase and sale of the shares as hereinafter set forth. Such offer price shall be payable, ~~give written notice (“RFO Notice”) to each other Shareholder (each~~at Genuity's option, ~~an “RFO Offeree”), setting forth~~ (i) ~~the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”)~~in cash, (ii) ~~the proposed purchase price per RFO Ordinary Share~~by delivery by Genuity of an unsubordinated, marketable debt instrument of Genuity (which shall be guaranteed or co-executed by Genuity's principal operating subsidiaries) with a fair market value equal to its face amount (which shall be equal to such offer price) and ~~payment and other material terms and conditions and~~ which shall bear interest at a commercially reasonable rate, comparable to rates under similar instruments issued by companies with debt ratings comparable to Genuity, with a commercially reasonable term for repayment, or (iii) ~~an irrevocable offer~~ part in cash and part by delivery of such a debt instrument. In the event that Genuity fails to ~~sell to~~ consummate the ~~RFO Offeree(s) the RFO Ordinary Shares~~ purchase as set forth in the ~~RFO Notice at~~ previous sentence, GTE and its Affiliates shall thereafter be free to dispose of such shares in such manner as they choose (subject to compliance with applicable law, including the ~~same price per Ordinary Share and on the same terms and conditions as set forth therein~~FCC Order) without interference or objection from Genuity. (c) The ~~RFO Offeree(s) collectively shall have the right to~~ price payable by Genuity upon consummation of a purchase (the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as and sale under this Section 5.1 shall be ~~purchased, collectively, by~~ the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.lesser of: (d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days. (e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) ~~such Transfer~~ the fair market value of the ~~RFO Ordinary Shares is consummated~~ shares on ~~terms not more favorable to~~ an As Converted Basis as of the ~~purchasers thereof than~~ Pricing Date, as determined by a nationally recognized independent investment banker selected jointly by Genuity and GTE, based upon the ~~terms specified in~~ Average Closing Price of the ~~RFO Notice and~~ Class A Common Stock; and (ii) ~~the RFO Offeror provides written confirmation to the RFO Offeree(s~~(1) ~~that such terms comply with clause (i) hereof prior to the consummation~~ for any shares of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority Class B Common Stock in ~~connection with such Transfers to be obtained or made, to the extent prior to the expiration~~ excess of the ~~Transfer Period reasonably appropriate actions have been taken by~~ Ten Percent Amount, the ~~RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end~~ S&P Amount with respect thereto as of the ~~Transfer Period~~Pricing Date, ~~as extended as provided herein~~and (2) for any shares of Class B Common Stock constituting a part of the Ten Percent Amount, the ~~RFO Offeror has not completed the Transfer~~ Market Value thereof as of the ~~RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3~~Pricing Date. (f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.

Appears in 1 contract

Samples: Subscription and Recapitalization Agreement (Genuity Inc)

Right of First Offer. (a) ~~Other than Prohibited Transfers, if at~~ If any ~~time after the Lock Up Period~~ Stockholder or Stockholders acting in concert (a ~~Shareholder desires~~ “Transferor”) desire to Transfer (other than pursuant to ~~any~~ an Exempt Transfer) Company Securities that represent, in the aggregate, more than 5% of the then outstanding shares of Common Stock (assuming conversion in full of all outstanding Preferred Shares and NVC Shares, and irrespective of the Conversion Limitation), such Transferor shall give each Stockholder (other than the Transferor and its Permitted Transferees, as applicable) that, together with its Permitted Transferees, holds more than 5% of the then outstanding shares of Common Stock (for this purpose, shares of Common Stock held by a Person shall include shares issuable upon exercise of Company stock options, or directly or indirectly through conversion or exchange of outstanding Preferred Shares and NVC Shares, held by such Person, and irrespective of the Conversion Limitation) and the Company (collectively, the “Option Holders”) prior written notice of such proposed Transfer, ~~such Transfer~~ which notice shall (i) specify the amount and type of Company Securities to be ~~permitted only if such Shareholder~~ Transferred (the “~~RFO Offeror~~Subject Securities”), the consideration to be received therefor, and the other material terms on which the Transferor proposes to Transfer the Subject Securities and (ii) contain the offer described below (collectively, the “Transferor’s Notice”). The Transferor’s Notice shall contain an offer to sell (the “Option”) ~~fully complies~~ the Subject Securities to the Option Holders in accordance with this Article 3 for the consideration and on the other terms ~~of this Section 3.3~~specified in the Transferor’s Notice; provided that to the ~~provisions~~ extent such consideration shall consist of ~~this Section 3.3~~ anything other than cash, each Option Holder shall be entitled, at its option, to instead pay in cash the value of such consideration as determined by mutual agreement of all such Option Holders so electing to pay cash and the Transferor, or if such agreement is not ~~apply~~ reached within 5 days of receipt of the Transferor’s Notice, as determined by an investment banker or appraiser of national reputation reasonably acceptable to ~~Permitted Transfers~~both the Transferor and such Option Holders (the fees and expenses of which shall be shared equally by the Transferor, on the one hand, and all such Option Holders requesting such valuation, on the other hand), in which case the date of the Transferor’s Notice shall be deemed the date the cash value of such consideration is so determined. (b) The ~~RFO Offeror shall~~Company, ~~prior to~~ at the ~~Transfer~~ election of ~~any Ordinary Shares to which~~ the Board (acting by majority vote, excluding, for purposes of this Section ~~3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth~~ (i) if the Transferor is an Investor (or Permitted Transferee thereof), any Investor Designee designated to the Board by such Investor pursuant to Article 2 hereof (and if such Transferor is WCAS (or Permitted Transferee thereof), also excluding Cxxxxxx Xxxxxxx if he is then an Investor Designee of WCAS), and (ii) if the Transferor is Rxxxxxx Xxxxxxx or any of his Permitted Transferees or Affiliates, and Rxxxxxx Xxxxxxx is then a director of the Company, Rxxxxxx Xxxxxxx), shall have the first right and option, exercisable at any time within the first 10 days following the date of the Transferor’s Notice, to exercise the Option to purchase from the Transferor the Subject Securities pursuant to the Option. If the Option is not exercised by the Company within the first 10 days after the date of the Transferor’s Notice, then the other Option Holders shall have the right and option, exercisable at any time within the first 20 days following the date of the Transferor’s Notice, to exercise the Option and purchase from the Transferor the Subject Securities pursuant to the Option, in which event, such other Option Holders may elect to purchase the Subject Securities in the proportions upon which they mutually agree or, if they are unable to agree upon an allocation of such Subject Securities among themselves, then in the proportion that the number of ~~Ordinary~~ shares of Common Stock held by each such Option Holder which desires to participate in the purchase of such Company Securities pursuant to the Option bears to the aggregate number of shares of Common Stock held by all such Option Holders that desire to participate in the purchase of such Company Securities pursuant to the Option. For purposes of the foregoing sentence, shares of Common Stock held by a Person shall include shares issuable upon exercise of Company stock options, or directly or indirectly through conversion or exchange of outstanding Preferred Shares ~~proposed to be disposed of (the “RFO Ordinary~~ and NVC Shares”), ~~(ii) the proposed purchase price per RFO Ordinary Share~~held by such Person, and ~~payment and other material terms and conditions and (iii)~~ irrespective of the Conversion Limitation. Acceptance of the Option by an ~~irrevocable offer to sell~~ Option Holder shall be in a writing delivered to the ~~RFO Offeree(s)~~ Transferor and the ~~RFO Ordinary Shares set forth in~~ Company, which shall deliver copies thereof to the ~~RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein~~other Option Holders. (c) ~~The RFO Offeree(s) collectively shall have~~ If the ~~right to purchase (the “Right of First Offer”), any or~~ Option is accepted in a manner such that all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, Company Securities covered by the ~~RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof~~ Transferor’s Notice are to be purchased by ~~each RFO Offeree~~ the Option Holders, the Transferor shall, subject to Section 3.03, Transfer such Company Securities free of all liens and encumbrances (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held other than restrictions imposed by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may bethis Agreement) to the ~~number~~ respective Option Holder purchasers thereof against delivery by the Option Holder purchaser of ~~Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery~~ the applicable consideration payable to the ~~RFO Offeror of an RFO Exercise in respect~~ Transferor therefor. Unless, through exercise of the ~~relevant Remaining RFO Ordinary Shares within 10~~ Option, all the Company Securities proposed to be transferred in the Transferor’s Notice are to be acquired by one or more Option Holders, the Transferor may, subject to Section 3.03, either (~~ten~~i) ~~Business Days of such re-offer, after which time such re-offer shall lapse and~~ Transfer the ~~re-offer~~ Company Securities subscribed for ~~such Remaining RFO Ordinary Shares will be deemed to have been declined. (d) If~~ by the ~~RFO Offeree(s) shall have delivered an RFO Exercise~~ Option Holders at the applicable purchase price therefor to the ~~RFO Offeror within~~ Option Holders or (ii) Transfer the ~~RFO Response Period for all~~ Subject Securities that were subject to the ~~RFO Ordinary Shares,~~ Option to a third party Transferee at the ~~RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and~~ same purchase ~~of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms~~ price set forth in the ~~RFO~~ Transferor’s Notice (or at a higher price) and on terms and conditions no less favorable to the Transferor than the terms and conditions set forth in the Transferor’s Notice; provided, however, that such ~~period~~ Transfer shall ~~be extended following such~~ occur no later than 90 days after the date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the ~~RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain~~ Transferor’s Notice. If such ~~approvals, consents or authorizations, or make~~ Transfer does not occur within such filings or registrations; and provided further that no such extension shall exceed 60 days. (e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer90 day period, then the ~~RFO Offeror~~ Company Securities shall ~~have~~ be re-offered to the ~~right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject~~ Option Holders under this Section 3.02 prior to any ~~of the restrictions set forth in~~ subsequent Transfer otherwise covered by this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period Section 3.02. The transactions contemplated by this Section 3.02 shall be ~~extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority~~ consummated in ~~connection~~ accordance with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section ~~3.3~~3.03. (f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.

Appears in 1 contract

Samples: Stockholders' Agreement (Perry Corp)

Right of First Offer. (a) ~~Other than Prohibited Transfers, if~~ If at any time ~~after the Lock Up Period~~ a ~~Shareholder~~ Bidder (a "Seller") desires to ~~Transfer~~ effect a transfer of all or any portion of the Shares it holds (other than ~~pursuant~~ any Shares currently held by such Bidder) to any ~~Permitted Transfer~~person other than Merger Sub or an Affiliate of the Seller, the Seller shall deliver to each of the other Bidders (the "Eligible Bidders") a notice (an "Offer Notice") setting forth all of the material terms and conditions upon which the Seller desires to transfer such ~~Transfer~~ Shares, including, without limitation, the number of Shares to be so transferred (the "Offered Shares") and the purchase price per Offered Share (which shall be ~~permitted only if such Shareholder~~ payable solely in cash in one lump sum payment) (the ~~“RFO Offeror”) fully complies with~~ "Offer Price"), which Offer Notice shall constitute an offer to such Eligible Bidders to sell such Offered Shares upon the terms ~~of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers~~and conditions specified in such Offer Notice. (b) ~~The RFO Offeror shall~~Upon receipt of an Offer Notice, ~~prior~~ each Eligible Bidder shall be entitled to purchase from the Seller, upon the terms specified in the Offer Notice, a number of Offered Shares equal to the ~~Transfer~~ sum of ~~any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth~~ (i) (A) 50% of the Offered Shares if there are two Eligible Bidders or (B) all of the Offered Shares in the event there is one Eligible Bidder and (ii) if there are two Eligible Bidders, the Offered Shares offered to the other Eligible Bidder in the event that such other Eligible Bidder does not elect to purchase such Offered Shares in accordance with this subsection 5.01(b). Each Eligible Bidder wishing to purchase Offered Shares shall provide a notice (an "Acceptance Notice") to the Seller and to the other Eligible Bidder, if applicable, not later than 15 days following receipt by such Eligible Bidder of an Offer Notice (such 15-day period being the "Offer Period"), specifying the number of ~~Ordinary~~ Offered Shares ~~proposed~~ it wishes to ~~be disposed of~~ purchase (including, if applicable, the ~~“RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell~~ Offered Shares offered to the ~~RFO Offeree(s) the RFO Ordinary Shares set forth~~ other Eligible Bidder in the ~~RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein~~event that such other Eligible Bidder does not elect to purchase such Offered Shares). (c) ~~The RFO Offeree(s) collectively shall~~ If one or two Eligible Bidders have ~~the right~~ accepted to purchase ~~(the “Right of First Offer”), any or~~ all of the ~~RFO Ordinary~~ Offered Shares ~~by delivering a written notice (~~in accordance with subsection 5.01(b), then the ~~“RFO Exercise”) of exercise~~ Seller shall, not later than 10 days following the expiration of the ~~Right~~ Offer Period, transfer, assign and convey, free and clear of ~~First Offer~~ all liens and encumbrances, to ~~the RFO Offeror within 20~~ (~~twenty~~i) ~~Business Days from the date of delivery~~ if one Eligible Bidder has accepted to purchase all of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Offered Shares, all of the Offered Shares to such ~~remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”)~~ Eligible Bidder, and such Eligible Bidder shall ~~immediately be re-offered by the RFO Offeror~~ promptly remit to the ~~other RFO Offeree(s) (or if there is more than one other RFO Offeree~~Seller by wire transfer in accordance with the Seller's instructions, immediately available funds in an amount equal to the ~~proportion (as nearly as may be) to~~ Offer Price multiplied by the number of ~~Ordinary~~ Offered Shares ~~held by them inter se)~~so transferred, assigned and conveyed to such Eligible Bidder or (ii) if two Eligible Bidders have accepted to purchase all of the Offered Shares, 50% of the Offered Shares to each Eligible Bidder, and each such ~~other RFO Offeree(s) may accept by delivery~~ Eligible Bidder shall promptly remit to the ~~RFO Offeror~~ Seller by wire transfer in accordance with the Seller's instructions, immediately available funds in an amount equal to the Offer Price multiplied by the number of ~~an RFO Exercise in respect of the relevant Remaining RFO Ordinary~~ Offered Shares ~~within 10 (ten) Business Days of~~ so transferred, assigned and conveyed to such ~~re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined~~Eligible Bidder. (d) If In the ~~RFO Offeree(s) shall~~ event that the Eligible Bidders have ~~delivered an RFO Exercise~~ not accepted to ~~the RFO Offeror within the RFO Response Period for~~ purchase all ~~the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase~~ of the ~~RFO Ordinary~~ Offered Shares ~~within thirty~~ in accordance with subsection 5.01(b), then all (30but not less than all) ~~days thereafter~~ of the Offered Shares may be sold to a third party upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days. (e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms conditions specified in the ~~RFO~~ Offer Notice ~~and (ii) the RFO Offeror provides written confirmation~~ relating to such Offered Shares, provided that such sale shall be consummated not later than 30 days following delivery of such Offer Notice to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3Eligible Bidders. (f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.

Appears in 1 contract

Samples: Joint Bidding Agreement (Riviera Holdings Corp)

Right of First Offer. (a) Other than Prohibited Transfers, if at any time after the Lock Up Period a Shareholder desires to Transfer other than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder (the “RFO Offeror”) fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers. (b) The RFO Offeror shall, prior 3.01. Subject to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth (i) the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions ~~and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares~~ set forth ~~in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein. (c) The RFO Offeree(s) collectively~~ below, Tenant shall have ~~the right to purchase (the~~ a one-time “Right of First Offer” to lease the entire 32,291 rentable square feet of the first (1st) floor of the section of the Building known as “building 4” (as more particularly shown on Exhibit C attached hereto, the “Building 4 ROFO Space”) for a term which shall be coterminous with the Term for the Original Premises then in effect at the Fair Market Rent (as defined in Section 3.04 below), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined. (d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days. (e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) ~~such Transfer of~~ with respect to Building 4 ROFO Space A (defined below), the ~~RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof~~ rent shall be no less than the ~~terms specified~~ fully escalated rent paid by Tenant in the ~~RFO~~ Original Premises at the time of Tenant’s Acceptance Notice (defined below) and (ii) ~~the RFO Offeror provides written confirmation~~ with respect to the ~~RFO Offeree(s~~entire Building 4 ROFO Space, Tenant shall have an improvement allowance in an amount not to exceed $484,365 ($15.00 per rsf) which may be applied to Tenant’s hard costs and design costs for Tenant’s initial fit-up of the Building 4 ROFO Space subject to the terms of Exhibit B hereof (the “ROFO Space Allowance”). Up to $96,873 ($3.00 per rsf) of the ROFO Space Allowance may be applied to telecommunications and data cabling. As used herein, “Building 4 ROFO Space A” shall mean that portion of the Building 4 ROFO Space that is the Expansion Premises (10,751 rsf), and “Building 4 ROFO Space B” shall mean the remaining portion of the Building 4 ROFO Space (21,540 rsf) which is currently subject to the Imprivata Lease (defined below). Any such ~~terms comply with clause~~ Right of First Offer shall provide that Base Rent for Building 4 ROFO Space shall commence forty-five (i45) ~~hereof~~ days after delivery of possession of the Building 4 ROFO Space B to the Tenant; subject to the requirement that Tenant has submitted to the Landlord prior to the ~~consummation~~ delivery of ~~such sale; and provided further, that~~ possession of the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers Building 4 ROFO Space plans for approval by Landlord of work to be ~~obtained or made,~~ performed by Tenant as contemplated by the terms of Exhibit B (the intent being that such delayed Base Rent commencement is to provide an opportunity to perform Tenant Improvements to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3Building 4 ROFO Space). (f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.

Appears in 1 contract

Samples: Office Lease Agreement (Gomez Inc)

Right of First Offer. ~~(a) Other than Prohibited Transfers~~Except as specifically provided in Section 5.2(a), or with respect to any Transfer to the Parent or an Affiliate of a Member, if at any time ~~after the Lock Up Period~~ a ~~Shareholder~~ Member (a “Selling Member”) desires to Transfer ~~other than pursuant to~~ all or any ~~Permitted Transfer, such Transfer shall be permitted only if such Shareholder~~ portion of its Company Interest (the “~~RFO Offeror~~Offered Interest”), it shall provide written notice of its intention to make such a Transfer to the other Members (the “Non-Selling Members”) ~~fully complies with~~ and shall make an irrevocable and unconditional offer (a “ROFO Offer”) to sell the Offered Interest to the Non-Selling Members on a pro rata basis based on their respective Percentage Interest (without giving effect to the Selling Member’s Percentage Interest) at the price and on the terms set forth in the ROFO Offer. Upon receipt of ~~this Section 3.3; provided that~~ a ROFO Offer, any of the ~~provisions of this Section 3.3 shall not apply to Permitted Transfers. (b) The RFO Offeror shall~~Non-Selling Members may, ~~prior to~~ in their sole discretion, accept the ~~Transfer of any Ordinary Shares to which this Section 3.3 applies, give~~ ROFO Offer by delivering written notice (a “~~RFO~~ ROFO Acceptance Notice”) to ~~each other Shareholder (each, an “RFO Offeree”), setting forth (i)~~ the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein. (c) The RFO Offeree(s) collectively shall have the right to purchase (the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof Selling Member and the ~~proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly~~other Non-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined. (d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares Selling Members within thirty (30) days of receipt of the ROFO Offer (the “ROFO Deadline”). If any Non-Selling Member fails to accept the ROFO Offer but other Non-Selling Member(s) have delivered a ROFO Acceptance Notice, then the Non-Selling Member(s) who have delivered a ROFO Acceptance Notice shall (i) be obligated to accept the ROFO Offer and acquire such Non-Selling Member’s Percentage Interest in the Offered Interest on a pro rata basis based on its or their respective Percentage Interest (without giving effect to the Percentage Interest of the declining Non-Selling Member(s) or the Selling Member’s Percentage Interest) or (ii) withdraw its ROFO Acceptance Notice within one (1) Business Day after the ROFO Deadline. If any Non-Selling Member so accepts the ROFO Offer, then the closing of the Transfer of the Offered Interest must occur within sixty (60) days (as such time period may be extended to obtain any required approval, consent or authorization of a Governmental Entity) following the date of the ROFO Deadline. If none of the Non-Selling Members accept the ROFO Offer by the ROFO Deadline, then the Selling Member will have the right, for a period of [*****] days thereafter ~~upon~~ to Transfer the Offered Interest to a third party transferee at a price and on terms no less favorable than the price and terms set forth in the ~~RFO Notice~~ROFO Offer; ~~provided, however,~~ provided that the Selling Member first complies with any right of first offer in favor of Owner Operator required under the C&O Agreement (which compliance may occur simultaneously to the procedure outlined in this Section 5.3). If such Transfer is not consummated within such period ~~shall be extended following~~ or the Selling Member wishes to Transfer the Offered Interest to a to a third party transferee at a price or on terms less favorable to such ~~date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority~~ Selling Member than the price and terms set forth in ~~connection with such purchase to be obtained or made, to~~ the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days. (e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First ROFO Offer, then any such subsequent Transfer by the ~~RFO Offeror shall have~~ Selling Member must again be subject to the right ~~for sixty (60) days thereafter (the “Transfer Period”), to dispose~~ of ~~the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions~~ first offer as set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section ~~3.3~~5.3. (f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Washington Gas Light Co)

Right of First Offer. (a) ~~Other than Prohibited Transfers~~Pursuant to the order of the Federal Communications Commission (the "FCC") issued on June 16, ~~if at any time after~~ 2000 in connection with the ~~Lock Up Period a Shareholder desires~~ merger of GTE and Xxxx Atlantic Corporation (the "FCC ORDER"), GTE and its Affiliates have agreed, in the circumstances therein described, and subject to ~~Transfer other than pursuant~~ the terms and conditions thereof and to any ~~Permitted Transfer~~modification made by the FCC thereto or any waivers granted by the FCC with respect thereto, to offer shares of Class B Common Stock to Genuity prior to offering to sell such ~~Transfer~~ shares (or any shares into which they have been converted) to any other Person. In the event GTE and its Affiliates are required to offer shares of Class B Common Stock to Genuity under the FCC Order, GTE and its Affiliates shall ~~be permitted only if~~ so offer such ~~Shareholder (the “RFO Offeror”) fully complies~~ shares, and Genuity may accept such offer and purchase such shares, in accordance with the ~~terms~~ procedures, for the price, and upon payment of the consideration as set forth in this Section ~~3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers~~5.1. (b) In the event GTE and its Affiliates are required to offer shares of Class B Common Stock to Genuity, they shall notify Genuity in writing at the address set forth in Section 6.5 hereof (a "FIRST OFFER NOTICE") of the number of shares of Class B Common Stock being offered and of the offer price (determined as hereinafter set forth as of a date reasonably proximate to the date of the First Offer Notice). The ~~RFO Offeror shall~~First Offer Notice shall set forth in reasonable detail the calculation of the offer price as of such reasonably proximate date. Genuity shall have 90 days from the date that it receives the First Offer Notice to notify GTE and its Affiliates at the addresses set forth in Section 6.5 of its intention to accept the offer as to all the shares of Class B Common Stock covered thereby or to reject the offer (without prejudice to Genuity's right to offer a lower price or to offer to purchase fewer shares). In the event Genuity does not accept the offer as to all the shares of Class B Common Stock covered thereby, GTE and its Affiliates shall thereafter be free to dispose of such shares in such manner as they choose (subject to compliance with applicable law, including the FCC Order) without interference or objection from Genuity. In the event that Genuity elects to so exercise its rights, Genuity shall have 180 days from the date that it received the First Offer Notice to make any financial or other arrangements and to consummate the purchase of all of the offered shares of Class B Common Stock pursuant to the First Offer Notice at the offer price, recalculated as of a date (the "PRICING DATE") that is five business days prior to the ~~Transfer~~ closing date of ~~any Ordinary Shares to which this Section 3.3 applies~~the purchase and sale of the shares as hereinafter set forth. Such offer price shall be payable, ~~give written notice (“RFO Notice”) to each other Shareholder (each~~at Genuity's option, ~~an “RFO Offeree”), setting forth~~ (i) ~~the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”)~~in cash, (ii) ~~the proposed purchase price per RFO Ordinary Share~~by delivery by Genuity of an unsubordinated, marketable debt instrument of Genuity (which shall be guaranteed or co-executed by Genuity's principal operating subsidiaries) with a fair market value equal to its face amount (which shall be equal to such offer price) and ~~payment and other material terms and conditions and~~ which shall bear interest at a commercially reasonable rate, comparable to rates under similar instruments issued by companies with debt ratings comparable to Genuity, with a commercially reasonable term for repayment, or (iii) ~~an irrevocable offer~~ part in cash and part by delivery of such a debt instrument. In the event that Genuity fails to ~~sell to~~ consummate the ~~RFO Offeree(s) the RFO Ordinary Shares~~ purchase as set forth in the ~~RFO Notice at~~ previous sentence, GTE and its Affiliates shall thereafter be free to dispose of such shares in such manner as they choose (subject to compliance with applicable law, including the ~~same price per Ordinary Share and on the same terms and conditions as set forth therein~~FCC Order) without interference or objection from Genuity. (c) The ~~RFO Offeree(s) collectively shall have the right to~~ price payable by Genuity upon consummation of a purchase (the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as and sale under this Section 5.1 shall be ~~purchased, collectively, by~~ the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined.lesser of: (d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days. (e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) ~~such Transfer~~ the fair market value of the ~~RFO Ordinary Shares is consummated~~ shares on ~~terms not more favorable to~~ an As Converted Basis as of the ~~purchasers thereof than~~ Pricing Date, as determined by a nationally recognized independent investment banker selected jointly by Genuity and GTE, based upon the ~~terms specified in~~ Average Closing Price of the ~~RFO Notice and~~ Class A Common Stock; and (ii) ~~the RFO Offeror provides written confirmation to the RFO Offeree(s~~(1) ~~that such terms comply with clause (i) hereof prior to the consummation~~ for any shares of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority Class B Common Stock in ~~connection with such Transfers to be obtained or made, to the extent prior to the expiration~~ excess of the ~~Transfer Period reasonably appropriate actions have been taken by~~ Ten Percent Amount, the ~~RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end~~ S&P Amount with respect thereto as of the ~~Transfer Period~~Pricing Date, ~~as extended as provided herein~~and (2) for any shares of Class B Common Stock constituting a part of the Ten Percent Amount, the ~~RFO Offeror has not completed the Transfer~~ Market Value thereof as of the ~~RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3~~Pricing Date. (f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.

Appears in 1 contract

Samples: Subscription and Recapitalization Agreement (Genuity Inc)

Right of First Offer. Subject to the terms and conditions of this Subsection 4.1 and applicable securities laws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to each holder of Preferred Stock (a “Preferred Holder”). A Preferred Holder shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate, among itself and its Affiliates; provided that each such Affiliate (x) is not a Competitor or FOIA Party, unless such party’s purchase of New Securities is otherwise consented to by the Board of Directors, (y) agrees to enter into this Agreement and each of the Amended and Restated Voting Agreement and Amended and Restated Right of First Refusal and Co-Sale Agreement of even date herewith among the Company, the Investors and the other parties named therein, as an “Investor” under each such agreement (provided that any Competitor or FOIA Party shall not be entitled to any rights as a Major Investor under Subsections 3.1, 3.2 and 4.1 hereof), and (z) agrees to purchase at least such number of New Securities as are allocable hereunder to the Preferred Holder holding the fewest number of shares of Preferred Stock and any other Derivative Securities. (a) ~~Other than Prohibited Transfers, if at any time after the Lock Up Period a Shareholder desires to Transfer other than pursuant to any Permitted Transfer, such Transfer~~ The Company shall ~~be permitted only if such Shareholder~~ give notice (the “~~RFO Offeror~~Offer Notice”) ~~fully complies with~~ to each Preferred Holder, stating (i) its bona fide intention to offer such New Securities, (ii) the ~~terms~~ number of ~~this Section 3.3; provided that~~ such New Securities to be offered, and (iii) the ~~provisions of this Section 3.3 shall not apply~~ price and terms, if any, upon which it proposes to ~~Permitted Transfers~~offer such New Securities. (b) ~~The RFO Offeror shall, prior~~ By notification to the ~~Transfer~~ Company within ten (10) business days after the Offer Notice is given, each Preferred Holder may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Common Stock then held by such Preferred Holder (including all shares of Common Stock then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Preferred Stock and any ~~Ordinary Shares~~ other Derivative Securities then held by such Preferred Holder) bears to ~~which this Section 3.3 applies~~the total Common Stock of the Company then outstanding (assuming full conversion and/or exercise, ~~give written notice~~ as applicable, of all Preferred Stock, any other Derivative Securities then outstanding and the issuance and/or exercise of all shares reserved under the Company’s stock incentive plans). At the expiration of such ten (~~“RFO Notice”~~10) business day period, the Company shall promptly notify each Preferred Holder that elects to ~~each other Shareholder~~ purchase or acquire all the shares available to it (each, an a “~~RFO Offeree~~Fully Exercising Investor”)) of any other Preferred Holder’s failure to do likewise. During the ten (10) day period commencing after the Company has given such notice, ~~setting forth (i)~~ each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of ~~Ordinary Shares proposed~~ shares specified above, up to ~~be disposed~~ that portion of (the ~~“RFO Ordinary Shares”), (ii)~~ New Securities for which Preferred Holders were entitled to subscribe but that were not subscribed for by the ~~proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell~~ Preferred Holders which is equal to the ~~RFO Offeree(s~~proportion that the Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Preferred Stock and any other Derivative Securities then held, by such Fully Exercising Investor bears to the ~~RFO Ordinary Shares set forth in~~ Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the ~~RFO~~ Preferred Stock and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Subsection 4.1(b) shall occur within the later of ninety (90) days of the date that the Offer Notice at is given and the ~~same price per Ordinary Share and on the same terms and conditions as set forth therein~~date of initial sale of New Securities pursuant to Subsection 4.1(c). (c) ~~The RFO Offeree(s) collectively shall have~~ If all New Securities referred to in the ~~right to purchase (the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First~~ Offer ~~to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO~~ Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof are not elected to be purchased ~~by each RFO Offeree~~ or acquired as provided in Subsection 4.1(b), the Company may, during the ninety (~~or such Affiliate(s)). Each RFO Offeree shall have~~ 90) day period following the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion expiration of the ~~number~~ periods provided in Subsection 4.1(b), offer and sell the remaining unsubscribed portion of ~~Ordinary Shares held by all RFO Offerees)~~such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. To If the ~~extent any RFO Offeree~~ Company does not ~~wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all~~ enter into an agreement for the sale of ~~its pro rata portion of RFO Ordinary Shares~~the New Securities within such period, ~~all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (~~or if ~~there~~ such agreement is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined. (d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares not consummated within thirty (30) days ~~thereafter upon~~ of the ~~terms set forth in~~ execution thereof, the ~~RFO Notice; provided, however, that such period~~ right provided hereunder shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase deemed to be ~~obtained or made,~~ revived and such New Securities shall not be offered unless first reoffered to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 daysPreferred Holders in accordance with this Subsection 4.1. (ed) ~~If the RFO Offeree(s)~~ The right of first offer in this Subsection 4.1 shall not ~~have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed~~ be applicable to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) ~~such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified~~ Exempted Securities (as defined in the ~~RFO Notice~~ Certificate of Incorporation); and (ii) shares of Common Stock issued in the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3IPO. (f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.

Appears in 1 contract

Samples: Investors’ Rights Agreement (Aligos Therapeutics, Inc.)

Right of First Offer. (a) ~~Other than Prohibited Transfers~~Subject to and excluding other permitted transfers set forth in Section 4.1(a) for any transfers made pursuant to an offering of equity securities registered under the Securities Act, ~~if at~~ Section 4.3 pursuant to a sale in which the Sellers are exercising such drag-along rights, Section 4.5 and Section 4.7, in the event Xxxxxxx or Chesapeake or any ~~time after~~ Permitted Transferee who has acquired shares of Common Stock from such party (the ~~Lock Up Period a Shareholder~~ “ROFO Seller”) desires to Transfer shares of Common Stock owned by it to any Person other than (i) a Permitted Transferee or (ii) pursuant to ~~any Permitted Transfer~~a Demand Request in accordance with Section 5.1(b), ~~such Transfer shall be permitted only if such Shareholder~~ the ROFO Seller hereby agrees to notify in writing (the “~~RFO Offeror~~ROFO Notice”) ~~fully complies with~~ each of the stockholder Parties that is not a ROFO Seller (the “ROFO Parties”) and the Company, of: (A) its desire to Transfer such shares of Common Stock, (B) the number of shares proposed to be Transferred (the “ROFO Shares”) and (C) the price at which the ROFO Seller is willing to sell the ROFO Shares (the “ROFO Notice Price”), and (D) other terms of ~~this Section 3.3; provided that~~ such proposed sale. The ROFO Seller(s) will negotiate in good faith for a period of not less than 21 days after the ~~provisions~~ date of ~~this Section 3.3~~ the ROFO Notice with any ROFO Parties who express an interest in acquiring the ROFO Shares. The ROFO Parties shall be entitled, but not ~~apply~~ required, within 21 days after the delivery date of the ROFO Notice, to ~~Permitted Transfers~~deliver a cash offer notice (an “ROFO Offer Notice”) to the ROFO Seller of their offer for all, or any portion, of the ROFO Shares set forth in the ROFO Notice. If any ROFO Offer Notice is accepted by the ROFO Seller, each ROFO Party timely delivering a ROFO Offer Notice shall have the right to acquire a pro rata number of ROFO Shares based on the relative number of shares of Common Stock then owned by all of the ROFO Parties timely delivering a ROFO Offer Notice. (b) ~~The RFO Offeror shall~~Unless the ROFO Seller and the ROFO Parties otherwise agree, in the event ROFO Offer Notices at least equal to the ROFO Notice Price are not delivered to the ROFO Seller on or prior to the ~~Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth (i)~~ date 21 days after the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein. (c) The RFO Offeree(s) collectively shall have the right to purchase (the “Right of First Offer”), any or all delivery date of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO ROFO Notice (the “~~RFO Response Period~~ROFO Offer Deadline”), ~~irrevocably stating therein such portion of~~ the ~~RFO Ordinary Shares as~~ offer shall be ~~purchased~~deemed rejected with respect to such ROFO Shares so offered, ~~collectively~~and, by at any time within 120 days after the ~~RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and~~ ROFO Offer Deadline, the ~~proportion thereof~~ ROFO Seller shall be entitled to ~~be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall~~ sell any ROFO Shares not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror Transferred pursuant to the ~~other RFO Offeree(s) (~~ROFO Offer Notices for a cash price equal to or ~~if there is more~~ greater than ~~one other RFO Offeree, in~~ the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined. (d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to ROFO Notice Price. After the expiration of such 120-day period, if the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days. (e) If the RFO Offeree(s) shall ROFO Seller has not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided hereinsold, the ~~RFO Offeror has~~ ROFO Seller may not ~~completed~~ Transfer the ~~Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary~~ ROFO Shares without complying again ~~fully complying~~ with the provisions of this Section ~~3.3~~4.9. (fc) ~~The RFO Offeror shall~~To the extent ROFO Offer Notices are delivered and are accepted or deemed accepted by the ROFO Seller, ~~upon~~ the closing for the Transfer of the ~~RFO Ordinary Shares~~ROFO Shares shall be consummated at 9:00 a.m. Oklahoma City time on the date 30 days following the ROFO Offer Deadline, ~~procure~~ at the ~~resignation~~ Company’s principal executive offices, or at such other time, date and place as mutually agreed by the ROFO Seller and the ROFO Parties. At the closing, the purchase price shall be paid in the form of ~~such number~~ a cashier’s check or by wire transfer in same day funds, and the ROFO Seller shall deliver stock certificates representing the ROFO Shares so purchased, accompanied by duly executed stock powers, free and clear of ~~directors nominated by it~~all liens, ~~if any,~~ encumbrances and adverse claims (other than encumbrances as ~~would be required pursuant to Section 2.2 hereof~~set forth in this Agreement), and such ~~director~~ other instruments or documents as are deemed necessary by the Company for the proper Transfer of the ROFO Shares so transferred on the books of the Company. The Company, the ROFO Seller, and the ROFO Parties shall ~~execute a letter~~ cooperate in good faith in obtaining all necessary governmental and third-party consents, approvals or waivers required for the closing. The closing may be delayed, to the extent required, until the next succeeding day following the expiration of ~~resignation~~any required waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 and the obtaining of any necessary government approvals; provided, that such delay shall not exceed 45 days, and if governmental approvals and waiting periods shall not have been obtained or expired, as the case may be, by such 45th day, then the relevant ROFO Offer Notice shall be deemed to have been rejected and neither the ROFO Seller nor the ROFO Parties shall have any further obligation with respect to such ROFO Offer Notice.

Appears in 1 contract

Samples: Stockholders' Agreement (Chaparral Energy, Inc.)

Right of First Offer. (a) ~~Other than Prohibited Transfers~~Except as otherwise expressly permitted by Sections 7.2, ~~if at any time after~~ 7.3 or 7.4, during the ~~Lock Up Period~~ period from the date hereof until the earlier to occur of the completion of an IPO and the fifth anniversary of the date on which a ~~Shareholder desires to Transfer other than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder~~ Notice of Exercise is given (the ~~“RFO Offeror”) fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers. (b) The RFO Offeror shall~~"ROFO Period"), prior to ~~the~~ any Holder proposing to effect a Transfer of Common Stock to any ~~Ordinary Shares to which this Section 3.3 applies, give written notice~~ Person not an Affiliate of the Transferor (~~“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”~~a "Third-Party Sale"), ~~setting forth~~ such Holder (the "Offering Stockholder") will deliver to Holdings a written Notice (an "Offer Notice") specifying (i) the ~~number~~ aggregate amount of ~~Ordinary Shares proposed~~ cash consideration (the "Offer Price") for which the Offering Stockholder proposes to sell the Common Stock to be ~~disposed of~~ offered in such Third-Party Sale (the ~~“RFO Ordinary Shares”~~"Offered Stock"), (ii) the ~~proposed purchase price per RFO Ordinary Share~~identity of the purchaser in such Third-Party Sale (if then known), ~~and payment and other material terms and conditions~~ and (iii) ~~an irrevocable offer~~ all other material terms of the proposed Third-Party Sale. (b) Prior to ~~sell~~ negotiating (or committing to negotiate) with any third party in respect of a possible sale Third-Party Sale of any Common Stock, the Offering Stockholder will negotiate with Holdings in good faith concerning the possible sale to Holdings of the Common Stock proposed or otherwise intended to be sold in a Third Party Sale for a period of 30 calendar days following the date on which Holdings receives the Offer Notice. If Holdings delivers to the ~~RFO Offeree(s~~Offering Stockholder a written Notice (an "Acceptance Notice") within such 30 calendar day period (such period being referred to herein as the ~~RFO Ordinary Shares~~ "ROFO Acceptance Period") stating that Holdings is willing to purchase all of the Offered Stock for the Offer Price and on the other terms set forth in the ~~RFO Notice at~~ Offer Notice, the ~~same price per Ordinary Share~~ Offering Stockholder will sell all of the Offered Stock to Holdings, and Holdings will purchase such Offered Stock from the Offering Stockholder, on the ~~same~~ proposed terms and subject to the conditions as set forth ~~therein~~below. (c) The ~~RFO Offeree(s) collectively shall have~~ consummation of any purchase of the ~~right~~ Offered Stock by Holdings pursuant to ~~purchase~~ this Section 7.5 (the ~~“Right of First Offer”), any or all of~~ "ROFO Closing") will occur no more than 90 calendar days following the ~~RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of~~ delivery of the ~~RFO~~ Acceptance Notice (such 90 calendar day period being referred to herein as the ~~“RFO Response~~ "ROFO Closing Period”)") at 10:00 a.m. (Eastern Time) at the offices of Xxxxx, ~~irrevocably stating therein~~ Day, Xxxxxx & Xxxxx at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such ~~portion~~ other time of ~~the RFO Ordinary Shares~~ day and place as ~~shall~~ may be ~~purchased, collectively,~~ mutually agreed upon by the ~~RFO Offeree(s~~Offering Stockholder and Holdings. At the ROFO Closing, (i) ~~and/or~~ Holdings will deliver to the Offering Stockholder by certified or official bank check or wire transfer to an account designated by the Offering Stockholder an amount in immediately available funds equal to the Offer Price, (ii) the Offering Stockholder will deliver one or more ~~wholly-owned Affiliates thereof and~~ certificates evidencing the ~~proportion thereof to be purchased by each RFO Offeree~~ Common Stock, together with such other duly executed instruments or documents (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered executed by the ~~RFO Offeror~~ Offering Stockholder) as may be reasonably requested by Holdings to acquire the Offered Stock free and clear of any and all claims, liens, pledges, charges, encumbrances, security interests, options, trusts, commitments and other ~~RFO Offeree(s)~~ restrictions of any kind whatsoever (collectively, "Encumbrances"), except for Encumbrances created by this Agreement, federal or ~~if there is more than one other RFO Offeree,~~ state securities laws or Holdings or as specified in the ~~proportion~~ Offer Notice (~~as nearly as may be) to the number of Ordinary Shares held by them inter se~~"Permitted Encumbrances"), and ~~such other RFO Offeree(s~~(iii) ~~may accept by delivery to~~ the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares Offering Stockholder will be deemed to ~~have been declined~~represent and warrant to Holdings that, upon the ROFO Closing, the Offering Stockholder will convey and Blackstone will acquire the entire record and beneficial ownership of, and good and valid title to, the Offered Stock, free and clear of any and all Encumbrances, except for Permitted Encumbrances. (d) If ~~the RFO Offeree(s) shall have delivered an RFO Exercise~~ no Acceptance Notice relating to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, proposed Third-Party Sale is delivered to the ~~extent~~ Offering Stockholder prior to the expiration of the ~~RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations~~ROFO Acceptance Period, or make such filings or registrations; and provided further that no such extension shall exceed 60 days. (e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares an Acceptance Notice is ~~consummated on terms not more favorable~~ so delivered to the ~~purchasers thereof than~~ Offering Stockholder but the ~~terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation~~ ROFO Closing fails to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent occur prior to the expiration of the ~~Transfer~~ ROFO Closing Period ~~reasonably appropriate actions have been taken~~ (unless Holdings was ready, willing and able prior to the expiration of the ROFO Closing Period to consummate the transactions to be consummated by ~~the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If~~ Holdings at the ~~end of the Transfer Period, as extended as provided herein~~ROFO Closing), the ~~RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares~~ Offering Stockholder may (without again fully complying with the provisions of this Section 3.3. (f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by itaffecting its rights, if any, ~~as would be required pursuant~~ arising out of such failure) consummate the Third-Party Sale, but only (i) during the 90 calendar day period immediately following the expiration of the ROFO Acceptance Period (in the event that no Acceptance Notice was timely delivered to ~~Section 2.2 hereof~~the Offering Stockholder) or the 90 calendar day period immediately following the expiration of the ROFO Closing Period (in the event that an Acceptance Notice was timely delivered to the Offering Stockholder but the ROFO Closing failed timely to occur), (ii) at a price at least equal to the Offer Price, (iii) upon other terms not materially less favorable to the Offering Stockholder than those set forth in the Offer Notice, (iv) if the transferee in the Third-Party Sale enters into an Assumption Agreement, and ~~such director shall execute~~ (v) if the Third-Party Sale is not to or with a ~~letter of resignation~~Competitor or for consideration other than cash. (e) This Section 7.5 will not apply to any transaction in which the consideration payable in the Third-Party Sale is other than cash.

Appears in 1 contract

Samples: Acquisition Agreement (Imperial Home Decor Group Holdings I LTD)

Right of First Offer. (aIf the Company proposes to obtain additional financing through the issuance of equity securities or Debt in accordance with the requirements set forth in Section 5.4(b)(iii) ~~Other than Prohibited Transfers~~of this Agreement, ~~if at~~ for so long as Platinum continues to own any ~~time after the Lock Up Period a Shareholder desires to Transfer other than pursuant to any Permitted Transfer~~Units, ~~such Transfer~~ Platinum or its designated Affiliate shall be ~~permitted only if such Shareholder~~ entitled to the opportunity to make the first offer (the “RFO Offeror”) fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers. (b) The RFO Offeror shall, prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO NoticePlatinum Offer”) to ~~each other Shareholder (each~~the Company to provide such additional Company financing in the full amount specified by the Company, ~~an “RFO Offeree”), setting forth (i)~~ all on the ~~number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material~~ terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein. (c) The RFO Offeree(s) collectively shall have the right to purchase hereinafter described (the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). ~~Each RFO Offeree shall have the right, but~~ Platinum shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined. (d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days. (e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, ~~then~~ but if it chooses to do so, it shall exercise the ~~RFO Offeror shall have~~ Right of First Offer within fifteen (15) Business Days after being advised in writing by the ~~right for sixty (60) days thereafter (the “Transfer Period”), to dispose~~ Company of the ~~RFO Ordinary Shares~~ following: (i) that the Company proposes to obtain additional financing through the issuance of equity securities or Debt; (ii) the amount of financing the Company proposes to seek; and (iii) the general use of proceeds of the financing, which may be for general Company purposes. If so requested by the Company, Platinum shall promptly confirm in ~~one~~ writing to the Company that it does not wish to exercise its Right of First Offer. In the event that Platinum makes a Platinum Offer, it will be an irrevocable commitment by Platinum to purchase the equity securities or ~~more Transfers thereof without being~~ Debt of the Company, subject to the Company’s rights hereunder. Except as provided herein, the Company shall not be under any obligation to accept, or to make any counteroffer to, the Platinum Offer or any other offer or offers made by Platinum or its Affiliates in connection with the Right of ~~the restrictions set forth in this Article III~~First Offer; provided, however, that the Company will provide Platinum with a copy of any offer (i) ~~such Transfer~~ in the case of ~~the RFO Ordinary Shares~~ equity securities, at a purchase price per Unit that is ~~consummated on terms not more favorable to the purchasers thereof~~ higher than the ~~terms specified~~ per Unit price set forth in the ~~RFO Notice~~ Platinum Offer and (ii) in the ~~RFO Offeror provides written confirmation~~ case of Debt, on terms that are more advantageous to the ~~RFO Offeree(s~~Company than those provided in the Platinum Offer (each a “Superior Offer”) it receives during the Company Acceptance Period. Within ninety (90) Business Days following receipt by the Company of the Platinum Offer (the “Company Acceptance Period”), the Company shall notify Platinum whether or not it is electing to accept the Platinum Offer (such notification, if affirmative shall be referred to hereinafter as the “Company Acceptance” and, if negative in whole, the “Company Rejection”). In the event that a Superior Offer is received by the Company, the Company Acceptance Period shall be extended for five (5) Business Days following receipt by Platinum of a copy of any Superior Offer, during which time, Platinum may revise the Platinum Offer in order to match or exceed the terms of the Superior Offer (such ~~terms comply with clause~~ offer, a “Matching Offer”). The Company may only accept a Superior Offer and may not accept any offer received during the Company Acceptance Period, as such Company Acceptance Period may be extended, that provides for (i) ~~hereof prior~~ in the case of equity securities, at a purchase price per Unit that is less than the per Unit price set forth in the Platinum Offer or the Matching Offer, as the case may be and (ii) in the case of Debt, on terms that are less advantageous to the ~~consummation~~ Company than those provided in the Platinum Offer or the Matching Offer, as the case may be (an “Inferior Offer”). The Company Acceptance shall be deemed to be an irrevocable commitment by the Company to sell to Platinum the number of Company equity securities or the amount of Debt which Platinum has offered to purchase on terms substantially as set forth in the Platinum Offer or the Matching Offer or such ~~sale~~other terms and conditions as are no less favorable to Platinum than those specified in the Platinum Offer or the Matching Offer. During the Company Acceptance Period or upon the first to occur of (i) the waiver by Platinum of the Right of First Offer, (ii) the rejection of the Platinum Offer or the Matching Offer for a Superior Offer or (iii) the lapse of the period during which the Right of First Offer may be exercised by Platinum, the Company may, subject to the limitations of Section 4.4(b) of this Agreement, seek and obtain Company financing from any Person or Persons through the issuance of Company equity securities or Debt; provided that, during the Company Acceptance Period, the Company may only accept Superior Offers and provided further, that if, during the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Company Acceptance Period, ~~as extended as provided herein~~the Company receives a Matching Offer, the ~~RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of~~ Company may only accept such ~~RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3~~Matching Offer. (f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.

Appears in 1 contract

Samples: Limited Liability Company Operating Agreement (Black Elk Energy Finance Corp.)

Right of First Offer. (a) ~~Other than Prohibited Transfers, if at any time after~~ If the ~~Lock Up Period a Shareholder desires~~ TowerBrook Partners wish to (i) cause the Partnership to Transfer ~~other than pursuant~~ all or any portion of the TowerBrook Allocable Securities to any ~~Permitted Transfer,~~ Person and such Transfer would result in the Partnership ceasing to satisfy the Ownership Threshold (as defined in the A&R IXX), (ii) enter into or vote in favor of a Change of Control Transaction or (iii) exercise the Drag-Along Right in accordance with Section 6.5, then the TowerBrook Partners shall first cause the Partnership to offer to the AS Partners to have Series AS acquire the TowerBrook Allocable Securities proposed to be ~~permitted only if such Shareholder~~ so Transferred, voted or included in a Drag-Along Transfer (the “~~RFO Offeror~~ROFO Securities”) ~~fully complies with~~ by sending written notice indicating the number and a description of the ROFO Securities, the proposed consideration and, to the extent known, other material terms and conditions of ~~this Section 3.3; provided that~~ the ~~provisions~~ proposed Transfer (the “ROFO Offering Notice”), and including the TowerBrook Partners’ good faith valuation, at the time the ROFO Offering Notice is given, of ~~this Section 3.3 shall not apply to Permitted Transfers~~the cash equivalent of the consideration available in the Change of Control Transaction (the “ROFO Price”). (b) For a period of fifteen (15) Business Days following receipt of the ROFO Offering Notice or any applicable shorter period if otherwise a right would be impaired such as to tender, elect or vote, but in no case shall such period be shorter than five (5) Business Days (the “ROFO Period”), the AS Partners shall have the right, but not the obligation (the “AS Partners’ ROFO”) to cause Series AS to make an irrevocable offer to purchase all (but not less than all) of the ROFO Securities at the ROFO Price. The ~~RFO Offeror shall, prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give~~ AS Partners’ ROFO shall be exercised by delivering written notice (the “~~RFO~~ ROFO Exercise Notice”) to ~~each other Shareholder (each,~~ the TowerBrook Partners and the Partnership prior to the termination of the ROFO Period. The ROFO Exercise Notice shall be an ~~“RFO Offeree”), setting forth (i)~~ irrevocable and binding commitment by the ~~number~~ AS Partners to make a Capital Contribution to Series AS in immediately available funds in the amount of ~~Ordinary Shares proposed to be disposed of (~~the ~~“RFO Ordinary Shares”), (ii) the proposed~~ aggregate purchase price ~~per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to~~ of the ~~RFO Offeree(s) the RFO Ordinary Shares~~ ROFO Securities as set forth in the ~~RFO~~ ROFO Offering Notice at within fifteen (15) Business Days. Upon receipt of the ~~same price per Ordinary Share~~ AS Partners’ Capital Contribution, the Partnership shall cause Series AS to purchase, and Series TB to Transfer, the ROFO Securities on the ~~same~~ terms and conditions as set forth ~~therein~~in the ROFO Offering Notice (which shall then become Ascension Allocable Securities for purposes of this Agreement). (c) The ~~RFO Offeree(s) collectively~~ failure to provide the ROFO Exercise Notice prior to the termination of the ROFO Period shall be deemed a waiver of the AS Partners’ ROFO. If the AS Partners do not timely exercise the AS Partners’ ROFO within the ROFO Period, then within the thirty (30)-day period thereafter, or, if the ROFO Offering Notice was delivered in connection with a process for a Change of Control Transaction, then for such longer period as it takes for such process to be completed (but in no event to exceed 120 days thereafter), the TowerBrook Partners shall have the right to ~~purchase (~~cause the ~~“Right of First Offer”), any or all of~~ Partnership to Transfer the ~~RFO Ordinary Shares by delivering~~ ROFO Securities at a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined. (d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days. (e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that consideration (i) ~~such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable~~ if in cash, in an amount equal to ~~the purchasers thereof~~ or greater than the ~~terms specified in the RFO Notice and~~ ROFO Price or (ii) ~~the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further~~if not in cash, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in ~~connection with such Transfers~~ an amount believed in good faith to be ~~obtained~~ equal to or ~~made~~greater than the ROFO Price, ~~to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals~~and, ~~consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If~~ in all cases, at the ~~end~~ consideration available in the Change of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3Control Transaction. (f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.

Appears in 1 contract

Samples: Limited Liability Limited Partnership Agreement (TCP-ASC ACHI Series LLLP)

Right of First Offer. (ai) ~~Other than Prohibited Transfers~~If either the Tiptree Investors or the Warburg Investors or their respective Permitted Transferees (each, ~~if at any time after the Lock Up Period~~ a ~~Shareholder desires~~ “Transferor”) intends to Transfer any Shares Owned by the Transferor (other than Transfers described in Section 2(d)(v)) in a Transfer permitted pursuant to ~~any Permitted Transfer, such Transfer shall be permitted only if such Shareholder (the “RFO Offeror”) fully complies with~~ the terms of this ~~Section 3.3; provided that~~ Agreement, the ~~provisions of this Section 3.3~~ Transferor shall ~~not apply to Permitted Transfers. (b) The RFO Offeror shall, prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give~~ first provide written notice (the “~~RFO~~ Transfer Notice”) to ~~each other Shareholder~~ the Warburg Investors or the Tiptree Investors, respectively (~~each~~collectively, an the “~~RFO Offeree~~Non-Transferring Investors”~~), setting forth (i~~) ~~the~~ of its bona fide intention to Transfer such number of ~~Ordinary~~ Shares ~~proposed to be disposed of~~ (the “~~RFO Ordinary~~ Offered Shares”~~), (ii~~) ~~the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares~~ set forth in the ~~RFO~~ Transfer Notice. A Transfer Notice at may be given prior to the ~~same price per Ordinary Share and on the same terms and conditions as set forth therein~~time a Transfer would be permitted in accordance with this Agreement, but no earlier than 90 days prior to such time. (cii) ~~The RFO Offeree(s~~One or more Non-Transferring Investors may (but are not obligated to) ~~collectively shall have the right~~ offer to purchase ~~(the “Right of First Offer”),~~ all or any ~~or all~~ portion of the ~~RFO Ordinary~~ Offered Shares ~~by delivering~~ at a price and on other terms set forth in a written notice (the “~~RFO Exercise~~Offer Notice”) ~~of exercise of the Right of First Offer~~ delivered to the ~~RFO Offeror within 20 (twenty~~Transferor(s) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined. (d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days ~~thereafter upon~~ after receipt of the Transfer Notice (the “ROFO Option Period”). Any Offer Notice that is delivered shall be a legally binding and irrevocable offer by the Non-Transferring Investor delivering such Offer Notice (each such Non-Transferring Investor, a “ROFO Joining Investor”) to purchase such amount of the Offered Shares at the price and on the terms set forth in such Offer Notice, capable of being accepted by the ~~RFO~~ applicable Transferor within thirty (30) days from the receipt of the Offer Notice; . If a Transferor accepts any such offer, then the Transferor and the applicable ROFO Joining Investors shall negotiate in good faith to consummate such Transfer within thirty (30) days of such acceptance. (iii) If (x) the Transferor rejects (or fails to timely accept) the Offer Notices received, (y) no ROFO Joining Investors deliver any Offer Notices or (z) the Transferor accepts an Offer Notice and definitive agreements to effect such Transfer are not entered into within thirty (30) days following such acceptance or such agreement is entered into and is not timely consummated in accordance with the terms thereof, then within one hundred twenty (120) days (provided, ~~however~~that if a definitive agreement to effect such transfer is entered into within such 120-day period, ~~that~~ then the Transferor shall have 180 days to consummate such ~~period shall be extended following~~ transaction from entry into such ~~date as necessary to permit all required approvals~~definitive agreement, ~~consents~~ with an additional 180 days for any approvals or authorizations ~~from~~that are required under applicable laws) of (1) the receipt of the Offer Notices, ~~or filings or registrations with~~if delivered, ~~any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to~~ (2) the expiration of the ~~RFO Purchase~~ ROFO Option Period ~~reasonably appropriate actions have been taken by~~ or (3) solely in the ~~RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days.~~ case of clause (~~e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d~~z), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to from the expiration of the time to enter into or consummate such Transfer, then, subject to compliance with all other applicable provisions of this Agreement, the Transferor may sell all, or any portion, of the Offered Shares to any Person not engaged in a Competing Business; provided that (A) solely in the event the ROFO Joining Investors collectively timely deliver Offer Notices with respect to all (but not less than all) of the Offered Shares, such Transfer ~~Period reasonably appropriate actions have been taken~~ may only be for a per Share amount equal to or greater than the lowest price per Share set forth in the Offer Notices and otherwise no less favorable to the Transferor than those offered in the Offer Notices and (B) solely in the event one or more ROFO Joining Investors timely deliver an Offer Notice with respect to less than all of the Offered Shares, such Transfer is not required to be for a per Share amount equal to or greater than the lowest price set forth in the Offer Notice if the acquirer acquires at least five percent (5%) more Offered Shares than offered collectively by the ~~RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty~~ ROFO Joining Investors. (30iv) ~~days.~~ If at the ~~end of the Transfer Period, as extended as provided herein, the RFO Offeror has~~ Transferor does not ~~completed~~ consummate the Transfer of any of the ~~RFO Ordinary Shares~~Offered Shares in accordance with this Section 2(d) within such one hundred twenty (120)-day period (provided, that if a definitive agreement to effect such transfer is entered into within such 120-day period, then the ~~RFO Offeror~~ Transferor shall ~~no longer be permitted~~ have 180 days to ~~dispose of~~ consummate such ~~RFO Ordinary~~ transaction from entry into such definitive agreement, with an additional 180 days for any approvals or authorizations that are required under applicable laws), then the Transferor may not Transfer such Offered Shares ~~without~~ unless it sends a new Transfer Notice and once again ~~fully complying~~ complies with the provisions of this Section ~~3.3~~2(d) with respect to such Offered Shares. (fv) ~~The RFO Offeror shall~~Each ROFO Joining Investor may assign all or any portion of its rights under this Section 2(d) to any of its Permitted Transferees. (vi) For the avoidance of doubt, ~~upon~~ the provisions of this Section 2(d) shall not apply to a Transfer of ~~the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant~~ Shares which is to ~~Section 2.2 hereof~~a Permitted Transferee, and ~~such director~~ shall ~~execute a letter~~ terminate and be of ~~resignation~~no further force or effect following an Initial Public Offering.

Appears in 1 contract

Samples: Shareholder Agreement (Tiptree Inc.)

Right of First Offer. (a) ~~Other than Prohibited Transfers~~Subject to Section 4.1, if at a Party or any ~~time after the Lock Up Period~~ of its Affiliates (each such Person, a ~~Shareholder~~ “Transferor”) desires to Transfer to a Third Party (either directly or indirectly through a Change in Control but excluding Transfers of the types described in Section 4.1(c) and a Transfer of an Immaterial Interest) all or any portion of the Transferor's Joint Development Interest, the Transferor shall give to the other ~~than pursuant to any Permitted Transfer, such Transfer shall be permitted only if such Shareholder~~ Parties (the “~~RFO Offeror~~ROFO Parties”) fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers. (b) The RFO Offeror shall, prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“~~RFO~~ ROFO Notice”) stating the Transferor's desire to ~~each other Shareholder (each~~effect such Transfer, ~~an “RFO Offeree”), setting forth (i)~~ the ~~number of Ordinary Shares proposed~~ Joint Development Interest to be ~~disposed of~~ Transferred (the “~~RFO Ordinary Shares~~Offered Interest”~~), (ii~~) and the ~~proposed purchase price per RFO Ordinary Share, and payment and other material~~ terms and conditions ~~and (iii) an irrevocable offer~~ on which the Transferor proposes to ~~sell to~~ Transfer the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein. (c) The RFO Offeree(s) collectively shall have the right to purchase (the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined. (d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO NoticeOffered Interest; provided, however, that if the consideration set forth in such ~~period~~ ROFO Notice contemplates any non-cash consideration, the ROFO Parties shall be ~~extended following~~ entitled to pay in lieu of such ~~date as necessary to permit all required approvals~~non-cash consideration, ~~consents or authorizations from, or filings or registrations with, any Governmental Authority~~ cash in ~~connection with such purchase to be obtained or made,~~ an amount equal to the ~~extent prior~~ Fair Market Value of such non-cash consideration unless the ROFO Parties and Transferor agree to ~~the expiration~~ some other form of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days. (e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror consideration. The ROFO Parties shall have the right ~~for sixty (60) days thereafter~~ 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 Transferor to Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the ~~purchasers thereof than~~ ROFO Parties the Offered Interest at the price and upon the terms specified in the ~~RFO~~ ROFO Notice and ~~(ii)~~ such offer shall be irrevocable for 30 days following receipt by the ~~RFO Offeror provides~~ ROFO Parties. Any ROFO Party may accept such ROFO Offer and acquire all but not less than all of the Offered Interest by giving written ~~confirmation~~ notice of the same to the ~~RFO Offeree(s~~Transferor within such 30-day period; provided that if more than one ROFO Party accepts such ROFO Offer then, unless such ROFO Parties otherwise agree, each ROFO Party shall acquire a pro rata portion of the Offered Interest based on the relative Participating Interests of each accepting ROFO Party. The failure by any ROFO Party to so notify the Transferor within such 30-day period shall be deemed an election by such ROFO Party not to accept such ROFO Offer. (b) ~~that~~ If one or more ROFO Parties accepts the ROFO Offer, then the Transferor and such ~~terms comply with clause (i) hereof prior~~ accepting ROFO Parties shall cooperate together to consummate the Transfer of the Offered Interest to the ~~consummation of such sale; and provided further, that the Transfer Period shall be extended~~ ROFO Parties as promptly as practicable following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration acceptance. (c) If none of the ROFO Parties accepts the ROFO Offer, then the Transferor may Transfer ~~Period reasonably appropriate actions have been taken by~~ all but not less than all of the ~~RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If~~ Offered Interest at any time within 180 days following the end of the 30-day period that the ROFO Parties had to accept the ROFO Offer. Any such Transfer ~~Period~~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. If the Transferor does not affect such Transfer within such 180-day period, ~~as extended as provided herein, the RFO Offeror has not completed~~ the Transfer of the ~~RFO Ordinary Shares,~~ Offered Interest shall again become subject to the ~~RFO Offeror shall no longer be permitted to dispose~~ right of ~~such RFO Ordinary Shares without again fully complying with the provisions of~~ first offer set forth in this Section ~~3.3~~4.4. (f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.

Appears in 1 contract

Samples: Joint Development Agreement (CONSOL Energy Inc)

Right of First Offer. (a) If, following the Permitted Third Party Transfer Date, any of the FS Parties, the DLJ Parties or the Other ~~than Prohibited Transfers~~Non-Management Parties (each, ~~if at any time after the Lock Up Period~~ a ~~Shareholder~~ "Transferring Securityholder") desires to Transfer ~~other than pursuant~~ all or any portion of the Restricted Securities (the "Transfer Securities") then owned by such Transferring Securityholder to ~~any~~ a Person that is not a Permitted ~~Transfer~~Transferee of the Transferring Securityholder, such ~~Transfer~~ Transferring Securityholder shall ~~be permitted only if such Shareholder (the “RFO Offeror”) fully complies~~ provide BLUM with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers. (b) The RFO Offeror shall, prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give a written notice (~~“RFO~~ the "Offer Notice”") ~~to each other Shareholder (each, an “RFO Offeree”),~~ setting ~~forth~~ xxxxh: (i) the number of ~~Ordinary Shares~~ shares of Common Stock proposed to be ~~disposed of (the “RFO Ordinary Shares”),~~ Transferred and (ii) the ~~proposed purchase price per RFO Ordinary Share, and payment and other~~ material terms and conditions ~~and~~ of the proposed transfer including the minimum price (~~iii~~the "Offer Price") at which such Transferring Securityholder proposes to Transfer such shares. The Offer Notice shall also constitute an irrevocable offer to sell the Transfer Securities to BLUM or, at BLUM's option following receipt of the ~~RFO Offeree(s~~Offer Xxxice, to xxx xx more assignees of BLUM (subject to such assignee's or assignees' delivery xx xn Assumption Agreement in compliance with Section 6.5 hereof) ~~the RFO Ordinary Shares set forth in the RFO Notice~~ (x) at the ~~same price per Ordinary Share~~ Offer Price and on the same terms and conditions as the Transfer Offer or (y) if the Transfer Offer includes any consideration other than cash, at the option of BLUM or such assignee, at a cash price equal to the Fair Xxxket Value of such non-cash consideration (the "Transfer Consideration"). (b) If BLUM or its assignee wishes to accept the offer set ~~forth therein~~fortx xx the Offer Notice, BLUM or such assignee shall deliver within 15 business dxxx of receipt of the Offer Notice (such period, the "Election Period") an irrevocable notice of acceptance to the Transferring Securityholder (the "Acceptance Notice"), which Notice shall indicate the form of Transfer Consideration chosen (to the extent that the Transfer Offer includes any consideration other than cash). BLUM or its assignee may accept such offer for any or alx xx the Transfer Securities, provided, however, that if BLUM or its assignee agrees to purchase less than all of xxx Transfer Securities specified in the Offer Notice, then the Transferring Securityholder can choose not to sell any shares to BLUM or its assignee, as applicable, by delivering writtxx xotice thereof to BLUM or such assignee within five Business Days of the Txxxxferring Securityholder's receipt of the Acceptance Notice. In the event that the Transferring Securityholder elects not to sell any shares to BLUM or its assignee pursuant to the proviso in the immexxxxely preceding sentence, such Transferring Shareholder may transfer the Transfer Securities to one or more Qualified Purchasers pursuant to Section 2.2(c) only if such Qualified Purchasers purchase in the aggregate at least as many shares of the Transfer Securities as BLUM had agreed to purchase. (c) ~~The RFO Offeree(s~~If the optixx xo purchase the Transfer Securities represented by the Offer Notice is accepted on a timely basis by BLUM or its assignee, in accordance with all the terms sxxxxfied in Section 2.2(b) ~~collectively shall have the right to purchase~~ and such acceptance (~~the “Right of First Offer”), any or~~ if it is for less than all of the ~~RFO Ordinary Shares~~ Transfer Securities) has not been rejected by ~~delivering a written notice~~ the Transferring Securityholder, no later than the later of (~~the “RFO Exercise”~~x) ~~of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from~~ 30 business days after the date of the receipt by BLUM of the Offer Notice or (y) the second business day xxxxr the receipt of any necessary governmental approvals (including, without limitation, the expiration or early termination of any applicable waiting periods under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as xxxxxxx), XXXX (or its assignee), as applicable, shall deliver payxxxx by wire transfer of immediately available funds, to the extent the Transfer Consideration is cash, and/or by delivery of the ~~RFO Notice~~ non-cash Transfer Consideration (to the ~~“RFO Response Period”~~extent chosen by BLUM or its assignee), ~~irrevocably stating therein~~ to such ~~portion~~ Transferring Securityholdxx xgainst delivery of certificates or other instruments representing the ~~RFO Ordinary Shares as shall be~~ Common Stock so purchased, ~~collectively,~~ appropriately endorsed by ~~the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or~~ such ~~Affiliate(s))~~Transferring Securityholder. Each ~~RFO Offeree~~ Transferring Securityholder shall ~~have the right~~deliver its shares of Common Stock free and clear of all liens, ~~but shall not be required~~claims, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees)options, pledges, encumbrances and security interests. To the extent ~~any RFO Offeree does~~ BLUM or its assignee (i) has not ~~wish~~ given notice of its accxxxxnce of the offer represented by the Offer Notice to purchase ~~(or cause its wholly-owned Affiliate(s) to purchase)~~ all of ~~its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (~~the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined. (d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent Transfer Securities prior to the expiration of the ~~RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s~~Election Period, (ii) has accepted as to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days. (e) If the RFO Offeree(s) shall not have completed the purchase of less than all of the ~~RFO Ordinary Shares within~~ Transfer Securities and such acceptance has been rejected by the ~~RFO Purchase Period~~Transferring Securityholder, (iii) has accepted as ~~extended as provided in Section 3.3(d), or together have failed~~ to ~~deliver RFO Exercises within the RFO Response Period for~~ less than all of the ~~RFO Ordinary Shares as contemplated~~ Transfer Securities and such acceptance has not been rejected by the Transferring Securityholder, or (iv) has not tendered the Purchase Price for the Transfer Securities in the manner and within the period set forth above in this Section ~~3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”~~2.2(c), such Transferring Securityholder shall be free (subject to ~~dispose~~ the last sentence of Section 2.2(b)) for a period of 120 days from the end of the ~~RFO Ordinary Shares~~ Election Period to transfer the Transfer Securities (or in ~~one or more Transfers thereof without being subject to any~~ the case of the ~~restrictions~~ foregoing clause (iii), such remaining portion of the Transfer Securities) to a Qualified Purchaser at a price equal to or greater than the Offer Price and otherwise on terms which are no more favorable in any material respect to such Qualified Purchaser than the terms and conditions set forth in ~~this Article III; provided, however, that~~ the Offer Notice. If for any reason such Transferring Securityholder does not transfer the Transfer Securities (~~i) such Transfer~~ or in the case of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with foregoing clause (~~i) hereof prior to the consummation of~~ iii), such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration remaining portion of the Transfer Securities) to a Qualified Purchaser on such terms and conditions or if such Transferring Securityholder wishes to Transfer the Transfer Securities (or in the case of the foregoing clause (iii), such remaining portion of the Transfer Securities) at a lower Purchase Price or on terms which are more favorable in any material respect to a Qualified Purchaser than those set forth in the Offer Notice, the provisions of this Section 2.2 shall again be applicable to the Transfer Securities (or in the case of the foregoing clause (iii), such remaining portion of the Transfer Securities); provided that if the Transferring Securityholder does not transfer all of the Transfer Securities (or in the case of the foregoing clause (iii), such remaining portion of the Transfer Securities) to a Qualifying Purchaser within 120 days from the end of the Election Period ~~reasonably appropriate actions~~ (the "Transfer Period") then such Transferring Securityholder may not deliver another Offer Notice until 90 days have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at elapsed since the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3. (f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.

Appears in 1 contract

Samples: Securityholders' Agreement (Koll Donald M)

Right of First Offer. I. If at any time any Class B Member desires to Transfer any of its Class B Membership Interests to any third Person, other than an Affiliate of such Class B Member or as set forth in 9.5 III. below, prior to offering the Class B Membership Interests to any such third Person, such Class B Member shall first give notice to the other Class B Members (the “Offer Notice”) specifying the price (the “Specified Price”) and other terms (the “Specified Terms”) at and on which such Class B Member is willing to Transfer the Class B Membership Interests. (a) ~~Other than Prohibited Transfers~~Each Class B Member (or any Affiliate of any Class B Member designated by it) shall have the right, for a period of 30 calendar days after receipt of an Offer Notice, to inform the transferor Class B Member in writing of its election to purchase the subject Class B Membership Interests at the Specified Price and on the Specified Terms set forth in the Offer Notice (such notice, the “ROFO Notice”). Any ROFO Notice, if ~~at any time after the Lock Up Period a Shareholder desires to Transfer other than pursuant to any Permitted Transfer~~given, ~~such Transfer~~ shall be ~~permitted only if such Shareholder (the “RFO Offeror”) fully complies with the terms of this Section 3.3; provided that the provisions of this Section 3.3 shall not apply to Permitted Transfers~~irrevocable. (b) ~~The RFO Offeror shall~~If more than one Class B Member (or its Affiliate) gives a ROFO Notice to purchase the Class B Membership Interests for the Specified Price on the Specified Terms, ~~prior~~ each such Class B Member (or its Affiliate) will be entitled to acquire that portion of the Class B Membership Interests which is equal to the ~~Transfer~~ product of ~~any Ordinary Shares to which this Section 3.3 applies, give written notice~~ (~~“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth (i~~1) the ~~number of Ordinary Shares proposed~~ Class B Membership Interests subject to ~~be disposed of~~ the Offer Notice, multiplied by (~~the “RFO Ordinary Shares”), (ii~~2) the ~~proposed~~ fraction, the numerator of which is the Capital Interest of such Class B Member and the denominator of which is the aggregate Capital Interest of all Class B Members that have given a ROFO Notice. If any Class B Member elects not to give a ROFO Notice, each of the other Class B Members may elect to acquire the Class B Membership Interests subject to an Offer Notice not otherwise subject to a ROFO Notice, pro rata as provided in the prior sentence; provided that, if a Class B Member defaults on its obligation to purchase ~~price per RFO Ordinary Share~~the Class B Membership Interest pursuant hereto, ~~and payment and other material terms and conditions and (iii) an irrevocable offer~~ the Class B Member that gave the Offer Notice shall not be required to sell its Class B Membership Interests to the ~~RFO Offeree(s)~~ remaining Class B Members unless all of the ~~RFO Ordinary Shares set forth in~~ Class B Membership Interests are being acquired by the ~~RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein~~remaining Class B Members. (c) The ~~RFO Offeree(s) collectively shall have the right to purchase (the “Right of First Offer”), any or all~~ closing of the ~~RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise~~ Transfer of the ~~Right of First Offer to~~ Class B Membership Interests covered by any ROFO Notice shall occur no later than 60 days after the ~~RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO~~ ROFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (is given or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly later date as may ~~be)~~ be required to ~~the number of Ordinary Shares held by them inter se)~~obtain any applicable governmental consents or approvals, ~~and~~ or to satisfy any reporting or waiting period under any applicable Legal Requirements, or at such other ~~RFO Offeree(s) may accept by delivery to~~ time as the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declinedparties agree. (d) If the ~~RFO Offeree(s~~right of first offer is exercised, at the closing of the Transfer, (1) each Class B Member which has given a ROFO Notice shall ~~have delivered an RFO Exercise~~ pay (by wire transfer of immediately available United States Dollars to such United States bank accounts as the Class B Member giving the Offer Notice may designate in a written notice to the ~~RFO Offeror within~~ Company and other Class B Members no later than five Business Days prior to the ~~RFO Response Period~~ closing date for ~~all~~ the ~~RFO Ordinary Shares,~~ Transfer pursuant to the ~~RFO Offeror and RFO Offeree(s~~ROFO Notice) ~~shall be respectively bound, and shall complete~~ an amount equal to the ~~sale and purchase~~ product of (i) the cash price of the ~~RFO Ordinary Shares within thirty (30) days thereafter upon the terms~~ Class B Membership Interests set forth in the ~~RFO~~ Offer Notice, multiplied by (ii) the fraction referred to in Section 9.5(I)(c), and (2) the Class B Member that gave the Offer Notice shall take the following actions: (i) such Class B Member shall Transfer to each other Class B Member entitled to purchase, as provided in Section 9.5(I)(c), all right, title and interest in and to the Class B Membership Interests, free and clear of all Encumbrances other than Permitted Encumbrances; ~~provided, however, that~~ (ii) such ~~period~~ Class B Member shall be ~~extended following~~ deemed to have made the representations set forth on Schedule 9 attached hereto to each such other Class B Member and the Company; and (iii) such Class B Member shall take all such further actions and execute, acknowledge and deliver all such further documents that are necessary to effectuate the Transfer of the Class B Membership Interests contemplated by this Section. Upon the closing of such Transfer, (1) all of such Class B Member’s obligations and liabilities associated with the Class B Membership Interests which are the subject of such Transfer will terminate except those obligations and liabilities accrued through the date of such closing, (2) such Class B Member shall have no further rights as a Member in respect of the Class B Membership Interests which are the subject of such Transfer, and (3) all the rights, obligations and liabilities associated with the Class B Membership Interests which are the subject of such Transfer shall become the rights, obligations and liabilities of each Person acquiring such Class B Membership Interests. (a) If the right of first offer is not excersised by the other Class B Members as set forth in 9.5(I) above the transferring Class B Member shall give an Offer Notice to the Class A Members. Each Class A Member (or any Affiliate of any Class A Member designated by it) shall have the right, for a period of 30 calendar days after receipt of an Offer Notice, to inform the transferor Class B Member in writing of its election to purchase the subject Class B Membership Interests at the Specified Price and on the Specified Terms set forth in the ROFO Notice. Any ROFO Notice, if given, shall be irrevocable. (b) If more than one Class A Member (or its Affiliate) gives a ROFO Notice to purchase the Class B Membership Interests for the Specified Price on the Specified Terms, each such Class A Member (or its Affiliate) will be entitled to acquire that portion of the Class B Membership Interests which is equal to the product of (1) the Class B Membership Interests subject to the Offer Notice, multiplied by (2) the fraction, the numerator of which is the Capital Interest of such Class A Member and the denominator of which is the aggregate Capital Interest of all Class A Members that have given a ROFO Notice. If any Class A Member elects not to give a ROFO Notice, each of the other Class A Members may elect to acquire the Class B Membership Interests subject to an Offer Notice not otherwise subject to a ROFO Notice, pro rata as provided in the prior sentence; provided that, if a Class A Member defaults on its obligation to purchase the Class B Membership Interest pursuant hereto, the Class B Member that gave the Offer Notice shall not be required to sell its Class B Membership Interests to the remaining Class A Members unless all of the Class B Membership Interests are being acquired by the remaining Class A Members. (c) The closing of the Transfer of the Class B Membership Interests covered by any ROFO Notice shall occur no later than 60 days after the ROFO Notice is given or such later date as ~~necessary~~ may be required to ~~permit all required~~ obtain any applicable governmental consents or approvals, ~~consents~~ or ~~authorizations from~~to satisfy any reporting or waiting period under any applicable Legal Requirements, or ~~filings or registrations with~~at such other time as the parties agree. (d) If the right of first offer is exercised, ~~any Governmental Authority~~ at the closing of the Transfer, (1) each Class A Member which has given a ROFO Notice shall pay (by wire transfer of immediately available United States Dollars to such United States bank accounts as the Class B Member giving the Offer Notice may designate in ~~connection with such purchase to be obtained or made,~~ a written notice to the ~~extent~~ Company and Class A Members no later than five Business Days prior to the ~~expiration~~ closing date for the Transfer pursuant to the ROFO Notice) an amount equal to the product of (i) the cash price of the ~~RFO Purchase Period reasonably appropriate actions~~ Class B Membership Interests set forth in the Offer Notice, multiplied by (ii) the fraction referred to in Section 9.5(c), and (2) the Class B Member that gave the Offer Notice shall take the following actions: (i) such Class B Member shall Transfer to each Class A Member entitled to purchase, as provided in Section 9.5(c), all right, title and interest in and to the Class B Membership Interests, free and clear of all Encumbrances other than Permitted Encumbrances; (ii) such Class B Member shall be deemed to have ~~been taken by~~ made the ~~RFO Offeree(s)~~ representations set forth on Schedule 9 attached hereto to ~~obtain~~ each such ~~approvals, consents or authorizations, or make such filings or registrations~~Class A Member and the Company; and ~~provided~~ (iii) such Class B Member shall take all such further actions and execute, acknowledge and deliver all such further documents that are necessary to effectuate the Transfer of the Class B Membership Interests contemplated by this Section. Upon the closing of such Transfer, (1) all of such Class B Member’s obligations and liabilities associated with the Class B Membership Interests which are the subject of such Transfer will terminate except those obligations and liabilities accrued through the date of such closing, (2) such Class B Member shall have no further rights as a Member in respect of the Class B Membership Interests which are the subject of such ~~extension~~ Transfer, and (3) all the rights, obligations and liabilities associated with the Class B Membership Interests which are the subject of such Transfer shall ~~exceed 60 days~~become the rights, obligations and liabilities of each Person acquiring such Class B Membership Interests. (e) If ~~the RFO Offeree(s~~Class A Members (or their Affiliates) ~~shall~~ have not ~~have completed the~~ given ROFO Notices to purchase of all of such Class B Membership Interests offered for sale for the ~~RFO Ordinary Shares~~ Specified Price on the Specified Terms, then thereafter for a period of 180 calendar days the Class B Member that gave the Offer Notice may Transfer the Class B Membership Interests to a third Person for the Specified Price (or a higher price) on the Specified Terms (or better terms to the transferor Class B Member). If such Transfer is not consummated within ~~the RFO Purchase Period~~such 180-day period, ~~as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all~~ then any subsequent Transfer by such Class B Member of the ~~RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing~~ Class B Membership Interests shall again be subject to ~~exercise the Right of First Offer, then the RFO Offeror shall have~~ the right ~~for sixty (60) days thereafter (the “Transfer Period”), to dispose~~ of ~~the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions~~ first offer as set forth in this ~~Article~~ Section 9.5. III~~; provided~~. A proposed Transfer between one Class B Member to another Class B Member, ~~however~~or between respective Affiliates of such Class B Members, ~~that (i) such Transfer of the RFO Ordinary Shares is consummated on terms~~ shall not ~~more favorable~~ be subject to the ~~purchasers thereof than the terms specified~~ right of first offer as set forth in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section ~~3.3~~9.5. (f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Ormat Technologies, Inc.)

Right of First Offer. (a) ~~Other than Prohibited Transfers, if at any time after the Lock Up Period~~ No Stockholder (a ~~Shareholder desires to~~ "Transferring Stockholder") may Transfer Shares (other than ~~pursuant~~ Transfers to Permitted Transferees as described in Section 2.02 to any ~~Permitted Transfer, such Transfer shall be permitted only if such Shareholder~~ Person without first providing the other Stockholders a written notice (the “~~RFO Offeror~~ROFR Offer Notice”), which in the case of a proposed Transfer by a MM Stockholder shall be delivered to the Cerberus Stockholders, and in the case of a proposed Transfer by a Cerberus Stockholder, shall be delivered to the MM Stockholders, at least 20 days prior to such proposed Transfer. The ROFR Offer Notice shall include, to the extent applicable, taking into account whether such Transfer is proposed to be consummated in a private or public offering: (i) the principal terms of the proposed Transfer, including (u) the names and addresses of the prospective Transferees, (v) a copy of the written bona fide offer, (w) the number and class of the Shares to be Transferred to each such prospective Transferee (the "Offered Shares"), (x) the expected date of the proposed Transfer, (y) the proposed Offer Price and (z) any other material terms of the proposed Transfer; and (ii) an irrevocable offer (an “ROFR Option”) ~~fully complies with~~ to sell any or all such Shares to the MM Stockholders or the Cerberus Stockholders, as the case may be (as applicable, the "Other Stockholders"), for a purchase price, to be stated therein, which shall be no greater than the proposed Offer Price offered by the prospective Transferees, as specified in the ROFR Offer Notice for such Shares, and otherwise on terms that are the same or better than the terms ~~of this Section 3.3; provided~~ that ~~the provisions of this Section 3.3 shall not~~ would apply to ~~Permitted Transfers~~such proposed sale to the proposed Transferees. (b) ~~The RFO Offeror shall, prior~~ Each Stockholder who exercises its ROFR Option will have the right to purchase all or any portion of its pro-rata portion of the total number of Shares subject to the ~~Transfer~~ ROFR. Any ROFR Option may be exercised, in whole or in part, by delivery of ~~any Ordinary Shares to which this Section 3.3 applies, give~~ written notice of acceptance (the “~~RFO~~ ROFR Acceptance Notice”) to ~~each other Shareholder (each~~the offeror within 15 days after delivery of the related ROFR Offer Notice. The ROFR Acceptance Notice shall state that the offeree Stockholder has elected to exercise the ROFR Option, ~~an “RFO Offeree”), setting forth (i)~~ and the number of ~~Ordinary~~ Shares ~~proposed~~ with respect to ~~be disposed~~ which such ROFR Option is being exercised. The closing of (any purchase and sale of Shares pursuant to the ~~“RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share~~exercise of any ROFR Option shall take place as soon as reasonably practicable, and ~~payment~~ in any event not later than 15 days after delivery of the ROFR Acceptance Notice (provided, that such time shall be extended as necessary to comply with applicable legal requirements) at such time and ~~other material terms~~ location as the parties to such purchase may mutually determine. If any Other Stockholder does not elect to purchase its pro rata portion of the Offered Shares, the Transferring Stockholder shall give prompt written notice to each Other Stockholder who has elected to purchase its pro rata portion of the Offered Shares of the number of Shares remaining, and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein. (c) The RFO Offeree(s) collectively each such Other Stockholder shall have the right to purchase its pro rata portion of the remaining Offered Shares. The foregoing process shall be repeated until the earlier of (i) no Other Stockholder elects to purchase any additional Offered Shares and (ii) all Offered Shares are allocated among Other Stockholders. If the ~~“Right of First Offer”)~~Other Stockholders do not elect to purchase, ~~any or~~ in the aggregate, all of the ~~RFO Ordinary Shares by delivering a written notice (~~Offered Shares, then subject to Sections 2.04 and 3.01 the ~~“RFO Exercise”) of exercise~~ Transferring Stockholder may transfer all, but not less than all, of the ~~Right of First Offer~~ Offered Shares to the ~~RFO Offeror within 20 (twenty~~prospective transferee(s) ~~Business Days~~ identified in the Offering Notice at a price and on terms and conditions no less favorable to the Transferring Stockholder than those specified in the ROFR Offer Notice for a period of up to 30 days from the expiration of the 15-day period commencing on the date of delivery of the ~~RFO Notice (the “RFO Response Period”), irrevocably stating therein~~ ROFR Offer Notice. Any Shares not transferred within such ~~portion of the RFO Ordinary Shares as~~ period again shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined. (d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days. (e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section ~~3.3.~~ 2.03 in connection with any subsequent Transfer. At the closing of any purchase and sale of Shares following the exercise of any ROFR Option, the holder(s) of Shares to be sold will deliver to the offeree Stockholder a certificate or certificates representing the Shares to be purchased duly endorsed, or with stock (for equivalent) ~~The RFO Offeror shall~~powers duly endorsed, ~~upon~~ for transfer with signature guaranteed, free and clear of any Adverse Claim, and with any necessary stock (or equivalent) transfer tax stamps affixed, together with such certifications, representations and warranties as the ~~Transfer~~ offeree Stockholder may reasonably request regarding matters such as that: (i) such holder has full right, title and interest in and to such Shares; (ii) such holder has all necessary power and authority and has taken all necessary action to sell such Shares as contemplated; and (iii) there is no Adverse Claim with respect to such Shares, and the offeree Stockholder (or its designee(s), if applicable) will pay to such holder by certified or bank check or wire transfer of immediately available federal funds (at the option of the ~~RFO Ordinary~~ holder selling the Shares) the purchase price of the Shares being purchased by it. For the purposes of this Section 2.03, ~~procure~~ "pro rata portion" shall be equal to the ~~resignation of such~~ quotient obtained by dividing the number of ~~directors nominated~~ Shares owned by ~~it, if any, as would be required pursuant~~ such Stockholder on the date of determination by the number of Shares then owned by Other Stockholders eligible to ~~Section 2.2 hereof, and such director shall execute a letter of resignation~~purchase the Offered Shares.

Appears in 1 contract

Samples: Investors Agreement (MassMutual Capital Partners LLC)

Right of First Offer. (a) ~~Other than Prohibited Transfers~~Prior to a Qualified IPO, ~~if at~~ subject to and excluding (w) any ~~time~~ Transfers by CCMP pursuant to Section 4.1(a), (x) Transfers by Xxxxxxx pursuant to Section 4.1(b), (y) Transfers by Altoma pursuant to Section 4.1(c), and (z) any Transfers made pursuant to (i) an offering of equity securities registered under the Securities Act, (ii) Section 4.2, (iii) Section 4.3, (iv) Section 4.5 pursuant to a sale in which the Drag-Along Sellers are exercising drag-along rights, and (v) Section 4.7, in the event that, subsequent to four (4) years after the ~~Lock Up Period a Shareholder~~ Original Date in the event CCMP or Xxxxxxx or any of their Permitted Transferees (such Person referenced in subsections (A) and (B), the “ROFO Seller”) desires to Transfer ~~other than pursuant~~ shares of Common Stock owned by it to any ~~Permitted Transfer~~Person, such ~~Transfer~~ ROFO Seller shall ~~be permitted only if such Shareholder~~ notify in writing (the “~~RFO Offeror~~ROFO Notice”) ~~fully complies with~~ the Holders other than the ROFO Seller (the “ROFO Parties”) and the Company, of: (A) its desire to Transfer such shares of Common Stock, (B) the number of shares proposed to be Transferred (the “ROFO Shares”) and (C) the price at which the ROFO Seller is willing to sell the ROFO Shares (the “ROFO Notice Price”), and (D) other terms of ~~this Section 3.3; provided that~~ such proposed sale (the ~~provisions~~ “ROFO Notice Terms”). The ROFO Seller(s) will negotiate in good faith for a period of ~~this Section 3.3~~ not less than 21 days after the date of the ROFO Notice with any ROFO Parties who express an interest in acquiring the ROFO Shares. The ROFO Parties shall be entitled, but not ~~apply~~ required, within 21 days after the delivery date of the ROFO Notice, to ~~Permitted Transfers~~deliver a cash offer notice (an “ROFO Offer Notice”) to the ROFO Seller of their offer for all, or any portion, of the ROFO Shares set forth in the ROFO Notice. If any ROFO Offer Notice is accepted by the ROFO Seller, each ROFO Party timely delivering a ROFO Offer Notice shall have the right to acquire a pro rata number of ROFO Shares based on the relative number of shares of Common Stock then owned by all of the ROFO Parties timely delivering a ROFO Offer Notice. (b) ~~The RFO Offeror shall~~Unless the ROFO Seller and the ROFO Parties otherwise agree, in the event ROFO Offer Notices at least equal to the ROFO Notice Price are not delivered to the ROFO Seller on or prior to the ~~Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth (i)~~ date 21 days after the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein. (c) The RFO Offeree(s) collectively shall have the right to purchase (the “Right of First Offer”), any or all delivery date of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO ROFO Notice (the “~~RFO Response Period~~ROFO Offer Deadline”), ~~irrevocably stating therein such portion of~~ the ~~RFO Ordinary Shares as~~ offer shall be ~~purchased~~deemed rejected with respect to such ROFO Shares so offered, ~~collectively~~and, by at any time within 120 days after the ~~RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and~~ ROFO Offer Deadline, the ~~proportion thereof~~ ROFO Seller shall be entitled to ~~be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall~~ sell any ROFO Shares not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror Transferred pursuant to the ~~other RFO Offeree(s) (~~ROFO Offer Notices on terms no more favorable than that ROFO Notice Terms and for a cash price equal to or ~~if there is more~~ greater than ~~one other RFO Offeree, in~~ the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror of an RFO Exercise in respect of the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined. (d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to ROFO Notice Price. After the expiration of such 120-day period, if the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days. (e) If the RFO Offeree(s) shall ROFO Seller has not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If at the end of the Transfer Period, as extended as provided hereinsold, the ~~RFO Offeror has~~ ROFO Seller may not ~~completed~~ Transfer the ~~Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary~~ ROFO Shares without complying again ~~fully complying~~ with the provisions of this Section ~~3.3~~4.9. (fc) ~~The RFO Offeror shall~~To the extent ROFO Offer Notices are delivered and are accepted or deemed accepted by the ROFO Seller, ~~upon~~ the closing for the Transfer of the ~~RFO Ordinary Shares~~ROFO Shares shall be consummated at 9:00 a.m. Oklahoma City time on the date 30 days following the ROFO Offer Deadline, ~~procure~~ at the ~~resignation~~ Company’s principal executive offices, or at such other time, date and place as mutually agreed by the ROFO Seller and the ROFO Parties. At the closing, the purchase price shall be paid in the form of ~~such number~~ a cashier’s check or by wire transfer in same day funds, and the DC\1281653.10 ROFO Seller shall deliver stock certificates representing the ROFO Shares so purchased, accompanied by duly executed stock powers, free and clear of ~~directors nominated by it~~all liens, ~~if any,~~ encumbrances and adverse claims (other than encumbrances as ~~would be required pursuant to Section 2.2 hereof~~set forth in this Agreement), and such ~~director~~ other instruments or documents as are deemed necessary by the Company for the proper Transfer of the ROFO Shares so Transferred on the books of the Company. The Company, the ROFO Seller, and the ROFO Parties shall ~~execute~~ cooperate in good faith in obtaining all necessary governmental and third-party consents, approvals or waivers required for the closing. The closing may be delayed, to the extent required, until the next succeeding day following the expiration of any required waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 and the obtaining of any necessary government approvals. (d) Notwithstanding the foregoing, if the exercise by CCMP of its rights under this Section 4.9 would cause a ~~letter~~ “Change of ~~resignation~~Control” as defined in Section 3.4(b), the period of time to consummate the transactions contemplated by this Section 4.9 can be delayed for up to 90 days to effect a refinancing of the Company’s outstanding Senior Notes as contemplated by Section 3.4(b).

Appears in 1 contract

Samples: Stockholders’ Agreement (Chaparral Energy, Inc.)

Right of First Offer. After the expiration of the 13 month period immediately following the Effective Date, if Xxxxxx desires to enter into a distribution agreement with a Beer Wholesaler (as defined below) for distribution of any of the Products in a territory within the U.S. and such territory is not already serviced by an AB/Xxxxxx Distributor under a Distribution Agreement and is not an Excluded Territory (in each case a “New Territory”), Xxxxxx shall notify AB in writing and AB shall have ten (10) business days after receipt of such notice to notify Xxxxxx in writing of one or more AB Distributors that individually (the “Designated AB Distributor”) or collectively (the “Designated AB Distributors”) could service the entire New Territory. A “Beer Wholesaler” for purposes of this Section 8.3 shall mean: (a) ~~Other than Prohibited Transfers~~a Xxxxxx and/or Coors beer distributor and (b) any other distributor who distributes malt beverage products that collectively constitute, if based on sales dollars generated through all channels including such distributor, 25% or more of the malt beverage market in the applicable territory. After Xxxxxx is timely notified of the Designated AB Distributor or Designated AB Distributors, as the case may be, (a) Xxxxxx may, at ~~any time after~~ its option, conduct due diligence regarding the ~~Lock Up Period~~ Designated AB Distributor or Designated AB Distributors and AB agrees to reasonably assist with such due diligence in the same manner specified in Section 2.2, and (b) Xxxxxx will deliver to the Designated AB Distributor a ~~Shareholder desires~~ Distribution Agreement for the entire New Territory in substantially the form of Exhibit A or, as the case may be, a separate Distribution Agreement in substantially the form of Exhibit A to ~~Transfer other than~~ each of the Designated AB Distributors that collectively covers the entire New Territory, unless Xxxxxx reasonably determines that the Designated AB Distributor or Designated AB Distributors, as the case may be, are not structured to, or do not have the resources to, or will not be able to, or are unwilling to, effectively and adequately service all classes of accounts throughout the entire New Territory. If the Designated AB Distributor or each of the Designated AB Distributors, as the case may be, fail to sign and return to Xxxxxx a Distribution Agreement delivered to it by Xxxxxx pursuant to ~~any Permitted Transfer~~the terms of the preceding sentence within ten (10) business days after its receipt, ~~such Transfer~~ Xxxxxx shall be ~~permitted only if such Shareholder (~~entitled to offer the ~~“RFO Offeror”) fully complies with~~ entire New Territory to any Person/s it wishes and the terms of this Section ~~3.3; provided that the provisions of this Section 3.3~~ shall ~~not~~ no longer apply to ~~Permitted Transfers.~~ such New Territory. An “Excluded Territory” means any territory (a) with respect to which a Distribution Agreement was previously in effect with an AB/Xxxxxx Distributor and was terminated; (b) ~~The RFO Offeror shall~~which was designated by Xxxxxx pursuant to Section 2.1 but no Distribution Agreement was entered into due to a rejection by Xxxxxx or the applicable AB Distributor/s, prior to the Transfer of any Ordinary Shares to which this Section 3.3 applies, give written notice (“RFO Notice”) to each other Shareholder (each, an “RFO Offeree”), setting forth (i) the number of Ordinary Shares proposed to be disposed of (the “RFO Ordinary Shares”), (ii) the proposed purchase price per RFO Ordinary Share, and payment and other material terms and conditions and (iii) an irrevocable offer to sell to the RFO Offeree(s) the RFO Ordinary Shares set forth in the RFO Notice at the same price per Ordinary Share and on the same terms and conditions as set forth therein. or (c) The RFO Offeree(s) collectively shall have the right to purchase (the “Right of First Offer”), any or all of the RFO Ordinary Shares by delivering a written notice (the “RFO Exercise”) of exercise of the Right of First Offer which is added to the RFO Offeror within 20 (twenty) Business Days from the date of delivery of the RFO Notice (the “RFO Response Period”), irrevocably stating therein such portion of the RFO Ordinary Shares as shall be purchased, collectively, by the RFO Offeree(s) and/or one or more wholly-owned Affiliates thereof and the proportion thereof to be purchased by each RFO Offeree (or such Affiliate(s)). Each RFO Offeree shall have the right, but shall not be required, to purchase (or cause its wholly-owned Affiliate(s) to purchase) such RFO Offeree’s pro rata share (based on the number of Ordinary Shares held by such RFO Offeree as a proportion of the number of Ordinary Shares held by all RFO Offerees). To the extent any RFO Offeree does not wish to purchase (or cause its wholly-owned Affiliate(s) to purchase) all of its pro rata portion of RFO Ordinary Shares, all of such remaining RFO Ordinary Shares (the “Remaining RFO Ordinary Shares”) shall immediately be re-offered by the RFO Offeror to the other RFO Offeree(s) (or if there is more than one other RFO Offeree, in the proportion (as nearly as may be) to the number of Ordinary Shares held by them inter se), and such other RFO Offeree(s) may accept by delivery to the RFO Offeror territory of an ~~RFO Exercise in respect of~~ existing Beer Wholesaler that enjoys exclusive distribution rights for the relevant Remaining RFO Ordinary Shares within 10 (ten) Business Days of such re-offer, after which time such re-offer shall lapse and the re-offer for such Remaining RFO Ordinary Shares will be deemed to have been declined. (d) If the RFO Offeree(s) shall have delivered an RFO Exercise to the RFO Offeror within the RFO Response Period for all the RFO Ordinary Shares, the RFO Offeror and RFO Offeree(s) shall be respectively bound, and shall complete the sale and purchase of the RFO Ordinary Shares within thirty (30) days thereafter upon the terms set forth in the RFO Notice; provided, however, that such period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such purchase to be obtained or made, to the extent prior to the expiration of the RFO Purchase Period reasonably appropriate actions have been taken by the RFO Offeree(s) to obtain such approvals, consents or authorizations, or make such filings or registrations; and provided further that no such extension shall exceed 60 days. (e) If the RFO Offeree(s) shall not have completed the purchase of all of the RFO Ordinary Shares within the RFO Purchase Period, as extended as provided in Section 3.3(d), or together have failed to deliver RFO Exercises within the RFO Response Period for all of the RFO Ordinary Shares as contemplated in Section 3.3(d) or declined in writing to exercise the Right of First Offer, then the RFO Offeror shall have the right for sixty (60) days thereafter (the “Transfer Period”), to dispose of the RFO Ordinary Shares in one or more Transfers thereof without being subject to any of the restrictions set forth in this Article III; provided, however, that (i) such Transfer of the RFO Ordinary Shares is consummated on terms not more favorable to the purchasers thereof than the terms specified in the RFO Notice and (ii) the RFO Offeror provides written confirmation to the RFO Offeree(s) that such terms comply with clause (i) hereof prior to the consummation of such sale; and provided further, that the Transfer Period shall be extended following such date as necessary to permit all required approvals, consents or authorizations from, or filings or registrations with, any Governmental Authority in connection with such Transfers to be obtained or made, to the extent prior to the expiration of the Transfer Period reasonably appropriate actions have been taken by the RFO Offeror to obtain such approvals, consents or authorizations or make such filings or registrations; and provided further that no such extension shall exceed thirty (30) days. If Products at the end of the Transfer Period, as extended as provided herein, the RFO Offeror has not completed the Transfer of the RFO Ordinary Shares, the RFO Offeror shall no longer be permitted to dispose of such RFO Ordinary Shares without again fully complying with the provisions of this Section 3.3time. (f) The RFO Offeror shall, upon the Transfer of the RFO Ordinary Shares, procure the resignation of such number of directors nominated by it, if any, as would be required pursuant to Section 2.2 hereof, and such director shall execute a letter of resignation.

Appears in 1 contract

Samples: Off Premise Distribution Coordination Agreement (Hansen Natural Corp)

Common use of Right of First Offer Clause in Contracts