Right of. First ------------------------------------------------ -------------- Refusal. The Company shall not, directly or indirectly, without the prior ------- written consent of the Buyer, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its or its Affiliates' equity or equity- equivalent securities in any transaction that is intended to be exempt from the registration requirements of the Securities Act (a "Subsequent Financing") for a period of 75 days after the Effectiveness Date (as defined under the Registration Rights Agreement), except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares issued upon exercise of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Schedule 2(c), (iii) ------------- Warrant Shares and Repricing Common Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued to pay part or all of the purchase price for the acquisition by the Company of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers to the Buyer a written notice (the "Subsequent Financing Notice") of its intention effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Buyer shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the tenth (10th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its sole designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Buyer shall fail to notify the Company of its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing Notice; provided, that the Company shall provide the Buyer with a second Subsequent Financing Notice, and the Buyer shall again have the right of first refusal set forth above in this Section 4(h)(i), if the Subsequent Financing subject to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice within thirty (30) Trading Days after the date of the initial Subsequent Financing Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Financing Notice. The rights granted to the Buyer in this Section 4(h)(i) are subject to the prior right of first refusal granted to the purchasers of the Company's Series D and Series E preferred stock, to the extent, if any, that they exist on the date hereof, but not any modifications, extensions or assignments of such rights to such Persons, the parties hereto agreeing that such rights shall not be extended or modified except with the consent of the Buyer.
Appears in 1 contract
Right of. First ------------------------------------------------ -------------- Refusal. The Company Refusal ----------------------
A. It is a principal inducement for Manager to enter into this transaction that the fifteen (15) Inns shall not, directly at any one time, ever be owned by more than four (4) separate individuals or indirectlyentities each of whom has a management agreement with Manager with respect to its Inn or Inns. Accordingly, without Lessee agrees that it will not have the prior ------- right to enter into a Sale of an Inn if such a transaction, when consummated, would result in the fifteen (15) Inns being owned by more than four (4) separate owners. Subject to the foregoing, if Owner receives a bona fide written consent offer to enter into a Sale of an Inn, and desires to accept such offer, Lessee shall, or shall cause Owner to, give written notice thereof to Manager stating the name of the Buyerprospective purchaser or tenant, offeras the case may be, sell, grant any option to purchase, the price or otherwise dispose rental and the terms and conditions of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its or its Affiliates' equity or equity- equivalent securities in any transaction that is intended to be exempt from the registration requirements such proposed Sale of the Securities Act Inn, together with all other information requested by Manager and reasonably available to Owner or Lessee. Within thirty (a "Subsequent Financing"30) for a period of 75 days after the Effectiveness Date (as defined under date of receipt of Lessee's written notice and such other information, Manager shall elect, by written notice to Lessee, one of the Registration Rights Agreement), except (i) following alternatives:
1. To purchase or lease such Inn or Inns at the granting of options same price or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares issued upon exercise of any currently outstanding warrants rental and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Schedule 2(c), (iii) ------------- Warrant Shares the same terms and Repricing Common Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued to pay part or all of the purchase price for the acquisition by the Company of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers to the Buyer a written notice (the "Subsequent Financing Notice") of its intention effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Buyer shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the tenth (10th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its sole designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms conditions as those set forth in the Subsequent Financing Noticewritten notice from Lessee to Manager or upon other terms acceptable to Owner, in which event Lessee and Manager shall promptly enter into an agreement for such sale or lease and shall finalize the same within ninety (90) days.
2. If To consent to such Sale of an Inn and to agree to enter into a new management agreement, with respect to such Inn or Inns, with such purchaser or tenant, which new management agreement will be on all of the Buyer terms and conditions of this Agreement, except that the Stipulated Debt Service and the Operating Profit Objective shall fail be only the portion thereof allocable to notify such Inn or Inns as set forth in Exhibits "B" and "C" ------------ --- hereof, and except that, in preparing such new management agreement, appropriate adjustments shall be made to all other terms and provisions of this Agreement which have been agreed to and/or computed on the Company assumption that this Agreement will apply to all fifteen (15) Inns (and reciprocal adjustments shall likewise be made to this Agreement itself, which will be applicable to the Inns not being sold under this Section 18.01, as set forth in Section 18.02 hereof); provided, however, that if Manager in good faith believes (and so states in writing to Lessee) that any one or more of its intention the following is true: (i) that the proposed purchaser is engaged in the business of operating (as distinguished from owning or financing) hotels or other lodging facilities in competition with Manager, Marriott or any Marriott Affiliate; (ii) that the proposed purchaser is known as being of bad moral character or is in control of or controlled by persons known as being of bad moral character; or (iii) that the financial condition and prospects of the proposed purchaser are not adequate to discharge the obligations of Lessee under this Agreement, Manager shall have the right to terminate this Agreement, by written notice to Lessee, with respect to such Inn or Inns, and Manager shall not be required to enter into such negotiations within such time period, the Company may effect the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates new management agreement with respect thereto. The effective date of such Persons) set forth in Termination shall coincide with the Subsequent Financing Notice; provided, that date of the Company shall provide finalization of the Buyer with a second Subsequent Financing Notice, and proposed Sale of the Buyer shall again have the right of first refusal set forth above in this Section 4(h)(i), if the Subsequent Financing subject to the initial Subsequent Financing Notice Inn. Such Termination shall not have been consummated for be effective if such Sale of the Inn is not finalized.
B. If Manager shall fail to elect any reason on of the terms set forth in such Subsequent Financing Notice above alternatives within said thirty (30) Trading Days after day period, such failure shall be conclusively deemed to constitute an election under subsection 2 above to enter into a new management agreement, with respect to such Inn or Inns, with such purchaser or tenant, and the date provisions thereof shall prevail as if Manager had consented in writing thereto. Any proposed Sale of an Inn of which notice has been given by Lessee to Manager hereunder must be finalized within one hundred eighty (180) days following the giving of such notice, unless Manager has exercised its option under subsection 1 above to purchase or lease the Inns. Failing such finalization, such notice, and any response thereto given by Manager, shall be null and void and all of the initial Subsequent Financing Notice provisions of Section 18.01 A must again be complied with before Owner shall have the Person (right to finalize a Sale of an Inn upon the terms contained in said notice, or an Affiliate of such Person) identified in the Subsequent Financing Notice. The rights granted to the Buyer in this Section 4(h)(i) are subject to the prior right of first refusal granted to the purchasers of the Company's Series D and Series E preferred stock, to the extent, if any, that they exist on the date hereof, but not any modifications, extensions or assignments of such rights to such Persons, the parties hereto agreeing that such rights shall not be extended or modified except with the consent of the Buyerotherwise.
Appears in 1 contract
Right of. First ------------------------------------------------ -------------- Refusal. The Company shall not, directly or indirectly, without the prior ------- written consent of the Buyer, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its or its Affiliates' equity or equity- equivalent securities in any transaction that is intended to be exempt from the registration requirements of the Securities Act (a "Subsequent Financing") for a period of 75 days after the Effectiveness Date (as defined under the Registration Rights Agreement), except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares issued upon exercise of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Schedule 2(c), (iii) ------------- Warrant Shares and Repricing Common Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued to pay part or all of the purchase price for the acquisition by the Company of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers to the Buyer a written notice (the "Subsequent Financing Notice") of its intention effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Buyer shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the tenth (10th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its sole designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Buyer shall fail to notify the Company of its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing Notice; provided, that the Company shall provide the Buyer with a second Subsequent -------- Financing Notice, and the Buyer shall again have the right of first refusal set forth above in this Section 4(h)(i), if the Subsequent Financing subject to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice within thirty (30) Trading Days after the date of the initial Subsequent Financing Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Financing Notice. The rights granted to the Buyer in this Section 4(h)(i) are subject to the prior right of first refusal granted to the purchasers of the Company's Series D and Series E preferred stock, to the extent, if any, that they exist on the date hereof, but not any modifications, extensions or assignments of such rights to such Persons, the parties hereto agreeing that such rights shall not be extended or modified except with the consent of the Buyer.
Appears in 1 contract
Right of. First ------------------------------------------------ -------------- Refusal. The Company shall not, directly or indirectly, without the prior ------- written consent of the Buyer, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its or its Affiliates' equity or equity- equivalent securities in any transaction that is intended to be exempt from the registration requirements of the Securities Act (a "Subsequent Financing") for a period of 75 days after the Effectiveness Date (as defined under the Registration Rights Agreement), except Opportunity.
(i) If, at any time during the granting term of options this Agreement, provided that the Company is not then in default under the terms of this Agreement, PPTI shall determine to dispose of its laboratory furniture, fixtures and equipment used in the performance of this Agreement (collectively, the "Laboratory Equipment") outside of the ordinary course of business (other than by a sale of all or warrants substantially all of its assets to employees, officers and directors, and a third party or by a merger or consolidation in which PPTI shall not be the issuance of shares upon exercise of options granted, under any stock option plan heretofore surviving entity) and/or to assign its leasehold interest in its laboratory facility or hereinafter duly adopted by the Company, (ii) shares issued upon exercise of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Schedule 2(c), (iii) ------------- Warrant Shares and Repricing Common Shares, (iv) shares issued sublet or abandon its laboratory facility other than in connection with the capitalization aa relocation or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued to pay part or all of the purchase price for the acquisition by the Company of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company consolidation of its (and laboratory operations, before doing so, PPTI shall give not of any of its stockholders') securities, unless (A) the Company delivers to the Buyer a less than [*****] prior written notice (the "Subsequent Financing Notice") of its intention effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Buyer shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the tenth (10th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its sole designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Buyer shall fail to notify the Company of its intention to enter into take such negotiations within such time period, action(s) and shall offer the Company may effect the Subsequent Financing substantially [*****] opportunity [*****] to purchase all of such Laboratory Equipment and/or to succeed to the laboratory facility by lease assignment or by sublease or both, as applicable, at the price and upon the terms and to the Persons (or Affiliates of such Persons) conditions set forth in the Subsequent Financing Noticenotice from PPTI to the Company, which price, terms and conditions shall be PPTI's good faith estimate of the [*****] value of the Laboratory Equipment and/or the leasehold interest (if any), as the case may be. The notice from PPTI to the Company shall include a schedule of the Laboratory Equipment and the price to be sought therefor by PPTI, and a summary of the laboratory facility lease assignment or sublease.
(ii) The Company shall have the right to purchase the Laboratory Equipment and/or to succeed to the laboratory facility at the price and upon the terms and conditions indicated in the notice from PPTI by delivering to PPTI written notice of exercise of the right of [*****] opportunity herein granted within [*****] of the date of delivery of the written notice from PPTI; provided, however, that if the Company shall provide so desire, promptly following the Buyer with a second Subsequent Financing Noticedate of delivery of written notice from PPTI, and the Buyer Company shall again have the right to [*****] the laboratory facility lease with the [*****], and PPTI shall cooperate with the Company in such effort. At the time of first refusal set forth above exercise of the right of [*****] opportunity herein granted, the Company shall deliver to PPTI an xxxxxxx money deposit in this Section 4(h)(i)an amount equal to [*****] of the purchase price of the Laboratory Equipment plus [*****] rent under the Lease. Such xxxxxxx money deposit shall be non-refundable absent a default by PPTI in the closing of the subject transaction and shall be applied against the purchase price payable by the Company at the closing provided for in clause (iii) below.
(iii) Closing on the purchase and sale of the Laboratory Equipment and the transfer of the laboratory facility shall occur at the office of PPTI at 10:00 a.m., California time, on the day and date that is indicated in the written notice from PPTI to the Company (which shall be no sooner than [*****] of the date of delivery of the written notice from PPTI to the Company, or at such other time, place and date as the parties shall mutually agree. At the closing, the Company shall pay the purchase price of the Laboratory Equipment by wire transfer to an account designated by PPTI not less than [*****] preceding the date of closing and, if the Subsequent Financing subject lease is transferred to the initial Subsequent Financing Notice Company in connection therewith, the Company shall either deliver to PPTI a release from its obligations under the facility lease signed and delivered by the landlord, or shall provide to PPTI a full and unconditional indemnity against all obligations under the lease. In addition, the Company shall reimburse to PPTI any security, tax or other deposits it may have posted under the facility lease. [*****] Material is confidential and has been omitted and filed separately with the Securities and Exchange Commission.
(iv) In the event the Company shall not have been consummated for any reason exercise the right of [*****] opportunity herein granted, PPTI shall be free to sell the Laboratory Equipment to a third party at a price and upon terms that are [*****] to PPTI than those offered to the Company. Similarly, if the Company shall not exercise the right of [*****] opportunity herein granted, PPTI shall be free to transfer its laboratory facility rights or abandon such rights and facilities as it sees fit. If PPTI wishes to sell the Laboratory Equipment on terms and conditions (including price) [*****] to PPTI than those offered to the terms set forth in Company, PPTI shall again offer such Subsequent Financing Notice within thirty (30Laboratory Equipment to the Company pursuant to this Section 7(h) Trading Days after unless the date price of the initial Subsequent Financing Notice with Laboratory Equipment is [*****] of the Person (or an Affiliate of such Person) identified in the Subsequent Financing Notice. The rights granted price thereof offered to the Buyer in this Section 4(h)(i) are subject to the prior right of first refusal granted to the purchasers of the Company's Series D and Series E preferred stock, to the extent, if any, that they exist on the date hereof, but not any modifications, extensions or assignments of such rights to such Persons, the parties hereto agreeing that such rights shall not be extended or modified except with the consent of the Buyer.
Appears in 1 contract
Samples: Supply and Services Agreement (Protein Polymer Technologies Inc)
Right of. First ------------------------------------------------ -------------- Refusal. The Company Refusal to Purchase - TENANT shall not, directly or indirectly, without the prior ------- written consent of the Buyer, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its or its Affiliates' equity or equity- equivalent securities in any transaction that is intended to be exempt from the registration requirements of the Securities Act (a "Subsequent Financing") for a period of 75 days after the Effectiveness Date (as defined under the Registration Rights Agreement), except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares issued upon exercise of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Schedule 2(c), (iii) ------------- Warrant Shares and Repricing Common Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued to pay part or all of the purchase price for the acquisition by the Company of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers to the Buyer a written notice (the "Subsequent Financing Notice") of its intention effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Buyer shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the tenth (10th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its sole designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Buyer shall fail to notify the Company of its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing Notice; provided, that the Company shall provide the Buyer with a second Subsequent Financing Notice, and the Buyer shall again have the right of first refusal to purchase the Demised Premises as hereinafter set forth. If at any time during the term as extended, LANDLORD shall receive a bona fide offer from a third person for the purchase of the Demised Premises, which offer LANDLORD shall promptly deliver to TENANT a copy of such offer, and TENANT may, within fifteen (15) days thereafter, elect to purchase the Demised Premises on the same terms as those set forth above in this Section 4(h)(i)I such offer, excepting that TENANT shall be credited against the purchase price to be paid by TENANT, with a sum equal to the amount of any brokerage commission, if any, which LANDLORD shall save by a sale to TENANT. If LANDLORD shall receive an offer for the Subsequent Financing subject purchase of the Demised Premises, which is not consummated by delivering a deed to the initial Subsequent Financing Notice shall not have been consummated for any reason on offerer, the terms set forth in such Subsequent Financing Notice within thirty (30) Trading Days after the date of the initial Subsequent Financing Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Financing Notice. The rights granted to the Buyer in this Section 4(h)(i) are subject to the prior TENANTS right of first refusal granted to purchase shall remain applicable to subsequent offers. If LANDLORD shall sell the Demised Premises, after a failure of TENANT to exercise its right of first refusal, such shall be subject to the purchasers Lease and shall continue to be applicable to subsequent sales of the Company's Series D Demised Premises. Not withstanding the foregoing, TENANT'S right of first refusal shall not apply or extend to any sales or transfers between LANDLORD and Series E preferred stock, any affiliates in which the principals of the LANDLORD are the majority shareholders to any family trusts or to the extentheirs of the principals of LANDLORD. LANDLORD shall be entitled to net the same amount under any right of first refusal exercise.
15.1 Holdover- In the event that TENANT continues in use and occupancy and holds over in possession of the Premises after the expiration of the Initial Term or, if any, that they exist on the date hereof, but not any modifications, extensions or assignments of such rights to such Personsproperly exercised, the parties hereto agreeing that such rights Option Term, in addition to all other damages to which LANDLORD may be entitled, the monthly rent during the period of holdover shall not be extended or modified except with in a sum equal to double the consent amount of the Buyermonthly installment of base annual fixed rent during the last month of the term which has just expired. Said holdover rent shall be in addition to all additional rents for which the TENANT shall be responsible during the holdover period.
Appears in 1 contract
Samples: Lease (Commerce Bancorp Inc /Nj/)
Right of. First ------------------------------------------------ -------------- RefusalRefusal with Respect to Sales of Company Securities by any McCaw Entity to Bell Competitors. The Company shall notNotwithstanding anything to the xxxxrary in the Xxxckholders Agreement, with respect to any Transfer by any McCaw Entity (including without limitation ERH) of any of its Companx Securities, or securities of ERH (or any other McCaw Entities that owns, directly or indirectly, without the prior ------- written consent more than five xxxxxnt (5%) of the Buyeroutstanding Company Securities or, offerif less than five percent (5%), sellrepresents its primary asset) ("McCaw Securities"), to a Bell Competitor, Bell shall have, and the XxXaw Entities hereby ixxxxocably grant any option xx Xell, the rights (the "Coxxxxxtor Right of First Refusal") descrixxx in this Section 8.3.
(a) Any McCaw Entity (the "Selling McCaw Entity") that desires to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) Xxxnsfer any of its Compaxx Xxcurities or its Affiliates' equity or equity- equivalent securities McCaw Securities in any transaction that is intended to be exempt compliance with this Section 8.3 musx xxxst receive a bona fide, written offer ("Competitor Offer") from the registration requirements of applicable Bell Competitor for the Securities Act (a "Subsequent Financing") for a period of 75 days after the Effectiveness Date (as defined under the Registration Rights Agreement), except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares issued upon exercise acquisition of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Schedule 2(c), (iii) ------------- Warrant Shares and Repricing Common Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued to pay part or all of the purchase price for the acquisition by the Xxxling McCaw Entity's Company Securities or McCaw Securities. Uxxx xeceipt and acceptance of a Person (whichCompexxxxx Offer that the McCaw Entity intends to accept, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers to the Buyer a Selling McCaw Entity xxxxl give written notice (the "Subsequent Financing Competitor XXXX Notice") to Bell stating that the Selling McCaw Entity intends to Trxxxxer Company Securities or MxXxx Securities to a Bell Competitor. The Competitor ROXX Xxtice shall identify the Bell Competitor, specify the type and number of its intention effect such Subsequent FinancingCompany Securities or McCaw Securities to be Transferred to the Bell Competitor (the "Competitor ROFR Securities"), which Subsequent Financing specxxx the aggregate and per share price (in cash or other consideration) (the "Competitor Sale Price") that the Bell Competitor has agreed to pay for the Competitor ROFR Xxcurities, and enclose an accurate summary of all other material terms and conditions of the proposed Transfer.
(b) The Competitor ROFR Notice shall describe in reasonable detail constitute the proposed terms of such Subsequent Financing, Selling McCaw Entity's binding offer to sell the amount of proceeds intended Competitor ROFR Xxxxrities to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Buyer shall not have notified the Company by 5:00 p.m. (Salt Lake City time) Bell on the tenth (10th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its sole designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing NoticeCompetitor ROFR Notice and this Agreement. If Bell shall have 10 business days after delivery of the Buyer shall fail Cxxxxtitor ROFR Notice (the "Competitor ROFR Exercise Period") to notify the Company of exercise its intention right to enter into such negotiations within such time periodpurchase all, but not less than all of, the Company may effect Competitor ROFR Securities at the Subsequent Financing substantially Competitor Sale Price and upon the other terms and to the Persons (or Affiliates of such Persons) conditions set forth in the Subsequent Financing Notice; providedCompetitor ROFR Notice by written notice to the Selling McCaw Entity within the Competitor ROFR Exercise Period, xxxxided that such written notice may provide that the Company exercise of the Competitor Right of First Refusal by Bell is subject to obtaining the required regulatory appxxxxls, for which Bell is using commercially reasonable efforts to satisfy the requirements as soon as reasonably practicable.
(c) Failure to deliver such notice within the Competitor ROFR Exercise Period shall provide constitute a waiver of the Buyer Competitor Right of First Refusal with a second Subsequent Financing Noticerespect to the Competitor ROFR Securities, and the Buyer Selling McCaw Entity shall have ninety (90) business days thereafter to complete the Transfer of the Competitor ROFR Securities to the Bell Competitor on substantially the same terms set forth in the Competitor Offer; otherwise, the Competitor ROFR Securities thereupon be again have subject to the right of first refusal set forth above described in this Section 4(h)(i), if 8.3 before any Transfer can be made.
(d) Delivery of a notice exercising the Subsequent Financing subject to Competitor Right of First Refusal shall create a binding contract between the initial Subsequent Financing Notice shall not have been consummated Selling McCaw Entity and Bell for any reason the purchase and sale of the Cxxxxxitor ROFR Sexxxxties at the Competitor Sale Price and on the terms set forth in such Subsequent Financing Notice within thirty (30) Trading Days after the date of the initial Subsequent Financing Notice with the Person (or an Affiliate of such Person) identified and conditions in the Subsequent Financing Competitor Offer, as described in the summary provided in the Competitor ROFR Notice. The rights granted to the Buyer in , and this Section 4(h)(i) are subject to 8.3. In that event, Bell shall deliver the prior right of first refusal granted to Competitor Sale Price for the purchasers of the Company's Series D and Series E preferred stockComxxxxtor ROFR Securities, in immediately available funds, to the extentSelling McCaw Entity to effectuate the Transfer of the Competitor XXXR Securities within five business days after the end of the Competitor ROFR Exercise Period or the satisfaction of the conditions to closing contained in the Competitor ROFR Notice; provided that Bell is using commercially reasonable efforts to cause such condition to be satisfied as soon as reasonably practicable. The Selling McCaw Entity shall effectuate the Transfer of the Competxxxx ROFR Securities by promptly delivering to Bell (and/or the applicable Affiliate of Bell) one or moxx xertificates, if anyproperly endorsed for trxxxxer, that they exist on represent the date hereofCompetitor ROFR Securities, but not together with stock powers and such other closing documentation that Bell (and/or the applicable Affiliate of Bell) may reasoxxxxy request. The Company and the McCaw Xxxxties (including without limitation ERH) agree xx xxnsent as required under the Stockholders Agreement to any modifications, extensions Transfer by a McCaw Entity to Bell or assignments of such rights to such Persons, the parties hereto agreeing that such rights shall not be extended or modified except with the consent of the Buyerits Affiliates under this Sectiox 0.0.
Appears in 1 contract
Samples: Side Agreement (Clearwire Corp)
Right of. First ------------------------------------------------ -------------- Refusal. The Company shall not, directly or indirectly, without Refusal held by OSI LP
(a) In the prior ------- written consent event Purchase Option A is not exercised within the sixty (60) days period commencing upon the termination of the BuyerIndividual Stockholder's employment with OSI LP, offer, sell, grant any option to purchase, or otherwise dispose of and such Individual Stockholder (or announce his/her permitted successors in the case of death) thereafter desires to transfer his/her Common Stock, the Individual Stockholder shall, prior to any offerdesired Transfer, salegive OSI LP and the Company written notice of such desire ("Transfer Notice A"), grant or any option to purchase or other disposition) any of its or its Affiliates' equity or equity- equivalent securities in any transaction that is intended which transfer notice shall specify such Individual Stockholder's Common Stock to be exempt from transferred, the registration requirements identity of the Securities Act proposed transferee, the purchase price (a the "Subsequent FinancingPurchase Price A") for a period of 75 days after the Effectiveness Date (as defined under the Registration Rights Agreement), except (i) the granting of options or warrants Common Stock to employees, officers and directors, be transferred and the issuance terms for payment of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares issued upon exercise of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Schedule 2(c), (iii) ------------- Warrant Shares and Repricing Common Shares, (iv) shares issued in connection with the capitalization or creation said Purchase Price A. Upon receipt of a joint venture with proper Transfer Notice A, OSI LP shall have the right to acquire such Individual Stockholder's Common Stock or a strategic partner (a Person whose business portion of his/her Common Stock as is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued to pay part or all of specified in the purchase price for Transfer Notice A. In the acquisition by event the Company of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers to the Buyer a written notice (the "Subsequent Financing Notice") of its intention effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of payment are such Subsequent Financingthat OSI LP cannot reasonably duplicate, OSI LP shall have the amount of proceeds intended right to be raised thereunder, substitute the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and reasonable cash equivalent thereof.
(Bb) the Buyer shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the tenth (10th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its sole designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Buyer shall fail to notify the Company of its intention to enter into such negotiations within such time period, the Company i)OSI LP may effect the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing Notice; provided, that the Company shall provide the Buyer with a second Subsequent Financing Notice, and the Buyer shall again have exercise the right of first refusal set forth above in this Section 4(h)(i), if the Subsequent Financing subject contained herein by mailing written notice thereof ("Election Notice A") to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice Individual Stockholder within thirty (30) Trading Days after days of the date of receipt of the initial Subsequent Financing Transfer Notice A. In the event OSI LP fails to mail the Election Notice A to the transferring Individual Stockholder within said thirty (30) day period, OSI LP's rights under this Section 2.1.3 shall lapse.
(ii) The closing for any purchase under this Section 2.1.3 shall be consummated and closed on a date and at a place designated by OSI LP in a notice to the Individual Stockholder, provided such consummation and closing date shall occur within sixty (60) days from the date of mailing of the Election Notice. At such closing, the Individual Stockholder shall execute and deliver all documents and instruments as are necessary and appropriate, in the opinion of counsel for the Company, to effectuate the Transfer of the Individual Stockholder's Common Stock to OSI LP in accordance with the Person (or an Affiliate terms of such Person) identified in the Subsequent Financing Notice. The rights granted Transfer Notice A and OSI LP shall deliver the Purchase Price to the Buyer Individual Stockholder in this Section 4(h)(i) are subject immediately available funds. OSI LP is entitled to receive customary representations and warranties from the Individual Stockholder regarding his sale of shares (including representations and warranties regarding good title to such shares, free and clear of any liens or encumbrances). In the event the transferring Individual Stockholder has any outstanding debts to the Company, or unpaid capital contribution obligations to the Company, such debts or unpaid capital contributions, including any accrued interest, shall be repaid in full prior to such closing.
(c) The right of first refusal granted to the purchasers provided herein shall continue until all of the CompanyIndividual Stockholder's Series D and Series E preferred stock, to Common Stock are transferred by the extent, if any, that they exist on the date hereof, but not any modifications, extensions or assignments of such rights to such Persons, the parties hereto agreeing that such rights shall not be extended or modified except Individual Stockholder in compliance with the consent of the Buyerterms hereof.
Appears in 1 contract
Right of. First ------------------------------------------------ -------------- Refusal. The Company shall not, directly or indirectly, without first refusal: Under the prior ------- written consent of the Buyer, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its or its Affiliates' equity or equity- equivalent securities in any transaction that is intended to be exempt from the registration requirements of the Securities Act (a "Subsequent Financing") for a period of 75 days after the Effectiveness Date (as defined under the Registration Rights New Minibus Leasing Agreement), except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares issued upon exercise of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Schedule 2(c), (iii) ------------- Warrant Shares and Repricing Common Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued to pay part or all of the purchase price for the acquisition by the Company of a Person (which, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers to the Buyer a written notice (the "Subsequent Financing Notice") of its intention effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Buyer shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the tenth (10th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its sole designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Buyer shall fail to notify the Company of its intention to enter into such negotiations within such time period, the Company may effect the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates of such Persons) set forth in the Subsequent Financing Notice; provided, that the Company shall provide the Buyer with a second Subsequent Financing Notice, and the Buyer shall again have Lessee has the right of first refusal set forth above if any of the Owners proposes to sell or otherwise dispose of any of the PLBs during the term of the New Minibus Leasing Agreement. If the Lessee opts not to purchase the PLBs or it has failed to give such Owner a reply notice indicating whether it would purchase the PLBs within 28 days of the receipt of such notice of intention to sell/dispose of the PLB(s) from the Owner, the Owner may sell the PLBs to the third party purchaser. Each of the Owners has undertaken that, in this Section 4(h)(i)such case, if it will only sell or dispose of the Subsequent Financing PLBs to the third party purchaser on terms and at the price no more favourable to the purchaser than the terms and the price as previously offered to the Lessee and on condition that (unless such condition is waived by the Lessee) the sale shall be subject to the initial Subsequent Financing Notice existing lease, or the purchaser shall not have been consummated for any reason enter into a new lease with the Lessee on terms which are no less favourable to the terms set forth in such Subsequent Financing Notice within thirty (30) Trading Days after Lessee as compared to the date existing lease. Insurance and vehicle licence: The Lessee has agreed to arrange on behalf of the initial Subsequent Financing Notice Owners for the following administration services including mainly taking out and maintaining relevant insurance policies covering at least third party risks, payment of vehicle licence fees and renewal of vehicle licences in respect of the PLBs leased under the New Minibus Leasing Agreement, subject to reimbursement of the fees and expenses by the Owners. In consideration of such administration services, amongst others, the Owners shall pay to the Lessee a Monthly Administration Fee of HK$700 per PLB. Such fee shall be deducted from the rentals for the PLBs. The Lessee shall indemnify the Owners against any loss and damage in excess of the insurance coverage arising from loss or damage to the PLBs or accidents involving the PLBs (other than accidents resulting from the act, neglect or default of the Owners or their employees, agents or contractors) during the lease period, provided that the Owners shall first make a claim under the insurance policy. Maintenance: The Lessee shall be responsible for the cost of service and maintenance in accordance with the Person (or an Affiliate cost of such Person) identified in any necessary repairs and for all fuels and lubricants for the Subsequent Financing Notice. The rights granted to the Buyer in this Section 4(h)(i) are subject to the prior right of first refusal granted to the purchasers proper running of the Company's Series D and Series E preferred stock, to the extent, if any, that they exist on the date hereof, but not any modifications, extensions or assignments PLBs. Change of such rights to such Persons, the parties hereto agreeing that such rights shall not be extended or modified except with the consent of the Buyer.Owners:
Appears in 1 contract
Samples: Minibus Leasing Agreement
Right of. First ------------------------------------------------ -------------- Refusal. The Company shall not, directly or indirectly, without the prior ------- Refusal ----------------------
A. If Owner receives an unsolicited bona fide written consent of the Buyer, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option offer to purchase or other disposition) lease any of its one or its Affiliates' equity or equity- equivalent securities in any transaction that is intended to be exempt from the registration requirements more of the Securities Act Inns and desires to accept such offer, Owner shall promptly give written notice thereof to Management Company stating the name of the prospective purchaser or tenant, as the case may be, the price or rental and the terms and conditions of such proposed sale or lease, together with all other information reasonably requested by Management Company and reasonably available to Owner. Within thirty (a "Subsequent Financing"30) for a period of 75 days after the Effectiveness Date (as defined under date of receipt of Owner's written notice, Management Company shall elect, by written notice to Owner, one of the Registration Rights Agreement), except (i) following alternatives:
1. To purchase or lease such Inn or Inns at the granting of options same price or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares issued upon exercise of any currently outstanding warrants rental and upon conversion of any currently outstanding convertible preferred stock the same terms and conditions as those set forth in each case disclosed the written notice from Owner to Management Company or upon other terms acceptable to Owner, in Schedule 2(c)which event Owner and Management Company shall promptly enter into a purchase agreement for such sale or lease and shall consummate the same within one hundred fifty (150) days.
2. To enter into a new Management Agreement, (iii) ------------- Warrant Shares and Repricing Common Shareswith respect to such Inn or Inns, (iv) shares issued in connection with the capitalization such purchaser or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not tenant, which new Management Agreement will be deemed a strategic partner), (v) shares issued to pay part or on all of the purchase price for the acquisition by the Company of a Person (which, for purposes terms and conditions of this clause (v)Agreement except that in preparing such new Management Agreement, shall not include an individual or group the provisions of individualsSections 5.01D and 5.03(5) and (vi6) shares issued hereof shall be deleted from such new Management Agreement and appropriate adjustments (which in the case of a bona fide public offering by sale pursuant to a site purchase option under a Ground Lease shall provide that, from and after the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers date on which an Inn is sold pursuant to the Buyer a written notice (the "Subsequent Financing Notice") of its intention effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms exercise of such Subsequent Financingsite purchase option, the amount of proceeds intended Ground Rent hereunder shall be deemed to be raised thereunder, the Person with whom total rent and other amounts that would have been paid or accrued to the former landlord by Owner if such Subsequent Financing Ground Lease were still in effect) shall be affected, made to all terms and attached provisions of this Agreement which have been agreed to which shall be a term sheet or similar document relating thereto and (B) the Buyer shall not have notified the Company by 5:00 p.m. (Salt Lake City time) and/or computed on the tenth assumption that this Agreement will apply to all fifty (10th50) Trading Day after its receipt of the Subsequent Financing Notice of its willingness Inns (and reciprocal adjustments shall likewise be made to enter into or otherwise provide (or to cause its sole designee to provide)this Agreement itself, subject to completion of mutually acceptable documentation, financing which will be applicable to the Company on substantially the terms Inns not being sold under this Section 19.01, as set forth in Section 19.02 hereof); provided, however, that if Management Company in good faith reasonably believes (and so states in writing to Owner) that any one or more of the Subsequent Financing Notice. If following is true: (i) that the Buyer proposed purchaser is a competitor in the lodging business, of Management Company, Marriott or any Marriott Affiliate (unless the proposed purchaser is a financial institution that is solely a passive owner of competitive properties in the lodging business); (ii) the proposed purchaser is known in the community as being of bad moral character; or (iii) that the financial condition and prospects of the proposed purchaser are not adequate to discharge the obligations of Owner under this Agreement, Management Company shall fail have the right to notify the terminate this Agreement, by written notice to Owner, with respect to such Inn or Inns, and Management Company of its intention shall not be required to enter into such negotiations within such time period, the Company may effect the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates new management agreement with respect thereto. The effective date of such Persons) set forth in Termination shall coincide with the Subsequent Financing Notice; provided, that date of the consummation of the proposed sale or lease. Such Termination shall not be effective if such sale or lease is not consummated.
B. If Management Company shall provide fail to elect any of the Buyer with a second Subsequent Financing Notice, and the Buyer shall again have the right alternatives of first refusal set forth subsection A above in this Section 4(h)(i), if the Subsequent Financing subject to the initial Subsequent Financing Notice shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice within said thirty (30) Trading Days after day period, such failure shall be conclusively deemed to constitute election under subsection 19.01A2 above to enter into a new management agreement with respect to such Inn or Inns, with such purchaser or tenant, and the date provisions thereof shall prevail as if Management Company had so elected. Any proposed sale or lease of which notice has been given by Owner to Management Company hereunder must be consummated on substantially the same terms within one hundred eighty (180) days following the giving of such notice, unless Management Company has exercised its option under subsection 19.01A1 above to purchase or lease the Inns. Failing such consummation, such notice, and any response thereto given by Management Company, shall be null and void and all of the initial Subsequent Financing Notice provisions of Section 19.01A1 must again be complied with before Owner shall have the Person (right to consummate a sale or an Affiliate of such Person) identified in the Subsequent Financing Notice. The rights granted to the Buyer in this Section 4(h)(i) are subject to the prior right of first refusal granted to the purchasers lease of the Company's Series D and Series E preferred stockInn upon the terms contained in said notice, to the extent, if any, that they exist on the date hereof, but not any modifications, extensions or assignments of such rights to such Persons, the parties hereto agreeing that such rights shall not be extended or modified except with the consent of the Buyerotherwise.
Appears in 1 contract
Samples: Management Agreement (Fairfield Inn by Marriott LTD Partnership)
Right of. First ------------------------------------------------ -------------- Refusal. The Company shall notRefusal ----------------------
A. With the exception of any lease of the Inns by Lessor to Lessee or any successor lessee wholly-owned, directly or indirectly, without the prior ------- by Apple Hospitality, if Lessor receives a bona fide written consent of the Buyer, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option offer to purchase or other disposition) lease any of its one or its Affiliates' equity or equity- equivalent securities in any transaction that is intended to be exempt from the registration requirements more of the Securities Act Inns, and desires to accept such offer, Lessee shall cause Lessor to give written notice thereof to Manager stating the name of the prospective purchaser or tenant, as the case may be, the price or rental and the terms and conditions of such proposed sale or lease, together with all other information requested by Manager and reasonably available to Lessor and/or Lessee. Within thirty (a "Subsequent Financing"30) for a period of 75 days after the Effectiveness Date date of receipt of Lessor's written notice and such other information, Manager shall elect, by written notice to Lessor, one of the following alternatives:
1. To purchase or lease such Inn or Inns at the same price or rental and upon the same terms and conditions as those set forth in the written notice from Lessor to Manager or upon other terms acceptable to Lessor, in which event, Lessor and Manager shall promptly enter into an agreement for such sale or lease and shall consummate the same within one hundred twenty (120) days, and Termination of this Agreement shall be effective as defined under of the Registration Rights date of such sale or lease. If Lessor fails to approve the sale or lease of such Inn or Inns to Manager, then Lessor shall not accept the offer to purchase or lease made by the prospective purchaser or tenant identified by Lessor and shall not consummate a sale or lease of such Inn or Inns to such prospective purchaser or tenant without first complying again with all of the provisions of this Section 18.01 A.
2. To consent to such sale or lease and to agree to enter into a new management agreement with respect to such Inn or Inns with such purchaser or tenant, which new management agreement will be on all of the terms and conditions of this Agreement), except that if such new management agreement pertains to less than all of the Inns, changes shall be made to the new management agreement as set forth in Section 18.02 I and appropriate adjustments shall likewise be made to this Agreement itself, which will be applicable to the Inns not being sold under this Section 18.01, as set forth in Section 18.02 A through H hereof; provided, however, that if Manager in good faith believes (and so states in writing to Lessor) that the prospective purchaser: (i) is engaged in the granting business of options operating (as distinguished from owning) hotels or warrants to employeesother lodging facilities in competition with Manager or any Affiliate of Manager, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore except that an individual or hereinafter duly adopted by the Company, (ii) shares issued upon exercise of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Schedule 2(c), (iii) ------------- Warrant Shares and Repricing Common Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities entity shall not be deemed to be in the business of operating hotels or other lodging facilities in competition with Manager or any Affiliate of Manager solely by virtue of (x) the ownership of such hotels or other lodging facilities, either directly or indirectly through subsidiaries, affiliates and partnerships, or (y) holding a strategic partner), mortgage or mortgages secured by one or more hotels or other lodging facilities; (vii) shares issued to pay part the proposed purchaser is known as being of bad moral character or all is in control of or controlled by persons known as being of bad moral character; or (iii) the financial condition and prospects of the purchase price for proposed purchaser are not adequate to discharge the acquisition obligations of Lessee under this Agreement, then Manager shall have the right to terminate this Agreement, by the Company of a Person (whichwritten notice to Lessor and/or Lessee, for purposes of this clause (v)with respect to such Inn or Inns, and Manager shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers to the Buyer a written notice (the "Subsequent Financing Notice") of its intention effect such Subsequent Financing, which Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Buyer shall not have notified the Company by 5:00 p.m. (Salt Lake City time) on the tenth (10th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its sole designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing Notice. If the Buyer shall fail to notify the Company of its intention required to enter into such negotiations within such time period, the Company may effect the Subsequent Financing substantially upon the terms and to the Persons (or Affiliates new management agreement with respect thereto. The effective date of such Persons) set forth in Termination shall coincide with the Subsequent Financing Notice; provided, that date of the Company shall provide consummation of the Buyer with a second Subsequent Financing Notice, and the Buyer shall again have the right of first refusal set forth above in this Section 4(h)(i), if the Subsequent Financing subject to the initial Subsequent Financing Notice proposed sale or lease. Such Termination shall not have been consummated for be effective if such sale or lease is not consummated.
B. If Manager shall fail to elect any reason on of the terms set forth in such Subsequent Financing Notice above alternatives within said thirty (30) Trading Days after day period, such failure shall be conclusively deemed to constitute an election under subsection 2 above to enter into a new management agreement, with respect to such Inn or Inns, with such purchaser or tenant, and the date provisions thereof shall prevail as if Manager had consented in writing thereto. Any proposed sale or lease of which notice has been given by Lessor to Manager hereunder must be consummated within one hundred eighty (180) days following the giving of such notice, unless Manager has exercised its option under subsection 1 above to purchase or lease the Inns. Failing such consummation, such notice, and any response thereto given by Manager, shall be null and void and all of the initial Subsequent Financing Notice provisions of Section
18.01 A must again be complied with before Lessor shall have the Person (right to finalize a sale or an Affiliate lease of such Person) identified the Inns upon the terms contained in the Subsequent Financing Notice. The rights granted said notice, or otherwise.
C. Except as provided in Article XVII, Lessee shall not enter into any sublease relating to, or otherwise sublet or transfer, its entire leasehold interest in one or more Inns prior to the Buyer in Termination.
D. Lessee shall cause Lessor to timely comply with all requirements and obligations of this Section 4(h)(i) are subject to the prior right of first refusal granted to the purchasers of the Company's Series D and Series E preferred stock, to the extent, if any, that they exist on the date hereof, but not any modifications, extensions or assignments of such rights to such Persons, the parties hereto agreeing that such rights shall not be extended or modified except with the consent of the Buyer18.01.
Appears in 1 contract
Right of. First ------------------------------------------------ -------------- Refusal. The Company shall notRefusal ---------------------- If, directly or indirectly, without at any time during the prior ------- written consent of the Buyer, offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of its or its Affiliates' equity or equity- equivalent securities in any transaction that is intended to be exempt from the registration requirements of the Securities Act (a "Subsequent Financing") for a period of 75 days after the Effectiveness Date (as defined under the Registration Rights Agreement), except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares issued upon exercise of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Schedule 2(c), (iii) ------------- Warrant Shares and Repricing Common Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued to pay part or all of the purchase price for the acquisition by the Company of a Person (which, for purposes Term of this clause (v)Lease, as the same may be extended pursuant to the Extension Option, Landlord shall not include an individual or group of individuals) and (vi) shares issued in receive a bona fide public offering by offer to purchase the Company of its (Building Parcel from any unrelated third party on terms and not of any of its stockholders') securities, unless (A) the Company delivers conditions which Landlord wishes to the Buyer a written notice accept (the "Subsequent Financing NoticeOffer") ), Landlord agrees that Tenant shall have, and Landlord hereby grants to Tenant, a right of its intention effect first refusal with respect to such Subsequent FinancingOffer ("Right of First Refusal"), exercisable on the terms and conditions set forth in this Subsection. Landlord shall provide written notice to Tenant that Landlord has received an Offer which Subsequent Financing Notice it wishes to accept, and shall describe in reasonable detail set forth the proposed basic business terms of such Subsequent Financing, Offer ("Offer Notice"). Under no circumstances shall Landlord be required to provide Tenant with a copy of the amount actual Offer received by Landlord or to identify the name of proceeds intended the potential purchaser to be raised thereunder, Tenant. Tenant shall have seven (7) business days from the Person with whom such Subsequent Financing shall be affected, and attached effective date of the Offer Notice to which shall be a term sheet or similar document relating thereto and (B) notify Landlord in writing that Tenant wishes to purchase the Buyer shall not have notified the Company by 5:00 p.m. (Salt Lake City time) Building Parcel on the tenth (10th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its sole designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms and conditions set forth in the Subsequent Financing Offer Notice ("Acceptance Notice"). If Tenant shall provide its Acceptance Notice to Landlord in a timely manner, then Landlord and Tenant agree to work together in good faith to prepare and enter into a contract for the purchase and sale of the Building Parcel incorporating the Offer terms and conditions. If Tenant shall fail to exercise its Right of First Refusal by providing its Acceptance Notice in a timely manner, then Tenant's Right of First Refusal shall lapse and be of no further force or effect, and Landlord shall thereafter be free to sell the Building Parcel to such third party offeror. Tenant's Right of First Refusal shall not be exercisable at any time that Tenant is in default under any of its material obligations under this Lease. If the Buyer shall fail to notify Offer is for the Company purchase of its intention to enter into such negotiations within such time period, the Company may effect Project as a whole or for the Subsequent Financing substantially upon purchase of the terms and to the Persons (or Affiliates Building as part of such Persons) set forth a package which includes another building in the Subsequent Financing Notice; providedProject, that the Company shall provide the Buyer with a second Subsequent Financing Notice, and the Buyer shall again have the right then this Right of first refusal set forth above in this Section 4(h)(i), if the Subsequent Financing subject to the initial Subsequent Financing Notice First Refusal shall not have been consummated for any reason on the terms set forth in such Subsequent Financing Notice within thirty (30) Trading Days after the date of the initial Subsequent Financing Notice with the Person (or an Affiliate of such Person) identified in the Subsequent Financing Notice. The rights granted to the Buyer in this Section 4(h)(i) are subject to the prior right of first refusal granted to the purchasers of the Company's Series D and Series E preferred stock, to the extent, if any, that they exist on the date hereof, but not any modifications, extensions or assignments of such rights to such Persons, the parties hereto agreeing that such rights shall not be extended or modified except with the consent of the Buyerapply.
Appears in 1 contract
Right of. First ------------------------------------------------ -------------- RefusalRefusal with Respect to Sales of Company Securities by any McCaw Entity to Bell Competitors. The Company shall notNotwithstanding anything to the xxxxrary in the Stockholders Agreement, with respect to any Transfer by any McCaw Entity (including without limitation ERH) of any of its Companx Securities, or securities of ERH (or any other McCaw Entities that owns, directly or indirectly, without the prior ------- written consent more than five xxxxxnt (5%) of the Buyeroutstanding Company Securities or, offerif less than five percent (5%), sellrepresents its primary asset) ("McCaw Securities"), to a Bell Competitor, Bell shall have, and the XxXaw Entities hereby ixxxxocably grant any option xx Xell, the rights (the "Coxxxxxtor Right of First Refusal") descrixxx in this Section 8.3.
(a) Any McCaw Entity (the "Selling McCaw Entity") that desires to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) Xxxnsfer any of its Compaxx Xxcurities or its Affiliates' equity or equity- equivalent securities McCaw Securities in any transaction that is intended to be exempt compliance with this Section 8.3 musx xxxst receive a bona fide, written offer ("Competitor Offer") from the registration requirements of applicable Bell Competitor for the Securities Act (a "Subsequent Financing") for a period of 75 days after the Effectiveness Date (as defined under the Registration Rights Agreement), except (i) the granting of options or warrants to employees, officers and directors, and the issuance of shares upon exercise of options granted, under any stock option plan heretofore or hereinafter duly adopted by the Company, (ii) shares issued upon exercise acquisition of any currently outstanding warrants and upon conversion of any currently outstanding convertible preferred stock in each case disclosed in Schedule 2(c), (iii) ------------- Warrant Shares and Repricing Common Shares, (iv) shares issued in connection with the capitalization or creation of a joint venture with a strategic partner (a Person whose business is primarily that of investing and selling of securities shall not be deemed a strategic partner), (v) shares issued to pay part or all of the purchase price for the acquisition by the Xxxling McCaw Entity's Company Securities or McCaw Securities. Uxxx xeceipt and acceptance of a Person (whichCompexxxxx Offer that the McCaw Entity intends to accept, for purposes of this clause (v), shall not include an individual or group of individuals) and (vi) shares issued in a bona fide public offering by the Company of its (and not of any of its stockholders') securities, unless (A) the Company delivers to the Buyer a Selling McCaw Entity xxxxl give written notice (the "Subsequent Financing Competitor XXXX Notice") to Bell stating that the Selling McCaw Entity intends to Trxxxxer Company Securities or MxXxx Securities to a Bell Competitor. The Competitor ROXX Xxtice shall identify the Bell Competitor, specify the type and number of its intention effect such Subsequent FinancingCompany Securities or McCaw Securities to be Transferred to the Bell Competitor (the "Competitor ROFR Securities"), which Subsequent Financing specxxx the aggregate and per share price (in cash or other consideration) (the "Competitor Sale Price") that the Bell Competitor has agreed to pay for the Competitor ROFR Xxcurities, and enclose an accurate summary of all other material terms and conditions of the proposed Transfer.
(b) The Competitor ROFR Notice shall describe in reasonable detail constitute the proposed terms of such Subsequent Financing, Selling McCaw Entity's binding offer to sell the amount of proceeds intended Competitor ROFR Xxxxrities to be raised thereunder, the Person with whom such Subsequent Financing shall be affected, and attached to which shall be a term sheet or similar document relating thereto and (B) the Buyer shall not have notified the Company by 5:00 p.m. (Salt Lake City time) Bell on the tenth (10th) Trading Day after its receipt of the Subsequent Financing Notice of its willingness to enter into or otherwise provide (or to cause its sole designee to provide), subject to completion of mutually acceptable documentation, financing to the Company on substantially the terms set forth in the Subsequent Financing NoticeCompetitor ROFR Notice and this Agreement. If Bell shall have 10 business days after delivery of the Buyer shall fail Cxxxxtitor ROFR Notice (the "Competitor ROFR Exercise Period") to notify the Company of exercise its intention right to enter into such negotiations within such time periodpurchase all, but not less than all of, the Company may effect Competitor ROFR Securities at the Subsequent Financing substantially Competitor Sale Price and upon the other terms and to the Persons (or Affiliates of such Persons) conditions set forth in the Subsequent Financing Notice; providedCompetitor ROFR Notice by written notice to the Selling McCaw Entity within the Competitor ROFR Exercise Period, xxxxided that such written notice may provide that the Company exercise of the Competitor Right of First Refusal by Bell is subject to obtaining the required regulatory appxxxxls, for which Bell is using commercially reasonable efforts to satisfy the requirements as soon as reasonably practicable.
(c) Failure to deliver such notice within the Competitor ROFR Exercise Period shall provide constitute a waiver of the Buyer Competitor Right of First Refusal with a second Subsequent Financing Noticerespect to the Competitor ROFR Securities, and the Buyer Selling McCaw Entity shall have ninety (90) business days thereafter to complete the Transfer of the Competitor ROFR Securities to the Bell Competitor on substantially the same terms set forth in the Competitor Offer; otherwise, the Competitor ROFR Securities thereupon be again have subject to the right of first refusal set forth above described in this Section 4(h)(i), if 8.3 before any Transfer can be made.
(d) Delivery of a notice exercising the Subsequent Financing subject to Competitor Right of First Refusal shall create a binding contract between the initial Subsequent Financing Notice shall not have been consummated Selling McCaw Entity and Bell for any reason the purchase and sale of the Cxxxxxitor ROFR Sexxxxties at the Competitor Sale Price and on the terms set forth in such Subsequent Financing Notice within thirty (30) Trading Days after the date of the initial Subsequent Financing Notice with the Person (or an Affiliate of such Person) identified and conditions in the Subsequent Financing Competitor Offer, as described in the summary provided in the Competitor ROFR Notice. The rights granted to the Buyer in , and this Section 4(h)(i) are subject to 8.3. In that event, Bell shall deliver the prior right of first refusal granted to Competitor Sale Price for the purchasers of the Company's Series D and Series E preferred stockComxxxxtor ROFR Securities, in immediately available funds, to the extentSelling McCaw Entity to effectuate the Transfer of the Competitor XXXR Securities within five business days after the end of the Competitor ROFR Exercise Period or the satisfaction of the conditions to closing contained in the Competitor ROFR Notice; provided that Bell is using commercially reasonable efforts to cause such condition to be satisfied as soon as reasonably practicable. The Selling McCaw Entity shall effectuate the Transfer of the Competxxxx ROFR Securities by promptly delivering to Bell (and/or the applicable Affiliate of Bell) one or moxx xertificates, if anyproperly endorsed for trxxxxer, that they exist on represent the date hereofCompetitor ROFR Securities, but not together with stock powers and such other closing documentation that Bell (and/or the applicable Affiliate of Bell) may reasoxxxxy request. The Company and the McCaw Xxxxties (including without limitation ERH) agree xx xxnsent as required under the Stockholders Agreement to any modifications, extensions Transfer by a McCaw Entity to Bell or assignments of such rights to such Persons, the parties hereto agreeing that such rights shall not be extended or modified except with the consent of the Buyerits Affiliates under this Sectiox 0.0.
Appears in 1 contract
Samples: Side Agreement (Clearwire Corp)
