Sale of Company. (a) If the Board and the holders of a majority of the Company’s Shares approve a Sale of the Company (the “Approved Sale”), the holders of Shares shall consent to and raise no objections against the Approved Sale of the Company, and if the Approved Sale of the Company is structured as a sale of capital stock, the holders of Shares shall agree to sell their Shares on the terms and conditions approved by the Board and the holders of a majority of the Company’s Shares. The holders of Shares shall take all necessary and desirable actions in connection with the consummation of the Approved Sale of the Company. Notwithstanding the foregoing, in the event the consideration to be received by the holders of Shares in connection with the Approved Sale shall include either: (i) shares of common stock of a class which is not listed on an national securities exchange or in the Nasdaq system and which is not entitled to registration rights for sale in a registered public offering under the 1933 Act, or (ii) shares of senior equity securities which do not provide for a scheduled redemption or a redemption at the option of the holders thereof, such holders shall not be required to sell their Shares pursuant to this Section 5(a) (collectively, the “Illiquid Consideration”). (b) The obligations of the holders of Shares with respect to the Approved Sale is subject to the satisfaction of the condition that, upon the consummation of the Approved Sale, all of the holders of Shares receive the same form and amount of consideration per Share or if any holders of Shares are given an option as to the form and amount of consideration to be received, all holders be given the same option. (c) If the Company or the holders of the Company’s securities enter into any negotiation or transaction for which Rule 506 (or any similar rule then in effect) promulgated by the Securities Exchange Commission may be available with respect to such negotiation or transaction (including a merger, consolidation or other reorganization), the holders of Shares shall, at the request of the Company, appoint a “purchaser representative” (as such term is defined in Rule 501) reasonably acceptable to the Company. If any holder of Shares appoints a purchaser representative designated by the Company, the Company shall pay the fees of such purchaser representative. However, if any holder of Shares declines to appoint the purchaser representative (reasonably acceptable to the Company), and such holder shall be responsible for the fees of the purchaser representative so appointed. (d) The Grantee and other holders of Shares (if any) shall bear their pro-rata share (based upon the number of Shares sold) of the costs of any sale of Shares pursuant to an Approved Sale to the extent such costs are incurred for the benefit of all holders of Shares and are not otherwise paid by the Company or the acquiring party. Costs incurred by the Grantee and the other holders of Shares on their own behalf shall not be considered costs of the transaction hereunder. (e) The provisions of this Section 5 shall terminate upon the completion of a Qualified Public Offering. (f) As used herein, “Independent Third Party” shall mean any Person who, immediately prior to the contemplated transaction, does not own in excess of 5% of the Company’s Shares on a fully-diluted basis (a “5% Owner”); who is not controlling, controlled by or under common control with any such 5% Owner and who is not the spouse or descendent (by birth or adoption) or any such 5% Owner or a trust for the benefit of such 5% Owner and/or such other Persons; “Person” shall mean an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization and a governmental entity or any department, agency or political subdivision thereof; “Qualified Public Offering” shall mean the sale in an underwritten public offering registered under the 1933 Act of the Company’s Shares resulting in aggregate gross proceeds to the Company of at least $50 million and a price per Share of not less than $108.2353 (as such amount is equitably adjusted for subsequent stock splits, stock dividends and recapitalizations); and “Sale of the Company” shall mean the sale of the Company to an Independent Third Party or affiliated group of Independent Third Parties pursuant to which such party or parties acquire: (i) Shares of the Company possessing the voting power to elect a majority of the Company’s board of directors (whether by merger, consolidation or sale or transfer of the Company’s Shares); or (ii) all or substantially all of the Company’s assets determined on a consolidated basis.
Appears in 5 contracts
Samples: Stock Award Agreement (Carrols Corp), Stock Award Agreement (Carrols Corp), Stock Award Agreement (Carrols Corp)
Sale of Company. (a) If At any time after the Board and the holders of a majority ten-year anniversary of the Company’s Shares approve Closing Date, subject to Section 9.5(b), either the Alter Member or any Westxxxxx Xxxber may, in its sole discretion request the Executive Committee in writing (a "Sale Proposal") to cause the sale of all of the Company Assets or all of the Units of the Members (a "Company Sale"). In the “Approved event of a request for Company Sale”), the holders Executive Committee shall have the obligation to identify prospective purchasers of Shares such Company Assets or Units, determine the terms on which such prospective purchasers would engage in a Company Sale and negotiate the terms of such Company Sale. The Executive Committee shall have an obligation to conduct the Company Sale in good faith and use reasonable commercial efforts to effect the Company Sale as promptly as reasonably practical. Each Member shall be required to agree to sell such Company Assets or to sell its Units on the terms and conditions as agreed upon by Executive Committee, and each Member shall consent to and raise no objections against to the Approved proposed transaction and will take all other actions necessary or desirable to cause the consummation of such sale on such terms; provided that the provisions of this Section 9.5(a) shall not apply with respect to any sale to any Westxxxxx Xxxnsferee or Alter Transferee.
(b) Prior to requesting a Company Sale pursuant to Section 9.5(a) or taking any action to dissolve the Company pursuant to Section 8.1(a), the Member proposing such Sale Proposal or dissolution (the "Notifying Member") shall first provide the Alter Member, if any Westxxxxx Xxxber is the Notifying Member, or each Westxxxxx Xxxber, if the Alter Member is the Notifying Member (the "Notified Member") with a written notice notifying each Notified Member of the Companyintended dissolution or Sale Proposal (and certain proposed terms, including a 58 54 minimum purchase price for all the Units of such Notifying Member, in the case of a proposed Sale Proposal) (the "Termination Notice"). Within thirty (30) days following the delivery of the Termination Notice, the Notified Members shall have the opportunity and if right (i) to elect to purchase the Approved Sale assets or Units proposed to be sold on the terms set forth in the Termination Notice or (ii) in the case of a proposed dissolution, to elect to purchase all (but not part) of the Notifying Member's Units for Fair Market Value and in each case the Notifying Member shall have the obligation to sell such Units to the Notified Members. Each Notified Member shall exercise such right by delivering written notice of acceptance to the Notifying Member within such 30-day period. If any Notified Member does not deliver an acceptance notice within such 30-day period, the right of such Notified Member to purchase such Units pursuant to the Termination Notice shall terminate and the Notifying Member shall have the right to cause such dissolution of the Company is structured as a sale of capital stock, the holders of Shares shall agree to sell their Shares on the terms and conditions approved by the Board and the holders of a majority of the Company’s Shares. The holders of Shares shall take all necessary and desirable actions place in connection accordance with the consummation provisions of Article VIII hereof or to submit a Sale Proposal to the Approved Sale of the CompanyExecutive Committee. Notwithstanding the foregoing, if such dissolution has not occurred or an agreement for such Company Sale, the terms of which include a purchase price for the Notifying Member's Units not less than the minimum purchase price set forth in the Termination Notice, has not been entered into within 120 days after delivery of the Termination Notice, the rights of each Notified Member as described above shall be reinstated and the Notifying Member will have to deliver another Termination Notice to each Notified Member with respect to such dissolution or sale before such dissolution or sale can occur. If any Notified Member exercises its right to purchase pursuant to this Section 9.5(b), the closing of such purchase by such Notified Member of the Units with respect to which such rights have been exercised shall occur at the offices of the Company (i) on the date which is 60 days after the delivery of the notice of acceptance by such Notified Member in the case of a dissolution or agreement of the Executive Committee as to the purchase price in the case of a proposed Sale Proposal (or, if such date is not a Business Day, on the next succeeding Business Day) or (ii) on the date agreed to by the Executive Committee and the purchaser in the case of any Company Sale. In addition, in the event the consideration Notifying Member fails to be received deliver the transfer documents and assignments reasonably requested by any Notified Member to effect the holders of Shares in connection with the Approved Sale shall include either: (i) shares of common stock of a class which is not listed on an national securities exchange or in the Nasdaq system and which is not entitled to registration rights for sale in a registered public offering under the 1933 Act, or (ii) shares of senior equity securities which do not provide for a scheduled redemption or a redemption at the option of the holders thereof, such holders shall not be required to sell their Shares purchase pursuant to this Section 5(a) (collectively9.5(b), such Notified Member may deliver the “Illiquid Consideration”).
(b) The obligations of the holders of Shares with respect to the Approved Sale is subject to the satisfaction of the condition that, upon the consummation of the Approved Sale, all of the holders of Shares receive the same form and amount of consideration per Share or if any holders of Shares are given an option as to the form and amount of consideration to be receivedpaid to the Notifying Member pursuant to this Section 9.5(b) to the Notifying Member and upon such delivery, all holders be given execute and deliver, as the same option.
(c) If attorney in fact for the Company or Notifying Member, such required assignments. Such power of attorney is coupled with an interest and shall survive the holders insolvency, bankruptcy and dissolution of the Company’s securities enter into any negotiation or transaction for which Rule 506 (or any similar rule then in effect) promulgated by the Securities Exchange Commission may be available with respect to such negotiation or transaction (including a merger, consolidation or other reorganization), the holders of Shares shall, at the request of the Company, appoint a “purchaser representative” (as such term is defined in Rule 501) reasonably acceptable to the Company. If any holder of Shares appoints a purchaser representative designated by the Company, the Company shall pay the fees of such purchaser representative. However, if any holder of Shares declines to appoint the purchaser representative (reasonably acceptable to the Company), and such holder shall be responsible for the fees of the purchaser representative so appointedNotifying Member.
(d) The Grantee and other holders of Shares (if any) shall bear their pro-rata share (based upon the number of Shares sold) of the costs of any sale of Shares pursuant to an Approved Sale to the extent such costs are incurred for the benefit of all holders of Shares and are not otherwise paid by the Company or the acquiring party. Costs incurred by the Grantee and the other holders of Shares on their own behalf shall not be considered costs of the transaction hereunder.
(e) The provisions of this Section 5 shall terminate upon the completion of a Qualified Public Offering.
(f) As used herein, “Independent Third Party” shall mean any Person who, immediately prior to the contemplated transaction, does not own in excess of 5% of the Company’s Shares on a fully-diluted basis (a “5% Owner”); who is not controlling, controlled by or under common control with any such 5% Owner and who is not the spouse or descendent (by birth or adoption) or any such 5% Owner or a trust for the benefit of such 5% Owner and/or such other Persons; “Person” shall mean an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization and a governmental entity or any department, agency or political subdivision thereof; “Qualified Public Offering” shall mean the sale in an underwritten public offering registered under the 1933 Act of the Company’s Shares resulting in aggregate gross proceeds to the Company of at least $50 million and a price per Share of not less than $108.2353 (as such amount is equitably adjusted for subsequent stock splits, stock dividends and recapitalizations); and “Sale of the Company” shall mean the sale of the Company to an Independent Third Party or affiliated group of Independent Third Parties pursuant to which such party or parties acquire: (i) Shares of the Company possessing the voting power to elect a majority of the Company’s board of directors (whether by merger, consolidation or sale or transfer of the Company’s Shares); or (ii) all or substantially all of the Company’s assets determined on a consolidated basis.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Westbrook Real Estate Partners LLC), Limited Liability Company Agreement (Alter Robert A)
Sale of Company. (a) If the Board and the holders of a majority of the Company’s Shares Board or the Majority Investors approve a Sale of the Company (the collectively, an “Approved Sale”), the holders each holder of Stockholder Shares shall vote for, consent to and raise no objections against the against, and not otherwise impede or delay, such Approved Sale Sale, regardless of the Companyconsideration being paid in such Approved Sale. In furtherance of the foregoing, and if the Approved Sale of the Company is structured as (i) a merger or consolidation, each holder of Stockholder Shares shall vote its Stockholder Shares to approve such merger or consolidation, whether by written consent or at a stockholders meeting, and waive all dissenters rights, appraisal rights and similar rights in connection with such merger or consolidation; (ii) a sale of capital stock, the holders each holder of Stockholder Shares shall agree to sell their sell, and shall sell, all of such Stockholder’s Stockholder Shares and rights to acquire Stockholder Shares on the terms and conditions approved by the Board or the Majority Investors; or (iii) a sale of assets, each holder of Stockholder Shares shall vote its Stockholder Shares to approve such sale and any subsequent liquidation of the holders Company or other distribution of a majority of the proceeds therefrom in accordance with the Company’s Shares. The holders Certificate of Incorporation, whether by written consent or at a stockholders meeting, and waive all dissenters rights, appraisal rights and similar rights in connection with such sale of assets.
(b) In furtherance of its obligations under Section 8(a) above, (i) each holder of Stockholder Shares shall will take all necessary and or desirable actions reasonably requested by the Board or the Majority Investors in connection with the consummation of the Approved Sale and (ii) each holder of Stockholder Shares will make the Companysame indemnities and agreements as each other holder, including without limitation, voting to approve such transaction and executing all documents reasonably requested by the Board or the Majority Investors to be executed by such holder, including the applicable purchase agreement, stockholders agreement and/or indemnification and/or contribution agreement. Notwithstanding Each holder of Stockholder Shares shall be obligated to make representations and warranties only as to such holder’s title to and ownership of Stockholder Shares, authorization, execution and delivery of relevant documents by such holder, enforceability of relevant agreements against such Stockholder and other matters relating to such holder, to enter into covenants in respect of a Transfer of such holder’s Stockholder Shares in connection with such Approved Sale (including, without limitation, the delivery of certificates, stock powers and other instruments of transfer) and to enter into indemnification obligations (which shall be on a several basis) with respect to the foregoing, in each case to the event extent that the consideration to be received by the holders of Shares Majority Investors are obligated; provided that, in connection with the an Approved Sale Sale, no Stockholder shall include either: be obligated under this Section 8 to (i) shares make any representations or warranties with respect to the business or prospects of common stock the Company or any of its Subsidiaries, (ii) enter into indemnification obligations (A) to the extent relating to any other holder of Stockholder Shares or such other holder’s Stockholder Shares, (B) other than on a class several basis (and not on a joint and several basis) and only to the extent that the other Stockholders are obligated (except with respect to matters relating to title to such Stockholder’s Shares, authority to sell the Shares or enter into the transaction, or similar matters relating to such Stockholder individually, as to which is not listed on he, she, or it may be solely liable) or (C) in an national securities exchange or amount that exceeds, in the Nasdaq system and which is not entitled to registration rights for sale aggregate, the proceeds received by such Stockholder (in a registered public offering under its capacity as such, including the 1933 Actapplicable portion of any escrow or other holdback), or (iii) with respect to any Stockholder that is not a current or former employee of the Company or any of its Subsidiaries, enter into any non-competition, non-solicitation or non-hire restrictive covenant (the foregoing clauses (i), (ii) shares of senior equity securities which do not provide for a scheduled redemption or a redemption at the option of the holders thereofand (iii), such holders shall not be required to sell their Shares pursuant to this Section 5(a) (collectively, the “Illiquid ConsiderationSale Limitations”).
(bc) The obligations of the holders of Shares Stockholders with respect to the an Approved Sale is are subject to the satisfaction of the condition that, following conditions: (i) upon the consummation of the Approved Sale, all each holder of Stockholder Shares shall be entitled to receive in exchange for the holders of Stockholder Shares receive held by such holder the same form consideration specified in Section 9 and amount of consideration per Share or (ii) if any holders of Stockholder Shares are given an option as to the form and amount of consideration to be received, all holders each holder of the same type and class of Stockholder Shares shall be given the same option. Notwithstanding anything to the contrary contained herein, in addition to any escrow or holdback arrangements pursuant to the agreements described in Section 9(a), in the Majority Investors’ reasonable discretion, the proceeds with respect to an Approved Sale may be withheld from each Other Stockholder (other than a Co-Invest Stockholder) who sells such Stockholder Shares pending the execution of such documents or posting of security (or guarantee in support of the creditworthiness of such seller) as the Majority Investors deem necessary to cover any purchase price adjustments, indemnification or other obligations of each such Other Stockholder which are in accordance with this Section 8.
(cd) If the Company or a majority of the holders of the Company’s securities enter into any negotiation or transaction for which Rule 506 under the Securities Act (or any similar rule then in effect) promulgated by the Securities and Exchange Commission may be available with respect to such negotiation or transaction (including a merger, consolidation or other reorganization), the holders of Shares shallOther Stockholders, if required under the Securities Act, will, at the request of the Company, appoint a “purchaser representative” representative (as such term is defined in Rule 501) reasonably acceptable to the Company. If any holder of Shares Other Stockholder appoints a purchaser representative designated by the Company, the Company shall will pay the fees of such purchaser representative. However, if any holder of Shares declines to appoint the purchaser representative (reasonably acceptable to the Company), and such holder shall be responsible for the fees of the purchaser representative so appointed.
(de) The Grantee and other holders Holders of Stockholder Shares (if any) shall will bear their pro-pro rata share (based upon as if such expenses reduced the number of Shares soldaggregate proceeds available for distribution in such Approved Sale) of the costs of any sale of Stockholder Shares pursuant to an Approved Sale to the extent such costs are approved by the Majority Investors and incurred for the benefit of all holders of Stockholder Shares and are not otherwise paid by the Company or the acquiring party. Costs incurred by the Grantee and the other holders of Shares on their own behalf shall not be considered costs of the transaction hereunder.
(e) The provisions of this Section 5 shall terminate upon the completion of a Qualified Public Offering.
(f) As used herein, “Independent Third Party” shall mean any Person who, immediately prior to the contemplated transaction, does not own in excess of 5% of the Company’s Shares on a fully-diluted basis (a “5% Owner”); who is not controlling, controlled by or under common control with any such 5% Owner and who is not the spouse or descendent (by birth or adoption) or any such 5% Owner or a trust for the benefit of such 5% Owner and/or such other Persons; “Person” shall mean an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization and a governmental entity or any department, agency or political subdivision thereof; “Qualified Public Offering” shall mean the sale in an underwritten public offering registered under the 1933 Act of the Company’s Shares resulting in aggregate gross proceeds to the Company of at least $50 million and a price per Share of not less than $108.2353 (as such amount is equitably adjusted for subsequent stock splits, stock dividends and recapitalizations); and “Sale of the Company” shall mean the sale of the Company to an Independent Third Party or affiliated group of Independent Third Parties pursuant to which such party or parties acquire: (i) Shares of the Company possessing the voting power to elect a majority of the Company’s board of directors (whether by merger, consolidation or sale or transfer of the Company’s Shares); or (ii) all or substantially all of the Company’s assets determined on a consolidated basis.
Appears in 1 contract
Sale of Company. (a) If Subject to Section 6, if the Board and the holders of a majority of the Company’s Shares shares of Capital Stock approve a Sale of the Company (the “Approved Sale”)Company, the holders of Shares shall each Stockholder will consent to and raise no objections against to the Approved proposed transaction, waive any appraisal or dissenters’ rights in respect of such transaction, and take all other actions reasonably necessary or desirable to cause the consummation of such Sale of the CompanyCompany on the terms proposed by the Board, and including without limitation, (i) if the Approved Sale of the Company is structured as a sale of capital stockall outstanding Capital Stock, the holders each Stockholder will sell all of Shares shall agree to sell their Shares his, her or its Capital Stock on the terms and conditions approved by the Board Board, (ii) if the Sale of the Company is structured as a merger or consolidation, each Stockholder will vote in favor thereof and will not exercise any dissenters’ rights of appraisal he, she or it may have under any applicable law, and (iii) if the holders Sale of the Company is structured as a majority sale of all or substantially all of the assets of the Company’s Shares. The holders , each Stockholder will vote in favor thereof, will not exercise any dissenters’ rights of Shares shall take all necessary and desirable actions appraisal he, she or it may have under any applicable law and, if applicable, will vote in connection with the consummation favor of the Approved subsequent dissolution and liquidation of the Company. Each Stockholder shall be severally obligated to join (on a basis not to exceed such Stockholder’s pro rata share of the proceeds from such Sale of the Company. Notwithstanding ) in any indemnification or other obligations to which the foregoing, in the event the consideration to be received by the holders of Shares Board agrees in connection with the Approved such Sale shall include either: (i) shares of common stock of a class which is not listed on an national securities exchange or in the Nasdaq system and which is not entitled to registration rights for sale in a registered public offering under the 1933 Act, or (ii) shares of senior equity securities which do not provide for a scheduled redemption or a redemption at the option of the holders thereofCompany (other than any such obligations that relate specifically to a particular Stockholder, such holders as indemnification with respect to representations and warranties given by a Stockholder regarding such Stockholder’s title to and ownership of Capital Stock, as to which obligations each such Stockholder shall not be solely liable). No Stockholder will be required to sell their Shares pursuant make any representation or warranty other than with respect to this Section 5(a) (collectivelythe ownership of such Stockholder’s stock or the authorization and binding effect of the applicable transaction documents relating to such Stockholder, and no Stockholder will be required to enter into any restrictive covenant agreement other than those which are reasonable in scope and duration and are required to protect the “Illiquid Consideration”)interests of the Company.
(b) The obligations of the holders of Shares Stockholders with respect to a Sale of the Approved Sale is Company are subject to the satisfaction of the condition that, following conditions: (i) upon the consummation of the Approved SaleSale of the Company, all of the holders Stockholders holding a particular class or series of Shares Capital Stock shall receive the same form and amount of consideration per Share share of Capital Stock, or if any holders Stockholders of Shares a particular type, class or series of Capital Stock are given an option as to the form and amount of consideration to be received, all holders Stockholders of such type, class or series will be given the same option, and (ii) all Stockholders of then currently exercisable Capital Stock equivalents will be given an opportunity to either (A) exercise such rights prior to the consummation of the Sale of the Company and participate in such sale as holders of such Capital Stock or (B) upon the consummation of the Sale of the Company, receive in exchange for such rights consideration equal to the amount determined by multiplying (1) the same amount of consideration per share of Capital Stock received by the Stockholders of such type and class of Capital Stock in connection with the Sale of the Company less the exercise price per share or the amount of such rights to acquire such Capital Stock by (2) the number of shares Capital Stock or the aggregate amount of shares represented by such rights.
(c) If the Company or the holders of the Company’s securities enter enters into any negotiation or transaction for which Rule 506 promulgated by the SEC (or any similar rule then in effect) promulgated by the Securities Exchange Commission may be available with respect to such negotiation or transaction (including a merger, consolidation or other reorganization), the holders Stockholders that are not an “accredited investor” (within the meaning of Shares shallRule 501(a) promulgated by the SEC) will, at the request of the CompanyBoard, appoint a “purchaser representative” representative (as such term is defined in Rule 501501 promulgated by the SEC) reasonably acceptable to the Company. If any holder of Shares appoints a purchaser representative designated approved by the Company, Board and the Company shall will pay the fees of such purchaser representative. However, if If any holder of Shares such Stockholder declines to appoint the purchaser representative (approved by the Board, such Stockholder will appoint another purchaser representative reasonably acceptable to the Company)Board, and such holder shall Stockholder will be responsible for the fees of the purchaser representative so appointed.
(d) The Grantee and other holders of Shares (if any) shall Each Stockholder will bear their his, her or its pro-rata share (based upon the number of Shares sold) of the reasonable costs of any sale of Shares Capital Stock pursuant to an Approved a Sale of the Company (but only if such Sale of the Company is actually consummated) to the extent such costs are incurred for the benefit of all holders of Shares Stockholders and are not otherwise paid by the Company or the acquiring party. Costs incurred by the Grantee and the other holders or on behalf of Shares on their own behalf shall a Stockholder for its or his sole benefit will not be considered costs of the transaction hereunder.
(e) The provisions of this Section 5 shall terminate upon the completion of a Qualified Public Offering.
(f) As used herein, “Independent Third Party” shall mean any Person who, immediately prior to the contemplated transaction, does not own in excess of 5% of the Company’s Shares on a fully-diluted basis (a “5% Owner”); who is not controlling, controlled by or under common control with any such 5% Owner and who is not the spouse or descendent (by birth or adoption) or any such 5% Owner or a trust for the benefit of such 5% Owner and/or such other Persons; “Person” shall mean an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization and a governmental entity or any department, agency or political subdivision thereof; “Qualified Public Offering” shall mean the sale in an underwritten public offering registered under the 1933 Act of the Company’s Shares resulting in aggregate gross proceeds to the Company of at least $50 million and a price per Share of not less than $108.2353 (as such amount is equitably adjusted for subsequent stock splits, stock dividends and recapitalizations); and “Sale of the Company” shall mean the sale of the Company to an Independent Third Party or affiliated group of Independent Third Parties pursuant to which such party or parties acquire: (i) Shares of the Company possessing the voting power to elect a majority of the Company’s board of directors (whether by merger, consolidation or sale or transfer of the Company’s Shares); or (ii) all or substantially all of the Company’s assets determined on a consolidated basis.
Appears in 1 contract
Samples: Stockholders' Agreement (ThermoGenesis Holdings, Inc.)
Sale of Company. (a) If the Board and the holders of a majority of the Company’s Shares approve a Sale of the Company (the “Approved Sale”), the holders of Shares shall consent to and raise no objections against the Approved Sale of the Company, and if the Approved Sale of the Company is structured as a sale of capital stock, the holders of Shares shall agree to sell their Shares on the terms and conditions approved by the Board and the holders of a majority of the Company’s Shares. The holders of Shares shall take all necessary and desirable actions in connection with the consummation of the Approved Sale of the Company. Notwithstanding the foregoing, in the event the consideration to be received by the holders of Shares in connection with the Approved Sale shall include either: (i) shares of common stock of a class which is not listed on an national securities exchange or in the Nasdaq system and which is not entitled to registration rights for sale in a registered public offering under the 1933 Act, or (ii) shares of senior equity securities which do not provide for a scheduled redemption or a redemption at the option of the holders thereof, such holders shall not be required to sell their Shares pursuant to this Section 5(a4(a) (collectively, the “Illiquid Consideration”).
(b) The obligations of the holders of Shares with respect to the Approved Sale is subject to the satisfaction of the condition that, upon the consummation of the Approved Sale, all of the holders of Shares receive the same form and amount of consideration per Share or if any holders of Shares are given an option as to the form and amount of consideration to be received, all holders be given the same option.
(c) If the Company or the holders of the Company’s securities enter into any negotiation or transaction for which Rule 506 (or any similar rule then in effect) promulgated by the Securities Exchange Commission may be available with respect to such negotiation or transaction (including a merger, consolidation or other reorganization), the holders of Shares shall, at the request of the Company, appoint a “purchaser representative” (as such term is defined in Rule 501) reasonably acceptable to the Company. If any holder of Shares appoints a purchaser representative designated by the Company, the Company shall pay the fees of such purchaser representative. However, if any holder of Shares declines to appoint the purchaser representative (reasonably acceptable to the Company), and such holder shall be responsible for the fees of the purchaser representative so appointed.
(d) The Grantee and other holders of Shares (if any) shall bear their pro-rata share (based upon the number of Shares sold) of the costs of any sale of Shares pursuant to an Approved Sale to the extent such costs are incurred for the benefit of all holders of Shares and are not otherwise paid by the Company or the acquiring party. Costs incurred by the Grantee and the other holders of Shares on their own behalf shall not be considered costs of the transaction hereunder.
(e) The provisions of this Section 5 4 shall terminate upon the completion of a Qualified Public Offering.
(f) As used herein, “Independent Third Party” shall mean any Person who, immediately prior to the contemplated transaction, does not own in excess of 5% of the Company’s Shares on a fully-diluted basis (a “5% Owner”); who is not controlling, controlled by or under common control with any such 5% Owner and who is not the spouse or descendent (by birth or adoption) or any such 5% Owner or a trust for the benefit of such 5% Owner and/or such other Persons; “Person” shall mean an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization and a governmental entity or any department, agency or political subdivision thereof; “Qualified Public Offering” shall mean the sale in an underwritten public offering registered under the 1933 Act of the Company’s Shares resulting in aggregate gross proceeds to the Company of at least $50 million and a price per Share of not less than $108.2353 (as such amount is equitably adjusted for subsequent stock splits, stock dividends and recapitalizations); and “Sale of the Company” shall mean the sale of the Company to an Independent Third Party or affiliated group of Independent Third Parties pursuant to which such party or parties acquire: (i) Shares of the Company possessing the voting power to elect a majority of the Company’s board of directors (whether by merger, consolidation or sale or transfer of the Company’s Shares); or (ii) all or substantially all of the Company’s assets determined on a consolidated basis.%
Appears in 1 contract
Samples: Stock Award Agreement (Carrols Corp)
Sale of Company. (a) If the Board and the holders of a majority of the Company’s Shares approve a Sale of the Company (the “Approved Sale”), the holders of Shares shall consent to and raise no objections against the Approved Sale of the Company, and if the Approved Sale of the Company is structured as a sale of capital stock, the holders of Shares shall agree to sell their Shares on the terms and conditions approved by the Board and the holders of a majority of the Company’s Shares. The holders of Shares shall take all necessary and desirable actions in connection with the consummation of the Approved Sale of the Company. Notwithstanding the foregoing, in the event the consideration to be received by the holders of Shares in connection with the Approved Sale shall include either: (i) shares of common stock of a class which is not listed on an national securities exchange or in the Nasdaq system and which is not entitled to registration rights for sale in a registered public offering under the 1933 Act, or (ii) shares of senior equity securities which do not provide for a scheduled redemption or a redemption at the option of the holders thereof, such holders shall not be required to sell their Shares pursuant to this Section 5(a) (collectively, the “Illiquid Consideration”).
(b) The obligations of the holders of Shares with respect to the Approved Sale is subject to the satisfaction of the condition that, upon the consummation of the Approved Sale, all of the holders of Shares receive the same form and amount of consideration per Share or if any holders of Shares are given an option as to the form and amount of consideration to be received, all holders be given the same option.
(c) If the Company or the holders of the Company’s securities enter into any negotiation or transaction for which Rule 506 (or any similar rule then in effect) promulgated by the Securities Exchange Commission may be available with respect to such negotiation or transaction (including a merger, consolidation or other reorganization), the holders of Shares shall, at the request of the Company, appoint a “purchaser representative” (as such term is defined in Rule 501) reasonably acceptable to the Company. If any holder of Shares appoints a purchaser representative designated by the Company, the Company shall pay the fees of such purchaser representative. However, if any holder of Shares declines to appoint the purchaser representative (reasonably acceptable to the Company), and such holder shall be responsible for the fees of the purchaser representative so appointed.
(d) The Grantee Trust and other holders of Shares (if any) shall bear their pro-rata share (based upon the number of Shares sold) of the costs of any sale of Shares pursuant to an Approved Sale to the extent such costs are incurred for the benefit of all holders of Shares and are not otherwise paid by the Company or the acquiring party. Costs incurred by the Grantee Trust and the other holders of Shares on their own behalf shall not be considered costs of the transaction hereunder.
(e) The provisions of this Section 5 shall terminate upon the completion of a Qualified Public Offering.
(f) As used herein, “Independent Third Party” shall mean any Person who, immediately prior to the contemplated transaction, does not own in excess of 5% of the Company’s Shares on a fully-diluted basis (a “5% Owner”); who is not controlling, controlled by or under common control with any such 5% Owner and who is not the spouse or descendent (by birth or adoption) or any such 5% Owner or a trust for the benefit of such 5% Owner and/or such other Persons; “Person” shall mean an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization and a governmental entity or any department, agency or political subdivision thereof; “Qualified Public Offering” shall mean the sale in an underwritten public offering registered under the 1933 Act of the Company’s Shares resulting in aggregate gross proceeds to the Company of at least $50 million and a price per Share of not less than $108.2353 (as such amount is equitably adjusted for subsequent stock splits, stock dividends and recapitalizations); and “Sale of the Company” shall mean the sale of the Company to an Independent Third Party or affiliated group of Independent Third Parties pursuant to which such party or parties acquire: (i) Shares of the Company possessing the voting power to elect a majority of the Company’s board of directors (whether by merger, consolidation or sale or transfer of the Company’s Shares); or (ii) all or substantially all of the Company’s assets determined on a consolidated basis.
Appears in 1 contract
Samples: Exchange Agreement (Carrols Corp)
Sale of Company. (a) If At any time after the Board and the holders of a majority ten-year --------------- anniversary of the Company’s Shares approve Closing Date, subject to Section 9.5(b), either the Alter Member or any Xxxxxxxxx Member may, in its sole discretion request the Executive Committee in writing (a "Sale Proposal") to cause the sale of all of the Company ------------- Assets or all of the Units of the Members (a "Company Sale"). In the “Approved event of a ------------ request for Company Sale”), the holders Executive Committee shall have the obligation to identify prospective purchasers of Shares such Company Assets or Units, determine the terms on which such prospective purchasers would engage in a Company Sale and negotiate the terms of such Company Sale. The Executive Committee shall have an obligation to conduct the Company Sale in good faith and use reasonable commercial efforts to effect the Company Sale as promptly as reasonably practical. Each Member shall be required to agree to sell such Company Assets or to sell its Units on the terms and conditions as agreed upon by Executive Committee, and each Member shall consent to and raise no objections against to the Approved proposed transaction and will take all other actions necessary or desirable to cause the consummation of such sale on such terms; provided that the provisions -------- of this Section 9.5(a) shall not apply with respect to any sale to any Xxxxxxxxx Transferee or Alter Transferee.
(b) Prior to requesting a Company Sale pursuant to Section 9.5(a) or taking any action to dissolve the Company pursuant to Section 8.1(a), the Member proposing such Sale Proposal or dissolution (the "Notifying Member") shall first ---------------- provide the Alter Member, if any Xxxxxxxxx Member is the Notifying Member, or each Xxxxxxxxx Member, if the Alter Member is the Notifying Member (the "Notified Member") with a written notice notifying ---------------- each Notified Member of the Companyintended dissolution or Sale Proposal (and certain proposed terms, including a minimum purchase price for all the Units of such Notifying Member, in the case of a proposed Sale Proposal) (the "Termination ----------- Notice"). Within thirty (30) days following the delivery of the Termination ------ Notice, the Notified Members shall have the opportunity and if right (i) to elect to purchase the Approved Sale assets or Units proposed to be sold on the terms set forth in the Termination Notice or (ii) in the case of a proposed dissolution, to elect to purchase all (but not part) of the Notifying Member's Units for Fair Market Value and in each case the Notifying Member shall have the obligation to sell such Units to the Notified Members. Each Notified Member shall exercise such right by delivering written notice of acceptance to the Notifying Member within such 30-day period. If any Notified Member does not deliver an acceptance notice within such 30-day period, the right of such Notified Member to purchase such Units pursuant to the Termination Notice shall terminate and the Notifying Member shall have the right to cause such dissolution of the Company is structured as a sale of capital stock, the holders of Shares shall agree to sell their Shares on the terms and conditions approved by the Board and the holders of a majority of the Company’s Shares. The holders of Shares shall take all necessary and desirable actions place in connection accordance with the consummation provisions of Article VIII hereof or to submit a Sale Proposal to the Approved Sale of the CompanyExecutive Committee. Notwithstanding the foregoing, if such dissolution has not occurred or an agreement for such Company Sale, the terms of which include a purchase price for the Notifying Member's Units not less than the minimum purchase price set forth in the Termination Notice, has not been entered into within 120 days after delivery of the Termination Notice, the rights of each Notified Member as described above shall be reinstated and the Notifying Member will have to deliver another Termination Notice to each Notified Member with respect to such dissolution or sale before such dissolution or sale can occur. If any Notified Member exercises its right to purchase pursuant to this Section 9.5(b), the closing of such purchase by such Notified Member of the Units with respect to which such rights have been exercised shall occur at the offices of the Company (i) on the date which is 60 days after the delivery of the notice of acceptance by such Notified Member in the case of a dissolution or agreement of the Executive Committee as to the purchase price in the case of a proposed Sale Proposal (or, if such date is not a Business Day, on the next succeeding Business Day) or (ii) on the date agreed to by the Executive Committee and the purchaser in the case of any Company Sale. In addition, in the event the consideration Notifying Member fails to be received deliver the transfer documents and assignments reasonably requested by any Notified Member to effect the holders of Shares in connection with the Approved Sale shall include either: (i) shares of common stock of a class which is not listed on an national securities exchange or in the Nasdaq system and which is not entitled to registration rights for sale in a registered public offering under the 1933 Act, or (ii) shares of senior equity securities which do not provide for a scheduled redemption or a redemption at the option of the holders thereof, such holders shall not be required to sell their Shares purchase pursuant to this Section 5(a) (collectively9.5(b), such Notified Member may deliver the “Illiquid Consideration”).
(b) The obligations of the holders of Shares with respect to the Approved Sale is subject to the satisfaction of the condition that, upon the consummation of the Approved Sale, all of the holders of Shares receive the same form and amount of consideration per Share or if any holders of Shares are given an option as to the form and amount of consideration to be receivedpaid to the Notifying Member pursuant to this Section 9.5(b) to the Notifying Member and upon such delivery, all holders be given execute and deliver, as the same option.
(c) If attorney in fact for the Company or Notifying Member, such required assignments. Such power of attorney is coupled with an interest and shall survive the holders insolvency, bankruptcy and dissolution of the Company’s securities enter into any negotiation or transaction for which Rule 506 (or any similar rule then in effect) promulgated by the Securities Exchange Commission may be available with respect to such negotiation or transaction (including a merger, consolidation or other reorganization), the holders of Shares shall, at the request of the Company, appoint a “purchaser representative” (as such term is defined in Rule 501) reasonably acceptable to the Company. If any holder of Shares appoints a purchaser representative designated by the Company, the Company shall pay the fees of such purchaser representative. However, if any holder of Shares declines to appoint the purchaser representative (reasonably acceptable to the Company), and such holder shall be responsible for the fees of the purchaser representative so appointedNotifying Member.
(d) The Grantee and other holders of Shares (if any) shall bear their pro-rata share (based upon the number of Shares sold) of the costs of any sale of Shares pursuant to an Approved Sale to the extent such costs are incurred for the benefit of all holders of Shares and are not otherwise paid by the Company or the acquiring party. Costs incurred by the Grantee and the other holders of Shares on their own behalf shall not be considered costs of the transaction hereunder.
(e) The provisions of this Section 5 shall terminate upon the completion of a Qualified Public Offering.
(f) As used herein, “Independent Third Party” shall mean any Person who, immediately prior to the contemplated transaction, does not own in excess of 5% of the Company’s Shares on a fully-diluted basis (a “5% Owner”); who is not controlling, controlled by or under common control with any such 5% Owner and who is not the spouse or descendent (by birth or adoption) or any such 5% Owner or a trust for the benefit of such 5% Owner and/or such other Persons; “Person” shall mean an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization and a governmental entity or any department, agency or political subdivision thereof; “Qualified Public Offering” shall mean the sale in an underwritten public offering registered under the 1933 Act of the Company’s Shares resulting in aggregate gross proceeds to the Company of at least $50 million and a price per Share of not less than $108.2353 (as such amount is equitably adjusted for subsequent stock splits, stock dividends and recapitalizations); and “Sale of the Company” shall mean the sale of the Company to an Independent Third Party or affiliated group of Independent Third Parties pursuant to which such party or parties acquire: (i) Shares of the Company possessing the voting power to elect a majority of the Company’s board of directors (whether by merger, consolidation or sale or transfer of the Company’s Shares); or (ii) all or substantially all of the Company’s assets determined on a consolidated basis.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Sunstone Hotel Investors Inc)
Sale of Company. (a) If the Board and the holders of a majority of the Company’s Shares approve a Sale of the Company (the “Approved Sale”), the holders of Shares shall consent to and raise no objections against the Approved Sale of the Company, and if the Approved Sale of the Company is structured as a sale of capital stock, the holders of Shares shall agree to sell their Shares on the terms and conditions approved by the Board and the holders of a majority of the Company’s Shares. The holders of Shares shall take all necessary and desirable actions in connection Buyer covenants with the consummation Sellers that it will not, prior to 31 December 2015, transfer the Shares or the Purchased Business to any person (other than to Synergeties USA or any of the Approved Sale of the Company. Notwithstanding the foregoing, in the event the consideration to be received by the holders of Shares in connection with the Approved Sale shall include either: (i) shares of common stock of a class which is not listed on an national securities exchange or in the Nasdaq system and which is not entitled to registration rights for sale in a registered public offering under the 1933 Act, or (ii) shares of senior equity securities which do not provide for a scheduled redemption or a redemption at the option of the holders thereof, such holders shall not be required to sell their Shares its Affiliates pursuant to this Section 5(a2.4(f)(v) (collectively, the “Illiquid Consideration”or Section 2.4(g)(iii)).
(b) The obligations If the Buyer, or any Affiliate of the holders Buyer ("Transferor"), disposes of the Shares or the Purchased Business (“Disposal”) to any person which is not an Affiliate of the Buyer ("Transferee") after 31 December 2015, but prior to 1 January 2018, the Transferor will negotiate in good faith with respect the Transferee with a view to the Approved Sale is Transferee assuming the Transferor's outstanding liability to pay the Contingent Payments to the Sellers (on terms reasonably acceptable to the Sellers). If the Transferor cannot agree such terms with the Transferee, or such terms are not reasonably acceptable to the Sellers, then at the sole election of the Transferor, at any time prior to (but subject to the satisfaction disposal taking place) or following such Disposal, the provisions of the condition that, upon the consummation of the Approved Sale, all of the holders of Shares receive the same form and amount of consideration per Share Section 2.5(c) or if any holders of Shares are given an option as to the form and amount of consideration to be received, all holders be given the same optionSection 2.5(d) shall apply.
(c) At the sole election of the Transferor pursuant to Section 2.5(b):
(i) If the Company Disposal takes place after 31 December 2015 but on or before 31 December 2016, and the holders Transferor has elected that this Section shall apply, Synergetics USA shall procure that the Transferor (A) pays to the Sellers, forthwith upon the election by the Transferor of the Company’s securities enter into any negotiation application of this Section, a sum equal to the Relevant Percentage of £2,250,000 and (B) uses its reasonable endeavors, with both the Transferor and the Sellers acting in good faith, to negotiate and agree the transfer to the Sellers of the NDA Business on the basis, and in order to reflect the terms, set out in Section 2.5(e) in full and final settlement of all outstanding liability or transaction for which Rule 506 obligation to the Sellers in relation to the Contingent Payments;
(ii) If the Disposal takes place after 31 December 2016, but on or any similar rule then in effectbefore 31 December 2017, and the Transferor has elected that this Section shall apply, Synergetics USA shall procure that the Transferor (A) promulgated pays to the Sellers, forthwith upon the election by the Securities Exchange Commission may be available Transferor of the application of this Section, a sum equal to the Relevant Percentage of £1,250,000 and (B) uses its reasonable endeavors, with respect both the Transferor and the Sellers acting in good faith, to such negotiation negotiate and agree the transfer to the Sellers of the NDA Business on the basis, and in order to reflect the terms, set out in Section 2.5(e) in full and final settlement of all outstanding liability or transaction obligation to the Sellers in relation to the Contingent Payments;
(including a merger, consolidation or other reorganization)iii) for the purpose of (i) above, the holders of Shares shall, at Relevant Percentage shall be the request of percentage which the Company, appoint a “purchaser representative” (as such term is defined in Rule 501) reasonably acceptable Contingent Payment paid or payable to the Company. If any holder Sellers pursuant to Section 2.4(f)(i) bears to £775,000, and for the purpose of Shares appoints a purchaser representative designated by the Company(ii) above, the Company Relevant Percentage shall pay be the fees of such purchaser representative. However, if any holder of Shares declines to appoint percentage which the purchaser representative (reasonably acceptable Contingent Payment paid or payable to the Company), and such holder shall be responsible for the fees of the purchaser representative so appointedSellers pursuant to Section 2.4(f)(ii) bears to £1,300,000.
(d) The Grantee At the sole election of the Transferor pursuant to Section 2.5(b), or if no election is made within 90 days of a Disposal to apply Section 2.5(c) (but not otherwise), the obligations of the Transferor to make any outstanding Contingent Payments to the Sellers on the terms of this agreement shall remain in full force and other holders effect following the Disposal (for which purpose the Transferor shall procure that the Transferee undertakes to the Transferor and the Sellers to provide to the Transferor and the Sellers with such information as is necessary to enable the amount of Shares the Contingent Payments to be determined after the Disposal) provided that:-
(if anyi) the provisions of Sections 2.4(a), 2.4(b) and 2.4(f)(v) shall bear their pro-rata share forthwith upon such disposal cease to have any effect save that the Buyer shall continue to act in good faith towards the Sellers in relation to the Contingent Payment;
(based upon ii) the number of Shares soldSellers shall at all times act in good faith towards the Transferor and its Affiliates in relation to the Contingent Payment;
(iii) the Sellers shall use reasonable endeavors to procure that the business of the costs of any sale of Shares pursuant to an Approved Sale Company shall be carried on in the ordinary and normal course and there shall be no material change to the extent such costs are incurred for business of the benefit Company, the intention of all holders which is to have an artificial or unfairly inflated effect on the Gross Profit;
(iv) the provisions of Shares Sections 2.4(d) and are not otherwise paid by 2.4(e) shall be deemed to apply on the Company or basis that the acquiring party. Costs incurred by obligations of the Grantee Buyer and the other holders of Shares on their own behalf Seller's Representative are reversed, and the Sellers shall not be considered costs of use reasonable endeavors to procure that the transaction hereunderBuyer is provided with all such information as it reasonably requires and requests in order to make the payments set out in Section 2.4(g).
(e) The provisions In the event that the Transferor makes an election to have Section 2.5(c) apply, then the parties acknowledge that the NDA Business shall be transferred to the Sellers (or their nominees) on the basis that, and their good faith negotiations shall endeavor to reflect the fact that:-
(i) the NDA Business will, so far as possible, be transferred on an arms length basis as a going concern, with all assets and liabilities relating thereto (to the extent such assets are used exclusively in the NDA Business) being transferred to the Sellers (or their nominees). It is envisaged that the employees of this Section 5 the NDA Business will transfer to the Sellers (or their nominee) pursuant to the Transfer of Undertakings (Protection of Employment) Regulations 2006;
(ii) the consideration for the transfer of the NDA Business shall terminate upon be agreed between the Transferor and the Sellers and reflect its fair and proper value, taking into account the capital expenditure and other sunken costs incurred in respect of the NDA Business at the time of such transfer and otherwise acknowledging such other factors as shall enable the consideration to be fair to all parties, and such consideration shall be discharged in full on completion of a Qualified Public Offeringthe transfer.
(f) As used hereinFor the avoidance of doubt, “Independent Third Party” shall mean the provisions of this clause (including any Person who, immediately prior to dispute over the contemplated transaction, does not own in excess terms of 5% of the Company’s Shares on a fully-diluted basis (a “5% Owner”); who is not controlling, controlled by or under common control with any such 5% Owner and who is not the spouse or descendent (by birth or adoption) or any such 5% Owner or a trust for the benefit of such 5% Owner and/or such other Persons; “Person” shall mean an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization and a governmental entity or any department, agency or political subdivision thereof; “Qualified Public Offering” shall mean the sale in an underwritten public offering registered under the 1933 Act of the Company’s Shares resulting in aggregate gross proceeds to the Company of at least $50 million and a price per Share of not less than $108.2353 (as such amount is equitably adjusted for subsequent stock splits, stock dividends and recapitalizations); and “Sale of the Company” shall mean the sale of the Company to an Independent Third Party or affiliated group of Independent Third Parties pursuant to which such party or parties acquire: (i) Shares of the Company possessing the voting power to elect a majority of the Company’s board of directors (whether by merger, consolidation or sale or transfer of the Company’s Shares); or (iiNDA Business) all or substantially all shall be subject to the dispute resolution procedure of the Company’s assets determined on a consolidated basisSection 7.17.
Appears in 1 contract
Sale of Company. (a) If For so long as the Board Investor and its Permitted Transferees own greater than 50% of the outstanding shares of Common Stock of the Company, if the holders of a majority of the Stockholder Shares then outstanding and the Board approve a sale of all or substantially all of the Company’s Shares approve assets determined on a Sale consolidated basis or a sale of all or substantially all of the Company Company’s outstanding capital stock (the whether by merger, recapitalization, consolidation, reorganization, combination or otherwise) to an Independent Third Party (collectively, an “Approved Sale”), the holders each holder of Stockholder Shares shall consent to and raise no objections against participate in such Approved Sale. If the Approved Sale of the Company, and if the Approved Sale of the Company is structured as (i) a merger or consolidation, each holder of Stockholder Shares will waive any dissenters rights, appraisal rights or similar rights in connection with such merger or consolidation or (ii) sale of capital stock, the holders each holder of Stockholder Shares shall agree sell such number of his Stockholder Shares and rights to sell their acquire Stockholder Shares equal to the product of (x) the quotient determined by dividing the number of Stockholder Shares owned by such Person (and to which such Person has the right to acquire) divided by the total number of outstanding Stockholder Shares at such time on a fully diluted basis and (y) the number of Stockholder Shares to be sold in such sale of stock, on the terms and conditions approved by the Board and the holders of a majority of the Company’s SharesStockholder Shares then outstanding. The holders Each holder of Stockholder Shares shall will take all necessary and or desirable actions in connection with the consummation of the Approved Sale of as reasonably requested by the Company. Notwithstanding To the foregoingextent practical, in the event the consideration to be received all costs not paid by the holders of Shares in connection with Company shall be paid by the Approved Sale shall include either: (i) shares of common stock of Stockholders on a class which is not listed on an national securities exchange or in the Nasdaq system and which is not entitled to registration rights for sale in a registered public offering under the 1933 Act, or (ii) shares of senior equity securities which do not provide for a scheduled redemption or a redemption at the option of the holders thereof, such holders shall not be required to sell their Shares pursuant to this Section 5(a) (collectively, the “Illiquid Consideration”)pro rata basis.
(b) The obligations of the holders of Shares Stockholders with respect to the an Approved Sale is are subject to the satisfaction of the condition thatfollowing conditions: (i) each holder of shares of a class of stock will be given the identical consideration with respect to each share of such class, upon the consummation of the Approved Saleand, all of the holders of Shares receive the same form and amount of consideration per Share or if any holders of Stockholder Shares are given an option as to the form and amount of consideration to be received, all holders each holder of Stockholder Shares will be given the same optionoption and (ii) each holder of then currently exercisable or convertible rights to acquire shares of equity interests in the Company will be given an opportunity to exercise such rights or to convert prior to the consummation of the Approved Sale and participate in such sale as holders of such equity interests.
(c) If the Company or a majority of the holders of the Company’s securities enter into any negotiation or transaction for which Rule 506 under the Securities Act (or any similar rule then in effect) promulgated by the Securities and Exchange Commission may be available with respect to such negotiation or transaction (including a merger, consolidation or other reorganization), the holders of Shares shallManagement Stockholders, if required under the Securities Act, will, at the request of the Company, appoint a “purchaser representative” representative (as such term is defined in Rule 501) reasonably acceptable to the Company. If any holder of Shares Management Stockholder appoints a purchaser representative designated by the Company, the Company shall will pay the fees of such purchaser representative. However, if any holder of Shares declines to appoint the purchaser representative (reasonably acceptable to the Company), and such holder shall be responsible for the fees of the purchaser representative so appointed.
(d) The Grantee and other holders of Shares (if any) shall bear their pro-rata share (based upon the number of Shares sold) of the costs of any sale of Shares pursuant to an Approved Sale to the extent such costs are incurred for the benefit of all holders of Shares and are not otherwise paid by the Company or the acquiring party. Costs incurred by the Grantee and the other holders of Shares on their own behalf shall not be considered costs of the transaction hereunder.
(e) The provisions of this Section 5 shall terminate upon the completion of a Qualified Public Offering.
(f) As used herein, “Independent Third Party” shall mean any Person who, immediately prior to the contemplated transaction, does not own in excess of 5% of the Company’s Shares on a fully-diluted basis (a “5% Owner”); who is not controlling, controlled by or under common control with any such 5% Owner and who is not the spouse or descendent (by birth or adoption) or any such 5% Owner or a trust for the benefit of such 5% Owner and/or such other Persons; “Person” shall mean an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization and a governmental entity or any department, agency or political subdivision thereof; “Qualified Public Offering” shall mean the sale in an underwritten public offering registered under the 1933 Act of the Company’s Shares resulting in aggregate gross proceeds to the Company of at least $50 million and a price per Share of not less than $108.2353 (as such amount is equitably adjusted for subsequent stock splits, stock dividends and recapitalizations); and “Sale of the Company” shall mean the sale of the Company to an Independent Third Party or affiliated group of Independent Third Parties pursuant to which such party or parties acquire: (i) Shares of the Company possessing the voting power to elect a majority of the Company’s board of directors (whether by merger, consolidation or sale or transfer of the Company’s Shares); or (ii) all or substantially all of the Company’s assets determined on a consolidated basis.
Appears in 1 contract
Sale of Company. (a) If the Board and the holders of a majority of the Company’s outstanding ABRY Investor Shares (“Approving Holders”) approve a bona fide Sale of the Company to a Person that is not an Affiliate of ABRY Partners, LLC or any ABRY Investor (the an “Approved Company Sale”), the holders then each holder of Member Shares shall will consent to and raise no objections against the Approved Company Sale and the New Mezzanine Investors shall be given at least ten (10) days prior written notice of the Company, and if any such Approved Company Sale. If the Approved Company Sale of the Company is structured as a sale of capital stockassets, the holders merger or consolidation, then each holder of Member Shares shall agree vote for or consent to, and waive any dissenters rights, appraisal rights or similar rights in connection with, such sale, merger or consolidation. If the Approved Company Sale is structured as a Transfer of Member Shares, then each holder of Member Shares shall Transfer all of his or its Member Shares and rights to sell their acquire Member Shares on the terms and conditions approved by the Board and the holders Approving Holders. Each holder of a majority of the Company’s Shares. The holders of Member Shares shall take all necessary and or desirable actions in connection with the consummation of the an Approved Company Sale as requested by Approving Holders, including executing a sale contract pursuant to which each holder of the Company. Notwithstanding the foregoing, in the event the consideration to be received by the holders of Member Shares in connection with the Approved Sale shall include either: will severally (but not jointly) make representations and warranties concerning solely (i) shares the beneficial ownership of common stock of a class which is not listed on an national securities exchange or in the Nasdaq system Member Shares (if any) to be sold by such holder, and which is not entitled to registration rights for sale in a registered public offering under the 1933 Act, or (ii) shares such holder’s ability to execute such sale contract and necessary ancillary documents and perform the obligations thereunder, and provide indemnities solely in respect of senior equity securities which do not such representations and warranties made by such holder. Each holder of Member Shares agrees that, if the Approving Holders so request, the agreements relating to the Approved Company Sale may provide for a scheduled redemption or a redemption at indemnity by each holder of Member Shares in respect of representations and warranties regarding the option of the holders thereofCompany, such holders shall not be required to sell its Subsidiaries and their Shares pursuant to this Section 5(a) respective assets, properties, liabilities, operations and businesses (collectively, the “Illiquid ConsiderationCompany Reps”)) not made by such holder of Member Shares, so long as the sole source for payment of any such indemnity (a “Company Loss”) will be funds deposited in escrow for such purpose or otherwise segregated and withheld from the proceeds otherwise distributed to the selling persons, as Approving Holders may determine, and any Company Losses will be borne by the selling persons as described in Section 6 below.
(b) The obligations of the holders of Member Shares with respect to the an Approved Company Sale is are subject to the satisfaction of the condition that, upon the consummation following conditions: (i) each holder of a particular class or type of the Approved Sale, all of the holders of Company’s securities Shares shall receive the same amount and form and amount of consideration per Share as each other holder of such class or type of the Company’s securities or, if any holders of Shares a class or type of the Company’s securities are given an option as to the form and or amount of consideration to be received, all holders each holder of such class or type of Member Shares shall be given the same option; and (ii) each holder of then currently exercisable rights to acquire Member Shares shall be given an opportunity to exercise such rights prior to the consummation of the Approved Company Sale and participate in such sale as a holder of such Member Shares.
(c) If the Company or the holders of the Company’s securities Equity Securities enter into any negotiation or transaction for which Rule 506 (or any similar rule then in effect) promulgated by the Securities and Exchange Commission may be available with respect to such negotiation or transaction (including a sale of assets, merger, consolidation or other reorganization), each holder of Member Shares who is not an “accredited investor,” as that term is defined in Regulation D promulgated under the holders of Shares shallSecurities Act, will, at the request of the Company, appoint either a “purchaser representative” representative (as such term is defined in Rule 501) reasonably acceptable to the Company. If any holder of Shares appoints a purchaser representative designated by the Company, in which event the Company shall will pay the fees of such purchaser representative. However, if any holder of Shares declines to appoint the or another purchaser representative (reasonably acceptable to the Company), and in which event such holder shall will be responsible for the fees of the purchaser representative so appointed.
(d) The Grantee and other All holders of Member Shares (if any) shall will bear their pro-rata respective share (based upon the number of Shares soldas described in Section 6) of the costs of any sale of Shares pursuant to an actual or proposed Approved Company Sale to the extent such costs are incurred for the benefit of all such holders of Member Shares and are not otherwise paid by the Company or the acquiring party. Costs incurred by the Grantee and the other holders of Member Shares on their own behalf shall will not be considered costs of the transaction hereunder.
Approved Company Sale; provided that in any event the Company shall pay the reasonable attorney’s fees and expenses of one counsel (e) The provisions of this Section 5 shall terminate upon the completion of a Qualified Public Offering.
(f) As used herein, “Independent Third Party” shall mean any Person who, immediately prior to the contemplated transaction, does not own in excess of 5% of which may also be the Company’s Shares on a fully-diluted basis (a “5% Owner”); who is not controllingcounsel) to represent the interests of all holders of each class and type of Member Shares, controlled which counsel shall be chosen by or under common control with any such 5% Owner and who is not the spouse or descendent (by birth or adoption) or any such 5% Owner or a trust for the benefit holders of such 5% Owner and/or such other Persons; “Person” shall mean an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization and a governmental entity or any department, agency or political subdivision thereof; “Qualified Public Offering” shall mean Member Shares in connection with the sale in an underwritten public offering registered under the 1933 Act of the Company’s Shares resulting in aggregate gross proceeds to the Approved Company of at least $50 million and a price per Share of not less than $108.2353 (as such amount is equitably adjusted for subsequent stock splits, stock dividends and recapitalizations); and “Sale of the Company” shall mean the sale of the Company to an Independent Third Party or affiliated group of Independent Third Parties pursuant to which such party or parties acquire: (i) Shares of the Company possessing the voting power to elect a majority of the Company’s board of directors (whether by merger, consolidation or sale or transfer of the Company’s Shares); or (ii) all or substantially all of the Company’s assets determined on a consolidated basisSale.
Appears in 1 contract
Samples: Members Agreement
Sale of Company. If a sale of WRC (aa “Company Sale”) If the Board and the holders of a majority occurs within 12 months of the Company’s Shares approve a Closing (as defined in the Sale Agreement), the Initial Stockholder shall deliver, or cause to be delivered, (free and clear of any Encumbrances) to the Exchanger promptly after receipt following the closing of the Company (the “Approved Sale”), the holders a portion of Shares shall consent to and raise no objections against the Approved consideration for such Company Sale of the Company, and if the Approved Sale of the Company is structured as a sale of capital stock, the holders of Shares shall agree to sell their Shares on the terms and conditions approved received by the Board and Initial Stockholder or its successors or assigns equal to, if positive, (x) the holders consideration that the Exchanger would have received in respect of a majority of the Company’s Shares. The holders of Shares shall take all necessary and desirable actions its Securities in connection with the consummation Company Sale (for clarity, disregarding the sale of any Securities prior to the Approved Sale closing of such Company Sale) if the Company. Notwithstanding Exchanger had not exchanged the foregoing, in Securities for the event the consideration to be received by the holders of Shares in connection with the Approved Sale shall include either: (i) shares of common stock of a class which is not listed on an national securities exchange or in the Nasdaq system and which is not entitled to registration rights for sale in a registered public offering under the 1933 Act, or (ii) shares of senior equity securities which do not provide for a scheduled redemption or a redemption at the option of the holders thereof, such holders shall not be required to sell their Exchange Shares pursuant to this Section 5(aAgreement or otherwise (but, for clarification, all the other Transactions had occurred at the Closing) minus (collectivelyy) the consideration that the Exchanger receives in connection with such Company Sale in respect of its Exchange Shares; provided that, if any Exchange Shares are disposed of by the “Illiquid Consideration”).
(b) The obligations Exchanger prior to the closing of the holders of Shares with respect to the Approved Sale is subject to the satisfaction of the condition that, upon the consummation of the Approved Company Sale, all of (i) such Exchange Shares shall nonetheless be deemed to have instead been sold by the holders of Shares receive Exchanger in the same form Company Sale and therefore shall be counted in clause (y) and (ii) the amount of consideration per Share or if for any holders of such Exchange Shares are given an option as to in clause (y) shall instead be the form and amount of consideration to be received, all holders be given the same option.
(c) If the Company or the holders of the Company’s securities enter into any negotiation or transaction for which Rule 506 (or any similar rule then in effect) promulgated actually received by the Securities Exchange Commission may be available with respect to such negotiation or transaction (including a merger, consolidation or other reorganization), the holders of Shares shall, at the request of the Company, appoint a “purchaser representative” (as such term is defined Exchanger in Rule 501) reasonably acceptable to the Company. If any holder of Shares appoints a purchaser representative designated by the Company, the its actual pre-Company shall pay the fees Sale disposition of such purchaser representative. However, Exchange Shares if any holder of Shares declines to appoint the purchaser representative (reasonably acceptable to the Company), and such holder shall be responsible for the fees of the purchaser representative so appointed.
(d) The Grantee and other holders of Shares (if any) shall bear their pro-rata share (based upon the number of Shares sold) of the costs of any sale of Shares pursuant to an Approved Sale to the extent such costs are incurred for the benefit of all holders of Shares and are not otherwise paid by the Company or the acquiring party. Costs incurred by the Grantee and the other holders of Shares on their own behalf shall not be considered costs of the transaction hereunder.
(e) The provisions of this Section 5 shall terminate upon the completion of a Qualified Public Offering.
(f) As used herein, “Independent Third Party” shall mean any Person who, immediately prior to the contemplated transaction, does not own in excess of 5% of the Company’s Shares on a fully-diluted basis (a “5% Owner”); who is not controlling, controlled by or under common control with any such 5% Owner and who is not the spouse or descendent (by birth or adoption) or any such 5% Owner or a trust for the benefit of such 5% Owner and/or such other Persons; “Person” shall mean an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization and a governmental entity or any department, agency or political subdivision thereof; “Qualified Public Offering” shall mean the sale in an underwritten public offering registered under the 1933 Act of the Company’s Shares resulting in aggregate gross proceeds to the Company of at least $50 million and a price per Share of not less than $108.2353 (as such amount is equitably adjusted less than the amount it would have received for subsequent stock splitssuch Exchange Shares in the Company Sale. As used in this paragraph, stock dividends and recapitalizations); and “Sale of the Company” shall mean the a sale of the Company WRC shall be deemed to an Independent Third Party or affiliated group of Independent Third Parties pursuant to which such party or parties acquire: (i) Shares of the Company possessing the voting power to elect a majority of the Company’s board of directors (whether by merger, consolidation or sale or transfer of the Company’s Shares); or (ii) occur if all or substantially all of the CompanyCommon Stock or voting stock, or all or substantially all of WRC’s assets, are sold, directly or indirectly, whether by merger (including any merger in which the pre-merger stockholders of WRC no longer own a majority of WRC immediately after the merger), consolidation, sale of stock or assets determined on or any other form, in each case in a consolidated basistransaction or series of related transactions, and entry into definitive documentation therefor shall constitute a sale. For purposes of clarification and without limiting the effect of the foregoing, this Section 2.04 does not create any obligation of WRC or any of its Subsidiaries; only the Initial Stockholder shall be obligated to deliver (or cause to be delivered, other than by WRC or any of its Subsidiaries) the payment contemplated by this Section 2.04.
Appears in 1 contract
Samples: Redemption and Repurchase Agreement (WRC Media Inc)
