Sale of Control. a. In the event that the holder of more than fifty percent (50%) of the outstanding shares of the Common Stock or more than fifty percent (50%) of the outstanding shares of the common stock of an Affiliate of the Corporation which owns a majority of the outstanding shares of the Common Stock (in either case, the "Majority Stockholder") shall seek to sell more than fifty percent (50%) of the outstanding shares of the Common Stock to a Person which is not an Affiliate of the Majority Stockholder (other than an underwriter in connection with an offering pursuant to a registration statement filed under the Act), the Executive shall be provided a written notice which specifies the identity of the proposed purchaser, the number of shares of the Common Stock proposed to be purchased and the consideration proposed to be paid by such purchaser for each share of the Common Stock (the "Sale of Control Notice"). The Executive shall have the option, exercisable in writing within ten (10) calendar days of the mailing of the Sale of Control Notice, to require the Majority Stockholder to include in such proposed sale the number of Shares (the "Stockholder's Included Shares") which is calculated in the manner specified in the following sentence. The Stockholder's Included Shares shall be determined by multiplying the number of Shares owned by the Executive on the date that the Sale of Control Notice is mailed by a fraction, the numerator of which is the number of shares of the Common Stock which the proposed purchaser desires to purchase and the denominator of which is the total number of shares of the Common Stock which are outstanding on the date that the Sale of Control Notice is mailed. In the event that the number so determined includes a fraction which is greater than .50, the Stockholder's Included Shares shall be the next larger whole integer and in the event that the number so determined includes a fraction which is equal to or less than .50, the Stockholder's Included Shares shall be the next smaller whole integer. For example, assume the proposed purchaser desires to purchase 450,000 shares of the Common Stock. On the date that the Sale of Control Notice is mailed, there are 500,000 shares of the Common Stock outstanding and the Executive owns 1,500 of such shares. The number of the Stockholder's Included Shares would be 1,350, which is 1,500 times 450,000/500,000. b. The parties hereto recognize and acknowledge that any prospective purchaser of the business of the Corporation may wish to purchase (i) all of the outstanding shares of the Common Stock, (ii) all of the outstanding shares of the common stock of the Majority Stockholder or (iii) all or substantially all of the assets of the Corporation, which purchase may be made in conjunction with the purchase of the business of an Affiliate or Affiliates of the Corporation. Accordingly, the Executive and each transferee of the Executive under subparagraph 3b agrees, upon the request of the Corporation, to (x) sell all of the Shares then owned by the Executive to any prospective purchaser of the business of the Corporation which is not an Affiliate of the Majority Stockholder (a "100% Purchaser") or, at the option of the Majority Stockholder or the Corporation, to the Corporation in connection with the sale of all of the outstanding shares of the Common Stock to a 100% Purchaser or the sale of all of the outstanding shares of the common stock of an Affiliate of the Corporation which owns a majority of the outstanding shares of the Common Stock to a 100% Purchaser and (y) at any time prior to the tenth anniversary of this Agreement, vote the Shares then owned by the Executive in favor of (A) any sale of all or substantially all of the assets of the Corporation to a 100% Purchaser or (B) any merger or consolidation of the Corporation with a 100% Purchaser, in each case which has been approved by the Board of Directors of the Corporation in accordance with the provisions of this subparagraph 14b. The Executive and each such transferee agrees promptly upon any request made by the Corporation prior to the tenth anniversary of this Agreement and without compensation to execute and deliver an amendment to this Agreement or other instrument which extends for an additional ten year period the Executive's agreement to vote the Shares as specified in subparagraph 14(b)(y). For purposes of this subparagraph 14b, the Executive shall be conclusively deemed and considered to own all Shares owned by himself, his estate, his executors and administrators, his distributees and his personal and other legal representatives and any other transferee. In the event that the Majority Stockholder shall have entered into an agreement to sell (a) all of the outstanding shares of the Common Stock owned by it or (b) all of the outstanding shares of the common stock of an Affiliate of the Corporation which owns a majority of the outstanding shares of the Common Stock to a 100% Purchaser or the Corporation shall have entered into an agreement to sell all or substantially all of the assets of the Corporation to a 100% Purchaser, whether individually or in conjunction with the sale of the business of an Affiliate or Affiliates of the Corporation, the Corporation's auditors, or their designee, shall allocate such portion of the total purchase price to the then outstanding shares of the Common Stock which is fair and reasonable (with each outstanding share being allocated the same portion of the purchase price) giving such consideration as they deem appropriate to the (i) terms and conditions of such agreement to sell, (ii) book value and the earnings and projected earnings of the Corporation and each Affiliate of the Corporation whose business is or will be sold pursuant to such agreement to sell, determined in accordance with generally accepted accounting principles consistently applied where relevant and appropriate in the opinion of the Corporation's auditors or such designee and (iii) such other factors as they may deem relevant to such allocation. The determination of such allocation by the Corporation's auditors or their designee shall be final and binding upon the parties hereto with respect to the portion of the total purchase price which the Executive is entitled to receive for the Shares pursuant to this subparagraph 14b. The Executive and each transferee of the Executive under subparagraph 3b agrees to sell the Shares to the Persons specified in this subparagraph 14b at the price per share of the Common Stock allocated by such auditors or their designee at the closing of the transactions contemplated by such agreement to sell. For purposes of effectuating any sale of the Shares pursuant to this subparagraph 14b, the Executive and each transferee of the Executive under subparagraph 3b hereby grants to each of the Majority Stockholder and the Corporation and their respective designees and assigns an irrevocable power of attorney with respect to the transfer of the Shares and authorizes the Corporation to deliver to the Majority Stockholder or any 100% Purchaser each stock certificate representing the Shares. The Executive and each such transferee agrees promptly upon request and without compensation to do all acts and execute all agreements, documents, proxies, consents of stockholders and instruments as shall be necessary or desirable to effectuate the consummation of any agreement to sell all of the outstanding shares of the Common Stock to a 100% Purchaser, any agreement to sell all of the outstanding shares of the common stock of an Affiliate of the Corporation which owns a majority of the outstanding shares of the Common Stock to a 100% Purchaser and any agreement to sell all or substantially all of the assets of the Corporation to a 100% Purchaser pursuant to this subparagraph 14b including, but not limited to, delivering executed stock assignments separate from certificate naming each of the Majority Stockholder and the Corporation and their respective assigns and designees as his attorneys for the purpose of effectuating such transfer. The Majority Stockholder and, in the event that the Majority Stockholder or the Corporation elects to have the Corporation purchase the Shares, the Corporation agree to deliver or cause to be delivered to the Executive or his transferees promptly following any sale of the Shares pursuant to this Paragraph 14b the purchase price for the Shares less all amounts then owed by the Executive to the Corporation pursuant to the Note.
Appears in 5 contracts
Samples: Purchase and Stockholder Agreement (Omniquip International Inc), Purchase and Stockholder Agreement (Omniquip International Inc), Purchase and Stockholder Agreement (Omniquip International Inc)
Sale of Control. a. In 3.1.1 At any time prior to the event that the holder of more than fifty percent (50%) consummation of the outstanding shares of Corporation’s Qualified Public Offering, if the Common Stock or more than fifty percent (50%) of the outstanding shares of the common stock of an Affiliate of the Corporation which owns Stockholders holding a majority of the outstanding shares of the Common Stock (in either case, the "Majority Stockholder") shall seek to sell more than fifty percent (50%) voting power of the outstanding shares Fully Diluted Capital Stock of the Common Stock Corporation (the “Control Stockholders”) shall propose to sell to a Person which third party that is not an Affiliate of the Majority Corporation or any Stockholder (other than an underwriter in connection with an offering pursuant to a registration statement filed under the Act), the Executive shall be provided a written notice which specifies the identity of the proposed purchaser, the number of shares of the Common Stock proposed to be purchased and the consideration proposed to be paid by such purchaser for each share of the Common Stock (the "“Sale of Control Notice"). The Executive shall have the option, exercisable in writing within ten (10) calendar days of the mailing of the Sale of Control Notice, to require the Majority Stockholder to include in such proposed sale the number of Shares (the "Stockholder's Included Shares") which is calculated in the manner specified in the following sentence. The Stockholder's Included Shares shall be determined by multiplying the number of Shares owned by the Executive on the date that the Sale of Control Notice is mailed by a fraction, the numerator of which is the number of shares of the Common Stock which the proposed purchaser desires to purchase and the denominator of which is the total number of shares of the Common Stock which are outstanding on the date that the Sale of Control Notice is mailed. In the event that the number so determined includes a fraction which is greater than .50, the Stockholder's Included Shares shall be the next larger whole integer and in the event that the number so determined includes a fraction which is equal to or less than .50, the Stockholder's Included Shares shall be the next smaller whole integer. For example, assume the proposed purchaser desires to purchase 450,000 shares of the Common Stock. On the date that the Sale of Control Notice is mailed, there are 500,000 shares of the Common Stock outstanding and the Executive owns 1,500 of such shares. The number of the Stockholder's Included Shares would be 1,350, which is 1,500 times 450,000/500,000.
b. The parties hereto recognize and acknowledge that any prospective purchaser of the business of the Corporation may wish to purchase (i) all of the outstanding shares of the Common Stock, (ii) all of the outstanding shares of the common stock of the Majority Stockholder or (iiiControl”) all or substantially all of the assets of the Corporation, which purchase may be made in conjunction with the purchase of the business of an Affiliate or Affiliates of the Corporation. Accordingly, the Executive and each transferee of the Executive under subparagraph 3b agrees, upon the request of the Corporation, to their Covered Securities (x) sell all of the Shares then owned by the Executive to any prospective purchaser of the business of the Corporation which is not an Affiliate of the Majority Stockholder (a "100% Purchaser") or, provided that shares representing at the option of the Majority Stockholder or the Corporation, to the Corporation in connection with the sale of all of the outstanding shares of the Common Stock to a 100% Purchaser or the sale of all of the outstanding shares of the common stock of an Affiliate of the Corporation which owns least a majority of the outstanding shares voting power of the Common Stock Corporation shall have been Transferred), at a purchase price per share not less than the Series B Threshold Amount or the Series C Threshold Amount, which consideration shall be at least 90% in cash or securities registered under the Securities Act and listed on a national exchange or on the Nasdaq National Market, then the Control Stockholders shall have the right (but not the obligation) to a 100% Purchaser cause each Series B and C Preferred Stockholder to sell or cause to be sold the same proportionate part of the Covered Securities owned by such Series B and C Preferred Stockholder as are proposed to be sold by such Control Stockholders, for the consideration equal to the sum of (i) the same consideration per share and (yii) at the amount of dividends, if any, accrued and unpaid on such Covered Securities to be sold by such Series B and C Preferred Stockholder and otherwise on the same terms and conditions obtained by such Control Stockholders in the Sale of Control.
3.1.2 At any time prior to the tenth anniversary consummation of this Agreementthe Corporation’s Qualified Public Offering, vote if the Shares then owned by the Executive in favor Control Stockholders shall propose a Sale of (A) any sale Control of all or substantially all of the assets of the Corporation to a 100% Purchaser or their Covered Securities (B) any merger or consolidation of the Corporation with a 100% Purchaser, in each case which has been approved by the Board of Directors of the Corporation in accordance with the provisions of this subparagraph 14b. The Executive and each such transferee agrees promptly upon any request made by the Corporation prior to the tenth anniversary of this Agreement and without compensation to execute and deliver an amendment to this Agreement or other instrument which extends for an additional ten year period the Executive's agreement to vote the Shares as specified in subparagraph 14(b)(y). For purposes of this subparagraph 14b, the Executive shall be conclusively deemed and considered to own all Shares owned by himself, his estate, his executors and administrators, his distributees and his personal and other legal representatives and any other transferee. In the event provided that the Majority Stockholder shall have entered into an agreement to sell (a) all of the outstanding shares of the Common Stock owned by it or (b) all of the outstanding shares of the common stock of an Affiliate of the Corporation which owns representing at least a majority of the outstanding shares voting power of the Common Stock to a 100% Purchaser or the Corporation shall have entered into an agreement been Transferred), at a purchase price per share not less than the Series D Threshold Amount, then the Control Stockholders shall have the right (but not the obligation) to cause each Series D Preferred Stockholder to sell or cause to be sold the same proportionate part of the Covered Securities owned by such Series D Preferred Stockholder as are proposed to be sold by such Control Stockholders, for the consideration equal to the sum of (i) the same consideration per share and (ii) the amount of dividends, if any, accrued and unpaid on such Covered Securities to be sold by such Series D Preferred Stockholder and otherwise on the same terms and conditions obtained by such Control Stockholders in the Sale of Control.
3.1.3 At any time prior to the consummation of the Corporation’s Qualified Public Offering, if the Control Stockholders shall propose a Sale of Control of all or substantially all of the assets of the Corporation to a 100% Purchaser, whether individually or in conjunction with the sale of the business of an Affiliate or Affiliates of the Corporation, the Corporation's auditors, or their designee, shall allocate such portion of the total purchase price to the then outstanding Covered Securities (provided that shares of the Common Stock which is fair and reasonable (with each outstanding share being allocated the same portion of the purchase price) giving such consideration as they deem appropriate to the (i) terms and conditions of such agreement to sell, (ii) book value and the earnings and projected earnings of the Corporation and each Affiliate of the Corporation whose business is or will be sold pursuant to such agreement to sell, determined in accordance with generally accepted accounting principles consistently applied where relevant and appropriate in the opinion of the Corporation's auditors or such designee and (iii) such other factors as they may deem relevant to such allocation. The determination of such allocation by the Corporation's auditors or their designee shall be final and binding upon the parties hereto with respect to the portion of the total purchase price which the Executive is entitled to receive for the Shares pursuant to this subparagraph 14b. The Executive and each transferee of the Executive under subparagraph 3b agrees to sell the Shares to the Persons specified in this subparagraph 14b representing at the price per share of the Common Stock allocated by such auditors or their designee at the closing of the transactions contemplated by such agreement to sell. For purposes of effectuating any sale of the Shares pursuant to this subparagraph 14b, the Executive and each transferee of the Executive under subparagraph 3b hereby grants to each of the Majority Stockholder and the Corporation and their respective designees and assigns an irrevocable power of attorney with respect to the transfer of the Shares and authorizes the Corporation to deliver to the Majority Stockholder or any 100% Purchaser each stock certificate representing the Shares. The Executive and each such transferee agrees promptly upon request and without compensation to do all acts and execute all agreements, documents, proxies, consents of stockholders and instruments as shall be necessary or desirable to effectuate the consummation of any agreement to sell all of the outstanding shares of the Common Stock to a 100% Purchaser, any agreement to sell all of the outstanding shares of the common stock of an Affiliate of the Corporation which owns least a majority of the outstanding shares of the Common Stock to a 100% Purchaser and any agreement to sell all or substantially all of the assets voting power of the Corporation to shall have been Transferred), at a 100% Purchaser pursuant to this subparagraph 14b includingpurchase price per share not less than the Series E Threshold Amount, then the Control Stockholders shall have the right (but not limited to, delivering executed stock assignments separate from certificate naming the obligation) to cause each of the Majority Series E Preferred Stockholder and the Corporation and their respective assigns and designees as his attorneys for the purpose of effectuating such transfer. The Majority Stockholder and, in the event that the Majority Stockholder or the Corporation elects to have the Corporation purchase the Shares, the Corporation agree to deliver sell or cause to be delivered sold the same proportionate part of the Covered Securities owned by such Series E Preferred Stockholder as are proposed to be sold by such Control Stockholders, for the consideration equal to the Executive or his transferees promptly following any sale sum of (i) the Shares pursuant same consideration per share and (ii) the amount of dividends, if any, accrued and unpaid on such Covered Securities to this Paragraph 14b be sold by such Series E Preferred Stockholder and otherwise on the purchase price for same terms and conditions obtained by such Control Stockholders in the Shares less all amounts then owed by the Executive to the Corporation pursuant to the Note.Sale of Control. Brightstar Corp. Fourth Amended and Restated Stockholders’ Agreement
Appears in 1 contract
Samples: Stockholders' Agreement
Sale of Control. a. In 3.1.1 At any time prior to the event that the holder of more than fifty percent (50%) consummation of the outstanding shares of Corporation’s Qualified Public Offering, if the Common Stock or more than fifty percent (50%) of the outstanding shares of the common stock of an Affiliate of the Corporation which owns Stockholders holding a majority of the outstanding shares of the Common Stock (in either case, the "Majority Stockholder") shall seek to sell more than fifty percent (50%) voting power of the outstanding shares Fully Diluted Capital Stock of the Common Stock Corporation (the “Control Stockholders”) shall propose to sell to a Person which third party that is not an Affiliate of the Majority Corporation or any Stockholder (other than an underwriter in connection with an offering pursuant to a registration statement filed under the Act), the Executive shall be provided a written notice which specifies the identity of the proposed purchaser, the number of shares of the Common Stock proposed to be purchased and the consideration proposed to be paid by such purchaser for each share of the Common Stock (the "“Sale of Control Notice"). The Executive shall have the option, exercisable in writing within ten (10) calendar days of the mailing of the Sale of Control Notice, to require the Majority Stockholder to include in such proposed sale the number of Shares (the "Stockholder's Included Shares") which is calculated in the manner specified in the following sentence. The Stockholder's Included Shares shall be determined by multiplying the number of Shares owned by the Executive on the date that the Sale of Control Notice is mailed by a fraction, the numerator of which is the number of shares of the Common Stock which the proposed purchaser desires to purchase and the denominator of which is the total number of shares of the Common Stock which are outstanding on the date that the Sale of Control Notice is mailed. In the event that the number so determined includes a fraction which is greater than .50, the Stockholder's Included Shares shall be the next larger whole integer and in the event that the number so determined includes a fraction which is equal to or less than .50, the Stockholder's Included Shares shall be the next smaller whole integer. For example, assume the proposed purchaser desires to purchase 450,000 shares of the Common Stock. On the date that the Sale of Control Notice is mailed, there are 500,000 shares of the Common Stock outstanding and the Executive owns 1,500 of such shares. The number of the Stockholder's Included Shares would be 1,350, which is 1,500 times 450,000/500,000.
b. The parties hereto recognize and acknowledge that any prospective purchaser of the business of the Corporation may wish to purchase (i) all of the outstanding shares of the Common Stock, (ii) all of the outstanding shares of the common stock of the Majority Stockholder or (iiiControl”) all or substantially all of the assets of the Corporation, which purchase may be made in conjunction with the purchase of the business of an Affiliate or Affiliates of the Corporation. Accordingly, the Executive and each transferee of the Executive under subparagraph 3b agrees, upon the request of the Corporation, to their Covered Securities (x) sell all of the Shares then owned by the Executive to any prospective purchaser of the business of the Corporation which is not an Affiliate of the Majority Stockholder (a "100% Purchaser") or, provided that shares representing at the option of the Majority Stockholder or the Corporation, to the Corporation in connection with the sale of all of the outstanding shares of the Common Stock to a 100% Purchaser or the sale of all of the outstanding shares of the common stock of an Affiliate of the Corporation which owns least a majority of the outstanding shares voting power of the Common Stock Corporation shall have been Transferred), at a purchase price per share not less than the Series B Threshold Amount or the Series C Threshold Amount, which consideration shall be at least 90% in cash or securities registered under the Securities Act and listed on a national exchange or on the Nasdaq National Market, then the Control Stockholders shall have the right (but not the obligation) to a 100% Purchaser cause each Series B and C Preferred Stockholder to sell or cause to be sold the same proportionate part of the Covered Securities owned by such Series B and C Preferred Stockholder as are proposed to be sold by such Control Stockholders, for the consideration equal to the sum of (i) the same consideration per share and (yii) at the amount of dividends, if any, accrued and unpaid on such Covered Securities to be sold by such Series B and C Preferred Stockholder and otherwise on the same terms and conditions obtained by such Control Stockholders in the Sale of Control.
3.1.2 At any time prior to the tenth anniversary consummation of this Agreementthe Corporation’s Qualified Public Offering, vote if the Shares then owned by the Executive in favor Control Stockholders shall propose a Sale of (A) any sale Control of all or substantially all of the assets of the Corporation to a 100% Purchaser or their Covered Securities (B) any merger or consolidation of the Corporation with a 100% Purchaser, in each case which has been approved by the Board of Directors of the Corporation in accordance with the provisions of this subparagraph 14b. The Executive and each such transferee agrees promptly upon any request made by the Corporation prior to the tenth anniversary of this Agreement and without compensation to execute and deliver an amendment to this Agreement or other instrument which extends for an additional ten year period the Executive's agreement to vote the Shares as specified in subparagraph 14(b)(y). For purposes of this subparagraph 14b, the Executive shall be conclusively deemed and considered to own all Shares owned by himself, his estate, his executors and administrators, his distributees and his personal and other legal representatives and any other transferee. In the event provided that the Majority Stockholder shall have entered into an agreement to sell (a) all of the outstanding shares of the Common Stock owned by it or (b) all of the outstanding shares of the common stock of an Affiliate of the Corporation which owns representing at least a majority of the outstanding shares voting power of the Common Stock to a 100% Purchaser or the Corporation shall have entered into an agreement been Transferred), at a purchase price per share not less than the Series D Threshold Amount, then the Control Stockholders shall have the right (but not the obligation) to cause each Series D Preferred Stockholder to sell or cause to be sold the same proportionate part of the Covered Securities owned by such Series D Preferred Stockholder as are proposed to be sold by such Control Stockholders, for the consideration equal to the sum of (i) the same consideration per share and (ii) the amount of dividends, if any, accrued and unpaid on such Covered Securities to be sold by such Series D Preferred Stockholder and otherwise on the same terms and conditions obtained by such Control Stockholders in the Sale of Control.
3.1.3 At any time prior to the consummation of the Corporation’s Qualified Public Offering, if the Control Stockholders shall propose a Sale of Control of all or substantially all of the assets of the Corporation to a 100% Purchaser, whether individually or in conjunction with the sale of the business of an Affiliate or Affiliates of the Corporation, the Corporation's auditors, or their designee, shall allocate such portion of the total purchase price to the then outstanding Covered Securities (provided that shares of the Common Stock which is fair and reasonable (with each outstanding share being allocated the same portion of the purchase price) giving such consideration as they deem appropriate to the (i) terms and conditions of such agreement to sell, (ii) book value and the earnings and projected earnings of the Corporation and each Affiliate of the Corporation whose business is or will be sold pursuant to such agreement to sell, determined in accordance with generally accepted accounting principles consistently applied where relevant and appropriate in the opinion of the Corporation's auditors or such designee and (iii) such other factors as they may deem relevant to such allocation. The determination of such allocation by the Corporation's auditors or their designee shall be final and binding upon the parties hereto with respect to the portion of the total purchase price which the Executive is entitled to receive for the Shares pursuant to this subparagraph 14b. The Executive and each transferee of the Executive under subparagraph 3b agrees to sell the Shares to the Persons specified in this subparagraph 14b representing at the price per share of the Common Stock allocated by such auditors or their designee at the closing of the transactions contemplated by such agreement to sell. For purposes of effectuating any sale of the Shares pursuant to this subparagraph 14b, the Executive and each transferee of the Executive under subparagraph 3b hereby grants to each of the Majority Stockholder and the Corporation and their respective designees and assigns an irrevocable power of attorney with respect to the transfer of the Shares and authorizes the Corporation to deliver to the Majority Stockholder or any 100% Purchaser each stock certificate representing the Shares. The Executive and each such transferee agrees promptly upon request and without compensation to do all acts and execute all agreements, documents, proxies, consents of stockholders and instruments as shall be necessary or desirable to effectuate the consummation of any agreement to sell all of the outstanding shares of the Common Stock to a 100% Purchaser, any agreement to sell all of the outstanding shares of the common stock of an Affiliate of the Corporation which owns least a majority of the outstanding shares of the Common Stock to a 100% Purchaser and any agreement to sell all or substantially all of the assets voting power of the Corporation to shall have been Transferred), at a 100% Purchaser pursuant to this subparagraph 14b includingpurchase price per share not less than the Series E Threshold Amount, then the Control Stockholders shall have the right (but not limited to, delivering executed stock assignments separate from certificate naming the obligation) to cause each of the Majority Series E Preferred Stockholder and the Corporation and their respective assigns and designees as his attorneys for the purpose of effectuating such transfer. The Majority Stockholder and, in the event that the Majority Stockholder or the Corporation elects to have the Corporation purchase the Shares, the Corporation agree to deliver sell or cause to be delivered sold the same proportionate part of the Covered Securities owned by such Series E Preferred Stockholder as are proposed to be sold by such Control Stockholders, for the consideration equal to the Executive or his transferees promptly following any sale sum of (i) the Shares pursuant same consideration per share and (ii) the amount of dividends, if any, accrued and unpaid on such Covered Securities to this Paragraph 14b be sold by such Series E Preferred Stockholder and otherwise on the purchase price for same terms and conditions obtained by such Control Stockholders in the Shares less all amounts then owed by the Executive to the Corporation pursuant to the NoteSale of Control.
Appears in 1 contract
Sale of Control. a. (a) In the event that the holder of more than fifty percent (50%) of the outstanding shares of the Common Stock or more than fifty percent (50%) of the outstanding shares of the common stock of an Affiliate of the Corporation which owns a majority of the outstanding shares of the Common Stock (in either case, the "Majority Stockholder") Partnership shall seek to sell more than fifty percent (50%) of the outstanding shares of the Common Stock to a Person which is not an Affiliate of the Majority Stockholder Partnership (other than an underwriter in connection with an offering pursuant to a registration statement filed under the Act), the Executive Investor shall be provided a written notice which specifies the identity of the proposed purchaser, the number of shares of the Common Stock proposed to be purchased and the consideration proposed to be paid by such purchaser for each share of the Common Stock (the "Sale of Control Notice"). The Executive Investor shall have the option, exercisable in writing within ten (10) calendar days of the mailing of the Sale of Control Notice, to require the Majority Stockholder Partnership to include in such proposed sale the number of Shares (the "StockholderInvestor's Included Shares") which is calculated in the manner specified in the following sentence. The StockholderInvestor's Included Shares shall be determined by multiplying the number of Shares owned by the Executive Investor on the date that the Sale of Control Notice is mailed by a fraction, the numerator of which is the number of shares of the Common Stock which the proposed purchaser desires to purchase and the denominator of which is the total number of shares of the Common Stock which are outstanding on the date that the Sale of Control Notice is mailed. In the event that the number so determined includes a fraction which is greater than .50, the StockholderInvestor's Included Shares shall be the next larger whole integer and in the event that the number so determined includes a fraction which is equal to or less than .50, the StockholderInvestor's Included Shares shall be the next smaller whole integer. For example, assume the proposed purchaser desires to purchase 450,000 shares of the Common Stock. On the date that the Sale of Control Notice is mailed, there are 500,000 shares of the Common Stock outstanding and the Executive Investor owns 1,500 of such shares. The number of the StockholderInvestor's Included Shares would be 1,350, which is 1,500 times 450,000/500,000.
b. (b) The parties hereto recognize and acknowledge that any prospective purchaser of the business of the Corporation may wish to purchase (i) purchase all of the outstanding shares of the Common Stock, (ii) all of the outstanding shares of the common stock of the Majority Stockholder or (iii) purchase all or substantially all of the assets of the Corporation, which purchase may be made in conjunction with Corporation or (iii) acquire the purchase Common Stock or assets of the business of an Affiliate or Affiliates of the CorporationCorporation by merger. Accordingly, the Executive Investor and each transferee of the Executive Investor under subparagraph 3b subsection 3(b) agrees, upon the request of the Corporation, to (x) sell all of the Shares then owned by the Executive Investor to any prospective purchaser of the business of the Corporation which is not an Affiliate of the Majority Stockholder Partnership (a "100% Purchaser") or, at the option of the Majority Stockholder or the CorporationPartnership, to the Corporation in connection with the sale of all of the outstanding shares of the Common Stock to a 100% Purchaser or the sale of all of the outstanding shares of the common stock of an Affiliate of the Corporation which owns a majority of the outstanding shares of the Common Stock to a 100% Purchaser and (y) at any time prior to the tenth anniversary of this Agreement, vote the Shares then owned by the Executive Investor in favor of (A) any sale of all or substantially all of the assets of the Corporation to a 100% Purchaser or (B) any merger or consolidation of the Corporation with a 100% Purchaser, in each case which has been approved by the Board of Directors of the Corporation in accordance with the provisions of this subparagraph 14bsubsection 10(b). The Executive Investor and each such transferee agrees promptly upon any request made by the Corporation Partnership prior to the tenth anniversary of this Agreement and without compensation to execute and deliver an amendment to this Agreement or other instrument which extends for an additional ten year period the ExecutiveInvestor's agreement to vote the Shares as specified in subparagraph 14(b)(ysubsection 10(b)(y). For purposes of this subparagraph 14bsubsection 10(b), the Executive Investor shall be conclusively deemed and considered to own all Shares owned by himself, his estate, his executors and administrators, his distributees and his personal and other legal representatives and any other transferee. In the event that the Majority Stockholder Partnership shall have entered into an agreement to sell (a) all of the outstanding shares of the Common Stock owned by it or (b) all of the outstanding shares of the common stock of an Affiliate of the Corporation which owns a majority of the outstanding shares of the Common Stock to a 100% Purchaser or the Corporation shall have entered into an agreement to sell all or substantially all of the assets of the Corporation to a 100% Purchaser, whether individually or in conjunction with the sale of the business of an Affiliate or Affiliates of the Corporation, the Corporation's auditors, or their designee, shall allocate such portion of the total purchase price to the then outstanding shares of the Common Stock which is fair and reasonable (with each outstanding share being allocated the same portion of the purchase price) giving such consideration as they deem appropriate to the (i) terms and conditions of such agreement to sell, (ii) book value and the earnings and projected earnings of the Corporation and each Affiliate of the Corporation whose business is or will be sold pursuant to such agreement to sell, determined in accordance with generally accepted accounting principles consistently applied where relevant and appropriate in the opinion of the Corporation's auditors or such designee and (iii) such other factors as they may deem relevant to such allocation. The determination of such allocation by the Corporation's auditors or their designee shall be final and binding upon the parties hereto with respect to the portion of the total purchase price which the Executive Investor is entitled to receive for the Shares pursuant to this subparagraph 14bsubsection 10(b). The Executive Investor and each transferee of the Executive Investor under subparagraph 3b subsection 3(b) agrees to sell the Shares to the Persons specified in this subparagraph 14b subsection 10(b) at the price per share of the Common Stock allocated by such auditors or their designee at the closing of the transactions contemplated by such agreement to sell. For purposes of effectuating any sale of the Shares pursuant to this subparagraph 14bsubsection 10(b), the Executive Investor and each transferee of the Executive Investor under subparagraph 3b subsection 3(b) hereby grants to each of the Majority Stockholder Partnership and the Corporation and their respective its designees and assigns an irrevocable power of attorney with respect to the transfer of the Shares and authorizes the Corporation Partnership to deliver to the Majority Stockholder itself or to any 100% Purchaser each stock certificate representing the Shares. The Executive Invsetor and each such transferee agrees promptly upon request and without compensation to do all acts and execute all agreements, documents, proxies, consents of stockholders and instruments as shall be necessary or desirable to effectuate the consummation of any agreement to sell all of the outstanding shares of the Common Stock to a 100% Purchaser, any agreement to sell all of the outstanding shares of the common stock of an Affiliate of the Corporation which owns a majority of the outstanding shares of the Common Stock to a 100% Purchaser and any agreement to sell all or substantially all of the assets of the Corporation to a 100% Purchaser pursuant to this subparagraph 14b subsection 14(b) including, but not limited to, delivering executed stock assignments separate from certificate naming each of the Majority Stockholder Partnership and the Corporation and their respective its assigns and designees as his attorneys for the purpose of effectuating such transfer. The Majority Stockholder Partnership and, in the event that the Majority Stockholder Partnership or the Corporation elects to have the Corporation purchase the Shares, the Corporation agree to deliver or cause to be delivered to the Executive Investor or his transferees promptly following any sale of the Shares pursuant to this Paragraph 14b Section 10(b) the purchase price for the Shares less all amounts then owed by the Executive to the Corporation pursuant to the NoteShares.
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