Sale of the Company. (a) Provided that a Drag-Along Notice has not been delivered and the procedures in Section 9.09 are not then currently in effect, notwithstanding anything to the contrary in this Agreement, the Board of Directors may (subject to Section 5.11) elect to cause a Sale of the Company at any time. The Board of Directors shall direct and control all decisions in connection with a Sale of the Company (including the hiring or termination of any investment bank or professional adviser and making all decisions regarding valuation and consideration and the percentage of the Equity Securities in the Company to be sold) and, subject to Section 9.08(b) and Section 9.08(d), and without prejudice to Section 5.11, each Member shall vote for, consent to and not object to such Sale of the Company or the sale process associated therewith. If such Sale of the Company is structured as a sale of assets, merger or consolidation, then each Member shall, to the extent applicable to such transaction, vote for or consent to, and waive any dissenter’s rights, appraisal rights or similar rights in connection with, such sale, merger or consolidation. If such Sale of the Company is structured as a Transfer of Shares, and the Sale of the Company involves less than all of the Shares in the Company, then each Member shall Transfer the same percentage of each class or series of Shares (or rights to acquire Shares of any class or series) that it holds. Each Member and the Company shall take all reasonable and necessary actions in connection with the consummation of such Sale of the Company as may be requested by the Board of Directors, including (i) in the case of the Company only, engaging one or more investment banks and legal counsel selected by the Board of Directors to establish procedures acceptable to the Board of Directors to effect and to otherwise assist in connection with a Sale of the Company, (ii) taking such commercially reasonable actions and providing such commercially reasonable cooperation and assistance as may be necessary to consummate the Sale of the Company in an expeditious and efficient manner and not taking any action or engaging in any activity designed to hinder, prevent or delay the consummation of the Sale of the Company, (iii) in the case of the Company only, facilitating the due diligence process in respect of any such Sale of the Company, including establishing, populating and maintaining an online “data room”, (iv) in the case of the Company only, providing any financial or other information or audit required by the proposed buyer’s financing sources and (v) the execution of such agreements and such instruments and other actions reasonably necessary in connection with the Sale of the Company, including to provide customary representations, warranties, indemnities and escrow arrangements relating thereto, in each case in accordance with and subject to the limitations set forth in Section 9.08(d). (b) The obligations of the Members with respect to a Sale of the Company are subject to the satisfaction of the following conditions: (i) upon the consummation of such Sale of the Company, each holder of Shares, to the extent such holder is receiving any consideration, shall receive the same form(s) of consideration as each other holder of Shares receives (or the option to receive the same form of consideration), and (ii) the Sale of the Company will be a Deemed Liquidation Event and the aggregate consideration payable upon consummation of such Sale of the Company to all holders of Shares in respect of their Shares shall be apportioned and distributed (after such aggregate consideration is adjusted for Company expenses, purchase price adjustments, escrow amounts, purchase price holdbacks, indemnity obligations and other similar items) as between the classes of Shares in accordance with the relevant provisions of Section 3.02 (assuming that, if such Sale of the Company is structured as a Transfer of Shares and less than all of the Shares are being Transferred, the Shares included in the Transfer are all of the Shares outstanding). For clarity, the application of Section 3.02 may result in some Shares included in the Transfer not receiving any consideration with respect to such Sale of the Company. (c) If the Company, or if the holders of any Shares, enter into any negotiation or transaction for which Rule 506 (or any similar rule then in effect) promulgated by the SEC may be available with respect to such negotiation or transaction (including a merger, consolidation, or other reorganization), each holder of Equity Securities will, at the request of the Company, appoint either a purchaser representative (as such term is defined in Rule 501) designated by the Company, in which event the Company will pay the fees of such purchaser representative, or another purchaser representative (reasonably acceptable to the Company), in which event such holder will be responsible for the fees of the purchaser representative so appointed. Notwithstanding anything to the contrary, in connection with any Sale of the Company where the consideration in such Sale of the Company consists of or includes securities, if the issuance of such securities to the Member would require either a registration statement under the Securities Act, or preparation of a disclosure statement pursuant to Regulation D (or any successor regulation) under the Securities Act, or preparation of a disclosure document under a similar provision of any state securities law, and such registration statement or disclosure statement or other disclosure document is not otherwise being prepared in connection with the Sale of the Company, then, at the option of the Board of Directors, the Member may receive, in lieu of such securities, the Fair Market Value of such securities in cash. (d) In connection with any Sale of the Company, each Member shall (i) make such customary representations and warranties, including, as applicable, as to due organization and good standing, power and authority, due approval, no conflicts and ownership and title of Shares (including the absence of liens with respect to such Shares) and no litigation pending or threatened against or affecting such Member relating to its ownership of Shares, agree to such covenants and enter into such definitive agreements, in each case as are customary for transactions of the nature of the Sale of the Company; provided, that no Member shall be required to make any representation or warranty or agree to any covenant that is more extensive or burdensome than those made by the other Members (provided, that (A) in no event will the GM Investor or any of its Affiliates, SoftBank or any of its Affiliates, Honda or any of its Affiliates or any Class F New Member or any of its Affiliates be required to enter into a non-competition agreement or be subject to any similar covenant or provision and (B) the Employee Members may be required to enter into certain covenants, including non-compete and non-solicit obligations) and (ii) be obligated to join on a several, and not joint, basis (determined in accordance with such Member’s proportionate share of the proceeds from the Sale of the Company) in any indemnification or other obligations that are part of the terms and conditions of the Sale of the Company (other than to the extent of any escrows or holdbacks established in connection with such Sale of the Company); provided, that no Member shall be obligated (A) to provide indemnification with respect to the representations, warranties, covenants or agreements of any other Member (other than to the extent of any escrows or holdbacks established in connection with such Sale of the Company), or (B) to incur liability to any Person in connection with such Sale of the Company, including under any indemnity, in excess of the consideration received by such Person in the Sale of the Company (other than for fraud or breach of a covenant). (e) Each Member will bear his, her or its proportionate share of the costs incurred in connection with a Sale of the Company to the extent such costs are incurred for the benefit of all such holders of Shares and are not otherwise paid by the Company or the acquiring party. Costs incurred by the holders of Shares on their own behalf will not be considered costs of the Sale of the Company. (f) Any contingent consideration (whether as a result of a release of an escrow or the payment of an “earn out” or otherwise) to be paid in connection with a Sale of the Company shall be allocated among the Members such that each Member receives the amount which such Member would have received if such consideration had been received by the Company and distributed as the next incremental dollars following the Distribution of any amounts previously paid under this Agreement or paid in connection with such Sale of the Company (assuming for such purposes that the Shares Transferred constitute all of the Shares). In the event any Member is liable in such Sale of the Company for amounts in excess of any escrow or holdback (other than any such obligations that relate specifically to a particular Member, such as indemnification with respect to representations and warranties given by a Member regarding such Person’s title to and ownership of Shares), such amounts shall be treated as a deduction to the consideration payable in such Sale of the Company and the aggregate consideration shall be re-allocated among the Members in accordance with Section 9.08(b). The Members agree that to the extent, as a result of such re-allocation, a Member has received more than its share of the consideration pursuant to such re-allocation, such Member shall deliver such excess to the appropriate Member(s) in order for each Member to receive its appropriate share of the consideration. (g) Without limiting the generality of the other provisions of this Section 9.08 but subject to Section 5.11, the Board of Directors shall determine whether or not to pursue, consummate, postpone or abandon any Sale of the Company and, subject to the limitations expressly set forth in this Section 9.08, the terms and conditions thereof. (h) The provisions of this Section 9.08 shall not apply to any transaction pursuant to Sections 9.10 or 9.12.

Appears in 3 contracts

Samples: Limited Liability Company Agreement (General Motors Co), Limited Liability Company Agreement (General Motors Co), Limited Liability Company Agreement (General Motors Co)

Sale of the Company. (a) ~~Provided that a Drag-Along Notice has not been delivered and~~ Notwithstanding the ~~procedures~~ restrictions in Section ~~9.09 are not then currently in effect, notwithstanding~~ 7.3 or anything else to the contrary in this Agreement, if the Company initiates any process to sell substantially all of the assets of the Company, whether by way or merger or consolidation, stock purchase, asset sale or otherwise (each of the events described in this subsection, a “Sale Transaction”) at any time during the 5-Year Standstill Period when the Restricted Parties collectively own at least 10% of the Shares then outstanding (on an as-converted basis), then, the Restricted Parties shall be entitled to participate as a bidder in such process to the same extent and on the same basis as the Company generally permits other third parties to participate and to take actions incidental thereto. (b) Notwithstanding the restrictions in Section 7.3 or anything else to the contrary in this Agreement, if the Company receives an unsolicited proposal to enter into a Sale Transaction at any time during the 5-Year Standstill Period when the Restricted Parties collectively own at least 10% of the Shares then outstanding (on an as-converted basis), then at least 12 Business Days prior to the approval of the Board of Directors may (subject to Section 5.11) elect to cause a Sale of the Company at any time. The Board of Directors shall direct and control all decisions in connection with a Sale of the Company (including the hiring or termination of any investment bank or professional adviser and making all decisions regarding valuation and consideration and the percentage of the Equity Securities in the Company to be sold) and, subject to Section 9.08(b) and Section 9.08(d), and without prejudice to Section 5.11, each Member shall vote for, consent to and not object definitive agreement relating to such ~~Sale of the Company or the sale process associated therewith. If such Sale of the Company is structured as a sale of assets~~unsolicited proposal, merger or consolidation, then each Member shall, to the extent applicable to such transaction, vote for or consent to, and waive any dissenter’s rights, appraisal rights or similar rights in connection with, such sale, merger or consolidation. If such Sale of the Company is structured as a Transfer of Shares, and the Sale of the Company involves less than all of the Shares in the Company, then each Member shall Transfer the same percentage of each class or series of Shares (or rights to acquire Shares of any class or series) that it holds. Each Member and the Company shall ~~take all reasonable and necessary actions~~ notify the Restricted Parties in ~~connection with the consummation~~ writing of such ~~Sale of~~ unsolicited proposal and the ~~Company as may be requested by~~ terms thereof and the Restricted Parties shall have the right to submit to the Board of Directors, ~~including (i) in the case of~~ within 10 Business Days after the Company ~~only~~provides such notice, engaging one or more investment banks and legal counsel selected by the Board of Directors to establish procedures acceptable to the Board of Directors to effect and to otherwise assist in connection with a Sale of the Company, (ii) taking such commercially reasonable actions and providing such commercially reasonable cooperation and assistance as may be necessary to consummate the Sale of the Company in an expeditious and efficient manner and not taking any action or engaging in any activity designed to hinder, prevent or delay the consummation of the Sale of the Company, (iii) in the case of the Company only, facilitating the due diligence process in respect of any such Sale of the Company, including establishing, populating and maintaining an online “data room”, (iv) in the case of the Company only, providing any financial or other information or audit required by the proposed buyer’s financing sources and (v) the execution of such agreements and such instruments and other actions reasonably necessary in connection with the Sale of the Company, including to provide customary representations, warranties, indemnities and escrow arrangements relating thereto, in each case in accordance with and subject to the limitations set forth in Section 9.08(d). (b) The obligations of the Members with respect to a Sale of the Company are subject to the satisfaction of the following conditions: (i) upon the consummation of such Sale of the Company, each holder of Shares, to the extent such holder is receiving any consideration, shall receive the same form(s) of consideration as each other holder of Shares receives (or the option to receive the same form of consideration), and (ii) the Sale of the Company will be a Deemed Liquidation Event and the aggregate consideration payable upon consummation of such Sale of the Company to all holders of Shares in respect of their Shares shall be apportioned and distributed (after such aggregate consideration is adjusted for Company expenses, purchase price adjustments, escrow amounts, purchase price holdbacks, indemnity obligations and other similar items) as between the classes of Shares in accordance with the relevant provisions of Section 3.02 (assuming that, if such Sale of the Company is structured as a Transfer of Shares and less than all of the Shares are being Transferred, the Shares included in the Transfer are all of the Shares outstanding). For clarity, the application of Section 3.02 may result in some Shares included in the Transfer not receiving any consideration with respect to such Sale of the Company. (c) If the Company, or if the holders of any Shares, enter into any negotiation or transaction for which Rule 506 (or any similar rule then in effect) promulgated by the SEC may be available with respect to such negotiation or transaction (including a merger, consolidation, or other reorganization), each holder of Equity Securities will, at the request of the Company, appoint either a purchaser representative (as such term is defined in Rule 501) designated by the Company, in which event the Company will pay the fees of such purchaser representative, or another purchaser representative (reasonably acceptable to the Company), in which event such holder will be responsible for the fees of the purchaser representative so appointed. Notwithstanding anything to the contrary, in connection with any Sale of the Company where the consideration in such Sale of the Company consists of or includes securities, if the issuance of such securities to the Member would require either a registration statement under the Securities Act, or preparation of a disclosure statement pursuant to Regulation D (or any successor regulation) under the Securities Act, or preparation of a disclosure document under a similar provision of any state securities law, and such registration statement or disclosure statement or other disclosure document is not otherwise being prepared in connection with the Sale of the Company, then, at the option of the Board of Directors, the Member may receive, in lieu of such securities, the Fair Market Value of such securities in cash. (d) In connection with any Sale of the Company, each Member shall (i) make such customary representations and warranties, including, as applicable, as to due organization and good standing, power and authority, due approval, no conflicts and ownership and title of Shares (including the absence of liens with respect to such Shares) and no litigation pending or threatened against or affecting such Member relating to its ownership of Shares, agree to such covenants and enter into such definitive agreements, in each case as are customary for transactions of the nature of the Sale of the Company; provided, that no Member shall be required to make any representation or warranty or agree to any covenant that is more extensive or burdensome than those made by the other Members (provided, that (A) in no event will the GM Investor or any of its Affiliates, SoftBank or any of its Affiliates, Honda or any of its Affiliates or any Class F New Member or any of its Affiliates be required proposal to enter into a non-competition agreement or be subject to any similar covenant or provision and (B) the Employee Members may be required to enter into certain covenants, including non-compete and non-solicit obligations) and (ii) be obligated to join on a several, and not joint, basis (determined in accordance Sale Transaction with such Member’s proportionate share of the proceeds from the Sale of the Company) in any indemnification or other obligations that are part of the terms and conditions of the Sale of the Company (other than to the extent of any escrows or holdbacks established in connection with such Sale of the Company); provided, that no Member shall be obligated (A) to provide indemnification with respect to the representations, warranties, covenants or agreements of any other Member (other than to the extent of any escrows or holdbacks established in connection with such Sale of the Company), or (B) to incur liability to any Person in connection with such Sale of the Company, including under any indemnity, in excess of the consideration received by such Person in the Sale of the Company (other than for fraud or breach of a covenant). (e) Each Member will bear his, her or its proportionate share of the costs incurred in connection with a Sale of the Company to the extent such costs are incurred for the benefit of all such holders of Shares and are not otherwise paid by the Company or the acquiring party. Costs incurred by the holders of Shares on their own behalf will not be considered costs of the Sale of the Company. (f) Any contingent consideration (whether as a result of a release of an escrow or the payment of an “earn out” or otherwise) to be paid in connection with a Sale of the Company shall be allocated among the Members such that each Member receives the amount which such Member would have received if such consideration had been received by the Company and distributed as the next incremental dollars following the Distribution of any amounts previously paid under this Agreement or paid in connection with such Sale of the Company (assuming for such purposes that the Shares Transferred constitute all of the Shares). In the event any Member is liable in such Sale of the Company for amounts in excess of any escrow or holdback (other than any such obligations that relate specifically to a particular Member, such as indemnification with respect to representations and warranties given by a Member regarding such Person’s title to and ownership of Shares), such amounts shall be treated as a deduction to the consideration payable in such Sale of the Company and the aggregate consideration shall be re-allocated among the Members in accordance with Section 9.08(b). The Members agree that to the extent, as a result of such re-allocation, a Member has received more than its share of the consideration pursuant to such re-allocation, such Member shall deliver such excess to the appropriate Member(s) in order for each Member to receive its appropriate share of the consideration. (g) Without limiting the generality of the other provisions of this Section 9.08 but subject to Section 5.11, proposal the Board of Directors shall ~~determine whether or~~ consider in good faith. If the Board of Directors does not ~~to pursue, consummate, postpone or abandon any Sale of~~ approve an unsolicited proposal described herein then the Company ~~and~~will not be required to permit any Restricted Party to submit a proposal to enter into a Sale Transaction. Notwithstanding the foregoing, ~~subject to the limitations expressly set forth in~~ this Section ~~9.08, the terms and conditions thereof. (h~~7.4(b) ~~The provisions of this Section 9.08~~ shall not apply with respect to an unsolicited proposal to enter into a Sale Transaction at any ~~transaction pursuant~~ time from and after the date on which the Company initiates a process to ~~Sections 9.10 or 9.12~~enter into a Sale Transaction and, in connection therewith, complies with the provisions of Section 7.4(a) above.

Appears in 3 contracts

Samples: Stock Purchase Agreement (Plug Power Inc), Investor Rights Agreement (Smart Hydrogen Inc), Investor Rights Agreement (Plug Power Inc)

Sale of the Company. (a) ~~Provided that~~ If, in order to effect a ~~Drag-Along Notice has not been delivered and~~ Sale of the ~~procedures in Section 9.09 are not then currently in effect, notwithstanding anything to the contrary in this Agreement~~Company, the ~~Board~~ 399 Stockholders (i) propose to Transfer to a third party (which is not an Affiliate of ~~Directors may~~ any of the 399 Stockholders) (~~subject~~ the "Acquiror") Restricted Securities that include 50% or more of the shares of Common Stock owned by them in the aggregate, the 399 Stockholders shall have the right to ~~Section 5.11~~require the other Stockholders to Transfer a corresponding percentage of their Restricted Securities (determined on a class-by-class basis) ~~elect~~ to ~~cause~~ such third party on the same terms, or (ii) propose the Transfer of 50% or more of the assets (whether by merger, sale or otherwise) of the Company to any such third party, the 399 Stockholders shall in each case have the right (a "Sale of the Company Right") to require (x) the Stockholders to take all action necessary or appropriate (including replacement of the directors or management committee members designated by such (b) In order to exercise a Sale of the Company ~~at any time. The Board~~ Right, the 399 Stockholders shall notify each other Stockholder, such notice to set forth the terms and conditions of ~~Directors shall direct and control all decisions in connection with a~~ the proposed Sale of the Company (including the hiring or termination of any investment bank or professional adviser and making all decisions regarding valuation and consideration and the percentage of the Equity Securities in the Company to be sold) and, subject to Section 9.08(b) and Section 9.08(d), and without prejudice to Section 5.11, each Member shall vote for, consent to and not object to such Sale of the Company or the sale process associated therewith. If such Sale of the Company is structured as a sale of assets, merger or consolidation, then each Member shall, to the extent applicable to such transaction, vote for or consent to, and waive any dissenter’s rights, appraisal rights or similar rights in connection with, such sale, merger or consolidation. If such Sale of the Company is structured as a Transfer of Shares, and the Sale of the Company involves less than all of the Shares in the Company, then each Member shall Transfer the same percentage of each class or series of Shares (or rights to acquire Shares of any class or series) that it holdsSale. Each ~~Member and the Company shall~~ such Stockholder will take all ~~reasonable and necessary~~ actions reasonably requested by the 399 Stockholders in connection with the consummation of such Sale of the Company Sale, and within 10 business days of the receipt of such notice (or such longer period of time as ~~may~~ the Stockholders shall designate in such notice), if such transaction is structured as a sale of assets or a merger, such Stockholders shall approve the transaction in their capacities as stockholders of the Company, and if such transaction is a sale of Restricted Securities, such Stockholders shall cause the applicable percentage of each class of their respective Restricted Securities to be ~~requested~~ sold to the Acquiror on the same terms and conditions and for the same per share or per unit consideration as the Restricted Securities being sold by the ~~Board of Directors~~399 Stockholders. In furtherance of, ~~including (i)~~ and not in ~~the case~~ limitation of the ~~Company only~~foregoing, ~~engaging one or more investment banks and legal counsel selected by the Board of Directors to establish procedures acceptable to the Board of Directors to effect and to otherwise assist~~ in connection with a Sale of the ~~Company~~Company Sale, subject to Section 2.7(c), each Stockholder will (iii) ~~taking such commercially reasonable actions and providing such commercially reasonable cooperation and assistance as may be necessary to consummate~~ raise no objections against the Sale of the Company ~~in an expeditious~~ Sale or the process pursuant to which it was arranged, (ii) waive any appraisal, dissenter or similar rights under applicable law, and ~~efficient manner and not taking any action or engaging in any activity designed to hinder, prevent or delay the consummation of the Sale of the Company,~~ (iii) ~~in the case of the Company only, facilitating the due diligence process in respect of any~~ execute all documents containing such ~~Sale of the Company, including establishing, populating~~ terms and ~~maintaining an online “data room”, (iv) in the case of the Company only, providing any financial or~~ conditions as those executed by other ~~information or audit required~~ Stockholders as directed by the proposed buyer’s financing sources and (v) the execution of such agreements and such instruments and other actions reasonably necessary in connection with the Sale of the Company, including to provide customary representations, warranties, indemnities and escrow arrangements relating thereto, in each case in accordance with and subject to the limitations set forth in Section 9.08(d). (b) The obligations of the Members with respect to a Sale of the Company are subject to the satisfaction of the following conditions: (i) upon the consummation of such Sale of the Company, each holder of Shares, to the extent such holder is receiving any consideration, shall receive the same form(s) of consideration as each other holder of Shares receives (or the option to receive the same form of consideration), and (ii) the Sale of the Company will be a Deemed Liquidation Event and the aggregate consideration payable upon consummation of such Sale of the Company to all holders of Shares in respect of their Shares shall be apportioned and distributed (after such aggregate consideration is adjusted for Company expenses, purchase price adjustments, escrow amounts, purchase price holdbacks, indemnity obligations and other similar items) as between the classes of Shares in accordance with the relevant provisions of Section 3.02 (assuming that, if such Sale of the Company is structured as a Transfer of Shares and less than all of the Shares are being Transferred, the Shares included in the Transfer are all of the Shares outstanding). For clarity, the application of Section 3.02 may result in some Shares included in the Transfer not receiving any consideration with respect to such Sale of the Company399 Stockholders. (c) ~~If the Company, or if the holders of~~ Unless otherwise agreed in writing by any ~~Shares, enter into any negotiation or transaction for which Rule 506 (or any similar rule then in effect) promulgated by the SEC may be available~~ 399 Stockholder with respect to the obligations of any other Stockholder, such ~~negotiation or transaction~~ other Stockholder shall be severally obligated to join on a Pro Rata basis (~~including a merger, consolidation, or other reorganization), each holder of Equity Securities will, at the request~~ based on such Stockholder's share of the Company, appoint either a purchaser representative (as such term is defined in Rule 501) designated by the Company, in which event the Company will pay the fees of such purchaser representative, or another purchaser representative (reasonably acceptable to the Company), in which event such holder will be responsible for the fees of the purchaser representative so appointed. Notwithstanding anything to the contrary, in connection with any Sale of the Company where the consideration aggregate proceeds paid in such Sale of the Company consists of or includes securities, if the issuance of such securities to the Member would require either a registration statement under the Securities Act, or preparation of a disclosure statement pursuant to Regulation D (or any successor regulation) under the Securities Act, or preparation of a disclosure document under a similar provision of any state securities law, and such registration statement or disclosure statement or other disclosure document is not otherwise being prepared in connection with the Sale of the Company, then, at the option of the Board of Directors, the Member may receive, in lieu of such securities, the Fair Market Value of such securities in cash. (d) In connection with any Sale of the Company, each Member shall (i) make such customary representations and warranties, including, as applicable, as to due organization and good standing, power and authority, due approval, no conflicts and ownership and title of Shares (including the absence of liens with respect to such Shares) and no litigation pending or threatened against or affecting such Member relating to its ownership of Shares, agree to such covenants and enter into such definitive agreements, in each case as are customary for transactions of the nature of the Sale of the Company; provided, that no Member shall be required to make any representation or warranty or agree to any covenant that is more extensive or burdensome than those made by the other Members (provided, that (A) in no event will the GM Investor or any of its Affiliates, SoftBank or any of its Affiliates, Honda or any of its Affiliates or any Class F New Member or any of its Affiliates be required to enter into a non-competition agreement or be subject to any similar covenant or provision and (B) the Employee Members may be required to enter into certain covenants, including non-compete and non-solicit obligations) and (ii) be obligated to join on a several, and not joint, basis (determined in accordance with such Member’s proportionate share of the proceeds from the Sale of the CompanySale) in any indemnification or other obligations that ~~are part of~~ the ~~terms and conditions of the Sale of the Company (other than~~ 399 Stockholders agree to the extent of any escrows or holdbacks established in connection with such Sale of the Company); provided, that no Member shall be obligated (A) to provide indemnification with respect to the representations, warranties, covenants or agreements of any other Member (other than to the extent of any escrows or holdbacks established in connection with such Sale of the Company), or (B) to incur liability to any Person in connection with such Sale of the Company, including under any indemnity, in excess of the consideration received by such Person in the Sale of the Company (other than for fraud or breach of a covenant). (e) Each Member will bear his, her or its proportionate share of the costs incurred in connection with a Sale of the Company to the extent such costs are incurred for the benefit of all such holders of Shares and are not otherwise paid by the Company or the acquiring party. Costs incurred by the holders of Shares on their own behalf will not be considered costs of the Sale of the Company. (f) Any contingent consideration (whether as a result of a release of an escrow or the payment of an “earn out” or otherwise) to be paid in connection with a Sale of the Company shall be allocated among the Members such that each Member receives the amount which such Member would have received if such consideration had been received by the Company and distributed as the next incremental dollars following the Distribution of any amounts previously paid under this Agreement or paid in connection with such Sale of the Company ~~(assuming for such purposes that the Shares Transferred constitute all of the Shares). In the event any Member is liable in such Sale of the Company for amounts in excess of any escrow or holdback (~~Sale, other than any such obligations that relate specifically to a particular ~~Member~~Stockholder, such as indemnification with respect to representations and warranties given by a ~~Member~~ Stockholder regarding such ~~Person’s~~ Stockholder's title to and ownership of ~~Shares),~~ Restricted Securities or valid authorization by such ~~amounts shall be treated as a deduction~~ Stockholder with respect to ~~the consideration payable in~~ such Sale of the Company ~~and the aggregate consideration~~ Sale; provided that no Stockholder shall be ~~re-allocated among the Members~~ obligated in ~~accordance~~ connection with ~~Section 9.08(b). The Members agree that to the extent, as a result of~~ such re-allocation, a Member has received more than its share of the consideration pursuant to such re-allocation, such Member shall deliver such excess to the appropriate Member(s) in order for each Member to receive its appropriate share of the consideration. (g) Without limiting the generality of the other provisions of this Section 9.08 but subject to Section 5.11, the Board of Directors shall determine whether or not to pursue, consummate, postpone or abandon any Sale of the Company ~~and, subject~~ Sale to agree to indemnify or hold harmless the prospective transferee(s) with respect to an amount in excess of the net cash proceeds paid to such Stockholder in connection with such Sale of the Company Sale. All Stockholders will bear their Pro-Rata share of the costs and expenses incurred in connection with a Sale of the Company Sale to the ~~limitations expressly set forth in this Section 9.08,~~ extent such costs are incurred for the ~~terms~~ benefit of all Stockholders and ~~conditions thereof~~are not otherwise paid by the Company or the Acquiror. Costs incurred by any Stockholder on its own behalf will not be shared by any other Stockholder. ~~(h) The provisions of this Section 9.08 shall not apply to any transaction pursuant to Sections 9.10 or 9.12.~~

Appears in 2 contracts

Samples: Stockholders' Agreement (Gni Group Inc /De/), Stockholders' Agreement (Gni Group Inc /De/)

Sale of the Company. If (ai) ~~Provided that a Drag~~the Board (by Super-~~Along Notice has not been delivered~~ Majority Approval) and the ~~procedures in Section 9.09 are not then currently in effect~~holders of a Majority of the Shares of Series A, ~~notwithstanding anything to~~ B and E Preferred Stock and a Majority of the ~~contrary in this Agreement, the Board of Directors may (subject to Section 5.11) elect to cause~~ Series C and D Preferred Stock approve a Sale of the Company at of the type described in clauses (i) or (iii) of the definition thereof, or (ii) if the holders of a Majority of the Shares of the Series A, B and E Preferred Stock and a Majority of the Series C and D Preferred Stock approve of a Sale of the Company of the type described in clause (ii) of the definition thereof, in each case to a third party which is not an Affiliate of any ~~time~~such Person or the Company, the Company shall deliver a notice to each Securityholder containing the material terms thereof (a "Sale Notice"). ~~The Board~~ Each Securityholder agrees to vote, if such a vote is required under applicable law, all of ~~Directors~~ its Shares in favor of such a Sale of the Company, and to sell all of its Shares, Warrants and Options on the terms contained in the Sale Notice. Each Securityholder and the Company agrees to cooperate in any such Sale of the Company (including, without limitation, by not exercising any appraisal rights that may be available under applicable law) and agrees to execute and deliver all documents and instruments as is required in the Sale Notice and which the holders of a Majority of the Shares of Series A, B and E Preferred Stock or a Majority of the Series C and D Preferred Stock request to effect such Sale of the Company; provided, however, that the Sale Notice (i) shall ~~direct~~ not require any Securityholder to provide any representations or warranties in connection with the Sale of the Company pursuant to this Section 4.8, except representations as to the authority to transfer such Shares, Warrants or Options and ~~control all decisions~~ the absence of any Encumbrances (other than under this Agreement) on the title of such Shares, Warrants and Options, and (ii) shall require that each Securityholder receive the same percentage of each type of consideration delivered in connection with the Sale of the Company. Upon such Sale of the Company, each Securityholder shall receive its Pro Rata Share of the consideration paid by the purchaser or received from the sale of securities. In no event shall any Securityholder receive special consideration (including, without limitation, financial advisory, finders, consulting or other similar fees) in connection with a Sale of the Company ~~(including the hiring or termination of any investment bank or professional adviser and making~~ contemplated by this Section 4.8, unless such consideration is shared among all ~~decisions regarding valuation and consideration and the percentage of the Equity Securities in the Company to be sold) and~~Securityholders based on their Pro Rata Shares; provided, ~~subject to Section 9.08(b) and Section 9.08(d)~~however, ~~and without prejudice to Section 5.11, each Member~~ this sentence shall ~~vote for, consent to and~~ not object to such Sale of the Company or the sale process associated therewith. If such Sale of the Company is structured as a sale of assets, merger or consolidation, then each Member shall, to the extent applicable to such transaction, vote for or consent to, and waive any dissenter’s rights, appraisal rights or similar rights in connection with, such sale, merger or consolidation. If such Sale of the Company is structured as a Transfer of Shares, and the Sale of the Company involves less than all of the Shares in the Company, then each Member shall Transfer the same percentage of each class or series of Shares (or rights to acquire Shares of any class or series) that it holds. Each Member and the Company shall take all reasonable and necessary actions in connection with the consummation of such Sale of the Company as may be requested by the Board of Directors, including (i) in the case of the Company only, engaging one or more investment banks and legal counsel selected by the Board of Directors to establish procedures acceptable to the Board of Directors to effect and to otherwise assist in connection with a Sale of the Company, (ii) taking such commercially reasonable actions and providing such commercially reasonable cooperation and assistance as may be necessary to consummate the Sale of the Company in an expeditious and efficient manner and not taking any action or engaging in any activity designed to hinder, prevent or delay the consummation of the Sale of the Company, (iii) in the case of the Company only, facilitating the due diligence process in respect of any such Sale of the Company, including establishing, populating and maintaining an online “data room”, (iv) in the case of the Company only, providing any financial or other information or audit required by the proposed buyer’s financing sources and (v) the execution of such agreements and such instruments and other actions reasonably necessary in connection with the Sale of the Company, including to provide customary representations, warranties, indemnities and escrow arrangements relating thereto, in each case in accordance with and subject to the limitations set forth in Section 9.08(d). (b) The obligations of the Members apply with respect to ~~a Sale~~ an arms-length negotiated engagement of ~~the Company are subject~~ Shattan to ~~the satisfaction of the following conditions: (i) upon the consummation of such Sale of~~ act as the Company, each holder of Shares, to the extent such holder is receiving any consideration, shall receive the same form(s) of consideration as each other holder of Shares receives (or the option to receive the same form of consideration), and (ii) the Sale of the Company will be a Deemed Liquidation Event and the aggregate consideration payable upon consummation of such Sale of the Company to all holders of Shares in respect of their Shares shall be apportioned and distributed (after such aggregate consideration is adjusted for Company expenses, purchase price adjustments, escrow amounts, purchase price holdbacks, indemnity obligations and other similar items) as between the classes of Shares in accordance with the relevant provisions of Section 3.02 (assuming that, if such Sale of the Company is structured as a Transfer of Shares and less than all of the Shares are being Transferred, the Shares included in the Transfer are all of the Shares outstanding). For clarity, the application of Section 3.02 may result in some Shares included in the Transfer not receiving any consideration 's financial advisor with respect to such Sale of the Company. (c) If the Company, or if the holders of any Shares, enter into any negotiation or transaction for which Rule 506 (or any similar rule then in effect) promulgated by the SEC may be available with respect to such negotiation or transaction (including a merger, consolidation, or other reorganization), each holder of Equity Securities will, at the request of the Company, appoint either a purchaser representative (as such term is defined in Rule 501) designated by the Company, in which event the Company will pay the fees of such purchaser representative, or another purchaser representative (reasonably acceptable to the Company), in which event such holder will be responsible for the fees of the purchaser representative so appointed. Notwithstanding anything to the contrary, in connection with any Sale of the Company where the consideration in such Sale of the Company consists of or includes securities, if the issuance of such securities to the Member would require either a registration statement under the Securities Act, or preparation of a disclosure statement pursuant to Regulation D (or any successor regulation) under the Securities Act, or preparation of a disclosure document under a similar provision of any state securities law, and such registration statement or disclosure statement or other disclosure document is not otherwise being prepared in connection with the Sale of the Company, then, at the option of the Board of Directors, the Member may receive, in lieu of such securities, the Fair Market Value of such securities in cash. (d) In connection with any Sale of the Company, each Member shall (i) make such customary representations and warranties, including, as applicable, as to due organization and good standing, power and authority, due approval, no conflicts and ownership and title of Shares (including the absence of liens with respect to such Shares) and no litigation pending or threatened against or affecting such Member relating to its ownership of Shares, agree to such covenants and enter into such definitive agreements, in each case as are customary for transactions of the nature of the Sale of the Company; provided, that no Member shall be required to make any representation or warranty or agree to any covenant that is more extensive or burdensome than those made by the other Members (provided, that (A) in no event will the GM Investor or any of its Affiliates, SoftBank or any of its Affiliates, Honda or any of its Affiliates or any Class F New Member or any of its Affiliates be required to enter into a non-competition agreement or be subject to any similar covenant or provision and (B) the Employee Members may be required to enter into certain covenants, including non-compete and non-solicit obligations) and (ii) be obligated to join on a several, and not joint, basis (determined in accordance with such Member’s proportionate share of the proceeds from the Sale of the Company) in any indemnification or other obligations that are part of the terms and conditions of the Sale of the Company (other than to the extent of any escrows or holdbacks established in connection with such Sale of the Company); provided, that no Member shall be obligated (A) to provide indemnification with respect to the representations, warranties, covenants or agreements of any other Member (other than to the extent of any escrows or holdbacks established in connection with such Sale of the Company), or (B) to incur liability to any Person in connection with such Sale of the Company, including under any indemnity, in excess of the consideration received by such Person in the Sale of the Company (other than for fraud or breach of a covenant). (e) Each Member will bear his, her or its proportionate share of the costs incurred in connection with a Sale of the Company to the extent such costs are incurred for the benefit of all such holders of Shares and are not otherwise paid by the Company or the acquiring party. Costs incurred by the holders of Shares on their own behalf will not be considered costs of the Sale of the Company. (f) Any contingent consideration (whether as a result of a release of an escrow or the payment of an “earn out” or otherwise) to be paid in connection with a Sale of the Company shall be allocated among the Members such that each Member receives the amount which such Member would have received if such consideration had been received by the Company and distributed as the next incremental dollars following the Distribution of any amounts previously paid under this Agreement or paid in connection with such Sale of the Company (assuming for such purposes that the Shares Transferred constitute all of the Shares). In the event any Member is liable in such Sale of the Company for amounts in excess of any escrow or holdback (other than any such obligations that relate specifically to a particular Member, such as indemnification with respect to representations and warranties given by a Member regarding such Person’s title to and ownership of Shares), such amounts shall be treated as a deduction to the consideration payable in such Sale of the Company and the aggregate consideration shall be re-allocated among the Members in accordance with Section 9.08(b). The Members agree that to the extent, as a result of such re-allocation, a Member has received more than its share of the consideration pursuant to such re-allocation, such Member shall deliver such excess to the appropriate Member(s) in order for each Member to receive its appropriate share of the consideration. (g) Without limiting the generality of the other provisions of this Section 9.08 but subject to Section 5.11, the Board of Directors shall determine whether or not to pursue, consummate, postpone or abandon any Sale of the Company and, subject to the limitations expressly set forth in this Section 9.08, the terms and conditions thereof. (h) The provisions of this Section 9.08 shall not apply to any transaction pursuant to Sections 9.10 or 9.12.

Appears in 2 contracts

Samples: Stockholders' Agreement (Reckson Services Industries Inc), Stockholders' Agreement (Vantas Inc)

Sale of the Company. ~~(a) Provided that a Drag-Along Notice has not been delivered and~~ Upon the ~~procedures in Section 9.09 are not then currently in effect, notwithstanding anything to the contrary in this Agreement, the Board~~ occurrence of ~~Directors may (subject to Section 5.11) elect to cause~~ a Sale of the ~~Company at any time. The Board of Directors~~ Company, all Time-Vesting Executive Incentive Units which have not yet become vested shall ~~direct and control all decisions in connection with a Sale~~ become vested as of the ~~Company (including the hiring or termination~~ date of any investment bank or professional adviser and making all decisions regarding valuation and consideration and the percentage of the Equity Securities in the Company to be sold) and, subject to Section 9.08(b) and Section 9.08(d), and without prejudice to Section 5.11, each Member shall vote for, consent to and not object to such Sale of the Company or the sale process associated therewith. If such Sale of the Company is structured as a sale of assets, merger or consolidation, then each Member shall, to the extent applicable to such transaction, vote for or consent to, and waive any dissenter’s rights, appraisal rights or similar rights in connection with, such sale, merger or consolidation. If such Sale of the Company is structured as a Transfer of Shares, and the Sale of the Company involves less than all of the Shares in the Company, then each Member shall Transfer the same percentage of each class or series of Shares (or rights to acquire Shares of any class or series) that it holds. Each Member and the Company shall take all reasonable and necessary actions in connection with the consummation of such Sale of the ~~Company~~ Company, if, as ~~may be requested~~ of such date, Executive has been continuously employed by the ~~Board~~ Company or any of ~~Directors~~its Subsidiaries from the date of this Agreement through and including such date, ~~including (i) in the case of the Company only, engaging one or more investment banks and legal counsel selected by the Board of Directors to establish procedures acceptable~~ subject to the ~~Board~~ provisions of ~~Directors to effect and to otherwise assist in connection with~~ this Section 2(c). Upon the occurrence of a Sale of the Company, any Performance-Vesting Executive Incentive Units (iiwhether held by Executive or one or more of his transferees, other than the Company and the Investors) ~~taking~~ which fail to vest as result of such ~~commercially reasonable actions and providing such commercially reasonable cooperation and assistance as may be necessary to consummate the~~ Sale of the Company ~~in an expeditious and efficient manner and not taking~~ will automatically (without any action by any Executive or ~~engaging in~~ any ~~activity designed~~ of his transferees) be forfeited to ~~hinder, prevent or delay the consummation of the Sale of the Company, (iii) in the case of~~ the Company ~~only, facilitating the due diligence process in respect of~~ and deemed canceled and no longer outstanding without any such Sale of the Company, including establishing, populating and maintaining an online “data room”, (iv) in the case of the Company only, providing any financial or other information or audit required by the proposed buyer’s financing sources and (v) the execution of such agreements and such instruments and other actions reasonably necessary in connection with the Sale of the Company, including to provide customary representations, warranties, indemnities and escrow arrangements relating thereto, in each case in accordance with and subject to the limitations set forth in Section 9.08(d). (b) The obligations of the Members with respect to a Sale of the Company are subject to the satisfaction of the following conditions: (i) payment therefor upon the consummation of such Sale of the Company~~, each holder of Shares,~~ . Notwithstanding the foregoing or anything herein or in the LLC Agreement to the ~~extent such holder is receiving~~ contrary (and in addition to any ~~consideration, shall receive the same form(s) of consideration as each other holder of Shares receives (or the option to receive the same form of consideration~~requirements therein), and (ii) the Sale of the Company will be a Deemed Liquidation Event and the aggregate consideration payable upon consummation of such Sale of the Company to all holders of Shares in respect of their Shares shall be apportioned and distributed (after such aggregate consideration is adjusted for Company expenses, purchase price adjustments, escrow amounts, purchase price holdbacks, indemnity obligations and other similar items) as between the classes of Shares in accordance with the relevant provisions of Section 3.02 (assuming that, if such Sale of the Company is structured as a Transfer of Shares and less than all of the Shares are being Transferred, the Shares included in the ~~Transfer are all~~ case of ~~the Shares outstanding). For clarity, the application of Section 3.02 may result in some Shares included in the Transfer not receiving any consideration with respect to such~~ a Sale of the Company~~. (c) If the Company~~, or Executive hereby agrees that, if the ~~holders of any Shares, enter into any negotiation~~ Person who is acquiring the equity securities or transaction for which Rule 506 (or any similar rule then in effect) promulgated by the SEC may be available with respect to such negotiation or transaction (including a merger, consolidation, or other reorganization), each holder of Equity Securities will, at the request of the Company, appoint either a purchaser representative (as such term is defined in Rule 501) designated by the Company, in which event the Company will pay the fees of such purchaser representative, or another purchaser representative (reasonably acceptable to the Company), in which event such holder will be responsible for the fees of the purchaser representative so appointed. Notwithstanding anything to the contrary, in connection with any Sale assets of the Company ~~where the consideration~~ resulting in such Sale of the Company ~~consists of or includes securities, if~~ (the ~~issuance of such securities~~ “Acquiror”) reasonably requests that Executive continue to provide any services to the ~~Member would require either a registration statement under the Securities Act~~Acquiror, or preparation of a disclosure statement pursuant to Regulation D (or any successor regulation) under the Securities Act, or preparation of a disclosure document under a similar provision of any state securities law, and such registration statement or disclosure statement or other disclosure document is not otherwise being prepared in connection with the Sale of the Company, then, at the option of the Board of Directors, the Member may receive, in lieu of such securities, the Fair Market Value of such securities in cash. (d) In connection with any Sale of the Company, each Member shall (i) make such customary representations and warranties, including, as applicable, as to due organization and good standing, power and authority, due approval, no conflicts and ownership and title of Shares (including the absence of liens with respect to such Shares) and no litigation pending or threatened against or affecting such Member relating to its ownership of Shares, agree to such covenants and enter into such definitive agreements, in each case as are customary for transactions of the nature of the Sale of the Company; provided, that no Member shall be required to make any representation or warranty or agree to any covenant that is more extensive or burdensome than those made by the other Members (provided, that (A) in no event will the GM Investor Employer or any of ~~its Affiliates, SoftBank or any of its Affiliates, Honda or any of its~~ their respective Affiliates ~~or any Class F New Member or any of its Affiliates be required to enter into a non-competition agreement or be subject to any similar covenant or provision~~ from and ~~(B)~~ after the Employee Members may be required to enter into certain covenants, including non-compete and non-solicit obligations) and (ii) be obligated to join on a several, and not joint, basis (determined in accordance with such Member’s proportionate share of the proceeds from the Sale of the Company) in any indemnification or other obligations that are part of the terms and conditions consummation of the Sale of the Company (~~other~~ whether as a full-time employee, consultant or otherwise) that are within the scope of services provided by Executive during the Employment Period in exchange for a base salary (or equivalent base compensation), bonus opportunity and fringe benefits (collectively, the “Post-Sale Compensation”) that are no less favorable to Executive in the aggregate than the Annual Base Salary, bonus opportunity, and fringe benefits provided to ~~the extent of any escrows or holdbacks established in connection with~~ Executive by Employer immediately prior to such Sale of the ~~Company~~Company (excluding any equity or other incentive compensation), then the Continuing Incentive Amount shall be handled as follows (in lieu of being paid to Executive and/or his Permitted Transferee(s)): (i) if Executive declines to provide such requested services, the Continuing Incentive Amount shall be distributed pursuant to Section 4.1(a) of the LLC Agreement to the holders of Capital Units (excluding, for these purposes, all Restricted Units which are subject to an applicable limitation), and, thereafter, neither Executive nor his Permitted Transferee(s) shall have any rights in respect of or other claims on such amounts (other than their status as a holder of Capital Units); ~~provided~~or (ii) if Executive agrees to provide such requested services, ~~that no Member~~ the Continuing Incentive Amount shall be ~~obligated~~ deposited into an escrow account with an escrow agent designated by the Company, and the Continuing Incentive Amount shall be handled as follows: (A) if Executive provides such requested services from and after consummation of the Sale of the Company through the earliest of (w) the date on which Acquiror reduces Executive’s Post-Sale Compensation below the Annual Base Salary, bonus opportunity, and fringe benefits provided to ~~provide indemnification with respect~~ Executive by Employer immediately prior to ~~the representations, warranties, covenants or agreements of any other Member (other than to the extent of any escrows or holdbacks established in connection with~~ such Sale of the ~~Company~~Company (excluding any equity or other incentive compensation), (x) the date on which the Acquiror terminates such services (other than with Cause), (y) Executive’s death or Disability, or (Bz) ~~to incur liability to any Person in connection with such Sale~~ the six (6)-month anniversary of the ~~Company, including under any indemnity, in excess~~ consummation of ~~the consideration received by such Person in~~ the Sale of the Company (~~other than for fraud or breach~~ the earliest of ~~a covenant~~(w)., (x), (y) and (z), the “Final Vesting Date”), then the Continuing Incentive Amount, together with any income earned thereon, shall be released to Executive and/or his Permitted Transferee(s), as applicable, within five (5) business days after the Final Vesting Date; or (eB) ~~Each Member will bear his, her or its proportionate share of~~ if Executive fails to provide such requested services from and after the costs incurred in connection with a Sale of the Company to the extent such costs are incurred for the benefit of all such holders of Shares and are not otherwise paid by the Company or the acquiring party. Costs incurred by the holders of Shares on their own behalf will not be considered costs consummation of the Sale of the ~~Company~~Company through the Final Vesting Date, then the Continuing Incentive Amount, together with any income earned thereon, shall be distributed as a Distribution under Section 4.1(a) of the LLC Agreement to the holders of Capital Units (excluding, for these purposes, all Restricted Units which are subject to an applicable limitation), and, thereafter, neither Executive nor his Permitted Transferee(s) shall have any rights in respect of or other claims on such amounts (other than their status as a holder of Capital Units). (fiii) ~~Any contingent~~ For purposes of this Agreement, “Continuing Incentive Amount” means 25% of all consideration ~~(whether as a result of a release of an escrow or~~ to which Executive and, to the ~~payment of an “earn out” or otherwise~~extent necessary, his Permitted Transferee(s) to be paid in connection with a Sale of the Company shall be allocated among the Members such that each Member receives the amount which such Member would have received if such consideration had been received by the Company and distributed as the next incremental dollars following the Distribution of any amounts previously paid under this Agreement or paid are otherwise entitled in connection with such Sale of the Company ~~(assuming for such purposes that the Shares Transferred constitute all~~ in respect of the Shares). In the event any Member is liable in such Sale of the Company for amounts in excess of any escrow or holdback (other than any such obligations that relate specifically to a particular Member, such as indemnification with respect to representations and warranties given by a Member regarding such Person’s title to and ownership of Shares), such amounts shall be treated as a deduction to the consideration payable in such Sale of the Company and the aggregate consideration shall be re-allocated among the Members in accordance with Section 9.08(b). The Members agree that to the extent, as a result of such re-allocation, a Member has received more than its share of the consideration pursuant to such re-allocation, such Member shall deliver such excess to the appropriate Member(s) in order for each Member to receive its appropriate share of the considerationExecutive Incentive Units. (g) Without limiting the generality of the other provisions of this Section 9.08 but subject to Section 5.11, the Board of Directors shall determine whether or not to pursue, consummate, postpone or abandon any Sale of the Company and, subject to the limitations expressly set forth in this Section 9.08, the terms and conditions thereof. (h) The provisions of this Section 9.08 shall not apply to any transaction pursuant to Sections 9.10 or 9.12.

Appears in 2 contracts

Samples: Senior Management Agreement (Maravai Lifesciences Holdings, Inc.), Senior Management Agreement (Maravai Lifesciences Holdings, Inc.)

Sale of the Company. ~~(a) Provided that a Drag-Along Notice has not been delivered and~~ Upon the ~~procedures in Section 9.09 are not then currently in effect, notwithstanding anything to the contrary in this Agreement, the Board~~ occurrence of ~~Directors may (subject to Section 5.11) elect to cause~~ a Sale of the ~~Company at any time. The Board of Directors~~ Company, all Time-Vesting Executive Incentive Units which have not yet become vested shall ~~direct and control all decisions in connection with a Sale~~ become vested as of the ~~Company (including the hiring or termination~~ date of any investment bank or professional adviser and making all decisions regarding valuation and consideration and the percentage of the Equity Securities in the Company to be sold) and, subject to Section 9.08(b) and Section 9.08(d), and without prejudice to Section 5.11, each Member shall vote for, consent to and not object to such Sale of the Company or the sale process associated therewith. If such Sale of the Company is structured as a sale of assets, merger or consolidation, then each Member shall, to the extent applicable to such transaction, vote for or consent to, and waive any dissenter’s rights, appraisal rights or similar rights in connection with, such sale, merger or consolidation. If such Sale of the Company is structured as a Transfer of Shares, and the Sale of the Company involves less than all of the Shares in the Company, then each Member shall Transfer the same percentage of each class or series of Shares (or rights to acquire Shares of any class or series) that it holds. Each Member and the Company shall take all reasonable and necessary actions in connection with the consummation of such Sale of the ~~Company~~ Company, if, as ~~may be requested~~ of such date, Executive has been continuously employed by the ~~Board~~ Company or any of ~~Directors~~its Subsidiaries from the date of this Agreement through and including such date, ~~including (i) in the case of the Company only, engaging one or more investment banks and legal counsel selected by the Board of Directors to establish procedures acceptable~~ subject to the ~~Board~~ provisions of ~~Directors to effect and to otherwise assist in connection with~~ this Section 2(c). Upon the occurrence of a Sale of the Company, any Performance-Vesting Executive Incentive Units (iiwhether held by Executive or one or more of Executive’s transferees, other than the Company and the Investors) ~~taking~~ which fail to vest as result of such ~~commercially reasonable actions and providing such commercially reasonable cooperation and assistance as may be necessary to consummate the~~ Sale of the Company ~~in an expeditious and efficient manner and not taking~~ will automatically (without any action by Executive or ~~engaging in~~ any ~~activity designed~~ of Executive’s transferees) be forfeited to ~~hinder, prevent or delay the consummation of the Sale of the Company, (iii) in the case of~~ the Company ~~only, facilitating the due diligence process in respect of~~ and deemed canceled and no longer outstanding without any such Sale of the Company, including establishing, populating and maintaining an online “data room”, (iv) in the case of the Company only, providing any financial or other information or audit required by the proposed buyer’s financing sources and (v) the execution of such agreements and such instruments and other actions reasonably necessary in connection with the Sale of the Company, including to provide customary representations, warranties, indemnities and escrow arrangements relating thereto, in each case in accordance with and subject to the limitations set forth in Section 9.08(d). (b) The obligations of the Members with respect to a Sale of the Company are subject to the satisfaction of the following conditions: (i) payment therefor upon the consummation of such Sale of the Company~~, each holder of Shares,~~ . Notwithstanding the foregoing or anything herein or in the LLC Agreement to the ~~extent such holder is receiving~~ contrary (and in addition to any ~~consideration, shall receive the same form(s) of consideration as each other holder of Shares receives (or the option to receive the same form of consideration~~requirements therein), and (ii) the Sale of the Company will be a Deemed Liquidation Event and the aggregate consideration payable upon consummation of such Sale of the Company to all holders of Shares in respect of their Shares shall be apportioned and distributed (after such aggregate consideration is adjusted for Company expenses, purchase price adjustments, escrow amounts, purchase price holdbacks, indemnity obligations and other similar items) as between the classes of Shares in accordance with the relevant provisions of Section 3.02 (assuming that, if such Sale of the Company is structured as a Transfer of Shares and less than all of the Shares are being Transferred, the Shares included in the ~~Transfer are all~~ case of ~~the Shares outstanding). For clarity, the application of Section 3.02 may result in some Shares included in the Transfer not receiving any consideration with respect to such~~ a Sale of the Company~~. (c) If the Company~~, or Executive hereby agrees that, if the ~~holders of any Shares, enter into any negotiation~~ Person who is acquiring the equity securities or transaction for which Rule 506 (or any similar rule then in effect) promulgated by the SEC may be available with respect to such negotiation or transaction (including a merger, consolidation, or other reorganization), each holder of Equity Securities will, at the request of the Company, appoint either a purchaser representative (as such term is defined in Rule 501) designated by the Company, in which event the Company will pay the fees of such purchaser representative, or another purchaser representative (reasonably acceptable to the Company), in which event such holder will be responsible for the fees of the purchaser representative so appointed. Notwithstanding anything to the contrary, in connection with any Sale assets of the Company ~~where the consideration~~ resulting in such Sale of the Company ~~consists of or includes securities, if~~ (the ~~issuance of such securities~~ “Acquiror”) reasonably requests that Executive continue to provide any services to the ~~Member would require either a registration statement under the Securities Act~~Acquiror, or preparation of a disclosure statement pursuant to Regulation D (or any successor regulation) under the Securities Act, or preparation of a disclosure document under a similar provision of any state securities law, and such registration statement or disclosure statement or other disclosure document is not otherwise being prepared in connection with the Sale of the Company, then, at the option of the Board of Directors, the Member may receive, in lieu of such securities, the Fair Market Value of such securities in cash. (d) In connection with any Sale of the Company, each Member shall (i) make such customary representations and warranties, including, as applicable, as to due organization and good standing, power and authority, due approval, no conflicts and ownership and title of Shares (including the absence of liens with respect to such Shares) and no litigation pending or threatened against or affecting such Member relating to its ownership of Shares, agree to such covenants and enter into such definitive agreements, in each case as are customary for transactions of the nature of the Sale of the Company; provided, that no Member shall be required to make any representation or warranty or agree to any covenant that is more extensive or burdensome than those made by the other Members (provided, that (A) in no event will the GM Investor Employer or any of ~~its Affiliates, SoftBank or any of its Affiliates, Honda or any of its~~ their respective Affiliates ~~or any Class F New Member or any of its Affiliates be required to enter into a non-competition agreement or be subject to any similar covenant or provision~~ from and ~~(B)~~ after the Employee Members may be required to enter into certain covenants, including non-compete and non-solicit obligations) and (ii) be obligated to join on a several, and not joint, basis (determined in accordance with such Member’s proportionate share of the proceeds from the Sale of the Company) in any indemnification or other obligations that are part of the terms and conditions consummation of the Sale of the Company (~~other~~ whether as a full-time employee, consultant or otherwise) that are within the scope of services provided by Executive during the Employment Period in exchange for a base salary (or equivalent base compensation), bonus opportunity and fringe benefits (collectively, the “Post-Sale Compensation”) that are no less favorable to Executive in the aggregate than the Annual Base Salary, bonus opportunity, and fringe benefits provided to ~~the extent of any escrows or holdbacks established in connection with~~ Executive by Employer immediately prior to such Sale of the ~~Company~~Company (excluding any equity or other incentive compensation), then the Continuing Incentive Amount shall be handled as follows (in lieu of being paid to Executive and/or his Permitted Transferee(s)): (i) if Executive declines to provide such requested services, the Continuing Incentive Amount shall be distributed pursuant to Section 4.1(a) of the LLC Agreement to the holders of Capital Units (excluding, for these purposes, all Restricted Units which are subject to an applicable limitation), and, thereafter, neither Executive nor his Permitted Transferee(s) shall have any rights in respect of or other claims on such amounts (other than his status as a holder of Capital Units); ~~provided~~or (ii) if Executive agrees to provide such requested services, ~~that no Member~~ the Continuing Incentive Amount shall be ~~obligated~~ deposited into an escrow account with an escrow agent designated by the Company, and the Continuing Incentive Amount shall be handled as follows: (A) if Executive provides such requested services from and after consummation of the Sale of the Company through the earliest of (w) the date on which Acquiror reduces Executive’s Post-Sale Compensation below the Annual Base Salary, bonus opportunity, and fringe benefits provided to ~~provide indemnification with respect~~ Executive by Employer immediately prior to ~~the representations, warranties, covenants or agreements of any other Member (other than to the extent of any escrows or holdbacks established in connection with~~ such Sale of the ~~Company~~Company (excluding any equity or other incentive compensation), (x) the date on which the Acquiror terminates such services (other than with Cause), (y) Executive’s death or Disability, or (Bz) ~~to incur liability to any Person in connection with such Sale~~ the nine (9)-month anniversary of the ~~Company, including under any indemnity, in excess~~ consummation of ~~the consideration received by such Person in~~ the Sale of the Company (~~other than for fraud or breach~~ the earliest of ~~a covenant~~(w)., (x), (y) and (z), the “Final Vesting Date”), then the Continuing Incentive Amount, together with any income earned thereon, shall be released to Executive and/or his Permitted Transferee(s), as applicable, within five (5) business days after the Final Vesting Date; or (eB) ~~Each Member will bear his, her or its proportionate share of~~ if Executive fails to provide such requested services from and after the costs incurred in connection with a Sale of the Company to the extent such costs are incurred for the benefit of all such holders of Shares and are not otherwise paid by the Company or the acquiring party. Costs incurred by the holders of Shares on their own behalf will not be considered costs consummation of the Sale of the ~~Company~~Company through the Final Vesting Date, then the Continuing Incentive Amount, together with any income earned thereon, shall be distributed as a Distribution under Section 4.1(a) of the LLC Agreement to the holders of Capital Units (excluding, for these purposes, all Restricted Units which are subject to an applicable limitation), and, thereafter, neither Executive nor his Permitted Transferee(s) shall have any rights in respect of or other claims on such amounts (other than his status as a holder of Capital Units). (fiii) ~~Any contingent~~ For purposes of this Agreement, “Continuing Incentive Amount” means 25% of all consideration ~~(whether as a result of a release of an escrow or~~ to which Executive and, to the ~~payment of an “earn out” or otherwise~~extent necessary, his Permitted Transferee(s) to be paid in connection with a Sale of the Company shall be allocated among the Members such that each Member receives the amount which such Member would have received if such consideration had been received by the Company and distributed as the next incremental dollars following the Distribution of any amounts previously paid under this Agreement or paid are otherwise entitled in connection with such Sale of the Company ~~(assuming for such purposes that the Shares Transferred constitute all~~ in respect of the Shares). In the event any Member is liable in such Sale of the Company for amounts in excess of any escrow or holdback (other than any such obligations that relate specifically to a particular Member, such as indemnification with respect to representations and warranties given by a Member regarding such Person’s title to and ownership of Shares), such amounts shall be treated as a deduction to the consideration payable in such Sale of the Company and the aggregate consideration shall be re-allocated among the Members in accordance with Section 9.08(b). The Members agree that to the extent, as a result of such re-allocation, a Member has received more than its share of the consideration pursuant to such re-allocation, such Member shall deliver such excess to the appropriate Member(s) in order for each Member to receive its appropriate share of the considerationExecutive Incentive Units. (g) Without limiting the generality of the other provisions of this Section 9.08 but subject to Section 5.11, the Board of Directors shall determine whether or not to pursue, consummate, postpone or abandon any Sale of the Company and, subject to the limitations expressly set forth in this Section 9.08, the terms and conditions thereof. (h) The provisions of this Section 9.08 shall not apply to any transaction pursuant to Sections 9.10 or 9.12.

Appears in 2 contracts

Samples: Senior Management Agreement (Maravai Lifesciences Holdings, Inc.), Senior Management Agreement (Maravai Lifesciences Holdings, Inc.)

Sale of the Company. (a) ~~Provided that~~ The Managing Member, acting upon the approval of the Majority Members, may at any time effect a ~~Drag-Along Notice has not been delivered and~~ Sale of the ~~procedures~~ Company. (b) In addition to the rights set forth in Section ~~9.09 are not then currently in effect, notwithstanding anything to the contrary in this Agreement~~10.02(a), the ~~Board~~ Managing Member, acting without the need for any approval of ~~Directors~~ any Member, may ~~(subject to Section 5.11) elect to cause~~ at any time effect a Sale of the Company at provided that such sale is to a non-Affiliate of the Managing Member. (c) The consideration in any ~~time. The Board of Directors shall direct and control all decisions in connection with a~~ Sale of the Company ~~(including~~ pursuant to this Section 10.02 shall be distributed to the ~~hiring or termination of any investment bank or professional adviser and making all decisions regarding valuation and consideration and~~ Members as if the ~~percentage of the Equity Securities~~ transaction were a dissolution as provided in ~~the Company~~ Section 11.02(b). Any distribution to PFSI shall be ~~sold) and,~~ subject to Section ~~9.08(b~~12.01. (d) ~~and~~ If the Managing Member approves a Sale of Company under Section ~~9.08(d), and without prejudice to Section 5.11,~~ 10.02 (an “Approved Sale”): (i) each Member shall vote for, consent to and not object to such Sale of the Company or the sale process associated therewith. If such Sale of the Company is structured as a sale of assets, merger or consolidation, then each Member shall, to the extent applicable to such transaction, vote for or consent to, and waive any dissenter’s rights, appraisal rights or similar rights in connection with, such sale, merger or consolidation. If such Sale of the Company is structured as a Transfer of Shares, and the Sale of the Company involves less than all of the Shares in the Company, then each Member shall Transfer the same percentage of each class or series of Shares (or rights to acquire Shares of any class or series) that it holds. Each Member and the Company shall take all ~~reasonable and~~ necessary or desirable actions in connection with the consummation of ~~such~~ the Approved Sale ~~of the Company~~ as ~~may be~~ reasonably requested by the ~~Board of Directors~~Managing Member, including ~~(i) in the case of the Company only~~executing and delivering any and all agreements, ~~engaging one or more investment banks~~ instruments, consents, waivers, releases and ~~legal counsel selected~~ other documents requested by the ~~Board of Directors to establish procedures acceptable to~~ Majority Holder (including any applicable purchase agreement, stockholders agreement and/or indemnification and/or contribution agreement), filing applications, reports, returns, filings and other documents or instruments with governmental authorities and otherwise cooperating with the ~~Board of Directors to effect~~ Managing Member and ~~to otherwise assist in connection with a Sale of the Company,~~ any prospective purchaser; and (ii) taking such commercially reasonable actions and providing such commercially reasonable cooperation and assistance as may be necessary to consummate the Sale of the Company in an expeditious and efficient manner and not taking any action or engaging in any activity designed to hinder, prevent or delay the consummation of the Sale of the Company, (iii) in the case of the Company only, facilitating the due diligence process in respect of any such Sale of the Company, including establishing, populating and maintaining an online “data room”, (iv) in the case of the Company only, providing any financial or other information or audit required by the proposed buyer’s financing sources and (v) the execution of such agreements and such instruments and other actions reasonably necessary in connection with the Sale of the Company, including to provide customary representations, warranties, indemnities and escrow arrangements relating thereto, in each case in accordance with and subject to the limitations set forth in Section 9.08(d). (b) The obligations of the Members with respect to a Sale of the Company are subject to the satisfaction of the following conditions: (i) upon the consummation of such Sale of the Company, each holder of Shares, to the extent such holder is receiving any consideration, shall receive the same form(s) of consideration as each other holder of Shares receives (or the option to receive the same form of consideration), and (ii) the Sale of the Company will be a Deemed Liquidation Event and the aggregate consideration payable upon consummation of such Sale of the Company to all holders of Shares in respect of their Shares shall be apportioned and distributed (after such aggregate consideration is adjusted for Company expenses, purchase price adjustments, escrow amounts, purchase price holdbacks, indemnity obligations and other similar items) as between the classes of Shares in accordance with the relevant provisions of Section 3.02 (assuming that, if such Sale of the Company is structured as a Transfer of Shares and less than all of the Shares are being Transferred, the Shares included in the Transfer are all of the Shares outstanding). For clarity, the application of Section 3.02 may result in some Shares included in the Transfer not receiving any consideration with respect to such Sale of the Company. (c) If the Company, or if the holders of any Shares, enter into any negotiation or transaction for which Rule 506 (or any similar rule then in effect) promulgated by the SEC may be available with respect to such negotiation or transaction (including a merger, consolidation, or other reorganization), each holder of Equity Securities will, at the request of the Company, appoint either a purchaser representative (as such term is defined in Rule 501) designated by the Company, in which event the Company will pay the fees of such purchaser representative, or another purchaser representative (reasonably acceptable to the Company), in which event such holder will be responsible for the fees of the purchaser representative so appointed. Notwithstanding anything to the contrary, in connection with any Sale of the Company where the consideration in such Sale of the Company consists of or includes securities, if the issuance of such securities to the Member would require either a registration statement under the Securities Act, or preparation of a disclosure statement pursuant to Regulation D (or any successor regulation) under the Securities Act, or preparation of a disclosure document under a similar provision of any state securities law, and such registration statement or disclosure statement or other disclosure document is not otherwise being prepared in connection with the Sale of the Company, then, at the option of the Board of Directors, the Member may receive, in lieu of such securities, the Fair Market Value of such securities in cash. (d) In connection with any Sale of the Company, each Member shall (i) make such customary representations and warranties, including, as applicable, as to due organization and good standing, power and authority, due approval, no conflicts and ownership and title of Shares (including the absence of liens with respect to such Shares) and no litigation pending or threatened against or affecting such Member relating to its ownership of Shares, agree to such covenants and enter into such definitive agreements, in each case as are customary for transactions of the nature of the Sale of the Company; provided, that no Member shall be required to make any representation or warranty or agree to any covenant that is more extensive or burdensome than those made by the other Members (provided, that (A) in no event will the GM Investor or any of its Affiliates, SoftBank or any of its Affiliates, Honda or any of its Affiliates or any Class F New Member or any of its Affiliates be required to enter into a non-competition agreement or be subject to any similar covenant or provision and (B) the Employee Members may be required to enter into certain covenants, including non-compete and non-solicit obligations) and (ii) be obligated to join on a several, and not joint, basis (determined in accordance with such Member’s proportionate share of the proceeds from the Sale of the Company) in any indemnification or other obligations that are part of the terms and conditions of the Sale of the Company (other than to the extent of any escrows or holdbacks established in connection with such Sale of the Company); provided, that no Member shall be obligated (A) to provide indemnification with respect to the representations, warranties, covenants or agreements of any other Member (other than to the extent of any escrows or holdbacks established in connection with such Sale of the Company), or (B) to incur liability to any Person in connection with such Sale of the Company, including under any indemnity, in excess of the consideration received by such Person in the Sale of the Company (other than for fraud or breach of a covenant). (e) Each Member will bear ~~his, her or~~ its ~~proportionate~~ pro rata share (based on its Percentage of Interests sold by such Member in relation to all Percentage of Interests) of the out-of-pocket costs ~~incurred in connection with a~~ of any Approved Sale of which are borne the ~~Company~~ Managing Member to the extent such costs ~~are incurred for the benefit of all such holders of Shares and~~ are not otherwise paid by the Company or the acquiring party. Costs incurred by ~~the holders of Shares~~ Members on their own behalf will not be considered costs of the ~~Sale of the Company~~transaction hereunder. (f) Any contingent consideration (whether as a result of a release of an escrow or the payment of an “earn out” or otherwise) to be paid in connection with a Sale of the Company shall be allocated among the Members such that each Member receives the amount which such Member would have received if such consideration had been received by the Company and distributed as the next incremental dollars following the Distribution of any amounts previously paid under this Agreement or paid in connection with such Sale of the Company (assuming for such purposes that the Shares Transferred constitute all of the Shares). In the event any Member is liable in such Sale of the Company for amounts in excess of any escrow or holdback (other than any such obligations that relate specifically to a particular Member, such as indemnification with respect to representations and warranties given by a Member regarding such Person’s title to and ownership of Shares), such amounts shall be treated as a deduction to the consideration payable in such Sale of the Company and the aggregate consideration shall be re-allocated among the Members in accordance with Section 9.08(b). The Members agree that to the extent, as a result of such re-allocation, a Member has received more than its share of the consideration pursuant to such re-allocation, such Member shall deliver such excess to the appropriate Member(s) in order for each Member to receive its appropriate share of the consideration. (g) Without limiting the generality of the other provisions of this Section 9.08 but subject to Section 5.11, the Board of Directors shall determine whether or not to pursue, consummate, postpone or abandon any Sale of the Company and, subject to the limitations expressly set forth in this Section 9.08, the terms and conditions thereof. (h) The provisions of this Section 9.08 shall not apply to any transaction pursuant to Sections 9.10 or 9.12.

Appears in 2 contracts

Samples: Limited Liability Company Agreement, Limited Liability Company Agreement (Penson Worldwide Inc)

Sale of the Company. (a) Provided that a Drag-Along Notice has not been delivered and the procedures in Section 9.09 are not then currently in effect, notwithstanding anything to the contrary in this Agreement, the Board of Directors may (subject to Section 5.11) elect to cause a Sale of the Company at any time. The Board of Directors shall direct and control all decisions in connection with a Sale of the Company (including the hiring or termination of any investment bank or professional adviser and making all decisions regarding valuation and consideration and the percentage of the Equity Securities in the Company to be sold) and, subject to Section 9.08(b) and Section 9.08(d), and without prejudice to Section 5.11, each Member shall vote for, consent to and not object to such Sale of the Company or the sale process associated therewith. If such Sale of the Company is structured as a sale of assets, merger or consolidation, then each Member shall, to the extent applicable to such transaction, vote for or consent to, and waive any dissenter’s rights, appraisal rights or similar rights in connection with, such sale, merger or consolidation. If such Sale of the Company is structured as a Transfer of Shares, and the Sale of the Company involves less than all of the Shares in the Company, then each Member shall Transfer the same percentage of each class or series of Shares (or rights to acquire Shares of any class or series) that it holds. Each Member and the Company shall take all reasonable and necessary actions in connection with the consummation of such Sale of the Company as may be requested by the Board of Directors, including (i) in the case of the Company only, engaging one or more investment banks and legal counsel selected by the Board of Directors to establish procedures acceptable to the Board of Directors to effect and to otherwise assist in connection with a Sale of the Company, (ii) taking such commercially reasonable actions and providing such commercially reasonable cooperation and assistance as may be necessary to consummate the Sale of the Company in an expeditious and efficient manner and not taking any action or engaging in any activity designed to hinder, prevent or delay the consummation of the Sale of the Company, (iii) in the case of the Company only, facilitating the due diligence process in respect of any such Sale of the Company, including establishing, populating and maintaining an online “data room”, (iv) in the case of the Company only, providing any financial or other information or audit required by the proposed buyer’s financing sources and (v) the execution of such agreements and such instruments and other actions reasonably necessary in connection with the Sale of the Company, including to provide customary representations, warranties, indemnities and escrow arrangements relating thereto, in each case in accordance with and subject to the limitations set forth in Section 9.08(d). (b) The obligations of the Members with respect to a Sale of the Company are subject to the satisfaction of the following conditions: (i) upon the consummation of such Sale of the Company, each holder of Shares, to the extent such holder is receiving any consideration, shall receive the same form(s) of consideration as each other holder of Shares receives (or the option to receive the same form of consideration), and (ii) the Sale of the Company will be a Deemed Liquidation Event and the aggregate consideration payable upon consummation of such Sale of the Company to all holders of Shares in respect of their Shares shall be apportioned and distributed (after such aggregate consideration is adjusted for Company expenses, purchase price adjustments, escrow amounts, purchase price holdbacks, indemnity obligations and other similar items) as between the classes of Shares in accordance with the relevant provisions of Section 3.02 (assuming that, if such Sale of the Company is structured as a Transfer of Shares and less than all of the Shares are being Transferred, the Shares included in the Transfer are all of the Shares outstanding). For clarity, the application of Section 3.02 may result in some Shares included in the Transfer not receiving any consideration with respect to such Sale of the Company. (c) If the Company, or if the holders of any Shares, enter into any negotiation or transaction for which Rule 506 (or any similar rule then in effect) promulgated by the SEC may be available with respect to such negotiation or transaction (including a merger, consolidation, or other reorganization), each holder of Equity Securities will, at the request of the Company, appoint either a purchaser representative (as such term is defined in Rule 501) designated by the Company, in which event the Company will pay the fees of such purchaser representative, or another purchaser representative (reasonably acceptable to the Company), in which event such holder will be responsible for the fees of the purchaser representative so appointed. Notwithstanding anything to the contrary, in connection with any Sale of the Company where the consideration in such Sale of the Company consists of or includes securities, if the issuance of such securities to the Member would require either a registration statement under the Securities Act, or preparation of a disclosure statement pursuant to Regulation D (or any successor regulation) under the Securities Act, or preparation of a disclosure document under a similar provision of any state securities law, and such registration statement or disclosure statement or other disclosure document is not otherwise being prepared in connection with the Sale of the Company, then, at the option of the Board of Directors, the Member may receive, in lieu of such securities, the Fair Market Value of such securities in cash. (d) In connection with any Sale of the Company, each Member shall (i) make such customary representations and warranties, including, as applicable, as to due organization and good standing, power and authority, due approval, no conflicts and ownership and title of Shares (including the absence of liens with respect to such Shares) and no litigation pending or threatened against or affecting such Member relating to its ownership of Shares, agree to such covenants and enter into such definitive agreements, in each case as are customary for transactions of the nature of the Sale of the Company; provided, that no Member shall be required to make any representation or warranty or agree to any covenant that is more extensive or burdensome than those made by the other Members (provided, that (A) in no event will the GM Investor or any of its Affiliates, SoftBank or any of its Affiliates, Honda or any of its ~~Affiliates~~ Affiliates, any Class F New Member or any of its Affiliates, or any Class F G New Member or any of its Affiliates be required to enter into a non-competition agreement or be subject to any similar covenant or provision and (B) the Employee Members may be required to enter into certain covenants, including non-compete and non-solicit obligations) and (ii) be obligated to join on a several, and not joint, basis (determined in accordance with such Member’s proportionate share of the proceeds from the Sale of the Company) in any indemnification or other obligations that are part of the terms and conditions of the Sale of the Company (other than to the extent of any escrows or holdbacks established in connection with such Sale of the Company); provided, that no Member shall be obligated (A) to provide indemnification with respect to the representations, warranties, covenants or agreements of any other Member (other than to the extent of any escrows or holdbacks established in connection with such Sale of the Company), or (B) to incur liability to any Person in connection with such Sale of the Company, including under any indemnity, in excess of the consideration received by such ~~Person~~ Member in the Sale of the Company (other than for fraud or breach of a covenant). (e) Each Member will bear his, her or its proportionate share of the costs incurred in connection with a Sale of the Company to the extent such costs are incurred for the benefit of all such holders of Shares and are not otherwise paid by the Company or the acquiring party. Costs incurred by the holders of Shares on their own behalf will not be considered costs of the Sale of the Company. (f) Any contingent consideration (whether as a result of a release of an escrow or the payment of an “earn out” or otherwise) to be paid in connection with a Sale of the Company shall be allocated among the Members such that each Member receives the amount which such Member would have received if such consideration had been received by the Company and distributed as the next incremental dollars following the Distribution of any amounts previously paid under this Agreement or paid in connection with such Sale of the Company (assuming for such purposes that the Shares Transferred constitute all of the Shares). In the event any Member is liable in such Sale of the Company for amounts in excess of any escrow or holdback (other than any such obligations that relate specifically to a particular Member, such as indemnification with respect to representations and warranties given by a Member regarding such Person’s title to and ownership of Shares), such amounts shall be treated as a deduction to the consideration payable in such Sale of the Company and the aggregate consideration shall be re-allocated among the Members in accordance with Section 9.08(b). The Members agree that to the extent, as a result of such re-allocation, a Member has received more than its share of the consideration pursuant to such re-allocation, such Member shall deliver such excess to the appropriate Member(s) in order for each Member to receive its appropriate share of the consideration. (g) Without limiting the generality of the other provisions of this Section 9.08 but subject to Section 5.11, the Board of Directors shall determine whether or not to pursue, consummate, postpone or abandon any Sale of the Company and, subject to the limitations expressly set forth in this Section 9.08, the terms and conditions thereof. (h) The provisions of this Section 9.08 shall not apply to any transaction pursuant to Sections 9.10 or 9.12.

Appears in 2 contracts

Samples: Limited Liability Company Agreement (General Motors Co), Limited Liability Company Agreement (General Motors Co)

Sale of the Company. (a) ~~Provided that a Drag-Along Notice has not been delivered and~~ During the ~~procedures in Section 9.09 are not then currently in effect, notwithstanding anything to~~ term of this Agreement or the ~~contrary in this Agreement, the Board of Directors may~~ Severance Period (subject to Section 5.11) elect to cause a Sale of the Company at any time. The Board of Directors shall direct and control all decisions in connection with a Sale of the Company (including the hiring or termination of any investment bank or professional adviser and making all decisions regarding valuation and consideration and the percentage of the Equity Securities in the Company to be sold) and, subject to Section 9.08(b) and Section 9.08(das defined below), and without prejudice to Section 5.11, each Member shall vote for, consent to and not object to such Sale of the Company or the sale process associated therewith. If such Sale of the Company is structured as upon (i) a sale of ~~assets, merger~~ all or consolidation, then each Member shall, to the extent applicable to such transaction, vote for or consent to, and waive any dissenter’s rights, appraisal rights or similar rights in connection with, such sale, merger or consolidation. If such Sale of the Company is structured as a Transfer of Shares, and the Sale of the Company involves less than substantially all of the Shares in the Company, then each Member shall Transfer the same percentage of each class or series of Shares (or rights to acquire Shares of any class or series) that it holds. Each Member and the Company shall take all reasonable and necessary actions in connection with the consummation of such Sale of the Company as may be requested by the Board of Directors, including (i) in the case of the Company only, engaging one or more investment banks and legal counsel selected by the Board of Directors to establish procedures acceptable to the Board of Directors to effect and to otherwise assist in connection with a Sale assets of the Company, (ii) ~~taking such commercially reasonable actions and providing such commercially reasonable cooperation and assistance as may be necessary to consummate the Sale~~ a merger of the Company ~~in an expeditious and efficient manner and~~ with another entity where the Company is not ~~taking any action~~ the surviving entity or ~~engaging in any activity designed to hinder, prevent or delay~~ where the ~~consummation~~ stockholders of the ~~Sale~~ Company immediately prior to the merger own less than fifty percent (50%) of the ~~Company~~voting stock of the Company following the merger, or (iii) a change in the ~~case~~ membership of the ~~Company only~~Board of Directors such that individuals who, ~~facilitating the due diligence process in respect of any such Sale~~ as of the ~~Company~~date hereof, ~~including establishing, populating and maintaining an online~~ constitute the Board of Directors (the “~~data room~~Incumbent Board”~~, (iv~~) ~~in the case~~ cease for any reason to constitute at least a majority of the ~~Company only~~Board of Directors; provided, ~~providing~~ however, that any ~~financial~~ individual becoming a director subsequent to the date hereof whose election, or nomination for election by the Company’s shareholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as though the individual were a member of the Incumbent Board, but excluding, for this purpose, any individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other ~~information~~ actual or ~~audit required~~ threatened solicitation of proxies or consents by or on behalf of a person other than the ~~proposed buyer~~Company’s ~~financing sources~~ Board of Directors, the Executive shall receive $500,000 from the Company and ~~(v) the execution of such agreements and such instruments and other actions reasonably necessary in connection with the Sale~~ all of the ~~Company, including to provide customary representations, warranties, indemnities and escrow arrangements relating thereto, in each case in accordance with and subject~~ Executive’s options that have been granted pursuant to the ~~limitations~~ terms set forth in ~~Section 9.08(d)~~his previous employment agreement shall vest immediately. (b) ~~The obligations~~ Notwithstanding any other provision of this Agreement or of any other agreement, contract, or understanding heretofore or hereafter entered into by the ~~Members~~ Executive with ~~respect to a Sale of the Company are subject to the satisfaction of the following conditions: (i) upon the consummation of such Sale of~~ the Company, ~~each holder~~ except an agreement, contract, or understanding hereafter entered into that expressly modifies or excludes application of ~~Shares~~this paragraph (an “Other Agreement”), and notwithstanding any formal or informal employment agreement or other arrangement for the direct or indirect provision of compensation to the Executive (including groups or classes of participants or beneficiaries of which the Executive is a member), whether or not such compensation is deferred, is in cash, or is in the form of a benefit to or for the Executive (a “Benefit Arrangement”), if the Executive is a “disqualified individual,” as defined in Section 280G(c) of the Internal Revenue Code (the “Code”), any right to receive any payment or other benefit under this Agreement shall not become exercisable or vested or shall be forfeited to the extent that such ~~holder is receiving any consideration~~right to exercise, ~~shall receive~~ vesting, payment, or benefit, taking into account all other rights, payments, or benefits to or for the ~~same form(s) of consideration as each other holder of Shares receives (or the option to receive the same form of consideration)~~Executive under this Agreement, all Other Agreements, and ~~(ii) the Sale of the Company will be a Deemed Liquidation Event and the aggregate consideration payable upon consummation of such Sale of the Company to~~ all ~~holders of Shares in respect of their Shares shall be apportioned and distributed (after such aggregate consideration is adjusted for Company expenses~~Benefit Arrangements, purchase price adjustments, escrow amounts, purchase price holdbacks, indemnity obligations and other similar items) as between the classes of Shares in accordance with the relevant provisions of Section 3.02 (assuming that, if such Sale of the Company is structured as a Transfer of Shares and less than all of the Shares are being Transferred, the Shares included in the Transfer are all of the Shares outstanding). For clarity, the application of Section 3.02 may result in some Shares included in the Transfer not receiving would cause any ~~consideration with respect to such Sale of the Company. (c) If the Company,~~ payment or if the holders of any Shares, enter into any negotiation or transaction for which Rule 506 (or any similar rule then in effect) promulgated by the SEC may be available with respect to such negotiation or transaction (including a merger, consolidation, or other reorganization), each holder of Equity Securities will, at the request of the Company, appoint either a purchaser representative (as such term is defined in Rule 501) designated by the Company, in which event the Company will pay the fees of such purchaser representative, or another purchaser representative (reasonably acceptable benefit to the Company), in which event such holder will be responsible for the fees of the purchaser representative so appointed. Notwithstanding anything to the contrary, in connection with any Sale of the Company where the consideration in such Sale of the Company consists of or includes securities, if the issuance of such securities to the Member would require either a registration statement under the Securities Act, or preparation of a disclosure statement pursuant to Regulation D (or any successor regulation) under the Securities Act, or preparation of a disclosure document under a similar provision of any state securities law, and such registration statement or disclosure statement or other disclosure document is not otherwise being prepared in connection with the Sale of the Company, then, at the option of the Board of Directors, the Member may receive, in lieu of such securities, the Fair Market Value of such securities in cash. (d) In connection with any Sale of the Company, each Member shall (i) make such customary representations and warranties, including, as applicable, as to due organization and good standing, power and authority, due approval, no conflicts and ownership and title of Shares (including the absence of liens with respect to such Shares) and no litigation pending or threatened against or affecting such Member relating to its ownership of Shares, agree to such covenants and enter into such definitive agreements, in each case as are customary for transactions of the nature of the Sale of the Company; provided, that no Member shall be required to make any representation or warranty or agree to any covenant that is more extensive or burdensome than those made by the other Members (provided, that (A) in no event will the GM Investor or any of its Affiliates, SoftBank or any of its Affiliates, Honda or any of its Affiliates or any Class F New Member or any of its Affiliates be required to enter into a non-competition agreement or be subject to any similar covenant or provision and (B) the Employee Members may be required to enter into certain covenants, including non-compete and non-solicit obligations) and (ii) be obligated to join on a several, and not joint, basis (determined in accordance with such Member’s proportionate share of the proceeds from the Sale of the Company) in any indemnification or other obligations that are part of the terms and conditions of the Sale of the Company (other than to the extent of any escrows or holdbacks established in connection with such Sale of the Company); provided, that no Member shall be obligated (A) to provide indemnification with respect to the representations, warranties, covenants or agreements of any other Member (other than to the extent of any escrows or holdbacks established in connection with such Sale of the Company), or (B) to incur liability to any Person in connection with such Sale of the Company, including under any indemnity, in excess of the consideration received by such Person in the Sale of the Company (other than for fraud or breach of a covenant). (e) Each Member will bear his, her or its proportionate share of the costs incurred in connection with a Sale of the Company to the extent such costs are incurred for the benefit of all such holders of Shares and are not otherwise paid by the Company or the acquiring party. Costs incurred by the holders of Shares on their own behalf will not be considered costs of the Sale of the Company. (f) Any contingent consideration (whether as a result of a release of an escrow or the payment of an “earn out” or otherwise) to be paid in connection with a Sale of the Company shall be allocated among the Members such that each Member receives the amount which such Member would have received if such consideration had been received by the Company and distributed as the next incremental dollars following the Distribution of any amounts previously paid Executive under this Agreement ~~or paid in connection with such Sale~~ to be considered a “parachute payment” within the meaning of Section 280G(b)(2) of the ~~Company~~ Code as then in effect (~~assuming for such purposes that the Shares Transferred constitute all of the Shares~~a “Parachute Payment”). In the event ~~any Member is liable in such Sale of~~ that the ~~Company for amounts in excess~~ receipt of any ~~escrow~~ such right to exercise, vesting, payment, or ~~holdback (~~benefit under this Agreement, in conjunction with all other ~~than~~ rights, payments, or benefits to or for the Executive under any ~~such obligations~~ Other Agreement or any Benefit Arrangement would cause the Executive to be considered to have received a Parachute Payment under this Agreement, then the Executive shall have the right, in the Executive’s sole discretion, to designate those rights, payments, or benefits under this Agreement, any Other Agreements, and any Benefit Arrangements that ~~relate specifically~~ should be reduced or eliminated so as to a particular Member, such as indemnification with respect to representations and warranties given by a Member regarding such Person’s title to and ownership of Shares), such amounts shall be treated as a deduction avoid having the payment or benefit to the ~~consideration payable in such Sale of the Company and the aggregate consideration shall~~ Executive under this Agreement be ~~re-allocated among the Members in accordance with Section 9.08(b). The Members agree that~~ deemed to ~~the extent, as~~ be a result of such re-allocation, a Member has received more than its share of the consideration pursuant to such re-allocation, such Member shall deliver such excess to the appropriate Member(s) in order for each Member to receive its appropriate share of the considerationParachute Payment. (g) Without limiting the generality of the other provisions of this Section 9.08 but subject to Section 5.11, the Board of Directors shall determine whether or not to pursue, consummate, postpone or abandon any Sale of the Company and, subject to the limitations expressly set forth in this Section 9.08, the terms and conditions thereof. (h) The provisions of this Section 9.08 shall not apply to any transaction pursuant to Sections 9.10 or 9.12.

Appears in 2 contracts

Samples: Employment Agreement (MCF Corp), Employment Agreement (MCF Corp)

Sale of the Company. (a) ~~Provided~~ If, in order to effect a Sale of the Company, the 399 Stockholders (i) propose to Transfer to a third party (which is not an Affiliate of any of the 399 Stockholders) (the "Acquiror") Restricted Securities that include 50% or more of the shares of Common Stock owned by them in the aggregate on a ~~Drag~~Diluted Basis, the 399 Stockholders shall have the right to require the other Stockholders to Transfer a corresponding percentage of their Restricted Securities (determined on a class-~~Along Notice has not been delivered~~ by-class basis) to such third party on the same terms, or (ii) propose the Transfer of 50% or more of the assets (whether by merger, sale or otherwise) of the Company to any such third party, the 399 Stockholders shall in each case have the right (a "Sale of the Company Right") to require (x) the Stockholders to take all action necessary or appropriate (including replacement of the directors or management committee members designated by such Stockholders) in order to cause the Company to take all action necessary or appropriate to give effect to such transaction and (y) the ~~procedures~~ Stockholders to approve such transaction in ~~Section 9.09 are not then currently~~ their capacity as stockholders of the Company (a transaction described in ~~effect~~clause (i) or (ii), ~~notwithstanding anything~~ a "Sale of the Company Sale"); provided, that upon the consummation of any transaction resulting in a sale or transfer of all or substantially all of the assets of the Company (whether by merger, sale or otherwise), the Company will immediately distribute all of the net proceeds of such transaction to the ~~contrary~~ Stockholders in ~~this Agreement, the Board of Directors may~~ accordance with their respective rights and privileges. (~~subject~~ b) In order to ~~Section 5.11) elect to cause~~ exercise a Sale of the Company ~~at any time. The Board~~ Right, the 399 Stockholders shall notify each other Stockholder, such notice to set forth the terms and conditions of ~~Directors shall direct and control all decisions in connection with a~~ the proposed Sale of the Company (including the hiring or termination of any investment bank or professional adviser and making all decisions regarding valuation and consideration and the percentage of the Equity Securities in the Company to be sold) and, subject to Section 9.08(b) and Section 9.08(d), and without prejudice to Section 5.11, each Member shall vote for, consent to and not object to such Sale of the Company or the sale process associated therewith. If such Sale of the Company is structured as a sale of assets, merger or consolidation, then each Member shall, to the extent applicable to such transaction, vote for or consent to, and waive any dissenter’s rights, appraisal rights or similar rights in connection with, such sale, merger or consolidation. If such Sale of the Company is structured as a Transfer of Shares, and the Sale of the Company involves less than all of the Shares in the Company, then each Member shall Transfer the same percentage of each class or series of Shares (or rights to acquire Shares of any class or series) that it holdsSale. Each ~~Member and the Company shall~~ such Stockholder will take all ~~reasonable and necessary~~ actions reasonably requested by the 399 Stockholders in connection with the consummation of such Sale of the Company Sale, and within 10 business days of the receipt of such notice (or such longer period of time as ~~may~~ the Stockholders shall designate in such notice), if such transaction is structured as a sale of assets or a merger, such Stockholders shall approve the transaction in their capacities as stockholders of the Company, and if such transaction is a sale of Restricted Securities, such Stockholders shall cause the applicable percentage of each class of their respective Restricted Securities to be ~~requested~~ sold to the Acquiror on the same terms and conditions and for the same per share or per unit consideration as the Restricted Securities being sold by the ~~Board~~ 399 Stockholders; provided, however, that the consideration to be paid for each Equity Equivalent shall be equal to the price that would be paid for the shares of ~~Directors~~Common Stock issuable upon the exercise thereof minus the exercise price then applicable under the terms of such Equity Equivalent. In furtherance of, ~~including (i)~~ and not in ~~the case~~ limitation of the ~~Company only~~foregoing, ~~engaging one or more investment banks and legal counsel selected by the Board of Directors to establish procedures acceptable to the Board of Directors to effect and to otherwise assist~~ in connection with a Sale of the ~~Company~~Company Sale, subject to Section 2.7(c), each Stockholder will (iii) ~~taking such commercially reasonable actions and providing such commercially reasonable cooperation and assistance as may be necessary to consummate~~ raise no objections against the Sale of the Company ~~in an expeditious~~ Sale or the process pursuant to which it was arranged, (ii) waive any appraisal, dissenter or similar rights under applicable law, and ~~efficient manner and not taking any action or engaging in any activity designed to hinder, prevent or delay the consummation of the Sale of the Company,~~ (iii) ~~in the case of the Company only, facilitating the due diligence process in respect of any~~ execute all documents containing such ~~Sale of the Company, including establishing, populating~~ terms and ~~maintaining an online “data room”, (iv) in the case of the Company only, providing any financial or~~ conditions as those executed by other ~~information or audit required~~ Stockholders as directed by the proposed buyer’s financing sources and (v) the execution of such agreements and such instruments and other actions reasonably necessary in connection with the Sale of the Company, including to provide customary representations, warranties, indemnities and escrow arrangements relating thereto, in each case in accordance with and subject to the limitations set forth in Section 9.08(d). (b) The obligations of the Members with respect to a Sale of the Company are subject to the satisfaction of the following conditions: (i) upon the consummation of such Sale of the Company, each holder of Shares, to the extent such holder is receiving any consideration, shall receive the same form(s) of consideration as each other holder of Shares receives (or the option to receive the same form of consideration), and (ii) the Sale of the Company will be a Deemed Liquidation Event and the aggregate consideration payable upon consummation of such Sale of the Company to all holders of Shares in respect of their Shares shall be apportioned and distributed (after such aggregate consideration is adjusted for Company expenses, purchase price adjustments, escrow amounts, purchase price holdbacks, indemnity obligations and other similar items) as between the classes of Shares in accordance with the relevant provisions of Section 3.02 (assuming that, if such Sale of the Company is structured as a Transfer of Shares and less than all of the Shares are being Transferred, the Shares included in the Transfer are all of the Shares outstanding). For clarity, the application of Section 3.02 may result in some Shares included in the Transfer not receiving any consideration with respect to such Sale of the Company399 Stockholders. (c) ~~If the Company, or if the holders of~~ Unless otherwise agreed in writing by any ~~Shares, enter into any negotiation or transaction for which Rule 506 (or any similar rule then in effect) promulgated by the SEC may be available~~ 399 Stockholder with respect to the obligations of any other Stockholder, such ~~negotiation or transaction~~ other Stockholder shall be severally obligated to join on a Pro Rata basis (~~including a merger, consolidation, or other reorganization), each holder of Equity Securities will, at the request~~ based on such Stockholder's share of the Company, appoint either a purchaser representative (as such term is defined in Rule 501) designated by the Company, in which event the Company will pay the fees of such purchaser representative, or another purchaser representative (reasonably acceptable to the Company), in which event such holder will be responsible for the fees of the purchaser representative so appointed. Notwithstanding anything to the contrary, in connection with any Sale of the Company where the consideration aggregate proceeds paid in such Sale of the Company consists of or includes securities, if the issuance of such securities to the Member would require either a registration statement under the Securities Act, or preparation of a disclosure statement pursuant to Regulation D (or any successor regulation) under the Securities Act, or preparation of a disclosure document under a similar provision of any state securities law, and such registration statement or disclosure statement or other disclosure document is not otherwise being prepared in connection with the Sale of the Company, then, at the option of the Board of Directors, the Member may receive, in lieu of such securities, the Fair Market Value of such securities in cash. (d) In connection with any Sale of the Company, each Member shall (i) make such customary representations and warranties, including, as applicable, as to due organization and good standing, power and authority, due approval, no conflicts and ownership and title of Shares (including the absence of liens with respect to such Shares) and no litigation pending or threatened against or affecting such Member relating to its ownership of Shares, agree to such covenants and enter into such definitive agreements, in each case as are customary for transactions of the nature of the Sale of the Company; provided, that no Member shall be required to make any representation or warranty or agree to any covenant that is more extensive or burdensome than those made by the other Members (provided, that (A) in no event will the GM Investor or any of its Affiliates, SoftBank or any of its Affiliates, Honda or any of its Affiliates or any Class F New Member or any of its Affiliates be required to enter into a non-competition agreement or be subject to any similar covenant or provision and (B) the Employee Members may be required to enter into certain covenants, including non-compete and non-solicit obligations) and (ii) be obligated to join on a several, and not joint, basis (determined in accordance with such Member’s proportionate share of the proceeds from the Sale of the CompanySale) in any indemnification or other obligations that ~~are part of~~ the ~~terms and conditions of the Sale of the Company (other than~~ 399 Stockholders agree to the extent of any escrows or holdbacks established in connection with such Sale of the Company); provided, that no Member shall be obligated (A) to provide indemnification with respect to the representations, warranties, covenants or agreements of any other Member (other than to the extent of any escrows or holdbacks established in connection with such Sale of the Company), or (B) to incur liability to any Person in connection with such Sale of the Company, including under any indemnity, in excess of the consideration received by such Person in the Sale of the Company (other than for fraud or breach of a covenant). (e) Each Member will bear his, her or its proportionate share of the costs incurred in connection with a Sale of the Company to the extent such costs are incurred for the benefit of all such holders of Shares and are not otherwise paid by the Company or the acquiring party. Costs incurred by the holders of Shares on their own behalf will not be considered costs of the Sale of the Company. (f) Any contingent consideration (whether as a result of a release of an escrow or the payment of an “earn out” or otherwise) to be paid in connection with a Sale of the Company shall be allocated among the Members such that each Member receives the amount which such Member would have received if such consideration had been received by the Company and distributed as the next incremental dollars following the Distribution of any amounts previously paid under this Agreement or paid in connection with such Sale of the Company ~~(assuming for such purposes that the Shares Transferred constitute all of the Shares). In the event any Member is liable in such Sale of the Company for amounts in excess of any escrow or holdback (~~Sale, other than any such obligations that relate specifically to a particular ~~Member~~Stockholder, such as indemnification with respect to representations and warranties given by a ~~Member~~ Stockholder regarding such ~~Person’s~~ Stockholder's title to and ownership of ~~Shares),~~ Restricted Securities or valid authorization by such ~~amounts shall be treated as a deduction~~ Stockholder with respect to ~~the consideration payable in~~ such Sale of the Company ~~and the aggregate consideration~~ Sale; provided that no Stockholder shall be ~~re-allocated among the Members~~ obligated in ~~accordance~~ connection with ~~Section 9.08(b). The Members agree that to the extent, as a result of~~ such re-allocation, a Member has received more than its share of the consideration pursuant to such re-allocation, such Member shall deliver such excess to the appropriate Member(s) in order for each Member to receive its appropriate share of the consideration. (g) Without limiting the generality of the other provisions of this Section 9.08 but subject to Section 5.11, the Board of Directors shall determine whether or not to pursue, consummate, postpone or abandon any Sale of the Company ~~and, subject~~ Sale to agree to indemnify or hold harmless the prospective transferee(s) with respect to an amount in excess of the net cash proceeds paid to such Stockholder in connection with such Sale of the Company Sale. All Stockholders will bear their Pro-Rata share of the costs and expenses incurred in connection with a Sale of the Company Sale to the ~~limitations expressly set forth in this Section 9.08,~~ extent such costs are incurred for the ~~terms~~ benefit of all Stockholders and ~~conditions thereof~~are not otherwise paid by the Company or the Acquiror. Costs incurred by any Stockholder on its own behalf will not be shared by any other Stockholder. ~~(h) The provisions of this Section 9.08 shall not apply to any transaction pursuant to Sections 9.10 or 9.12.~~

Appears in 2 contracts

Samples: Investors' Agreement (Analog Acquisition Corp), Investors' Agreement (Allied Digital Technologies Corp)

Sale of the Company. (a) ~~Provided that a Drag-Along Notice has not been delivered and~~ Subject to Section 8.4(b), with the ~~procedures in Section 9.09 are not then currently in effect, notwithstanding anything to the contrary in this Agreement~~prior approval of Supermajority Consent, the ~~Board~~ Members constituting such Supermajority Consent (solely in the case of ~~Directors may (subject~~ this Section 10.5, the “Initiating Members”) shall have the right to ~~Section 5.11) elect to cause~~ effect a Sale of the Company ~~at any time. The Board of Directors shall direct and control all decisions in connection with~~ to a ~~Sale of the Company (including the hiring or termination~~ third party buyer that is not an Affiliate of any ~~investment bank or professional adviser and making all decisions regarding valuation and consideration and the percentage of the Equity Securities in the Company to be sold) and~~Initiating Member, subject to ~~Section 9.08(b)~~ the conditions and Section 9.08(d), and without prejudice to Section 5.11, each Member shall vote for, consent to and not object to such Sale of the Company or the sale process associated therewith. If such Sale of the Company is structured as a sale of assets, merger or consolidation, then each Member shall, to the extent applicable to such transaction, vote for or consent to, and waive any dissenter’s rights, appraisal rights or similar rights in connection with, such sale, merger or consolidation. If such Sale of the Company is structured as a Transfer of Shares, and the Sale of the Company involves less than all of the Shares in the Company, then each Member shall Transfer the same percentage of each class or series of Shares (or rights to acquire Shares of any class or series) that it holds. Each Member and the Company shall take all reasonable and necessary actions in connection accordance with the ~~consummation~~ procedures described in this Section 10.5. The Initiating Members shall provide the other Members with at least forty-five (45) days advance notice of such Sale of the Company as may be requested by the Board of Directors, including (i) in the case of the Company only, engaging one or more investment banks and legal counsel selected by the Board of Directors its intent to establish procedures acceptable to the Board of Directors to effect and to otherwise assist in connection with a Sale of the Company, (ii) taking such commercially reasonable actions and providing such commercially reasonable cooperation and assistance as may be necessary to consummate the Sale of the Company in an expeditious and efficient manner and not taking any action or engaging in any activity designed to hinder, prevent or delay the consummation of the Sale of the Company, (iii) in the case of the Company only, facilitating the due diligence process in respect exercise its rights under this Section 10.5. The proceeds of any such Sale of the ~~Company, including establishing, populating and maintaining an online “data room”, (iv)~~ Company shall be shared by all Members in the ~~case~~ same manner as if such proceeds had been distributed by the Company pursuant to Section 11.3(a). (b) In any Sale of the Company ~~only~~in which Members will Transfer Units, ~~providing any financial or other information or audit required by~~ each Member shall agree to make to the ~~proposed buyer’s financing sources~~ buyer the same representations and ~~(v)~~ warranties, covenants and indemnities as the ~~execution of such agreements and such instruments and other actions reasonably necessary~~ Initiating Members agree to make in connection with the Sale of the Company; provided, that (i) no Member shall be liable for the breach of any covenant by another such Member, (ii) in no event shall any such Member be required to make representations and warranties or provide indemnities as to any other Member and (iii) any liability relating to representations and warranties (and related indemnities), other indemnification obligations or purchase price adjustments (including ~~to provide customary representations, warranties, indemnities and escrow arrangements relating thereto,~~ in each case related escrow or holdback arrangements) regarding the Business in ~~accordance~~ connection with and subject to the limitations set forth in Section 9.08(d). (b) The obligations of the Members with respect to a Sale of the Company are subject to the satisfaction of the following conditions: (i) upon the consummation of such Sale of the Company, each holder of Shares, to the extent such holder is receiving any consideration, shall receive the same form(s) of consideration as each other holder of Shares receives (or the option to receive the same form of consideration), and (ii) the Sale of the Company ~~will~~ shall be ~~a Deemed Liquidation Event and~~ shared by each Member pro rata in proportion to the ~~aggregate~~ consideration ~~payable upon consummation of such~~ to be received in the Sale of the Company ~~to all holders of Shares in respect of their Shares~~ by each such Member; provided, that no Member shall be ~~apportioned and distributed~~ liable with respect to such indemnification obligations (~~after such aggregate~~ other than indemnification obligations with respect to fraud, bad faith, gross negligence or willful misconduct) in excess of the consideration ~~is adjusted for Company expenses, purchase price adjustments, escrow amounts, purchase price holdbacks, indemnity obligations and other similar items) as between~~ to be received in the ~~classes of Shares in accordance with the relevant provisions of Section 3.02 (assuming that, if such~~ Sale of the Company ~~is structured as~~ by such Member. In no event shall any Member be required to be bound by any non-compete, no contact, non-solicit, or similar restrictive covenants (other than a ~~Transfer of Shares and less than all of the Shares are being Transferred, the Shares included~~ confidentiality covenant on terms substantially similar to those herein) in ~~the Transfer are all of the Shares outstanding). For clarity, the application of Section 3.02 may result in some Shares included in the Transfer not receiving~~ connection with any ~~consideration with respect to such~~ Sale of the Company. (c) If Notwithstanding anything to the ~~Company~~contrary herein, in connection with a Transfer (under this Agreement or any other related agreement or otherwise) by any Blocker Company Investor (or direct or indirect beneficial owner thereof), the Company and the other Members shall permit any Blocker Company Investor to Transfer shares, units, interests, or ~~if the holders of any Shares, enter into any negotiation or transaction for which Rule 506 (or any~~ other similar ~~rule then in effect) promulgated by the SEC may be available~~ rights with respect to such ~~negotiation~~ Blocker Company pursuant to such Transfer, instead of Units (a “Blocker Transfer”). In connection with one or ~~transaction~~ more Blocker Transfers: (A) each Blocker Company Investor and its Affiliates shall be permitted to take reasonable actions to restructure their holdings with respect to the relevant Blocker Company and the Units directly or indirectly held thereby; and (B) the Blocker Company Investors and other Members shall be entitled to receive the same value of capital stock, units or interests and any other consideration (including cash) as they would be entitled to receive if all Members and Blocker Companies had directly transferred the Units held by them (i.e., no discount or premium shall be disproportionately borne or received by a ~~merger, consolidation, or other reorganization), each holder of Equity Securities will, at the request~~ Blocker Company Investor on account of the ~~Company, appoint either~~ transfer of a purchaser representative (as such term is defined in Rule 501) designated by the Company, in which event the Company will pay the fees of such purchaser representative, or another purchaser representative (reasonably acceptable to the Blocker Company), in which event such holder will be responsible for the fees of the purchaser representative so appointed. Notwithstanding anything to the contrary, in connection with any Sale of the Company where the consideration in such Sale of the Company consists of or includes securities, if the issuance of such securities to the Member would require either a registration statement under the Securities Act, or preparation of a disclosure statement pursuant to Regulation D (or any successor regulation) under the Securities Act, or preparation of a disclosure document under a similar provision of any state securities law, and such registration statement or disclosure statement or other disclosure document is not otherwise being prepared in connection with the Sale of the Company, then, at the option of the Board of Directors, the Member may receive, in lieu of such securities, the Fair Market Value of such securities in cash. (d) The Initiating Members may cause a Sale of the Company pursuant to an IPO. In connection with an IPO, the Initiating Members may cause the Company to use any ~~Sale~~ structure or means by which to effect an IPO, including by the conversion of the Company, each Member shall (i) make such customary representations and warranties, including, as applicable, as to due organization and good standing, power and authority, due approval, no conflicts and ownership and title of Shares (including the absence of liens with respect to such Shares) and no litigation pending Company or ~~threatened against or affecting such Member relating to its ownership of Shares, agree to such covenants and enter into such definitive agreements, in each case as are customary for transactions~~ any Subsidiary of the ~~nature~~ Company or any portion of the ~~Sale~~ Company or any Subsidiary of the ~~Company; provided~~Company into one or more other business entities (any such conversion or other means, a “Reorganization” and the resulting vehicle that ~~no Member shall be required to make any representation or warranty or agree to any covenant that is more extensive or burdensome than those made by~~ will participate in an IPO, the ~~other Members (~~“PublicCo”), provided, that (Ai) each Member shall receive the same economic rights in ~~no event will the GM Investor or~~ any ~~of its Affiliates, SoftBank or any of its Affiliates, Honda or any of its Affiliates or any Class F New Member or any of its Affiliates be required~~ such successor entity as in effect immediately prior to enter into a non-competition agreement or be subject to any similar covenant or provision and (B) the Employee Members may be required to enter into certain covenants, including non-compete and non-solicit obligations) and such Reorganization; (ii) ~~be obligated to join on a several,~~ such Reorganization does not materially and ~~not joint, basis~~ adversely affect the tax liability of any Member; and (~~determined in accordance with such Member’s proportionate share of the proceeds from the Sale of the Company~~iii) ~~in any indemnification or other obligations that are part of the terms and conditions of the Sale of the Company (other than~~ to the extent reasonably practicable, such Reorganization shall be structured in a tax-deferred (and otherwise tax-efficient) manner for the Members. Each of the Members shall take all actions reasonably requested by the Initiating Members in connection with the consummation of such Reorganization, including consenting to, voting for and participating in any ~~escrows~~ exchange or ~~holdbacks established~~ other transaction required in connection with such ~~Sale~~ Reorganization. No Member shall have any right to vote, consent to or approve any Reorganization in connection with an IPO, unless required by applicable Law. Each of the ~~Company); provided~~Members shall take all necessary or desirable actions reasonably requested by the Initiating Members in connection with the consummation of an IPO, including compliance with the requirements of all Laws and regulatory bodies that ~~no Member~~ are applicable or that have jurisdiction over such IPO. If such IPO is an underwritten offering if requested by the managing underwriters, each of the Members shall ~~be obligated (A) to provide indemnification~~ execute customary lock-up agreements with respect to ~~the representations, warranties, covenants~~ their Interests or ~~agreements of~~ any other Member (other than to the extent of any escrows or holdbacks established in connection with such Sale of the Company), or (B) to incur liability to any Person in connection with such Sale of the Company, including under any indemnity, in excess of the consideration securities received by ~~such Person~~ them in ~~the Sale of the Company (other than for fraud or breach of a covenant)~~any attendant Reorganization. (e) ~~Each Member will bear his~~Without limiting the generality of Section 10.5(d) and notwithstanding anything to the contrary herein, ~~her or its proportionate share~~ upon the written request of ~~the costs incurred~~ a Blocker Company Investor, in connection with a Sale of the Company pursuant to an IPO, such Blocker Company Investor shall be permitted to merge one or more of its Blocker Companies meeting the ~~extent~~ requirements set forth in Section 10.5(d)(i), into PublicCo or to contribute its respective shares, units, interests or other similar rights with respect to such ~~costs are incurred for the benefit of all such holders of Shares and are not otherwise paid by the~~ Blocker Company or the acquiring party. Costs incurred by the holders of Shares on their own behalf will not be considered costs of the Sale of the Company. (f) Any contingent consideration (whether as a result of a release of an escrow or the payment of an “earn out” or otherwise) to ~~be paid~~ PublicCo in connection with any Reorganization (any such merger or contribution, a ~~Sale of the~~ “Blocker Company ~~shall be allocated among the Members such that each Member receives the amount which such Member would have received if such consideration had been received by~~ Contribution”), the Company and ~~distributed as~~ each Member shall give effect to and permit such Blocker Company Contribution substantially concurrently with the ~~next incremental dollars following the Distribution of any amounts previously paid under this Agreement or paid in connection with such Sale~~ consummation of the Reorganization and the PublicCo and each Member shall use reasonable best efforts to take such administrative actions and execute such documents as may be reasonably necessary to permit such Blocker Company Contribution to occur on a tax-deferred basis (~~assuming for such purposes that the Shares Transferred constitute all of the Shares~~including, as appropriate, under Code Section 368(a) or Code Section 351(a)~~. In the event any Member is liable in such Sale of the Company for amounts in excess of any escrow or holdback (other than~~ ) and to otherwise cause any such ~~obligations~~ Blocker Company Contribution to be structured and consummated in a manner that relate specifically to a particular Member, such as indemnification with respect to representations and warranties given by a Member regarding such Person’s title to and ownership of Shares), such amounts shall be treated as a deduction does not result in taxation to the ~~consideration payable in such Sale of the~~ Blocker Company and the aggregate consideration shall be re-allocated among the Members in accordance with Section 9.08(b). The Members agree that to the extent, as a result of such re-allocation, a Member has received more than its share of the consideration pursuant to such re-allocation, such Member shall deliver such excess to the appropriate Member(s) in order for each Member to receive its appropriate share of the considerationor Blocker Company Investors. (g) Without limiting the generality of the other provisions of this Section 9.08 but subject to Section 5.11, the Board of Directors shall determine whether or not to pursue, consummate, postpone or abandon any Sale of the Company and, subject to the limitations expressly set forth in this Section 9.08, the terms and conditions thereof. (h) The provisions of this Section 9.08 shall not apply to any transaction pursuant to Sections 9.10 or 9.12.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Applied Blockchain, Inc.)

Sale of the Company. (a) Provided that a Drag-Along Notice has not been delivered and the procedures in Section 9.09 are not then currently in effect, notwithstanding anything to the contrary in this Agreement, the Board of Directors may (subject to Section 5.11) elect to cause a Sale of the Company at any time. The Board of Directors shall direct and control all decisions in connection with a Sale of the Company (including the hiring or termination of any investment bank or professional adviser and making all decisions regarding valuation and consideration and the percentage of the Equity Securities in the Company to be sold) and, subject to Section 9.08(b) and Section 9.08(d), and without prejudice to Section 5.11, each Member shall vote for, consent to and not object to such Sale of the Company or the sale process associated therewith. If such Sale of the Company is structured as a sale of assets, merger or consolidation, then each Member shall, to the extent applicable to such transaction, vote for or consent to, and waive any dissenter’s rights, appraisal rights or similar rights in connection with, such sale, merger or consolidation. If such Sale of the Company is structured as a Transfer of Shares, and the Sale of the Company involves less than all of the Shares in the Company, then each Member shall Transfer the same percentage of each class or series of Shares (or rights to acquire Shares of any class or series) that it holds. Each Member and the Company shall take all reasonable and necessary actions in connection with the consummation of such Sale of the Company as may be requested by the Board of Directors, including (i) in the case of the Company only, engaging one or more investment banks and legal counsel selected by the Board of Directors to establish procedures acceptable to the Board of Directors to effect and to otherwise assist in connection with a Sale of the Company, (ii) taking such commercially reasonable actions and providing such commercially reasonable cooperation and assistance as may be necessary to consummate the Sale of the Company in an expeditious and efficient manner and not taking any action or engaging in any activity designed to hinder, prevent or delay the consummation of the Sale of the Company, (iii) in the case of the Company only, facilitating the due diligence process in respect of any such Sale of the Company, including establishing, populating and maintaining an online “data room”, (iv) in the case of the Company only, providing any financial or other information or audit required by the proposed buyer’s financing sources and (v) the execution of such agreements and such instruments and other actions reasonably necessary in connection with the Sale of the Company, including to provide customary representations, warranties, indemnities and escrow arrangements relating thereto, in each case in accordance with and subject to the limitations set forth in Section 9.08(d). (b) The obligations of the Members with respect to a Sale of the Company are subject to the satisfaction of the following conditions: (i) upon the consummation of such Sale of the Company, each holder of Shares, to the extent such holder is receiving any consideration, shall receive the same form(s) of consideration as each other holder of Shares receives (or the option to receive the same form of consideration), and (ii) the Sale of the Company will be a Deemed Liquidation Event and the aggregate consideration payable upon consummation of such Sale of the Company to all holders of Shares in respect of their Shares shall be apportioned and distributed (after such aggregate consideration is adjusted for Company expenses, purchase price adjustments, escrow amounts, purchase price holdbacks, indemnity obligations and other similar items) as between the classes of Shares in accordance with the relevant provisions of Section 3.02 (assuming that, if such Sale of the Company is structured as a Transfer of Shares and less than all of the Shares are being Transferred, the Shares included in the Transfer are all of the Shares outstanding). For clarity, the application of Section 3.02 may result in some Shares included in the Transfer not receiving any consideration with respect to such Sale of the Company. (c) If the Company, or if the holders of any Shares, enter into any negotiation or transaction for which Rule 506 (or any similar rule then in effect) promulgated by the SEC may be available with respect to such negotiation or transaction (including a merger, consolidation, or other reorganization), each holder of Equity Securities will, at the request of the Company, appoint either a purchaser representative (as such term is defined in Rule 501) designated by the Company, in which event the Company will pay the fees of such purchaser representative, or another purchaser representative (reasonably acceptable to the Company), in which event such holder will be responsible for the fees of the purchaser representative so appointed. Notwithstanding anything to the contrary, in connection with any Sale of the Company where the consideration in such Sale of the Company consists of or includes securities, if the issuance of such securities to the Member would require either a registration statement under the Securities Act, or preparation of a disclosure statement pursuant to Regulation D (or any successor regulation) under the Securities Act, or preparation of a disclosure document under a similar provision of any state securities law, and such registration statement or disclosure statement or other disclosure document is not otherwise being prepared in connection with the Sale of the Company, then, at the option of the Board of Directors, the Member may receive, in lieu of such securities, the Fair Market Value of such securities in cash. (d) In connection with any Sale of the Company, each Member shall (i) make such customary representations and warranties, including, as applicable, as to due organization and good standing, power and authority, due approval, no conflicts and ownership and title of Shares (including the absence of liens with respect to such Shares) and no litigation pending or threatened against or affecting such Member relating to its ownership of Shares, agree to such covenants and enter into such definitive agreements, in each case as are customary for transactions of the nature of the Sale of the Company; provided, that no Member shall be required to make any representation or warranty or agree to any covenant that is more extensive or burdensome than those made by the other Members (provided, that (A) in no event will the GM Investor or any of its ~~Affiliates, SoftBank or any of its Affiliates, Honda or any of its~~ Affiliates or ~~any Class F New Member~~ SoftBank or any of its Affiliates be required to enter into a non-competition agreement or be subject to any similar covenant or provision and (B) the Employee Members may be required to enter into certain covenants, including non-compete and non-solicit obligations) and (ii) be obligated to join on a several, and not joint, basis (determined in accordance with such Member’s proportionate share of the proceeds from the Sale of the Company) in any indemnification or other obligations that are part of the terms and conditions of the Sale of the Company (other than to the extent of any escrows or holdbacks established in connection with such Sale of the Company); provided, that no Member shall be obligated (A) to provide indemnification with respect to the representations, warranties, covenants or agreements of any other Member (other than to the extent of any escrows or holdbacks established in connection with such Sale of the Company), or (B) to incur liability to any Person in connection with such Sale of the Company, including under any indemnity, in excess of the consideration received by such Person in the Sale of the Company (other than for fraud or breach of a covenant). (e) Each Member will bear his, her or its proportionate share of the costs incurred in connection with a Sale of the Company to the extent such costs are incurred for the benefit of all such holders of Shares and are not otherwise paid by the Company or the acquiring party. Costs incurred by the holders of Shares on their own behalf will not be considered costs of the Sale of the Company. (f) Any contingent consideration (whether as a result of a release of an escrow or the payment of an “earn out” or otherwise) to be paid in connection with a Sale of the Company shall be allocated among the Members such that each Member receives the amount which such Member would have received if such consideration had been received by the Company and distributed as the next incremental dollars following the Distribution of any amounts previously paid under this Agreement or paid in connection with such Sale of the Company (assuming for such purposes that the Shares Transferred constitute all of the Shares). In the event any Member is liable in such Sale of the Company for amounts in excess of any escrow or holdback (other than any such obligations that relate specifically to a particular Member, such as indemnification with respect to representations and warranties given by a Member regarding such Person’s title to and ownership of Shares), such amounts shall be treated as a ~~deduction~~ deduct to the consideration payable in such Sale of the Company and the aggregate consideration shall be re-allocated among the Members in accordance with Section 9.08(b). The Members agree that to the extent, as a result of such re-allocation, a Member has received more than its share of the consideration pursuant to such re-allocation, such Member shall deliver such excess to the appropriate Member(s) in order for each Member to receive its appropriate share of the consideration. (g) Without limiting the generality of the other provisions of this Section 9.08 but subject to Section 5.11, the Board of Directors shall determine whether or not to pursue, consummate, postpone or abandon any Sale of the Company and, subject to the limitations expressly set forth in this Section 9.08, the terms and conditions thereof. (h) The provisions of this Section 9.08 shall not apply to any transaction pursuant to Sections 9.10 or 9.12.

Appears in 1 contract

Samples: Limited Liability Company Agreement (General Motors Co)

Sale of the Company. ~~(a) Provided that a Drag-Along Notice has not been delivered and~~ Upon the ~~procedures in Section 9.09 are not then currently in effect, notwithstanding anything to the contrary in this Agreement, the Board~~ occurrence of ~~Directors may (subject to Section 5.11) elect to cause~~ a Sale of the ~~Company at any time. The Board of Directors~~ Company, all Time-Vesting Executive Incentive Units which have not yet become vested shall ~~direct and control all decisions in connection with a Sale~~ become vested as of the ~~Company (including the hiring or termination~~ date of any investment bank or professional adviser and making all decisions regarding valuation and consideration and the percentage of the Equity Securities in the Company to be sold) and, subject to Section 9.08(b) and Section 9.08(d), and without prejudice to Section 5.11, each Member shall vote for, consent to and not object to such Sale of the Company or the sale process associated therewith. If such Sale of the Company is structured as a sale of assets, merger or consolidation, then each Member shall, to the extent applicable to such transaction, vote for or consent to, and waive any dissenter’s rights, appraisal rights or similar rights in connection with, such sale, merger or consolidation. If such Sale of the Company is structured as a Transfer of Shares, and the Sale of the Company involves less than all of the Shares in the Company, then each Member shall Transfer the same percentage of each class or series of Shares (or rights to acquire Shares of any class or series) that it holds. Each Member and the Company shall take all reasonable and necessary actions in connection with the consummation of such Sale of the ~~Company~~ Company, if, as ~~may be requested~~ of such date, Executive has been continuously employed by the ~~Board~~ Company or any of ~~Directors~~its Subsidiaries from the Reference Date through and including such date, ~~including (i) in the case of the Company only, engaging one or more investment banks and legal counsel selected by the Board of Directors to establish procedures acceptable~~ subject to the ~~Board~~ provisions of ~~Directors to effect and to otherwise assist in connection with~~ this Section 2(c). Upon the occurrence of a Sale of the Company, any Performance-Vesting Executive Incentive Units (iiwhether held by Executive or one or more of Executive’s transferees, other than the Company and the Investors) ~~taking~~ which fail to vest as result of such ~~commercially reasonable actions and providing such commercially reasonable cooperation and assistance as may be necessary to consummate the~~ Sale of the Company ~~in an expeditious and efficient manner and not taking~~ will automatically (without any action by Executive or ~~engaging in~~ any ~~activity designed~~ of Executive’s transferees) be forfeited to ~~hinder, prevent or delay the consummation of the Sale of the Company, (iii) in the case of~~ the Company ~~only, facilitating the due diligence process in respect of~~ and deemed canceled and no longer outstanding without any such Sale of the Company, including establishing, populating and maintaining an online “data room”, (iv) in the case of the Company only, providing any financial or other information or audit required by the proposed buyer’s financing sources and (v) the execution of such agreements and such instruments and other actions reasonably necessary in connection with the Sale of the Company, including to provide customary representations, warranties, indemnities and escrow arrangements relating thereto, in each case in accordance with and subject to the limitations set forth in Section 9.08(d). (b) The obligations of the Members with respect to a Sale of the Company are subject to the satisfaction of the following conditions: (i) payment therefor upon the consummation of such Sale of the Company~~, each holder of Shares,~~ . Notwithstanding the foregoing or anything herein or in the LLC Agreement to the ~~extent such holder is receiving~~ contrary (and in addition to any ~~consideration, shall receive the same form(s) of consideration as each other holder of Shares receives (or the option to receive the same form of consideration~~requirements therein), and (ii) the Sale of the Company will be a Deemed Liquidation Event and the aggregate consideration payable upon consummation of such Sale of the Company to all holders of Shares in respect of their Shares shall be apportioned and distributed (after such aggregate consideration is adjusted for Company expenses, purchase price adjustments, escrow amounts, purchase price holdbacks, indemnity obligations and other similar items) as between the classes of Shares in accordance with the relevant provisions of Section 3.02 (assuming that, if such Sale of the Company is structured as a Transfer of Shares and less than all of the Shares are being Transferred, the Shares included in the ~~Transfer are all~~ case of ~~the Shares outstanding). For clarity, the application of Section 3.02 may result in some Shares included in the Transfer not receiving any consideration with respect to such~~ a Sale of the Company~~. (c) If the Company~~, or Executive hereby agrees that, if the ~~holders of any Shares, enter into any negotiation~~ Person who is acquiring the equity securities or transaction for which Rule 506 (or any similar rule then in effect) promulgated by the SEC may be available with respect to such negotiation or transaction (including a merger, consolidation, or other reorganization), each holder of Equity Securities will, at the request of the Company, appoint either a purchaser representative (as such term is defined in Rule 501) designated by the Company, in which event the Company will pay the fees of such purchaser representative, or another purchaser representative (reasonably acceptable to the Company), in which event such holder will be responsible for the fees of the purchaser representative so appointed. Notwithstanding anything to the contrary, in connection with any Sale assets of the Company ~~where the consideration~~ resulting in such Sale of the Company ~~consists of or includes securities, if~~ (the ~~issuance of such securities~~ “Acquiror”) reasonably requests that Executive continue to provide any services to the ~~Member would require either a registration statement under the Securities Act~~Acquiror, or preparation of a disclosure statement pursuant to Regulation D (or any successor regulation) under the Securities Act, or preparation of a disclosure document under a similar provision of any state securities law, and such registration statement or disclosure statement or other disclosure document is not otherwise being prepared in connection with the Sale of the Company, then, at the option of the Board of Directors, the Member may receive, in lieu of such securities, the Fair Market Value of such securities in cash. (d) In connection with any Sale of the Company, each Member shall (i) make such customary representations and warranties, including, as applicable, as to due organization and good standing, power and authority, due approval, no conflicts and ownership and title of Shares (including the absence of liens with respect to such Shares) and no litigation pending or threatened against or affecting such Member relating to its ownership of Shares, agree to such covenants and enter into such definitive agreements, in each case as are customary for transactions of the nature of the Sale of the Company; provided, that no Member shall be required to make any representation or warranty or agree to any covenant that is more extensive or burdensome than those made by the other Members (provided, that (A) in no event will the GM Investor Employer or any of ~~its Affiliates, SoftBank or any of its Affiliates, Honda or any of its~~ their respective Affiliates ~~or any Class F New Member or any of its Affiliates be required to enter into a non-competition agreement or be subject to any similar covenant or provision~~ from and ~~(B)~~ after the Employee Members may be required to enter into certain covenants, including non-compete and non-solicit obligations) and (ii) be obligated to join on a several, and not joint, basis (determined in accordance with such Member’s proportionate share of the proceeds from the Sale of the Company) in any indemnification or other obligations that are part of the terms and conditions consummation of the Sale of the Company (~~other~~ whether as a full-time employee, consultant or otherwise) that are within the scope of services provided by Executive during the Employment Period in exchange for a base salary (or equivalent base compensation), bonus opportunity and fringe benefits (collectively, the “Post-Sale Compensation”) that are no less favorable to Executive in the aggregate than the Annual Base Salary, bonus opportunity, and fringe benefits provided to ~~the extent of any escrows or holdbacks established in connection with~~ Executive by Employer immediately prior to such Sale of the ~~Company~~Company (excluding any equity or other incentive compensation), then the Continuing Incentive Amount shall be handled as follows (in lieu of being paid to Executive and/or Executive’s Permitted Transferee(s)): (i) if Executive declines to provide such requested services, the Continuing Incentive Amount shall be distributed pursuant to Section 4.1(a) of the LLC Agreement to the holders of Capital Units (excluding, for these purposes, all Restricted Units which are subject to an applicable limitation), and, thereafter, neither Executive nor Executive’s Permitted Transferee(s) shall have any rights in respect of or other claims on such amounts (other than Executive’s status as a holder of Capital Units); ~~provided~~or (ii) if Executive agrees to provide such requested services, ~~that no Member~~ the Continuing Incentive Amount shall be ~~obligated~~ deposited into an escrow account with an escrow agent designated by the Company, and the Continuing Incentive Amount shall be handled as follows: (A) if Executive provides such requested services from and after consummation of the Sale of the Company through the earliest of (w) the date on which Acquiror reduces Executive’s Post-Sale Compensation below the Annual Base Salary, bonus opportunity, and fringe benefits provided to ~~provide indemnification with respect~~ Executive by Employer immediately prior to ~~the representations, warranties, covenants or agreements of any other Member (other than to the extent of any escrows or holdbacks established in connection with~~ such Sale of the ~~Company~~Company (excluding any equity or other incentive compensation), (x) the date on which the Acquiror terminates such services (other than with Cause), (y) Executive’s death or Disability, or (Bz) ~~to incur liability to any Person in connection with such Sale~~ the nine (9)-month anniversary of the ~~Company, including under any indemnity, in excess~~ consummation of ~~the consideration received by such Person in~~ the Sale of the Company (~~other than for fraud or breach~~ the earliest of ~~a covenant~~(w)., (x), (y) and (z), the “Final Vesting Date”), then the Continuing Incentive Amount, together with any income earned thereon, shall be released to Executive and/or Executive’s Permitted Transferee(s), as applicable, within five (5) business days after the Final Vesting Date; or (eB) ~~Each Member will bear his, her or its proportionate share of~~ if Executive fails to provide such requested services from and after the costs incurred in connection with a Sale of the Company to the extent such costs are incurred for the benefit of all such holders of Shares and are not otherwise paid by the Company or the acquiring party. Costs incurred by the holders of Shares on their own behalf will not be considered costs consummation of the Sale of the ~~Company~~Company through the Final Vesting Date, then the Continuing Incentive Amount, together with any income earned thereon, shall be distributed as a Distribution under Section 4.1(a) of the LLC Agreement to the holders of Capital Units (excluding, for these purposes, all Restricted Units which are subject to an applicable limitation), and, thereafter, neither Executive nor Executive’s Permitted Transferee(s) shall have any rights in respect of or other claims on such amounts (other than Executive’s status as a holder of Capital Units). (fiii) ~~Any contingent~~ For purposes of this Agreement, “Continuing Incentive Amount” means 25% of all consideration ~~(whether as a result of a release of an escrow or~~ to which Executive and, to the ~~payment of an “earn out” or otherwise~~extent necessary, Executive’s Permitted Transferee(s) to be paid in connection with a Sale of the Company shall be allocated among the Members such that each Member receives the amount which such Member would have received if such consideration had been received by the Company and distributed as the next incremental dollars following the Distribution of any amounts previously paid under this Agreement or paid are otherwise entitled in connection with such Sale of the Company ~~(assuming for such purposes that the Shares Transferred constitute all~~ in respect of the Shares). In the event any Member is liable in such Sale of the Company for amounts in excess of any escrow or holdback (other than any such obligations that relate specifically to a particular Member, such as indemnification with respect to representations and warranties given by a Member regarding such Person’s title to and ownership of Shares), such amounts shall be treated as a deduction to the consideration payable in such Sale of the Company and the aggregate consideration shall be re-allocated among the Members in accordance with Section 9.08(b). The Members agree that to the extent, as a result of such re-allocation, a Member has received more than its share of the consideration pursuant to such re-allocation, such Member shall deliver such excess to the appropriate Member(s) in order for each Member to receive its appropriate share of the considerationExecutive Incentive Units. (g) Without limiting the generality of the other provisions of this Section 9.08 but subject to Section 5.11, the Board of Directors shall determine whether or not to pursue, consummate, postpone or abandon any Sale of the Company and, subject to the limitations expressly set forth in this Section 9.08, the terms and conditions thereof. (h) The provisions of this Section 9.08 shall not apply to any transaction pursuant to Sections 9.10 or 9.12.

Appears in 1 contract

Samples: Senior Management Agreement (Maravai Lifesciences Holdings, Inc.)

Sale of the Company. (a) ~~Provided~~ Each Stockholder hereby agrees that ~~a Drag-Along Notice has not been delivered and~~ if at any time the ~~procedures in~~ Board and, if required pursuant to Section ~~9.09 are not then currently in effect, notwithstanding anything to the contrary in this Agreement~~11(b)(i), the ~~Board of Directors may (subject to Section 5.11) elect to cause a Sale of the Company at any time. The Board of Directors shall direct and control all decisions in connection with~~ New Investor Majority, approves a Sale of the Company (~~including~~ an “Approved Sale”), each Stockholder will vote for (to the ~~hiring or termination of any investment bank or professional adviser~~ extent permitted to vote for) and ~~making all decisions regarding valuation~~ shall be deemed to have consented to and ~~consideration~~ agree to raise no objections against (and confirm such consent in writing) such Approved Sale and the ~~percentage of~~ process by which such transaction was arranged, so long as such Approved Sale complies with this Section 5. Without limiting the ~~Equity Securities in~~ foregoing, if the ~~Company to be sold) and, subject to Section 9.08(b) and Section 9.08(d), and without prejudice to Section 5.11, each Member shall vote for, consent to and not object to such~~ Approved Sale ~~of the Company or the sale process associated therewith. If such Sale of the Company~~ is structured (i) as a ~~sale of assets,~~ merger or consolidation, ~~then~~ each ~~Member shall, to the extent applicable to such transaction, vote for or consent to, and~~ Stockholder will waive any ~~dissenter’s~~ dissenters rights, appraisal rights or similar rights in ~~connection with,~~ conjunction with such ~~sale,~~ merger or consolidation, (ii) as a sale of Shares, each Stockholder will agree to sell and surrender its Shares (or portion thereof) on the terms and conditions approved by the Board, or (iii) as a sale of assets, each Stockholder will vote in favor of (to the extent permitted to vote for) such transaction and any subsequent liquidation or other distribution of the proceeds therefrom in accordance with the Certificate of Incorporation. ~~If such Sale~~ Subject to Section 5(c) below, the Company and each Stockholder will take all actions reasonably requested by the Board to effectuate the consummation of an Approved Sale, including the execution of all agreements, documents and instruments in connection therewith requested by the Board; provided, that in no event shall Idea Men, LLC or any individual equityholder thereof or any other Stockholder serving as a senior executive of the Company is structured as a Transfer of Shares, and the Sale of the Company involves less than all of the Shares in the Company, then each Member shall Transfer the same percentage of each class or series of Shares (or rights to acquire Shares of any class or series) that it holds. Each Member and the Company shall take all reasonable and necessary actions at such time be required in connection with an Approved Sale to execute any agreement, document or instrument having terms to which the other Stockholders are not also bound other than (x) an “at-will” employment agreement for the benefit of the acquirer (provided, that such employment agreement shall not include any requirement of the employee to (i) forfeit consideration or otherwise pay a penalty upon termination of employment, (ii) relocate such employee’s primary place of work by more than thirty (30) miles, (iii) accept a material reduction in employee’s salary or benefits, or (iv) accept a material reduction in employee’s responsibilities) or (y) a non-competition, non-solicitation or similar agreement in favor of the acquirer containing restrictive covenants on terms and conditions that are reasonable and customary for Persons serving in the capacities such Persons are serving as of the consummation of such Approved Sale in comparable transactions. For the avoidance of doubt, subject to Section 5(c) below, the obligations of the ~~Company as may be requested by the Board of Directors, including (i) in the case of the Company only, engaging one or more investment banks and legal counsel selected by the Board of Directors~~ Stockholders pursuant to ~~establish procedures acceptable to the Board of Directors to effect and to otherwise assist~~ this Section 5 in connection with a an Approved Sale shall apply irrespective of the ~~Company~~amount of consideration, ~~(ii) taking such commercially reasonable actions and providing such commercially reasonable cooperation and assistance as may~~ if any, to be ~~necessary~~ paid to ~~consummate~~ the Sale of the Company in an expeditious and efficient manner and not taking any action or engaging in any activity designed to hinder, prevent or delay the consummation of the Sale of the Company, (iii) in the case of the Company only, facilitating the due diligence process Stockholders in respect of any such Sale of the Company, including establishing, populating and maintaining an online “data room”, (iv) in the case of the Company only, providing any financial or other information or audit required by the proposed buyer’s financing sources and (v) the execution of such agreements and such instruments and other actions reasonably necessary in connection with the Sale of the Company, including to provide customary representations, warranties, indemnities and escrow arrangements relating thereto, in each case in accordance with and subject their Shares pursuant to the ~~limitations set forth in Section 9.08(d)~~Approved Sale. (b) The Board shall exercise its rights pursuant and subject to this Section 5 by delivering a written notice (the “Approved Sale Notice”) to each Stockholder no more than five (5) days after the execution and delivery by all of the parties thereto of the definitive agreement entered into with respect to the Approved Sale and, in any event, no later than ten (10) days prior to the closing date of such Approved Sale. The Approved Sale Notice shall describe in reasonable detail the material terms and conditions of the Approved Sale and shall include copies of all such executed definitive agreement and the exhibits and appendices thereto. (c) The obligations of the ~~Members with respect to a Sale of the Company~~ Stockholders under this Section 5 are subject to the satisfaction of the following conditions: : (i) ~~upon~~ Upon the consummation of ~~such Sale of~~ the ~~Company~~Approved Sale, each ~~holder of Shares, to the extent such holder is receiving any consideration,~~ Stockholder shall ~~receive the same form(s) of consideration as each other holder of Shares receives (or the option to~~ receive the same form of ~~consideration),~~ consideration and portion of the aggregate consideration available to be distributed to the Stockholders in connection with such Approved Sale that such Stockholder would have received if such aggregate consideration had been distributed by the Company in complete liquidation pursuant to the rights and preferences set forth in the Certificate of Incorporation as in effect immediately prior to such Approved Sale. (ii) If any Stockholder is given an option as to the ~~Sale~~ form and amount of consideration to be received in such Approved Sale, each Stockholder shall be given the same option; provided, that the condition that each holder of Shares receive, or is provided with the same option to receive, the same form of consideration shall be deemed satisfied if holders of Shares who are employees of the Company are required to “roll over” a portion of their investment in the Company and thus receive, to the exclusion of others, securities of the entity acquiring the Company in exchange for all or a portion of their Shares. (iii) Each Stockholder will be ~~a Deemed Liquidation Event~~ obligated to make customary representations in connection with the Approved Sale, if any, with respect to its own organization, authority and ability to enter into the ~~aggregate consideration~~ Approved Sale, title to and ownership of its Shares and any brokers’ or similar fees payable ~~upon consummation~~ by it in connection with the Approved Sale, and shall be required to provide pro rata indemnification (subject to the following two sentences) in respect of, among other things, any representation made by the Company or its Subsidiaries. No Stockholder shall be liable for the inaccuracy of ~~such Sale of~~ any representation or warranty made by any other Person in connection with the Approved Sale, other than the Company to ~~all holders~~ the extent that funds may be paid out of ~~Shares~~ an escrow or pursuant to other indemnification provisions established to cover breaches of representations, warranties and covenants of the Company. Each Stockholder will be obligated to join on a several and pro rata basis (and not on a joint and several basis) in ~~respect of their Shares shall be apportioned and distributed (after such aggregate consideration is adjusted for Company expenses,~~ any purchase price adjustments, indemnification, holdback, escrow ~~amounts~~or other obligations approved by the Board in connection with an Approved Sale (other than any such obligations that relate solely to a particular Stockholder, ~~purchase price holdbacks~~such as indemnification with respect to representations and warranties given by a Stockholder regarding such Stockholder’s title to and ownership of Shares, ~~indemnity obligations and other similar items) as between the classes~~ in respect of ~~Shares in accordance with the relevant provisions of Section 3.02 (assuming that~~which only such Stockholder will be liable); provided, if such Sale of the Company is structured as a Transfer of Shares and less than all of the Shares are being Transferred, the Shares included in the Transfer are all of the Shares outstanding). For clarity, the application of Section 3.02 may result in some Shares included in the Transfer not receiving any consideration that each Stockholder’s liability with respect to such indemnification obligations will not exceed the lesser of (a) the aggregate amount of consideration received and retained by, or held in escrow or otherwise withheld on behalf of, such Stockholder in connection with or pursuant to such Approved Sale and (b) such Stockholder’s pro rata share of ~~the Company~~such obligations. (civ) If the ~~Company~~Company enters into a negotiation for an Approved Sale, ~~or if the holders of any Shares, enter into any negotiation or~~ including an Approved Sale transaction for which Rule 506 (or any similar rule then in effect) promulgated by the ~~SEC~~ Securities and Exchange Commission may be available with respect to such negotiation or transaction (including a merger, ~~consolidation,~~ consolidation or other reorganization), ~~each holder~~ the Stockholders that do not qualify as an “accredited investor” for purposes of ~~Equity Securities~~ applicable U.S. federal and state securities laws and regulations will, at the request of the ~~Company~~Board, appoint ~~either~~ a purchaser representative (as such term is defined in Rule 501) reasonably acceptable to the Board. If any Stockholder appoints a purchaser representative designated by the Company, ~~in which event~~ the Company will pay the fees of such purchaser representative, or but if any Stockholder declines to appoint the purchaser representative designated by the Company, such Stockholder will appoint another purchaser ~~representative (reasonably acceptable to the Company)~~representative, ~~in which event~~ and such ~~holder~~ Stockholder will be responsible for the fees of the purchaser representative so appointed. Notwithstanding anything to the contrary, in connection with any Sale of the Company where the consideration in such Sale of the Company consists of or includes securities, if the issuance of such securities to the Member would require either a registration statement under the Securities Act, or preparation of a disclosure statement pursuant to Regulation D (or any successor regulation) under the Securities Act, or preparation of a disclosure document under a similar provision of any state securities law, and such registration statement or disclosure statement or other disclosure document is not otherwise being prepared in connection with the Sale of the Company, then, at the option of the Board of Directors, the Member may receive, in lieu of such securities, the Fair Market Value of such securities in cash. (d) In Each Stockholder will bear on a pro rata basis the expenses incurred by the Stockholders in connection with ~~any~~ an Approved Sale of the Company, each Member shall (i) make such customary representations and warranties, including, as applicable, as to due organization and good standing, power and authority, due approval, no conflicts and ownership and title of Shares (including the absence of liens with respect to such Shares) and no litigation pending or threatened against or affecting such Member relating to its ownership of Shares, agree to such covenants and enter into such definitive agreements, in each case as are customary for transactions of the nature of the Sale of the Company; provided, that no Member shall be required to make any representation or warranty or agree to any covenant that is more extensive or burdensome than those made by the other Members (provided, that (A) in no event will the GM Investor or any of its Affiliates, SoftBank or any of its Affiliates, Honda or any of its Affiliates or any Class F New Member or any of its Affiliates be required to enter into a non-competition agreement or be subject to any similar covenant or provision and (B) the Employee Members may be required to enter into certain covenants, including non-compete and non-solicit obligations) and (ii) be obligated to join on a several, and not joint, basis (determined in accordance with such Member’s proportionate share of the proceeds from the Sale of the Company) in any indemnification or other obligations that are part of the terms and conditions of the Sale of the Company (other than to the extent of any ~~escrows or holdbacks established in connection with~~ such Sale of the Company); provided, that no Member shall be obligated (A) to provide indemnification with respect to the representations, warranties, covenants or agreements of any other Member (other than to the extent of any escrows or holdbacks established in connection with such Sale of the Company), or (B) to incur liability to any Person in connection with such Sale of the Company, including under any indemnity, in excess of the consideration received by such Person in the Sale of the Company (other than for fraud or breach of a covenant). (e) Each Member will bear his, her or its proportionate share of the costs incurred in connection with a Sale of the Company to the extent such costs expenses are incurred for the benefit of all ~~such holders of Shares~~ Stockholders and are not otherwise paid by the Company or the acquiring party, such payment to be made through a reduction in the consideration that is to be received by such Stockholder in connection with such Approved Sale. Costs incurred by ~~the holders of Shares~~ Stockholders on their own behalf will not be considered costs of the transaction hereunder. (e) In connection with an Approved Sale, if requested by the Board, each Stockholder shall enter into an agreement pursuant to which such Stockholder shall irrevocably appoint the Investors, collectively, or their designee (the “Representative”) as the representative, agent, proxy and attorney-in-fact of such Stockholder for all purposes in connection with such Approved Sale, including granting to the Representative the full power and authority in connection with such Approved Sale to (i) enforce any right, benefit or entitlement of such Stockholder, (ii) execute and deliver all amendments, waivers and other documents, necessary, proper, required, contemplated or deemed advisable by the ~~Company~~Representative, (iii) negotiate, compromise and/or settle disputes, (iv) receive and distribute funds (including in making payments of expenses) and (v) receive notices, in each case, for and on behalf of such Stockholder in connection with such Approved Sale. (f) ~~Any contingent consideration~~ If any holder of Shares (~~whether as a result of a release of an escrow~~ or ~~the payment of an “earn out”~~ warrants, options or ~~otherwise~~other rights to acquire Shares) ~~to be paid~~ does not, in connection with ~~a Sale~~ an Approved Sale, execute and/or deliver all transfer and other documents required to be executed and/or delivered (subject to the limitations set forth in Section 5(a) hereof), and take all other actions required to be taken, by such holder pursuant to this Section 5 in respect of all of the ~~Company~~ Shares (or warrants, options or other rights to acquire Shares) held by such holder, such defaulting holder shall be ~~allocated among~~ deemed to have irrevocably appointed each and any member of the ~~Members such that each Member receives the amount which such Member would have received if such consideration had been received~~ Board (or any officer appointed by the ~~Company~~ Board), acting individually, to be such holder’s agent and ~~distributed as the next incremental dollars following the Distribution of any amounts previously paid under this Agreement or paid~~ attorney-in-fact to execute and/or deliver all necessary transfer and other documents, and take all other necessary actions, on such holder’s behalf in connection with such Approved Sale of the Company (assuming for such purposes that the Shares Transferred constitute all of the Shares). In the event any Member is liable in such Sale of the Company for amounts in excess of any escrow or holdback (other than any such obligations that relate specifically to a particular Member, such as indemnification with respect to representations and warranties given by a Member regarding such Person’s title to and ownership of Shares), such amounts shall be treated as a deduction to the consideration payable in such Sale of the Company and the aggregate consideration shall be re-allocated among the Members in accordance with Section 9.08(b). The Members agree that to the extent, as a result of such re-allocation, a Member has received more than its share of the consideration pursuant to such re-allocation, such Member shall deliver such excess to the appropriate Member(s) in order for each Member to receive its appropriate share of the consideration. (g) Without limiting the generality of the other provisions of this Section 9.08 but subject to Section 5.11, the Board of Directors shall determine whether or not to pursue, consummate, postpone or abandon any Sale of the Company and, subject to the limitations expressly set forth in this Section 9.08, the terms and conditions thereof5. ~~(h) The provisions of this Section 9.08 shall not apply to any transaction pursuant to Sections 9.10 or 9.12.~~

Appears in 1 contract

Samples: Stockholders Agreement (GoodRx Holdings, Inc.)

Sale of the Company. ~~(a) Provided that a Drag-Along Notice has not been delivered and~~ Upon the ~~procedures in Section 9.09 are not then currently in effect, notwithstanding anything to the contrary in this Agreement, the Board~~ occurrence of ~~Directors may (subject to Section 5.11) elect to cause~~ a Sale of the ~~Company at any time. The Board of Directors~~ Company, all Time-Vesting Executive Incentive Units which have not yet become vested shall ~~direct and control all decisions in connection with a Sale~~ become vested as of the ~~Company (including the hiring or termination~~ date of any investment bank or professional adviser and making all decisions regarding valuation and consideration and the percentage of the Equity Securities in the Company to be sold) and, subject to Section 9.08(b) and Section 9.08(d), and without prejudice to Section 5.11, each Member shall vote for, consent to and not object to such Sale of the Company or the sale process associated therewith. If such Sale of the Company is structured as a sale of assets, merger or consolidation, then each Member shall, to the extent applicable to such transaction, vote for or consent to, and waive any dissenter’s rights, appraisal rights or similar rights in connection with, such sale, merger or consolidation. If such Sale of the Company is structured as a Transfer of Shares, and the Sale of the Company involves less than all of the Shares in the Company, then each Member shall Transfer the same percentage of each class or series of Shares (or rights to acquire Shares of any class or series) that it holds. Each Member and the Company shall take all reasonable and necessary actions in connection with the consummation of such Sale of the ~~Company~~ Company, if, as ~~may be requested~~ of such date, Executive has been continuously employed by the ~~Board~~ Company or any of ~~Directors~~its Subsidiaries from the Reference Date through and including such date, ~~including (i) in the case of the Company only, engaging one or more investment banks and legal counsel selected by the Board of Directors to establish procedures acceptable~~ subject to the ~~Board~~ provisions of ~~Directors to effect and to otherwise assist in connection with~~ this Section 2(c). Upon the occurrence of a Sale of the Company, any Performance-Vesting Executive Incentive Units (iiwhether held by Executive or one or more of Executive’s transferees, other than the Company and the Investors) ~~taking~~ which fail to vest as result of such ~~commercially reasonable actions and providing such commercially reasonable cooperation and assistance as may be necessary to consummate the~~ Sale of the Company ~~in an expeditious and efficient manner and not taking~~ will automatically (without any action by Executive or ~~engaging in~~ any ~~activity designed~~ of Executive’s transferees) be forfeited to ~~hinder, prevent or delay the consummation of the Sale of the Company, (iii) in the case of~~ the Company ~~only, facilitating the due diligence process in respect of~~ and deemed canceled and no longer outstanding without any such Sale of the Company, including establishing, populating and maintaining an online “data room”, (iv) in the case of the Company only, providing any financial or other information or audit required by the proposed buyer’s financing sources and (v) the execution of such agreements and such instruments and other actions reasonably necessary in connection with the Sale of the Company, including to provide customary representations, warranties, indemnities and escrow arrangements relating thereto, in each case in accordance with and subject to the limitations set forth in Section 9.08(d). (b) The obligations of the Members with respect to a Sale of the Company are subject to the satisfaction of the following conditions: (i) payment therefor upon the consummation of such Sale of the Company~~, each holder of Shares,~~ . Notwithstanding the foregoing or anything herein or in the LLC Agreement to the ~~extent such holder is receiving~~ contrary (and in addition to any ~~consideration, shall receive the same form(s) of consideration as each other holder of Shares receives (or the option to receive the same form of consideration~~requirements therein), and (ii) the Sale of the Company will be a Deemed Liquidation Event and the aggregate consideration payable upon consummation of such Sale of the Company to all holders of Shares in respect of their Shares shall be apportioned and distributed (after such aggregate consideration is adjusted for Company expenses, purchase price adjustments, escrow amounts, purchase price holdbacks, indemnity obligations and other similar items) as between the classes of Shares in accordance with the relevant provisions of Section 3.02 (assuming that, if such Sale of the Company is structured as a Transfer of Shares and less than all of the Shares are being Transferred, the Shares included in the ~~Transfer are all~~ case of ~~the Shares outstanding). For clarity, the application of Section 3.02 may result in some Shares included in the Transfer not receiving any consideration with respect to such~~ a Sale of the Company~~. (c) If the Company~~, or Executive hereby agrees that, if the ~~holders of any Shares, enter into any negotiation~~ Person who is acquiring the equity securities or transaction for which Rule 506 (or any similar rule then in effect) promulgated by the SEC may be available with respect to such negotiation or transaction (including a merger, consolidation, or other reorganization), each holder of Equity Securities will, at the request of the Company, appoint either a purchaser representative (as such term is defined in Rule 501) designated by the Company, in which event the Company will pay the fees of such purchaser representative, or another purchaser representative (reasonably acceptable to the Company), in which event such holder will be responsible for the fees of the purchaser representative so appointed. Notwithstanding anything to the contrary, in connection with any Sale assets of the Company ~~where the consideration~~ resulting in such Sale of the Company ~~consists of or includes securities, if~~ (the ~~issuance of such securities~~ “Acquiror”) reasonably requests that Executive continue to provide any services to the ~~Member would require either a registration statement under the Securities Act~~Acquiror, or preparation of a disclosure statement pursuant to Regulation D (or any successor regulation) under the Securities Act, or preparation of a disclosure document under a similar provision of any state securities law, and such registration statement or disclosure statement or other disclosure document is not otherwise being prepared in connection with the Sale of the Company, then, at the option of the Board of Directors, the Member may receive, in lieu of such securities, the Fair Market Value of such securities in cash. (d) In connection with any Sale of the Company, each Member shall (i) make such customary representations and warranties, including, as applicable, as to due organization and good standing, power and authority, due approval, no conflicts and ownership and title of Shares (including the absence of liens with respect to such Shares) and no litigation pending or threatened against or affecting such Member relating to its ownership of Shares, agree to such covenants and enter into such definitive agreements, in each case as are customary for transactions of the nature of the Sale of the Company; provided, that no Member shall be required to make any representation or warranty or agree to any covenant that is more extensive or burdensome than those made by the other Members (provided, that (A) in no event will the GM Investor Employer or any of ~~its Affiliates, SoftBank or any of its Affiliates, Honda or any of its~~ their respective Affiliates ~~or any Class F New Member or any of its Affiliates be required to enter into a non-competition agreement or be subject to any similar covenant or provision~~ from and ~~(B)~~ after the Employee Members may be required to enter into certain covenants, including non-compete and non-solicit obligations) and (ii) be obligated to join on a several, and not joint, basis (determined in accordance with such Member’s proportionate share of the proceeds from the Sale of the Company) in any indemnification or other obligations that are part of the terms and conditions consummation of the Sale of the Company (~~other~~ whether as a full-time employee, consultant or otherwise) that are within the scope of services provided by Executive during the Employment Period in exchange for a base salary (or equivalent base compensation), bonus opportunity and fringe benefits (collectively, the “Post-Sale Compensation”) that are no less favorable to Executive in the aggregate than the Annual Base Salary, bonus opportunity, and fringe benefits provided to ~~the extent of any escrows or holdbacks established in connection with~~ Executive by Employer immediately prior to such Sale of the ~~Company~~Company (excluding any equity or other incentive compensation)~~; provided~~, ~~that no Member~~ then the Continuing Incentive Amount shall be ~~obligated~~ handled as follows (in lieu of being paid to Executive and/or Executive’s Permitted Transferee(s)): (i) if Executive declines to provide such requested services, the Continuing Incentive Amount shall be distributed pursuant to Section 4.1(a) of the LLC Agreement to the holders of Units (excluding, for these purposes, all Restricted Units which are subject to an applicable limitation), and, thereafter, neither Executive nor Executive’s Permitted Transferee(s) shall have any rights in respect of or other claims on such amounts; or (ii) if Executive agrees to provide such requested services, the Continuing Incentive Amount shall be held back by the Investor (or its designee) or deposited into an escrow account with an escrow agent designated by the Company, and the Continuing Incentive Amount shall be handled as follows: (A) if Executive provides such requested services from and after consummation of the Sale of the Company through the earliest of (w) the date on which Acquiror reduces Executive’s Post-Sale Compensation below the Annual Base Salary, bonus opportunity, and fringe benefits provided to ~~provide indemnification with respect~~ Executive by Employer immediately prior to ~~the representations, warranties, covenants or agreements of any other Member (other than to the extent of any escrows or holdbacks established in connection with~~ such Sale of the ~~Company~~Company (excluding any equity or other incentive compensation), (x) the date on which the Acquiror terminates such services (other than with Cause), (y) Executive’s death or Disability, or (Bz) ~~to incur liability to any Person in connection with such Sale~~ the 12-month anniversary of the ~~Company, including under any indemnity, in excess~~ consummation of ~~the consideration received by such Person in~~ the Sale of the Company (~~other than for fraud or breach~~ the earliest of ~~a covenant~~(w)., (x), (y) and (z), the “Final Vesting Date”), then the Continuing Incentive Amount, together with any income earned thereon, shall be released to Executive and/or her Permitted Transferee(s), as applicable, within five business days after the Final Vesting Date; or (eB) ~~Each Member will bear his, her or its proportionate share of~~ if Executive fails to provide such requested services from and after the costs incurred in connection with a Sale of the Company to the extent such costs are incurred for the benefit of all such holders of Shares and are not otherwise paid by the Company or the acquiring party. Costs incurred by the holders of Shares on their own behalf will not be considered costs consummation of the Sale of the ~~Company~~Company through the Final Vesting Date, then the Continuing Incentive Amount, together with any income earned thereon, shall be distributed as a Distribution under Section 4.1(a) of the LLC Agreement to the holders of Units (excluding, for these purposes, all Restricted Units which are subject to an applicable limitation), and, thereafter, neither Executive nor her Permitted Transferee(s) shall have any rights in respect of or other claims on such amounts. (fiii) ~~Any contingent~~ For purposes of this Agreement, “Continuing Incentive Amount” means 25% of all consideration ~~(whether as a result of a release of an escrow or~~ to which Executive and, to the payment of an “earn out” or otherwise) to be paid in connection with a Sale of the Company shall be allocated among the Members such that each Member receives the amount which such Member would have received if such consideration had been received by the Company and distributed as the next incremental dollars following the Distribution of any amounts previously paid under this Agreement or paid extent necessary, Executive’s Permitted Transferee(s), are otherwise entitled in connection with such Sale of the Company ~~(assuming for such purposes that the Shares Transferred constitute all~~ in respect of the Shares). In the event any Member is liable in such Sale of the Company for amounts in excess of any escrow or holdback (other than any such obligations that relate specifically to a particular Member, such as indemnification with respect to representations and warranties given by a Member regarding such Person’s title to and ownership of Shares), such amounts shall be treated as a deduction to the consideration payable in such Sale of the Company and the aggregate consideration shall be re-allocated among the Members in accordance with Section 9.08(b). The Members agree that to the extent, as a result of such re-allocation, a Member has received more than its share of the consideration pursuant to such re-allocation, such Member shall deliver such excess to the appropriate Member(s) in order for each Member to receive its appropriate share of the considerationExecutive Incentive Units. (g) Without limiting the generality of the other provisions of this Section 9.08 but subject to Section 5.11, the Board of Directors shall determine whether or not to pursue, consummate, postpone or abandon any Sale of the Company and, subject to the limitations expressly set forth in this Section 9.08, the terms and conditions thereof. (h) The provisions of this Section 9.08 shall not apply to any transaction pursuant to Sections 9.10 or 9.12.

Appears in 1 contract

Samples: Senior Management Agreement (Maravai Lifesciences Holdings, Inc.)

Sale of the Company. (a) ~~Provided that~~ if the holder(s) of a ~~Drag-Along Notice has not been delivered~~ majority of the Shares then outstanding and the ~~procedures in Section 9.09 are not then currently in effect, notwithstanding anything to the contrary in this Agreement, the~~ Board ~~of Directors may (subject to Section 5.11) elect to cause a Sale of the Company at any time. The Board of Directors shall direct and control all decisions in connection with~~ approve a Sale of the Company (including the hiring or termination of any investment bank or professional adviser and making all decisions regarding valuation and consideration and the percentage of the Equity Securities in the Company to be sold) and, subject to Section 9.08(b) and Section 9.08(dan "Approved Sale"), ~~and without prejudice to Section 5.11,~~ each ~~Member~~ Holder shall ~~vote for,~~ consent to and ~~not object to such~~ raise no objections against the Approved Sale, and if the Approved Sale ~~of the Company or the sale process associated therewith. If such Sale of the Company~~ is structured as a sale of ~~assets~~Shares, ~~merger~~ each Holder shall, if requested by the holder(s) of a majority of the Shares then outstanding, sell (or otherwise Transfer) that percentage of his Executive Securities, on terms and conditions approved by the Board and the holder(s) of a majority of the Shares then outstanding, as shall equal the percentage of Shares owned by CHS that are to be included in such transaction. Each Holder shall take all actions reasonably necessary or reasonably desirable (as determined by the holder(s) of a majority of the Shares then outstanding) in connection with the consummation of the Approved Sale. Without limiting the foregoing, (i) if the Approved Sale is structured as a merger, consolidation, ~~then each Member shall, to the extent applicable to such~~ joint venture or similar transaction, each Holder shall vote ~~for or consent to,~~ in favor of such transaction and waive any ~~dissenter’s~~ dissenters' rights, appraisal rights or similar rights in connection ~~with,~~ with such ~~sale,~~ merger or consolidation~~. If such~~ , and (ii) if the Approved Sale ~~of the Company~~ is structured as a ~~Transfer~~ sale or exchange of Shares, ~~and the Sale of the Company involves less than~~ each Holder shall agree to sell or exchange all of the Shares in and Options held by such Holder on the ~~Company, then each Member shall Transfer the same percentage of each class or series of Shares (or rights to acquire Shares of any class or series) that it holds. Each Member~~ terms and ~~the Company shall take all reasonable and necessary actions in connection with the consummation of such Sale of the Company as may be requested~~ conditions approved by the Board and the holders of ~~Directors, including (i) in the case~~ a majority of the Shares then outstanding. The Company ~~only~~shall use best efforts to notify Executive in writing not less than thirty (30) days prior to the proposed consummation of an Approved Sale (or, ~~engaging one~~ sale as described in Section 8(b) below); vie that such Executive agrees that he or ~~more investment banks and~~ she will not, directly or indirectly (without the prior written consent of the Company), disclose to any other Person (other than to such Executive's legal counsel ~~selected~~ in confidence, as otherwise necessary to protect such Executive's rights under this Agreement or as otherwise required by ~~the Board of Directors~~ law) any information related to ~~establish procedures acceptable to the Board of Directors to effect and to otherwise assist in connection with a~~ such potential Sale of the Company, (ii) taking such commercially reasonable actions and providing such commercially reasonable cooperation and assistance as may be necessary to consummate the Sale of the Company in an expeditious and efficient manner and not taking any action or engaging in any activity designed to hinder, prevent or delay the consummation of the Sale of the Company, (iii) in the case of the Company only, facilitating the due diligence process in respect of any such Sale of the Company, including establishing, populating and maintaining an online “data room”, (iv) in the case of the Company only, providing any financial or other information or audit required by the proposed buyer’s financing sources and (v) the execution of such agreements and such instruments and other actions reasonably necessary in connection with the Sale of the Company, including to provide customary representations, warranties, indemnities and escrow arrangements relating thereto, in each case in accordance with and subject to the limitations set forth in Section 9.08(d). (b) ~~The obligations~~ If CHS proposes to sell to a purchaser or related group of purchasers such number of Shares as equals or exceeds 50% of the ~~Members with respect~~ then outstanding Shares determined on a Fully-Diluted Basis (whether in one transaction or a series of transactions) (a "Participation Sale"), each Holder of Executive Securities may elect to ~~a Sale of~~ participate in the contemplated transaction by delivering written notice to the Company ~~are subject~~ and CHS within ten (10) days following the receipt by Executive of notice of such transaction. Executive shall be entitled to sell, at the same price and on the same terms as CHS, Shares equal to the ~~satisfaction~~ product of (i) the ~~following conditions~~quotient determined by dividing the number of Shares owned by such Holder on a Fully-Diluted basis, by the aggregate number of Shares outstanding at such time, on a Fully-Diluted basis, and (ii) the number of Shares to be sold by CHS in such transaction. Notwithstanding anything to the contrary herein contained, the provisions of this Section 8(b) shall not apply to (x) any sale to any officer, director, employee, agent or lender to the Company or any of its Subsidiaries or (y) any sate or other Transfer to any successor CHS sponsored fund or to any Affiliate of CHS. (c) If a Holder is required or elects to participate in an Approved Sale or a Participation Sale pursuant to subsection (a) or (b) above: (i) upon the consummation of ~~such~~ the Approved Sale or the Participation Sale, as the case may be, all of the ~~Company, each holder~~ Holders of ~~Shares, to the extent such holder is receiving any consideration,~~ Shares similarly situated shall receive the same ~~form(s)~~ form and amount of consideration per Share, or if any Holders are given an option as ~~each other holder~~ to the form and amount of ~~Shares receives~~ consideration to be received; all such Holders shall be given the same option; (ii) upon the consummation of the Approved Sale or the ~~option to~~ Participation Sale, as the case may be, all of the holders of Subordinated Notes similarly situated shall receive the same form and amount of ~~consideration)~~consideration in relation to the face amount of Subordinated Notes held by such holders, or if any such holders are given an option as to the form and amount of consideration to be received, all holders shall be given the same option; and (iii) all Holders of then currently exercisable Options shall be given an opportunity to either (A) exercise such rights prior to the consummation of the Approved Sale or the Participation Sale, as the case may be, and participate in such sale as Holders, or (iiB) upon the consummation of the Approved Sale or the Participation Sale, as the case may be, receive in exchange for such rights consideration equal to the amount determined by multiplying (1) the same amount of consideration per Share received by the Holders in connection with the Approved Sale or the Participation Sale, as the case may be, less the exercise price per share of such rights to acquire Shares, by (2) the number of Shares represented by such rights. Without limiting the foregoing, any Holder participating in a transaction pursuant to this Section 8 shall be required to make such representations, warranties and covenants, and grant such indemnification, as may be required by the purchaser of the Shares and which have been made by CHS or the holders of a majority of the outstanding Shares, as the case may be. (d) If the Board or the holders of a majority of the outstanding Shares of the Company will be a Deemed Liquidation Event and the aggregate consideration payable upon consummation of such Sale of the Company to all holders of Shares in respect of their Shares shall be apportioned and distributed (after such aggregate consideration is adjusted for Company expenses, purchase price adjustments, escrow amounts, purchase price holdbacks, indemnity obligations and other similar items) as between the classes of Shares in accordance with the relevant provisions of Section 3.02 (assuming that, if such Sale of the Company is structured as a Transfer of Shares and less than all of the Shares are being Transferred, the Shares included in the Transfer are all of the Shares outstanding). For clarity, the application of Section 3.02 may result in some Shares included in the Transfer not receiving any consideration with respect to such Sale of the Company. (c) If the Company, or if the holders of any Shares, enter into any negotiation or transaction for which Rule 506 (or any similar rule then in effect) promulgated by the SEC under the 1933 Act may be available with respect to such negotiation or transaction (including a merger, ~~consolidation,~~ consolidation or other reorganization), each ~~holder of Equity Securities will~~Holder shall, acting together with other Holders, at the request of the Company, appoint ~~either~~ a purchaser representative (as such term is defined in Rule ~~501~~501 under the 0000 Xxx) reasonably acceptable to the Company. If Executive appoints a purchaser representative designated by the Company, ~~in which event~~ the Company ~~will~~ shall pay the fees of such purchaser representative, or but if Executive declines to appoint the purchaser representative designated by the Company, Executive shall appoint another purchaser representative (reasonably acceptable to the Company), ~~in which event such holder will~~ and Executive shall be responsible for the fees of the purchaser representative so appointed. Notwithstanding anything to the contrary, in connection with any Sale of the Company where the consideration in such Sale of the Company consists of or includes securities, if the issuance of such securities to the Member would require either a registration statement under the Securities Act, or preparation of a disclosure statement pursuant to Regulation D (or any successor regulation) under the Securities Act, or preparation of a disclosure document under a similar provision of any state securities law, and such registration statement or disclosure statement or other disclosure document is not otherwise being prepared in connection with the Sale of the Company, then, at the option of the Board of Directors, the Member may receive, in lieu of such securities, the Fair Market Value of such securities in cash. (d) In connection with any Sale of the Company, each Member shall (i) make such customary representations and warranties, including, as applicable, as to due organization and good standing, power and authority, due approval, no conflicts and ownership and title of Shares (including the absence of liens with respect to such Shares) and no litigation pending or threatened against or affecting such Member relating to its ownership of Shares, agree to such covenants and enter into such definitive agreements, in each case as are customary for transactions of the nature of the Sale of the Company; provided, that no Member shall be required to make any representation or warranty or agree to any covenant that is more extensive or burdensome than those made by the other Members (provided, that (A) in no event will the GM Investor or any of its Affiliates, SoftBank or any of its Affiliates, Honda or any of its Affiliates or any Class F New Member or any of its Affiliates be required to enter into a non-competition agreement or be subject to any similar covenant or provision and (B) the Employee Members may be required to enter into certain covenants, including non-compete and non-solicit obligations) and (ii) be obligated to join on a several, and not joint, basis (determined in accordance with such Member’s proportionate share of the proceeds from the Sale of the Company) in any indemnification or other obligations that are part of the terms and conditions of the Sale of the Company (other than to the extent of any escrows or holdbacks established in connection with such Sale of the Company); provided, that no Member shall be obligated (A) to provide indemnification with respect to the representations, warranties, covenants or agreements of any other Member (other than to the extent of any escrows or holdbacks established in connection with such Sale of the Company), or (B) to incur liability to any Person in connection with such Sale of the Company, including under any indemnity, in excess of the consideration received by such Person in the Sale of the Company (other than for fraud or breach of a covenant). (e) Each ~~Member will~~ Holder shall bear ~~his, her or its proportionate~~ such Holder's pro-rata share (based upon the number of Shares sold on a Fully-Diluted Basis) of the costs ~~incurred in connection with~~ of any sale of Executive Securities pursuant-to an Approved Sale or a Participation Sale ~~of the Company~~ to the extent such costs ~~are incurred for the benefit of all such holders of Shares and~~ are not otherwise paid by the Company or the acquiring party; provided, however, that all Holders are treated on an equal basis. Costs incurred by ~~the holders of Shares~~ a Holder on ~~their~~ such Holder's own behalf ~~will~~ shall not be considered costs of the transaction hereunder. (f) Notwithstanding anything to the contrary contained in this Agreement, the provisions of Section 8 shall terminate upon the consummation of a Sale of the Company. (f) Any contingent consideration (whether as a result of a release of an escrow or the payment of an “earn out” or otherwise) to be paid in connection with a Sale of the Company shall be allocated among the Members such that each Member receives the amount which such Member would have received if such consideration had been received by the Company and distributed as the next incremental dollars following the Distribution of any amounts previously paid under this Agreement or paid in connection with such Sale of the Company (assuming for such purposes that the Shares Transferred constitute all of the Shares). In the event any Member is liable in such Sale of the Company for amounts in excess of any escrow or holdback (other than any such obligations that relate specifically to a particular Member, such as indemnification with respect to representations and warranties given by a Member regarding such Person’s title to and ownership of Shares), such amounts shall be treated as a deduction to the consideration payable in such Sale of the Company and the aggregate consideration shall be re-allocated among the Members in accordance with Section 9.08(b). The Members agree that to the extent, as a result of such re-allocation, a Member has received more than its share of the consideration pursuant to such re-allocation, such Member shall deliver such excess to the appropriate Member(s) in order for each Member to receive its appropriate share of the consideration. (g) Without limiting the generality of the other provisions of this Section 9.08 but subject to Section 5.11, the Board of Directors shall determine whether or not to pursue, consummate, postpone or abandon any Sale of the Company and, subject to the limitations expressly set forth in this Section 9.08, the terms and conditions thereof. (h) The provisions of this Section 9.08 shall not apply to any transaction pursuant to Sections 9.10 or 9.12.

Appears in 1 contract

Samples: Executive Securities Agreement (Houston Wire & Cable CO)

Sale of the Company. ~~(a) Provided that a Drag-Along Notice has not been delivered and~~ Upon the ~~procedures in Section 9.09 are not then currently in effect, notwithstanding anything to the contrary in this Agreement, the Board~~ occurrence of ~~Directors may (subject to Section 5.11) elect to cause~~ a Sale of the ~~Company at any time. The Board of Directors~~ Company, all Time-Vesting Executive Incentive Units which have not yet become vested shall ~~direct and control all decisions in connection with a Sale~~ become vested as of the ~~Company (including the hiring or termination~~ date of any investment bank or professional adviser and making all decisions regarding valuation and consideration and the percentage of the Equity Securities in the Company to be sold) and, subject to Section 9.08(b) and Section 9.08(d), and without prejudice to Section 5.11, each Member shall vote for, consent to and not object to such Sale of the Company or the sale process associated therewith. If such Sale of the Company is structured as a sale of assets, merger or consolidation, then each Member shall, to the extent applicable to such transaction, vote for or consent to, and waive any dissenter’s rights, appraisal rights or similar rights in connection with, such sale, merger or consolidation. If such Sale of the Company is structured as a Transfer of Shares, and the Sale of the Company involves less than all of the Shares in the Company, then each Member shall Transfer the same percentage of each class or series of Shares (or rights to acquire Shares of any class or series) that it holds. Each Member and the Company shall take all reasonable and necessary actions in connection with the consummation of such Sale of the ~~Company~~ Company, if, as ~~may be requested~~ of such date, Executive has been continuously employed by the ~~Board~~ Company or any of ~~Directors~~its Subsidiaries from the Reference Date through and including such date, ~~including (i) in the case of the Company only, engaging one or more investment banks and legal counsel selected by the Board of Directors to establish procedures acceptable~~ subject to the ~~Board~~ provisions of ~~Directors to effect and to otherwise assist in connection with~~ this Section 2(c). Upon the occurrence of a Sale of the Company, any Performance-Vesting Executive Incentive Units (iiwhether held by Executive or one or more of Executive’s transferees, other than the Company and the Investors) ~~taking~~ which fail to vest as result of such ~~commercially reasonable actions and providing such commercially reasonable cooperation and assistance as may be necessary to consummate the~~ Sale of the Company in will automatically (without an ~~expeditious and efficient manner and not taking~~ action by Executive or any ~~action or engaging in any activity designed~~ of Executive’s transferees) be forfeited to ~~hinder, prevent or delay the consummation of the Sale of the Company, (iii) in the case of~~ the Company ~~only, facilitating the due diligence process in respect of~~ and deemed canceled and no longer outstanding without any such Sale of the Company, including establishing, populating and maintaining an online “data room”, (iv) in the case of the Company only, providing any financial or other information or audit required by the proposed buyer’s financing sources and (v) the execution of such agreements and such instruments and other actions reasonably necessary in connection with the Sale of the Company, including to provide customary representations, warranties, indemnities and escrow arrangements relating thereto, in each case in accordance with and subject to the limitations set forth in Section 9.08(d). (b) The obligations of the Members with respect to a Sale of the Company are subject to the satisfaction of the following conditions: (i) payment therefor upon the consummation of such Sale of the Company~~, each holder of Shares,~~ . Notwithstanding the foregoing or anything herein or in the LLC Agreement to the ~~extent such holder is receiving~~ contrary (and in addition to any ~~consideration, shall receive the same form(s) of consideration as each other holder of Shares receives (or the option to receive the same form of consideration~~requirements therein), and (ii) the Sale of the Company will be a Deemed Liquidation Event and the aggregate consideration payable upon consummation of such Sale of the Company to all holders of Shares in respect of their Shares shall be apportioned and distributed (after such aggregate consideration is adjusted for Company expenses, purchase price adjustments, escrow amounts, purchase price holdbacks, indemnity obligations and other similar items) as between the classes of Shares in accordance with the relevant provisions of Section 3.02 (assuming that, if such Sale of the Company is structured as a Transfer of Shares and less than all of the Shares are being Transferred, the Shares included in the ~~Transfer are all~~ case of ~~the Shares outstanding). For clarity, the application of Section 3.02 may result in some Shares included in the Transfer not receiving any consideration with respect to such~~ a Sale of the Company~~. (c) If the Company~~, or Executive hereby agrees that, if the ~~holders of any Shares, enter into any negotiation~~ Person who is acquiring the equity securities or transaction for which Rule 506 (or any similar rule then in effect) promulgated by the SEC may be available with respect to such negotiation or transaction (including a merger, consolidation, or other reorganization), each holder of Equity Securities will, at the request of the Company, appoint either a purchaser representative (as such term is defined in Rule 501) designated by the Company, in which event the Company will pay the fees of such purchaser representative, or another purchaser representative (reasonably acceptable to the Company), in which event such holder will be responsible for the fees of the purchaser representative so appointed. Notwithstanding anything to the contrary, in connection with any Sale assets of the Company ~~where the consideration~~ resulting in such Sale of the Company ~~consists of or includes securities, if~~ (the ~~issuance of such securities~~ “Acquiror”) reasonably requests that Executive continue to provide any services to the ~~Member would require either a registration statement under the Securities Act~~Acquiror, or preparation of a disclosure statement pursuant to Regulation D (or any successor regulation) under the Securities Act, or preparation of a disclosure document under a similar provision of any state securities law, and such registration statement or disclosure statement or other disclosure document is not otherwise being prepared in connection with the Sale of the Company, then, at the option of the Board of Directors, the Member may receive, in lieu of such securities, the Fair Market Value of such securities in cash. (d) In connection with any Sale of the Company, each Member shall (i) make such customary representations and warranties, including, as applicable, as to due organization and good standing, power and authority, due approval, no conflicts and ownership and title of Shares (including the absence of liens with respect to such Shares) and no litigation pending or threatened against or affecting such Member relating to its ownership of Shares, agree to such covenants and enter into such definitive agreements, in each case as are customary for transactions of the nature of the Sale of the Company; provided, that no Member shall be required to make any representation or warranty or agree to any covenant that is more extensive or burdensome than those made by the other Members (provided, that (A) in no event will the GM Investor Employer or any of ~~its Affiliates, SoftBank or any of its Affiliates, Honda or any of its~~ their respective Affiliates ~~or any Class F New Member or any of its Affiliates be required to enter into a non-competition agreement or be subject to any similar covenant or provision~~ from and ~~(B)~~ after the Employee Members may be required to enter into certain covenants, including non-compete and non-solicit obligations) and (ii) be obligated to join on a several, and not joint, basis (determined in accordance with such Member’s proportionate share of the proceeds from the Sale of the Company) in any indemnification or other obligations that are part of the terms and conditions consummation of the Sale of the Company (~~other~~ whether as a full-time employee, consultant or otherwise) that are within the scope of services provided by Executive during the Employment Period in exchange for a base salary (or equivalent base compensation), bonus opportunity and fringe benefits (collectively, the “Post-Sale Compensation”) that are no less favorable to Executive in the aggregate than the Annual Base Salary, bonus opportunity, and fringe benefits provided to ~~the extent of any escrows or holdbacks established in connection with~~ Executive by Employer immediately prior to such Sale of the ~~Company~~Company (excluding any equity or other incentive compensation), then the Continuing Incentive Amount shall be handled as follows (in lieu of being paid to Executive and/or Executive’s Permitted Transferee(s)): (i) if Executive declines to provide such requested services, the Continuing Incentive Amount shall be distributed pursuant to Section 4.1(a) of the LLC Agreement to the holders of Capital Units (excluding, for these purposes, all Restricted Units which are subject to an applicable limitation), and, thereafter, neither Executive nor Executive’s Permitted Transferee(s) shall have any rights in respect of or other claims on such amounts (other than Executive’s status as a holder of Capital Units); ~~provided~~or (ii) if Executive agrees to provide such requested services, ~~that no Member~~ the Continuing Incentive Amount shall be ~~obligated~~ deposited into an escrow account with an escrow agent designated by the Company, and the Continuing Incentive Amount shall be handled as follows: (A) if Executive provides such requested services from and after consummation of the Sale of the Company through the earliest of (w) the date on which Acquiror reduces Executive’s Post-Sale Compensation below the Annual Base Salary, bonus opportunity, and fringe benefits provided to ~~provide indemnification with respect~~ Executive by Employer immediately prior to ~~the representations, warranties, covenants or agreements of any other Member (other than to the extent of any escrows or holdbacks established in connection with~~ such Sale of the ~~Company~~Company (excluding any equity or other incentive compensation), (x) [ILLEGIBLE] date on which the Acquiror terminates such services (other than with Cause), (y) Executive’s death or Disability, or (Bz) ~~to incur liability to any Person in connection with such Sale~~ the nine (9)-month anniversary of the ~~Company, including under any indemnity, in excess~~ consummation of ~~the consideration received by such Person in~~ the Sale of the Company (~~other than for fraud or breach~~ the earliest of ~~a covenant~~(w). , (ex), (y) ~~Each Member will bear his~~and (z), ~~her or its proportionate share of~~ the ~~costs incurred in connection~~ “Final Vesting Date”), then the Continuing Incentive Amount, together with a Sale of the Company to the extent such costs are incurred for the benefit of all such holders of Shares and are not otherwise paid by the Company or the acquiring party. Costs incurred by the holders of Shares on their own behalf will not be considered costs of the Sale of the Company. (f) Any contingent consideration (whether as a result of a release of an escrow or the payment of an “earn out” or otherwise) to be paid in connection with a Sale of the Company any income earned thereon, shall be allocated among the Members such that each Member receives the amount which such Member would have received if such consideration had been received by the Company and distributed as the next incremental dollars following the Distribution of any amounts previously paid under this Agreement or paid in connection with such Sale of the Company (assuming for such purposes that the Shares Transferred constitute all of the Shares). In the event any Member is liable in such Sale of the Company for amounts in excess of any escrow or holdback (other than any such obligations that relate specifically released to ~~a particular Member, such as indemnification with respect to representations and warranties given by a Member regarding such Person~~Executive and/or Executive’s ~~title to and ownership of Shares~~Permitted Transferee(s), ~~such amounts shall be treated~~ as ~~a deduction to~~ applicable, within five (5) business days after the consideration payable in such Sale of the Company and the aggregate consideration shall be re-allocated among the Members in accordance with Section 9.08(b). The Members agree that to the extent, as a result of such re-allocation, a Member has received more than its share of the consideration pursuant to such re-allocation, such Member shall deliver such excess to the appropriate Member(s) in order for each Member to receive its appropriate share of the consideration. (g) Without limiting the generality of the other provisions of this Section 9.08 but subject to Section 5.11, the Board of Directors shall determine whether or not to pursue, consummate, postpone or abandon any Sale of the Company and, subject to the limitations expressly set forth in this Section 9.08, the terms and conditions thereof. (h) The provisions of this Section 9.08 shall not apply to any transaction pursuant to Sections 9.10 or 9.12.Final Vesting Date; or

Appears in 1 contract

Samples: Senior Management Agreement (Maravai Lifesciences Holdings, Inc.)

Sale of the Company. (a) ~~Provided that~~ If a Drag-Along Notice has not been delivered and the procedures in Section 9.09 are not then currently in effect, notwithstanding anything to the contrary in this Agreement, the Board of Directors may (subject to Section 5.11) elect to cause a Sale of the Company at any time. The Board of Directors shall direct and control all decisions in connection with a Sale of the Company (including the hiring or termination of any investment bank or professional adviser and making all decisions regarding valuation and consideration and the percentage of the Equity Securities in the Company to be sold) and, subject to Section 9.08(b) and Section 9.08(d), and without prejudice to Section 5.11, each Member shall vote for, consent to and not object to such Sale of the Company or the sale process associated therewith. If such Sale of the Company is structured as a direct sale of ~~assets~~Units (whether by merger, consolidation, reorganization or otherwise) and is approved by the Board, each Member or other Person owning Units shall consent to and raise no objections (and shall cause each of its Affiliates to so consent and not to raise any objection) to the Sale of the Company, the process pursuant to which the Sale of the Company was arranged or the structure pursuant to which the Sale of the Company is to be consummated. If the Sale of the Company is structured as a merger or consolidation, ~~then~~ each Member ~~shall, to the extent applicable to such transaction, vote for~~ or ~~consent~~ other Person owning Units shall (and shall cause each of its Affiliates to~~, and~~ ) waive any dissenter’s rights, appraisal rights or similar rights in connection ~~with,~~ with such ~~sale,~~ merger or consolidation. If ~~such~~ the Sale of the Company is structured as a ~~Transfer~~ direct or indirect sale of ~~Shares~~Units (whether by merger, consolidation, reorganization or otherwise), each Member or other Person owning Units shall waive (and shall cause each of its Affiliates to waive) all minority shareholders’ statutory rights of dissolution, if any. Without limiting the generality of the foregoing: (i) If the Sale of the Company ~~involves less than~~ is structured as a direct sale of Units (whether by merger, consolidation, reorganization or otherwise), each Member or other Person owning Units shall sell (and shall cause each of its Affiliates to sell) all of his or its Units and rights to acquire Units and all equity securities of any Subsidiary of the ~~Shares~~ Company held by such Member or other Person on the terms and conditions approved by Members holding a majority of the Common Units. Each Member participating in such Sale of the Company (regardless of whether selling Units or interests in the Member) shall receive the same form of consideration and the same portion of the aggregate net consideration as such holder would have received if the Company sold all of its assets, paid all of its liabilities and such aggregate net consideration were distributed by the Company to the Members pursuant to Section 10.1(b), without regard to any tax consequences to any Member as a result hereof (ii) If the Sale of the Company is structured as a sale of the Company’s assets, each Member or other Person owning Units (A) shall sell (and shall cause each of its Affiliates to sell) all equity securities of any Subsidiary of the Company held by such Member or other Person on the terms and conditions contemplated by the Sale of the Company, ~~then~~ and (B) will take (and shall cause each ~~Member shall Transfer the same percentage~~ of ~~each class or series~~ its Affiliates to take) all actions necessary to cause a liquidation of ~~Shares (or rights to acquire Shares of any class or series) that it holds. Each Member and~~ the Company ~~shall take all reasonable~~ and ~~necessary actions in connection with~~ each of its Subsidiaries following the consummation of such Sale of the ~~Company as may be requested by~~ Company. (b) In addition to and without limiting the ~~Board of Directors, including (i) in the case~~ generality of the ~~Company only~~foregoing, ~~engaging one or more investment banks and legal counsel selected by the Board of Directors to establish procedures acceptable to the Board of Directors to effect and to otherwise assist~~ in connection with a Sale of the Company, ~~(ii) taking such commercially reasonable~~ each Member or other Person owning Units will take all other necessary and desirable actions ~~and providing such commercially reasonable cooperation and assistance~~ as ~~may be necessary to consummate~~ directed by the ~~Sale of the Company~~ Board in ~~an expeditious and efficient manner and not taking any action or engaging in any activity designed to hinder, prevent or delay~~ connection with the consummation of ~~the~~ any Sale of the Company, including: (~~iii~~i) executing the applicable purchase agreement and other related transaction documents and making (and so long as all of the other Persons participating in such sale are providing the same (or greater) representations, warranties and indemnities on a basis consistent with the percentage and type of security interest being sold), representations, warranties and indemnities regarding such Person’s ownership of Units, including (x) the power and authority of such Person to enter into and consummate such sale and (y) providing the purchaser with good and marketable title to the securities being sold by such Person, free and clear of all liens created by such Person; and (ii) providing indemnification with respect to the breach of any representations, warranties or covenants regarding the Company (without regard to whether such representations, warranties or covenants are made by the Company itself or any other Person participating in such sale, but only so long as all of the Persons participating in such sale are providing the same (or greater) indemnification) contained in the ~~case~~ documents governing such sale on a basis consistent with the percentage and type of ~~the Company only, facilitating the due diligence process in respect of~~ security or interest being sold. (c) In connection with any ~~such~~ Sale of the Company, ~~including establishing, populating and maintaining an online “data room”, (iv) in the case of the Company only, providing any financial~~ each Member or other ~~information or audit required by the proposed buyer’s financing sources~~ Person owning Units and ~~(v) the execution of~~ receiving consideration in such agreements and such instruments and other actions reasonably necessary in connection with the Sale of the Company, including to provide customary representations, warranties, indemnities and escrow arrangements relating thereto, in each case in accordance with and subject to the limitations set forth in Section 9.08(d). (b) The obligations of the Members with respect to a Sale of the Company ~~are subject to~~ shall pay its pro rata share (based on the ~~satisfaction~~ proportion of the ~~following conditions: (i~~total consideration received in such Sale of the Company by all Persons participating in such sale) ~~upon~~ of all expenses incurred by the ~~consummation~~ Company in connection with such Sale of the Company and if any escrow arrangement is required in connection with such Sale of the Company, each ~~holder of Shares, to~~ Member or other Person shall fund its pro rata share (based on the extent such holder is receiving any consideration, shall receive the same form(s) of consideration as each other holder of Shares receives (or the option to receive the same form of consideration), and (ii) the Sale proportion of the ~~Company will be a Deemed Liquidation Event and the aggregate~~ total consideration ~~payable upon consummation of~~ received in such Sale of the Company to by all ~~holders~~ Persons participating in such sale of ~~Shares in respect of their Shares shall be apportioned and distributed (after~~ such aggregate consideration is adjusted for Company expenses, purchase price adjustments, escrow amounts, purchase price holdbacks, indemnity obligations and other similar items) as between the classes of Shares in accordance with the relevant provisions of Section 3.02 (assuming that, if such Sale of the Company is structured as a Transfer of Shares and less than all of the Shares are being Transferred, the Shares included in the Transfer are all of the Shares outstandingescrow)~~. For clarity, the application of Section 3.02 may result in some Shares included in the Transfer not receiving any consideration with respect to such Sale of the Company~~. (cd) If the ~~Company, or if the holders of any Shares, enter~~ Company enters into any negotiation or transaction for which Rule 506 promulgated by the SEC (or any similar rule then in effect) ~~promulgated by the SEC~~ may be available with respect to such negotiation or transaction (including a merger, ~~consolidation,~~ consolidation or other reorganization), each ~~holder~~ Member or other Person owning Units that is not an “accredited investor” (within the meaning of ~~Equity Securities~~ Rule 501(a) promulgated by the SEC) will, at the request of the ~~Company,~~ Board appoint ~~either~~ a purchaser representative (as such term is defined in Rule ~~501) designated~~ 501 promulgated by the ~~Company, in which event~~ SEC) approved by the ~~Company will pay~~ Board (as the ~~fees of such purchaser representative, or another purchaser representative (reasonably acceptable to the Company~~case may be), ~~in which event~~ and such ~~holder~~ Member or other Person will be responsible for the fees of the purchaser representative so appointed. Notwithstanding anything to the contrary, in connection with any Sale of the Company where the consideration in such Sale of the Company consists of or includes securities, if the issuance of such securities to the Member would require either a registration statement under the Securities Act, or preparation of a disclosure statement pursuant to Regulation D (or any successor regulation) under the Securities Act, or preparation of a disclosure document under a similar provision of any state securities law, and such registration statement or disclosure statement or other disclosure document is not otherwise being prepared in connection with the Sale of the Company, then, at the option of the Board of Directors, the Member may receive, in lieu of such securities, the Fair Market Value of such securities in cash. (d) In connection with any Sale of the Company, each Member shall (i) make such customary representations and warranties, including, as applicable, as to due organization and good standing, power and authority, due approval, no conflicts and ownership and title of Shares (including the absence of liens with respect to such Shares) and no litigation pending or threatened against or affecting such Member relating to its ownership of Shares, agree to such covenants and enter into such definitive agreements, in each case as are customary for transactions of the nature of the Sale of the Company; provided, that no Member shall be required to make any representation or warranty or agree to any covenant that is more extensive or burdensome than those made by the other Members (provided, that (A) in no event will the GM Investor or any of its Affiliates, SoftBank or any of its Affiliates, Honda or any of its Affiliates or any Class F New Member or any of its Affiliates be required to enter into a non-competition agreement or be subject to any similar covenant or provision and (B) the Employee Members may be required to enter into certain covenants, including non-compete and non-solicit obligations) and (ii) be obligated to join on a several, and not joint, basis (determined in accordance with such Member’s proportionate share of the proceeds from the Sale of the Company) in any indemnification or other obligations that are part of the terms and conditions of the Sale of the Company (other than to the extent of any escrows or holdbacks established in connection with such Sale of the Company); provided, that no Member shall be obligated (A) to provide indemnification with respect to the representations, warranties, covenants or agreements of any other Member (other than to the extent of any escrows or holdbacks established in connection with such Sale of the Company), or (B) to incur liability to any Person in connection with such Sale of the Company, including under any indemnity, in excess of the consideration received by such Person in the Sale of the Company (other than for fraud or breach of a covenant). (e) Each Member will bear his, her or its proportionate share of the costs incurred in connection with a Sale of the Company to the extent such costs are incurred for the benefit of all such holders of Shares and are not otherwise paid by the Company or the acquiring party. Costs incurred by the holders of Shares on their own behalf will not be considered costs of the Sale of the Company. (f) Any contingent consideration (whether as a result of a release of an escrow or the payment of an “earn out” or otherwise) to be paid in connection with a Sale of the Company shall be allocated among the Members such that each Member receives the amount which such Member would have received if such consideration had been received by the Company and distributed as the next incremental dollars following the Distribution of any amounts previously paid under this Agreement or paid in connection with such Sale of the Company (assuming for such purposes that the Shares Transferred constitute all of the Shares). In the event any Member is liable in such Sale of the Company for amounts in excess of any escrow or holdback (other than any such obligations that relate specifically to a particular Member, such as indemnification with respect to representations and warranties given by a Member regarding such Person’s title to and ownership of Shares), such amounts shall be treated as a deduction to the consideration payable in such Sale of the Company and the aggregate consideration shall be re-allocated among the Members in accordance with Section 9.08(b). The Members agree that to the extent, as a result of such re-allocation, a Member has received more than its share of the consideration pursuant to such re-allocation, such Member shall deliver such excess to the appropriate Member(s) in order for each Member to receive its appropriate share of the consideration. (g) Without limiting the generality of the other provisions of this Section 9.08 but subject to Section 5.11, the Board of Directors shall determine whether or not to pursue, consummate, postpone or abandon any Sale of the Company and, subject to the limitations expressly set forth in this Section 9.08, the terms and conditions thereof. (h) The provisions of this Section 9.08 shall not apply to any transaction pursuant to Sections 9.10 or 9.12.

Appears in 1 contract

Samples: Master Transaction Agreement (SRAM International Corp)

Sale of the Company. (a) ~~Provided that~~ If the holder(s) of a ~~Drag-Along Notice has not been delivered~~ majority of the Shares then outstanding and the ~~procedures in Section 9.09 are not then currently in effect, notwithstanding anything to the contrary in this Agreement, the~~ Board ~~of Directors may (subject to Section 5.11) elect to cause a Sale of the Company at any time. The Board of Directors shall direct and control all decisions in connection with~~ approve a Sale of the Company (including the hiring or termination of any investment bank or professional adviser and making all decisions regarding valuation and consideration and the percentage of the Equity Securities in the Company to be sold) and, subject to Section 9.08(b) and Section 9.08(dan "Approved Sale"), ~~and without prejudice to Section 5.11,~~ each ~~Member~~ Holder shall ~~vote for,~~ consent to and ~~not object to such~~ raise no objections against the Approved Sale, and if the Approved Sale ~~of the Company or the sale process associated therewith. If such Sale of the Company~~ is structured as a sale of ~~assets~~Shares, ~~merger~~ each Holder shall, if requested by the holder(s) of a majority of the Shares then outstanding, sell (or otherwise Transfer) that percentage of his or her Executive Securities, on terms and conditions approved by the Board and the holder(s) of a majority of the Shares then outstanding, as shall equal the percentage of Shares owned by CHS that are to be included in such transaction. Each Holder shall take all actions reasonably necessary or reasonably desirable (as determined by the holder(s) of a majority of the Shares then outstanding) in connection with the consummation of the Approved Sale. Without limiting the foregoing, (i) if the Approved Sale is structured as a merger, consolidation, ~~then each Member shall, to the extent applicable to such~~ joint venture or similar transaction, each Holder shall vote ~~for or consent to,~~ in favor of such transaction and waive any ~~dissenter’s~~ dissenters' rights, appraisal rights or similar rights in connection ~~with,~~ with such ~~sale,~~ merger or consolidation~~. If such~~ , and (ii) if the Approved Sale ~~of the Company~~ is structured as a ~~Transfer~~ sale or exchange of Shares, ~~and the Sale of the Company involves less than~~ each Holder shall agree to sell or exchange all of the Shares in and Options held by such Holder on the ~~Company, then each Member shall Transfer the same percentage of each class or series of Shares (or rights to acquire Shares of any class or series) that it holds. Each Member~~ terms and ~~the Company shall take all reasonable and necessary actions in connection with the consummation of such Sale of the Company as may be requested~~ conditions approved by the Board and the holders of ~~Directors, including (i) in the case~~ a majority of the Shares then outstanding. The Company ~~only~~shall use best efforts to notify Executive in writing not less than thirty (30) days prior to the proposed consummation of an Approved Sale (or, ~~engaging one~~ sale as described in Section 8(b) below); provided that such Executive agrees that he or ~~more investment banks and~~ she will not, directly or indirectly (without the prior written consent of the Company), disclose to any other Person (other than to such Executive's legal counsel ~~selected~~ in confidence, as otherwise necessary to protect such Executive's rights under this Agreement or as otherwise required by ~~the Board of Directors~~ law) any information related to ~~establish procedures acceptable to the Board of Directors to effect and to otherwise assist in connection with a~~ such potential Sale of the Company, (ii) taking such commercially reasonable actions and providing such commercially reasonable cooperation and assistance as may be necessary to consummate the Sale of the Company in an expeditious and efficient manner and not taking any action or engaging in any activity designed to hinder, prevent or delay the consummation of the Sale of the Company, (iii) in the case of the Company only, facilitating the due diligence process in respect of any such Sale of the Company, including establishing, populating and maintaining an online “data room”, (iv) in the case of the Company only, providing any financial or other information or audit required by the proposed buyer’s financing sources and (v) the execution of such agreements and such instruments and other actions reasonably necessary in connection with the Sale of the Company, including to provide customary representations, warranties, indemnities and escrow arrangements relating thereto, in each case in accordance with and subject to the limitations set forth in Section 9.08(d). (b) ~~The obligations~~ If CHS proposes to sell to a purchaser or related group of purchasers such number of Shares as equals or exceeds 50% of the ~~Members with respect~~ then outstanding Shares determined on a Fully-Diluted Basis (whether in one transaction or a series of transactions) (a "Participation Sale"), each Holder of Executive Securities may elect to ~~a Sale of~~ participate in the contemplated transaction by delivering written notice to the Company ~~are subject~~ and CHS within ten (10) days following the receipt by Executive of notice of such transaction. Executive shall be entitled to sell, at the same price and on the same terms as CHS, Shares equal to the ~~satisfaction~~ product of (i) the ~~following conditions~~quotient determined by dividing the number of Shares owned by such Holder on a Fully-Diluted basis, by the aggregate number of Shares outstanding at such time, on a Fully-Diluted basis, and (ii) the number of Shares to be sold by CHS in such transaction. Notwithstanding anything to the contrary herein contained, the provisions of this Section 8(b) shall not apply to (x) any sale to any officer, director, employee, agent or lender to the Company or any of its Subsidiaries or (y) any sale or other Transfer to any successor CHS sponsored fund or to any Affiliate of CHS. (c) If a Holder is required or elects to participate in an Approved Sale or a Participation Sale pursuant to subsection (a) or (b) above: (i) upon the consummation of ~~such~~ the Approved Sale or the Participation Sale, as the case may be, all of the ~~Company, each holder~~ Holders of ~~Shares, to the extent such holder is receiving any consideration,~~ Shares similarly situated shall receive the same ~~form(s)~~ form and amount of consideration per Share, or if any Holders are given an option as ~~each other holder~~ to the form and amount of ~~Shares receives (or the option~~ consideration to ~~receive~~ be received; all such Holders shall be given the same ~~form of consideration),~~ option; and (ii) all Holders of then currently exercisable Options shall be given an opportunity to either (A) exercise such rights prior to the consummation of the Approved Sale or the Participation Sale, as the case may be, and participate in such sale as Holders, or (B) upon the consummation of the Approved Sale or the Participation Sale, as the case may be, receive in exchange for such rights consideration equal to the amount determined by multiplying (1) the same amount of consideration per Share received by the Holders in connection with the Approved Sale or the Participation Sale, as the case may be, less the exercise price per share of such rights to acquire Shares, by (2) the number of Shares represented by such rights. Without limiting the foregoing, any Holder participating in a transaction pursuant to this Section 8 shall be required to make such representations, warranties and covenants, and grant such indemnification, as may be required by the purchaser of the Shares and which have been made by CHS or the holders of a majority of the outstanding Shares, as the case may be. (d) If the Board or the holders of a majority of the outstanding Shares of the Company will be a Deemed Liquidation Event and the aggregate consideration payable upon consummation of such Sale of the Company to all holders of Shares in respect of their Shares shall be apportioned and distributed (after such aggregate consideration is adjusted for Company expenses, purchase price adjustments, escrow amounts, purchase price holdbacks, indemnity obligations and other similar items) as between the classes of Shares in accordance with the relevant provisions of Section 3.02 (assuming that, if such Sale of the Company is structured as a Transfer of Shares and less than all of the Shares are being Transferred, the Shares included in the Transfer are all of the Shares outstanding). For clarity, the application of Section 3.02 may result in some Shares included in the Transfer not receiving any consideration with respect to such Sale of the Company. (c) If the Company, or if the holders of any Shares, enter into any negotiation or transaction for which Rule 506 (or any similar rule then in effect) promulgated by the SEC under the 1933 Act may be available with respect to such negotiation or transaction (including a merger, ~~consolidation,~~ consolidation or other reorganization), each ~~holder of Equity Securities will~~Holder shall, acting together with other Holders, at the request of the Company, appoint ~~either~~ a purchaser representative (as such term is defined in Rule ~~501~~501 under the 0000 Xxx) reasonably acceptable to the Company. If Executive appoints a purchaser representative designated by the Company, ~~in which event~~ the Company ~~will~~ shall pay the fees of such purchaser representative, or but if Executive declines to appoint the purchaser representative designated by the Company, Executive shall appoint another purchaser representative (reasonably acceptable to the Company), ~~in which event such holder will~~ and Executive shall be responsible for the fees of the purchaser representative so appointed. Notwithstanding anything to the contrary, in connection with any Sale of the Company where the consideration in such Sale of the Company consists of or includes securities, if the issuance of such securities to the Member would require either a registration statement under the Securities Act, or preparation of a disclosure statement pursuant to Regulation D (or any successor regulation) under the Securities Act, or preparation of a disclosure document under a similar provision of any state securities law, and such registration statement or disclosure statement or other disclosure document is not otherwise being prepared in connection with the Sale of the Company, then, at the option of the Board of Directors, the Member may receive, in lieu of such securities, the Fair Market Value of such securities in cash. (d) In connection with any Sale of the Company, each Member shall (i) make such customary representations and warranties, including, as applicable, as to due organization and good standing, power and authority, due approval, no conflicts and ownership and title of Shares (including the absence of liens with respect to such Shares) and no litigation pending or threatened against or affecting such Member relating to its ownership of Shares, agree to such covenants and enter into such definitive agreements, in each case as are customary for transactions of the nature of the Sale of the Company; provided, that no Member shall be required to make any representation or warranty or agree to any covenant that is more extensive or burdensome than those made by the other Members (provided, that (A) in no event will the GM Investor or any of its Affiliates, SoftBank or any of its Affiliates, Honda or any of its Affiliates or any Class F New Member or any of its Affiliates be required to enter into a non-competition agreement or be subject to any similar covenant or provision and (B) the Employee Members may be required to enter into certain covenants, including non-compete and non-solicit obligations) and (ii) be obligated to join on a several, and not joint, basis (determined in accordance with such Member’s proportionate share of the proceeds from the Sale of the Company) in any indemnification or other obligations that are part of the terms and conditions of the Sale of the Company (other than to the extent of any escrows or holdbacks established in connection with such Sale of the Company); provided, that no Member shall be obligated (A) to provide indemnification with respect to the representations, warranties, covenants or agreements of any other Member (other than to the extent of any escrows or holdbacks established in connection with such Sale of the Company), or (B) to incur liability to any Person in connection with such Sale of the Company, including under any indemnity, in excess of the consideration received by such Person in the Sale of the Company (other than for fraud or breach of a covenant). (e) Each ~~Member will~~ Holder shall bear ~~his, her or its proportionate~~ such Holder's pro-rata share (based upon the number of Shares sold on a Fully-Diluted Basis) of the costs ~~incurred in connection with~~ of any sale of Executive Securities pursuant-to an Approved Sale or a Participation Sale ~~of the Company~~ to the extent such costs ~~are incurred for the benefit of all such holders of Shares and~~ are not otherwise paid by the Company or the acquiring party; provided, however, that all Holders are treated on an equal basis. Costs incurred by ~~the holders of Shares~~ a Holder on ~~their~~ such Holder's own behalf ~~will~~ shall not be considered costs of the transaction hereunder. (f) Notwithstanding anything to the contrary contained in this Agreement, the provisions of Section 8 shall terminate upon the consummation of a Sale of the Company. (f) Any contingent consideration (whether as a result of a release of an escrow or the payment of an “earn out” or otherwise) to be paid in connection with a Sale of the Company shall be allocated among the Members such that each Member receives the amount which such Member would have received if such consideration had been received by the Company and distributed as the next incremental dollars following the Distribution of any amounts previously paid under this Agreement or paid in connection with such Sale of the Company (assuming for such purposes that the Shares Transferred constitute all of the Shares). In the event any Member is liable in such Sale of the Company for amounts in excess of any escrow or holdback (other than any such obligations that relate specifically to a particular Member, such as indemnification with respect to representations and warranties given by a Member regarding such Person’s title to and ownership of Shares), such amounts shall be treated as a deduction to the consideration payable in such Sale of the Company and the aggregate consideration shall be re-allocated among the Members in accordance with Section 9.08(b). The Members agree that to the extent, as a result of such re-allocation, a Member has received more than its share of the consideration pursuant to such re-allocation, such Member shall deliver such excess to the appropriate Member(s) in order for each Member to receive its appropriate share of the consideration. (g) Without limiting the generality of the other provisions of this Section 9.08 but subject to Section 5.11, the Board of Directors shall determine whether or not to pursue, consummate, postpone or abandon any Sale of the Company and, subject to the limitations expressly set forth in this Section 9.08, the terms and conditions thereof. (h) The provisions of this Section 9.08 shall not apply to any transaction pursuant to Sections 9.10 or 9.12.

Appears in 1 contract

Samples: Executive Securities Agreement (Houston Wire & Cable CO)

Sale of the Company. (a) ~~Provided that~~ Subject to Section 9.9(d) below, if the Company breaches or fails to perform or observe its obligations arising under Section 9.2(a) hereof and such breach, failure or non-observance continues to exist for four consecutive fiscal quarters, then the holders of a ~~Drag-Along Notice has not been delivered~~ majority of the Series B Shares then outstanding (the "INITIATING HOLDERS") shall have the right to cause the Company to seek a buyer for all of the assets or issued and outstanding capital stock of the ~~procedures in~~ Company. The Initiating Holders shall exercise their rights under Section ~~9.09 are not then currently in~~ 9.9(a) by delivery of a written notice to the Company and all other Purchasers to such effect, ~~notwithstanding anything~~ and identifying an investment bank (the "INVESTMENT BANK"), which firm shall be reasonably acceptable to ~~the contrary in this Agreement,~~ the Board of ~~Directors may~~ Directors, to conduct such sale. (~~subject~~ b) Upon delivery to the Company of a written notice referred to in Section ~~5.11) elect~~ 9.9(a), the Company and each other party hereto agrees to use their reasonable best efforts to take, or cause ~~a Sale~~ to be taken, all actions and to do, or cause to be done, all things necessary or desirable to effect the sale of the Company ~~at any~~ in accordance with the following provisions (it being understood that no Purchaser shall be required under this Section 9.9 to vote in favor of such sale or to sell their shares of the Company's capital stock pursuant to such sale): (i) The Investment Bank will establish procedures reasonably acceptable to the Initiating Holders to effect an orderly sale of the Company with the objective of achieving the highest practicable value for the stockholders of the Company within a reasonable period of time. The ~~Board of Directors shall direct~~ Company agrees to cooperate with the Investment Bank in accordance with such procedures, and ~~control all decisions in connection with a Sale~~ agrees to use its reasonable best efforts to reach agreement on the optimum structure and the terms and conditions for the sale of the Company (including whether such sale will be by merger or sale of assets or capital stock) and will retain independent legal counsel of appropriate expertise, reasonably acceptable to the ~~hiring or termination of any investment bank or professional adviser~~ Initiating Holders, to advise the Company on such sale. To the extent permitted by applicable law, the Company agrees to pay all fees and ~~making all decisions regarding valuation and consideration and the percentage~~ expenses of the ~~Equity Securities~~ Investment Bank and such legal counsel, as well as the fees and expenses of one law firm retained by the Initiating Holders in ~~the Company to be sold~~connection with such sale. (ii) ~~and, subject to Section 9.08(b) and Section 9.08(d), and without prejudice to Section 5.11, each Member shall vote for, consent to and not object to such Sale of the Company or~~ If the sale ~~process associated therewith. If such Sale~~ of the Company is structured as a sale of assets, ~~merger~~ the Company agrees to execute and deliver or ~~consolidation~~cause to be executed and delivered all documents, ~~then each Member shall~~certificates, agreements and other writings and to take, or cause to be taken, all such actions as may be necessary or desirable to vest in the purchaser(s) thereof good and marketable title to such assets. (iii) The rights and obligations of the Purchasers under this Section 9.9(b) shall be subject to the ~~extent applicable to~~ following conditions: (A) upon the consummation of any such ~~transaction, vote for or consent to, and waive any dissenter’s rights, appraisal rights or similar rights in connection with, such sale, merger or consolidation. If such Sale~~ sale of the ~~Company is structured as a Transfer of Shares, and the Sale~~ capital stock of the ~~Company involves less than~~ Company, each Purchaser will receive consideration in an amount per Series B Share at least equal to the Series B Liquidation Preference in effect from time to time; (B) upon the consummation of any such sale of the capital stock of the Company, all of the ~~Shares in the Company, then each Member shall Transfer~~ Purchasers will receive the same ~~percentage~~ form and amount of ~~each class~~ consideration per share of capital stock or ~~series~~ if any Purchaser is given an option as to the form of ~~Shares~~ consideration to be received, all Purchasers participating therein will be given the same option; and (or rights to acquire Shares of any class or series) that it holds. Each Member and the Company shall take all reasonable and necessary actions in connection with the consummation of such Sale of the Company as may be requested by the Board of Directors, including (iC) in the case of any such sale of the Company only, engaging one or more investment banks and legal counsel selected by the Board of Directors to establish procedures acceptable to the Board of Directors to effect and to otherwise assist in connection with a Sale issued capital stock of the Company, ~~(ii) taking such commercially reasonable actions and providing such commercially reasonable cooperation and assistance as may be necessary to consummate~~ the Sale of the Company in an expeditious and efficient manner and not taking any action or engaging in any activity designed to hinder, prevent or delay the consummation of the Sale of the Company, (iii) in the case of the Company only, facilitating the due diligence process in respect liability of any ~~such Sale of the Company, including establishing, populating and maintaining~~ Purchaser for misrepresentation or indemnity will not exceed an online “data room”, (iv) in the case of the Company only, providing any financial or other information or audit required by the proposed buyer’s financing sources and (v) the execution of such agreements and such instruments and other actions reasonably necessary in connection with the Sale of the Company, including to provide customary representations, warranties, indemnities and escrow arrangements relating thereto, in each case in accordance with and subject amount equal to the limitations set forth in Section 9.08(d). (b) The obligations of the Members with respect to a Sale of the Company are subject to the satisfaction of the following conditions: (i) upon the consummation of proceeds received by such Sale of the Company, each holder of Shares, to the extent such holder is receiving any consideration, shall receive the same form(s) of consideration as each other holder of Shares receives (or the option to receive the same form of consideration), and (ii) the Sale of the Company will be a Deemed Liquidation Event and the aggregate consideration payable upon consummation of such Sale of the Company to all holders of Shares in respect of their Shares shall be apportioned and distributed (after such aggregate consideration is adjusted for Company expenses, purchase price adjustments, escrow amounts, purchase price holdbacks, indemnity obligations and other similar items) as between the classes of Shares in accordance with the relevant provisions of Section 3.02 (assuming that, if such Sale of the Company is structured as a Transfer of Shares and less than all of the Shares are being Transferred, the Shares included in the Transfer are all of the Shares outstanding). For clarity, the application of Section 3.02 may result in some Shares included in the Transfer not receiving any consideration with respect to such Sale of the Company. (c) If the Company, or if the holders of any Shares, enter into any negotiation or transaction for which Rule 506 (or any similar rule then in effect) promulgated by the SEC may be available with respect to such negotiation or transaction (including a merger, consolidation, or other reorganization), each holder of Equity Securities will, at the request of the Company, appoint either a purchaser representative (as such term is defined in Rule 501) designated by the Company, in which event the Company will pay the fees of such purchaser representative, or another purchaser representative (reasonably acceptable to the Company), in which event such holder will be responsible for the fees of the purchaser representative so appointed. Notwithstanding anything to the contrary, in connection with any Sale of the Company where the consideration Purchaser in such Sale of the Company consists of or includes securities, if the issuance of such securities to the Member would require either a registration statement under the Securities Act, or preparation of a disclosure statement pursuant to Regulation D sale (or any successor regulation) under the Securities Act, or preparation of a disclosure document under a similar provision of any state securities law, and such registration statement or disclosure statement or other disclosure document is not otherwise being prepared in connection with the Sale of the Company, then, at the option of the Board of Directors, the Member may receive, in lieu of such securities, the Fair Market Value of such securities in cash. (d) In connection with any Sale of the Company, each Member shall (i) make such customary representations and warranties, including, as applicable, as to due organization and good standing, power and authority, due approval, no conflicts and ownership and title of Shares (including the absence of liens with respect to such Shares) and no litigation pending or threatened against or affecting such Member relating to its ownership of Shares, agree to such covenants and enter into such definitive agreements, in each case as are customary for transactions of the nature of the Sale of the Company; provided, that in no ~~Member~~ event shall any Purchaser be required to make any representation or warranty or agree to any covenant that is more extensive or burdensome than those made by the other Members (provided, that (A) in no event will the GM Investor or any of its Affiliates, SoftBank or any of its Affiliates, Honda or any of its Affiliates or any Class F New Member or any of its Affiliates be required to enter into a non-competition agreement or be subject to any similar covenant or provision and (B) the Employee Members may be required to enter into certain covenants, including non-compete and non-solicit obligations) and (ii) be obligated to join on a several, and not joint, basis (determined in accordance with such Member’s proportionate share of the proceeds from the Sale of concerning the Company~~) in any indemnification~~ , its Subsidiaries or ~~other obligations that are part of the terms and conditions of the Sale of the Company (other than to the extent of any escrows~~ their respective businesses or ~~holdbacks established in connection with such Sale of the Company); provided, that no Member shall be obligated (A)~~ to provide ~~indemnification~~ any indemnity with respect to the ~~representations, warranties, covenants or agreements~~ breach of any ~~other Member (other than to the extent of any escrows or holdbacks established in connection with~~ such Sale of the Company), or (B) to incur liability to any Person in connection with such Sale of the Company, including under any indemnity, in excess of the consideration received by such Person in the Sale of the Company (other than for fraud or breach of a covenantrepresentations and warranties). (ec) ~~Each Member will bear his, her or its proportionate share of the costs incurred in~~ In connection with ~~a Sale~~ any sale of the Company conducted pursuant to ~~the extent such costs are incurred for the benefit of all such holders of Shares and are not otherwise paid by~~ this Section 9.9, the Company or shall take all actions necessary to ensure that the ~~acquiring party. Costs incurred by the holders of Shares on their own behalf will~~ Rights Plan shall not ~~be considered costs of the Sale of the Company~~apply to such transaction. (fd) ~~Any contingent consideration (whether as a result of a release of an escrow or~~ Notwithstanding the payment of an “earn out” or otherwise) to be paid in connection with a Sale of the Company shall be allocated among the Members such that each Member receives the amount which such Member would have received if such consideration had been received by the Company and distributed as the next incremental dollars following the Distribution of any amounts previously paid under this Agreement or paid in connection with such Sale of the Company (assuming for such purposes that the Shares Transferred constitute all of the Shares). In the event any Member is liable in such Sale of the Company for amounts in excess of any escrow or holdback (other than any such obligations that relate specifically to a particular Member, such as indemnification with respect to representations and warranties given by a Member regarding such Person’s title to and ownership of Shares), such amounts shall be treated as a deduction to the consideration payable in such Sale of the Company and the aggregate consideration shall be re-allocated among the Members in accordance with Section 9.08(b). The Members agree that to the extent, as a result of such re-allocation, a Member has received more than its share of the consideration pursuant to such re-allocation, such Member shall deliver such excess to the appropriate Member(s) in order for each Member to receive its appropriate share of the consideration. (g) Without limiting the generality of the other provisions of this Section 9.08 but subject to Section 5.11foregoing, the ~~Board of Directors shall determine whether or not to pursue, consummate, postpone or abandon any Sale of the Company and, subject to the limitations expressly~~ rights set forth in this Section ~~9.08, the terms and conditions thereof. (h) The provisions of this Section 9.08~~ 9.9 shall not ~~apply to~~ be effective at any ~~transaction~~ time when representatives of the Purchasers constitute a majority of the Board of Directors, whether elected pursuant to ~~Sections 9.10~~ Section 5B or ~~9.12~~Section 8B of the Series B Preferred Stock Certificate of Designations or otherwise.

Appears in 1 contract

Samples: Series B Convertible Preferred Stock and Warrant Purchase Agreement (Penton Media Inc)

Sale of the Company. (a) ~~Provided that~~ Subject to Section 9.9(d) below, if the Company breaches or fails to perform or observe its obligations arising under Section 9.2(a) hereof and such breach, failure or non-observance continues to exist for four consecutive fiscal quarters, then the holders of a ~~Drag-Along Notice has not been delivered~~ majority of the Series B Shares then outstanding (the "INITIATING HOLDERS") shall have the right to cause the Company to seek a buyer for all of the assets or issued and outstanding capital stock of the ~~procedures in~~ Company. The Initiating Holders shall exercise their rights under Section ~~9.09 are not then currently in~~ 9.9(a) by delivery of a written notice to the Company and all other Purchasers to such effect, ~~notwithstanding anything~~ and identifying an investment bank (the "INVESTMENT BANK"), which firm shall be reasonably acceptable to ~~the contrary in this Agreement,~~ the Board of ~~Directors may~~ Directors, to conduct such sale. (~~subject~~ b) Upon delivery to the Company of a written notice referred to in Section ~~5.11) elect~~ 9.9(a), the Company and each other party hereto agrees to use their reasonable best efforts to take, or cause ~~a Sale~~ to be taken, all actions and to do, or cause to be done, all things necessary or desirable to effect the sale of the Company ~~at any~~ in accordance with the following provisions (it being understood that no Purchaser shall be required under this Section 9.9 to vote in favor of such sale or to sell their shares of the Company's capital stock pursuant to such sale): (i) The Investment Bank will establish procedures reasonably acceptable to the Initiating Holders to effect an orderly sale of the Company with the objective of achieving the highest practicable value for the stockholders of the Company within a reasonable period of time. The ~~Board of Directors shall direct~~ Company agrees to cooperate with the Investment Bank in accordance with such procedures, and ~~control all decisions in connection with a Sale~~ agrees to use its reasonable best efforts to reach agreement on the optimum structure and the terms and conditions for the sale of the Company (including whether such sale will be by merger or sale of assets or capital stock) and will retain independent legal counsel of appropriate expertise, reasonably acceptable to the ~~hiring or termination of any investment bank or professional adviser~~ Initiating Holders, to advise the Company on such sale. To the extent permitted by applicable law, the Company agrees to pay all fees and ~~making all decisions regarding valuation and consideration and the percentage~~ expenses of the ~~Equity Securities~~ Investment Bank and such legal counsel, as well as the fees and expenses of one law firm retained by the Initiating Holders in ~~the Company to be sold~~connection with such sale. (ii) ~~and, subject to Section 9.08(b) and Section 9.08(d), and without prejudice to Section 5.11, each Member shall vote for, consent to and not object to such Sale of the Company or~~ If the sale ~~process associated therewith. If such Sale~~ of the Company is structured as a sale of assets, ~~merger~~ the Company agrees to execute and deliver or ~~consolidation~~cause to be executed and delivered all documents, ~~then each Member shall~~certificates, agreements and other writings and to take, or cause to be taken, all such actions as may be necessary or desirable to vest in the purchaser(s) thereof good and marketable title to such assets. (iii) The rights and obligations of the Purchasers under this Section 9.9(b) shall be subject to the ~~extent applicable to~~ following conditions: (A) upon the consummation of any such ~~transaction, vote for or consent to, and waive any dissenter’s rights, appraisal rights or similar rights in connection with, such sale, merger or consolidation. If such Sale~~ sale of the ~~Company is structured as a Transfer of Shares, and the Sale~~ capital stock of the ~~Company involves less than~~ Company, each Purchaser will receive consideration in an amount per Series B Share at least equal to the Series B Liquidation Preference in effect from time to time; (B) upon the consummation of any such sale of the capital stock of the Company, all of the ~~Shares in the Company, then each Member shall Transfer~~ Purchasers will receive the same ~~percentage~~ form and amount of ~~each class~~ consideration per share of capital stock or ~~series~~ if any Purchaser is given an option as to the form of ~~Shares~~ consideration to be received, all Purchasers participating therein will be given the same option; and (or rights to acquire Shares of any class or series) that it holds. Each Member and the Company shall take all reasonable and necessary actions in connection with the consummation of such Sale of the Company as may be requested by the Board of Directors, including (iC) in the case of any such sale of the Company only, engaging one or more investment banks and legal counsel selected by the Board of Directors to establish procedures acceptable to the Board of Directors to effect and to otherwise assist in connection with a Sale issued capital stock of the Company, ~~(ii) taking such commercially reasonable actions and providing such commercially reasonable cooperation and assistance as may be necessary to consummate~~ the Sale of the Company in an expeditious and efficient manner and not taking any action or engaging in any activity designed to hinder, prevent or delay the consummation of the Sale of the Company, (iii) in the case of the Company only, facilitating the due diligence process in respect liability of any ~~such Sale of the Company, including establishing, populating and maintaining~~ Purchaser for misrepresentation or indemnity will not exceed an online “data room”, (iv) in the case of the Company only, providing any financial or other information or audit required by the proposed buyer’s financing sources and (v) the execution of such agreements and such instruments and other actions reasonably necessary in connection with the Sale of the Company, including to provide customary representations, warranties, indemnities and escrow arrangements relating thereto, in each case in accordance with and subject amount equal to the limitations set forth in Section 9.08(d). (b) The obligations of the Members with respect to a Sale of the Company are subject to the satisfaction of the following conditions: (i) upon the consummation of proceeds received by such Sale of the Company, each holder of Shares, to the extent such holder is receiving any consideration, shall receive the same form(s) of consideration as each other holder of Shares receives (or the option to receive the same form of consideration), and (ii) the Sale of the Company will be a Deemed Liquidation Event and the aggregate consideration payable upon consummation of such Sale of the Company to all holders of Shares in respect of their Shares shall be apportioned and distributed (after such aggregate consideration is adjusted for Company expenses, purchase price adjustments, escrow amounts, purchase price holdbacks, indemnity obligations and other similar items) as between the classes of Shares in accordance with the relevant provisions of Section 3.02 (assuming that, if such Sale of the Company is structured as a Transfer of Shares and less than all of the Shares are being Transferred, the Shares included in the Transfer are all of the Shares outstanding). For clarity, the application of Section 3.02 may result in some Shares included in the Transfer not receiving any consideration with respect to such Sale of the Company. (c) If the Company, or if the holders of any Shares, enter into any negotiation or transaction for which Rule 506 (or any similar rule then in effect) promulgated by the SEC may be available with respect to such negotiation or transaction (including a merger, consolidation, or other reorganization), each holder of Equity Securities will, at the request of the Company, appoint either a purchaser representative (as such term is defined in Rule 501) designated by the Company, in which event the Company will pay the fees of such purchaser representative, or another purchaser representative (reasonably acceptable to the Company), in which event such holder will be responsible for the fees of the purchaser representative so appointed. Notwithstanding anything to the contrary, in connection with any Sale of the Company where the consideration Purchaser in such Sale of the Company consists of or includes securities, if the issuance of such securities to the Member would require either a registration statement under the Securities Act, or preparation of a disclosure statement pursuant to Regulation D sale (or any successor regulation) under the Securities Act, or preparation of a disclosure document under a similar provision of any state securities law, and such registration statement or disclosure statement or other disclosure document is not otherwise being prepared in connection with the Sale of the Company, then, at the option of the Board of Directors, the Member may receive, in lieu of such securities, the Fair Market Value of such securities in cash. (d) In connection with any Sale of the Company, each Member shall (i) make such customary representations and warranties, including, as applicable, as to due organization and good standing, power and authority, due approval, no conflicts and ownership and title of Shares (including the absence of liens with respect to such Shares) and no litigation pending or threatened against or affecting such Member relating to its ownership of Shares, agree to such covenants and enter into such definitive agreements, in each case as are customary for transactions of the nature of the Sale of the Company; providedPROVIDED, that in no ~~Member~~ event shall any Purchaser be required to make any representation or warranty or agree to any covenant that is more extensive or burdensome than those made by the other Members (provided, that (A) in no event will the GM Investor or any of its Affiliates, SoftBank or any of its Affiliates, Honda or any of its Affiliates or any Class F New Member or any of its Affiliates be required to enter into a non-competition agreement or be subject to any similar covenant or provision and (B) the Employee Members may be required to enter into certain covenants, including non-compete and non-solicit obligations) and (ii) be obligated to join on a several, and not joint, basis (determined in accordance with such Member’s proportionate share of the proceeds from the Sale of concerning the Company~~) in any indemnification~~ , its Subsidiaries or ~~other obligations that are part of the terms and conditions of the Sale of the Company (other than to the extent of any escrows~~ their respective businesses or ~~holdbacks established in connection with such Sale of the Company); provided, that no Member shall be obligated (A)~~ to provide ~~indemnification~~ any indemnity with respect to the ~~representations, warranties, covenants or agreements~~ breach of any ~~other Member (other than to the extent of any escrows or holdbacks established in connection with~~ such Sale of the Company), or (B) to incur liability to any Person in connection with such Sale of the Company, including under any indemnity, in excess of the consideration received by such Person in the Sale of the Company (other than for fraud or breach of a covenantrepresentations and warranties). (ec) ~~Each Member will bear his, her or its proportionate share of the costs incurred in~~ In connection with ~~a Sale~~ any sale of the Company conducted pursuant to ~~the extent such costs are incurred for the benefit of all such holders of Shares and are not otherwise paid by~~ this Section 9.9, the Company or shall take all actions necessary to ensure that the ~~acquiring party. Costs incurred by the holders of Shares on their own behalf will~~ Rights Plan shall not ~~be considered costs of the Sale of the Company~~apply to such transaction. (fd) ~~Any contingent consideration (whether as a result of a release of an escrow or~~ Notwithstanding the payment of an “earn out” or otherwise) to be paid in connection with a Sale of the Company shall be allocated among the Members such that each Member receives the amount which such Member would have received if such consideration had been received by the Company and distributed as the next incremental dollars following the Distribution of any amounts previously paid under this Agreement or paid in connection with such Sale of the Company (assuming for such purposes that the Shares Transferred constitute all of the Shares). In the event any Member is liable in such Sale of the Company for amounts in excess of any escrow or holdback (other than any such obligations that relate specifically to a particular Member, such as indemnification with respect to representations and warranties given by a Member regarding such Person’s title to and ownership of Shares), such amounts shall be treated as a deduction to the consideration payable in such Sale of the Company and the aggregate consideration shall be re-allocated among the Members in accordance with Section 9.08(b). The Members agree that to the extent, as a result of such re-allocation, a Member has received more than its share of the consideration pursuant to such re-allocation, such Member shall deliver such excess to the appropriate Member(s) in order for each Member to receive its appropriate share of the consideration. (g) Without limiting the generality of the other provisions of this Section 9.08 but subject to Section 5.11foregoing, the ~~Board of Directors shall determine whether or not to pursue, consummate, postpone or abandon any Sale of the Company and, subject to the limitations expressly~~ rights set forth in this Section ~~9.08, the terms and conditions thereof. (h) The provisions of this Section 9.08~~ 9.9 shall not ~~apply to~~ be effective at any ~~transaction~~ time when representatives of the Purchasers constitute a majority of the Board of Directors, whether elected pursuant to ~~Sections 9.10~~ Section 5B or ~~9.12~~Section 8B of the Series B Preferred Stock Certificate of Designations or otherwise.

Appears in 1 contract

Samples: Series B Convertible Preferred Stock and Warrant Purchase Agreement (Sandler Capital Management)

Sale of the Company. If (ai) ~~Provided that a Drag~~the Board (by Super-~~Along Notice has not been delivered~~ Majority Approval) ------------------- and the ~~procedures in Section 9.09 are not then currently in effect, notwithstanding anything to~~ holders of a Majority of the ~~contrary in this Agreement,~~ Shares of Series A and Series B Preferred Stock and a Majority of the ~~Board of Directors may (subject to Section 5.11) elect to cause~~ Series C Preferred Stock approve a Sale of the Company at of the type described in clauses (i) or (iii) of the definition thereof, or (ii) if the holders of a Majority of the Shares of the Series A and Series B Preferred Stock and a Majority of the Series C Preferred Stock approve of a Sale of the Company of the type described in clause (ii) of the definition thereof, in each case to a third party which is not an affiliate of any ~~time~~such Person or the Company, the Company shall deliver a notice to each Securityholder containing the material terms thereof (a "Sale Notice"). ~~The Board~~ Each Securityholder ------------ agrees to vote, if such a vote is required under applicable law, all of ~~Directors~~ its Shares in favor of such a Sale of the Company, and to sell all of its Shares, Warrants and Options on the terms contained in the Sale Notice. Each Securityholder and the Company agrees to cooperate in any such Sale of the Company (including, without limitation, by not exercising any appraisal rights that may be available under applicable law) and agrees to execute and deliver all documents and instruments as is required in the Sale Notice and which the holders of a Majority of the Shares of Series A and Series B Preferred Stock or a Majority of the Series C Preferred Stock request to effect such Sale of the Company; provided, however, that the Sale Notice (i) shall ~~direct~~ not require any -------- ------- Securityholder to provide any representations or warranties in connection with the Sale of the Company pursuant to this Section 4.8, except representations as to the authority to transfer such Shares, Warrants or Options and ~~control all decisions~~ the absence of any Encumbrances (other than under this Agreement) on the title of such Shares, Warrants and Options, and (ii) shall require that each Securityholder receive the same percentage of each type of consideration delivered in connection with the Sale of the Company. Upon such Sale of the Company, each Securityholder shall receive its Pro Rata Share of the consideration paid by the purchaser or received from the sale of securities. In no event shall any Securityholder receive special consideration (including, without limitation, financial advisory, finders, consulting or other similar fees) in connection with a Sale of the Company ~~(including the hiring or termination of any investment bank or professional adviser and making~~ contemplated by this Section 4.8, unless such consideration is shared among all ~~decisions regarding valuation and consideration and the percentage of the Equity Securities in the Company to be sold) and~~Securityholders based on their Pro Rata Shares; provided, ~~subject to Section 9.08(b) and Section 9.08(d)~~however, ~~and without prejudice to Section 5.11, each Member~~ this sentence shall ~~vote for, consent to and~~ not object to such Sale of the Company or the sale process associated therewith. If such Sale of the Company is structured as a sale of assets, merger or consolidation, then each Member shall, to the extent applicable to such transaction, vote for or consent to, and waive any dissenter’s rights, appraisal rights or similar rights in connection with, such sale, merger or consolidation. If such Sale of the Company is structured as a Transfer of Shares, and the Sale of the Company involves less than all of the Shares in the Company, then each Member shall Transfer the same percentage of each class or series of Shares (or rights to acquire Shares of any class or series) that it holds. Each Member and the Company shall take all reasonable and necessary actions in connection with the consummation of such Sale of the Company as may be requested by the Board of Directors, including (i) in the case of the Company only, engaging one or more investment banks and legal counsel selected by the Board of Directors to establish procedures acceptable to the Board of Directors to effect and to otherwise assist in connection with a Sale of the Company, (ii) taking such commercially reasonable actions and providing such commercially reasonable cooperation and assistance as may be necessary to consummate the Sale of the Company in an expeditious and efficient manner and not taking any action or engaging in any activity designed to hinder, prevent or delay the consummation of the Sale of the Company, (iii) in the case of the Company only, facilitating the due diligence process in respect of any such Sale of the Company, including establishing, populating and maintaining an online “data room”, (iv) in the case of the Company only, providing any financial or other information or audit required by the proposed buyer’s financing sources and (v) the execution of such agreements and such instruments and other actions reasonably necessary in connection with the Sale of the Company, including to provide customary representations, warranties, indemnities and escrow arrangements relating thereto, in each case in accordance with and subject to the limitations set forth in Section 9.08(d). (b) The obligations of the Members apply with respect to ~~a Sale~~ an arms-length negotiated engagement of ~~the Company are subject~~ Shattan to ~~the satisfaction of the following conditions: (i) upon the consummation of such Sale of~~ act as the Company, each holder of Shares, to the extent such holder is receiving any consideration, shall receive the same form(s) of consideration as each other holder of Shares receives (or the option to receive the same form of consideration), and (ii) the Sale of the Company will be a Deemed Liquidation Event and the aggregate consideration payable upon consummation of such Sale of the Company to all holders of Shares in respect of their Shares shall be apportioned and distributed (after such aggregate consideration is adjusted for Company expenses, purchase price adjustments, escrow amounts, purchase price holdbacks, indemnity obligations and other similar items) as between the classes of Shares in accordance with the relevant provisions of Section 3.02 (assuming that, if such Sale of the Company is structured as a Transfer of Shares and less than all of the Shares are being Transferred, the Shares included in the Transfer are all of the Shares outstanding). For clarity, the application of Section 3.02 may result in some Shares included in the Transfer not receiving any consideration 's financial advisor with respect to such Sale of the Company. (c) If the Company, or if the holders of any Shares, enter into any negotiation or transaction for which Rule 506 (or any similar rule then in effect) promulgated by the SEC may be available with respect to such negotiation or transaction (including a merger, consolidation, or other reorganization), each holder of Equity Securities will, at the request of the Company, appoint either a purchaser representative (as such term is defined in Rule 501) designated by the Company, in which event the Company will pay the fees of such purchaser representative, or another purchaser representative (reasonably acceptable to the Company), in which event such holder will be responsible for the fees of the purchaser representative so appointed. Notwithstanding anything to the contrary, in connection with any Sale of the Company where the consideration in such Sale of the Company consists of or includes securities, if the issuance of such securities to the Member would require either a registration statement under the Securities Act, or preparation of a disclosure statement pursuant to Regulation D (or any successor regulation) under the Securities Act, or preparation of a disclosure document under a similar provision of any state securities law, and such registration statement or disclosure statement or other disclosure document is not otherwise being prepared in connection with the Sale of the Company, then, at the option of the Board of Directors, the Member may receive, in lieu of such securities, the Fair Market Value of such securities in cash. (d) In connection with any Sale of the Company, each Member shall (i) make such customary representations and warranties, including, as applicable, as to due organization and good standing, power and authority, due approval, no conflicts and ownership and title of Shares (including the absence of liens with respect to such Shares) and no litigation pending or threatened against or affecting such Member relating to its ownership of Shares, agree to such covenants and enter into such definitive agreements, in each case as are customary for transactions of the nature of the Sale of the Company; provided, that no Member shall be required to make any representation or warranty or agree to any covenant that is more extensive or burdensome than those made by the other Members (provided, that (A) in no event will the GM Investor or any of its Affiliates, SoftBank or any of its Affiliates, Honda or any of its Affiliates or any Class F New Member or any of its Affiliates be required to enter into a non-competition agreement or be subject to any similar covenant or provision and (B) the Employee Members may be required to enter into certain covenants, including non-compete and non-solicit obligations) and (ii) be obligated to join on a several, and not joint, basis (determined in accordance with such Member’s proportionate share of the proceeds from the Sale of the Company) in any indemnification or other obligations that are part of the terms and conditions of the Sale of the Company (other than to the extent of any escrows or holdbacks established in connection with such Sale of the Company); provided, that no Member shall be obligated (A) to provide indemnification with respect to the representations, warranties, covenants or agreements of any other Member (other than to the extent of any escrows or holdbacks established in connection with such Sale of the Company), or (B) to incur liability to any Person in connection with such Sale of the Company, including under any indemnity, in excess of the consideration received by such Person in the Sale of the Company (other than for fraud or breach of a covenant). (e) Each Member will bear his, her or its proportionate share of the costs incurred in connection with a Sale of the Company to the extent such costs are incurred for the benefit of all such holders of Shares and are not otherwise paid by the Company or the acquiring party. Costs incurred by the holders of Shares on their own behalf will not be considered costs of the Sale of the Company. (f) Any contingent consideration (whether as a result of a release of an escrow or the payment of an “earn out” or otherwise) to be paid in connection with a Sale of the Company shall be allocated among the Members such that each Member receives the amount which such Member would have received if such consideration had been received by the Company and distributed as the next incremental dollars following the Distribution of any amounts previously paid under this Agreement or paid in connection with such Sale of the Company (assuming for such purposes that the Shares Transferred constitute all of the Shares). In the event any Member is liable in such Sale of the Company for amounts in excess of any escrow or holdback (other than any such obligations that relate specifically to a particular Member, such as indemnification with respect to representations and warranties given by a Member regarding such Person’s title to and ownership of Shares), such amounts shall be treated as a deduction to the consideration payable in such Sale of the Company and the aggregate consideration shall be re-allocated among the Members in accordance with Section 9.08(b). The Members agree that to the extent, as a result of such re-allocation, a Member has received more than its share of the consideration pursuant to such re-allocation, such Member shall deliver such excess to the appropriate Member(s) in order for each Member to receive its appropriate share of the consideration. (g) Without limiting the generality of the other provisions of this Section 9.08 but subject to Section 5.11, the Board of Directors shall determine whether or not to pursue, consummate, postpone or abandon any Sale of the Company and, subject to the limitations expressly set forth in this Section 9.08, the terms and conditions thereof. (h) The provisions of this Section 9.08 shall not apply to any transaction pursuant to Sections 9.10 or 9.12.

Appears in 1 contract

Samples: Stockholders' Agreement (Reckson Services Industries Inc)

Sale of the Company. (a) Provided that a Drag-Along Notice has not been delivered and the procedures in Section 9.09 are not then currently in effect, notwithstanding anything to the contrary in this Agreement, the Board of Directors may (subject to Section 5.11) elect to cause a Sale of the Company at any time. The Board of Directors shall direct and control all decisions in connection with a Sale of the Company (including the hiring or termination of any investment bank or professional adviser and making all decisions regarding valuation and consideration and the percentage of the Equity Securities in the Company to be sold) and, subject to Section 9.08(b) and Section 9.08(d), and without prejudice to Section 5.11, each Member shall vote for, consent to and not object to such Sale of the Company or the sale process associated therewith. If such Sale of the Company is structured as a sale of assets, merger or consolidation, then each Member shall, to the extent applicable to such transaction, vote for or consent to, and waive any dissenter’s rights, appraisal rights or similar rights in connection with, such sale, merger or consolidation. If such Sale of the Company is structured as a Transfer of Shares, and the Sale of the Company involves less than all of the Shares in the Company, then each Member shall Transfer the same percentage of each class or series of Shares (or rights to acquire Shares of any class or series) that it holds. Each Member and the Company shall take all reasonable and necessary actions in connection with the consummation of such Sale of the Company as may be requested by the Board of Directors, including (i) in the case of the Company only, engaging one or more investment banks and legal counsel selected by the Board of Directors to establish procedures acceptable to the Board of Directors to effect and to otherwise assist in connection with a Sale of the Company, (ii) taking such commercially reasonable actions and providing such commercially reasonable cooperation and assistance as may be necessary to consummate the Sale of the Company in an expeditious and efficient manner and not taking any action or engaging in any activity designed to hinder, prevent or delay the consummation of the Sale of the Company, (iii) in the case of the Company only, facilitating the due diligence process in respect of any such Sale of the Company, including establishing, populating and maintaining an online “data room”, (iv) in the case of the Company only, providing any financial or other information or audit required by the proposed buyer’s financing sources and (v) the execution of such agreements and such instruments and other actions reasonably necessary in connection with the Sale of the Company, including to provide customary representations, warranties, indemnities and escrow arrangements relating thereto, in each case in accordance with and subject to the limitations set forth in Section 9.08(d). (b) The obligations of the Members with respect to a Sale of the Company are subject to the satisfaction of the following conditions: (i) upon the consummation of such Sale of the Company, each holder of Shares, to the extent such holder is receiving any consideration, shall receive the same form(s) of consideration as each other holder of Shares receives (or the option to receive the same form of consideration), and (ii) the Sale of the Company will be a Deemed Liquidation Event and the aggregate consideration payable upon consummation of such Sale of the Company to all holders of Shares in respect of their Shares shall be apportioned and distributed (after such aggregate consideration is adjusted for Company expenses, purchase price adjustments, escrow amounts, purchase price holdbacks, indemnity obligations and other similar items) as between the classes of Shares in accordance with the relevant provisions of Section 3.02 (assuming that, if such Sale of the Company is structured as a Transfer of Shares and less than all of the Shares are being Transferred, the Shares included in the Transfer are all of the Shares outstanding). For clarity, the application of Section 3.02 may result in some Shares included in the Transfer not receiving any consideration with respect to such Sale of the Company. (c) If the Company, or if the holders of any Shares, enter into any negotiation or transaction for which Rule 506 (or any similar rule then in effect) promulgated by the SEC may be available with respect to such negotiation or transaction (including a merger, consolidation, or other reorganization), each holder of Equity Securities will, at the request of the Company, appoint either a purchaser representative (as such term is defined in Rule 501) designated by the Company, in which event the Company will pay the fees of such purchaser representative, or another purchaser representative (reasonably acceptable to the Company), in which event such holder will be responsible for the fees of the purchaser representative so appointed. Notwithstanding anything to the contrary, in connection with any Sale of the Company where the consideration in such Sale of the Company consists of or includes securities, if the issuance of such securities to the Member would require either a registration statement under the Securities Act, or preparation of a disclosure statement pursuant to Regulation D (or any successor regulation) under the Securities Act, or preparation of a disclosure document under a similar provision of any state securities law, and such registration statement or disclosure statement or other disclosure document is not otherwise being prepared in connection with the Sale of the Company, then, at the option of the Board of Directors, the Member may receive, in lieu of such securities, the Fair Market Value of such securities in cash. (d) In connection with any Sale of the Company, each Member shall (i) make such customary representations and warranties, including, as applicable, as to due organization and good standing, power and authority, due approval, no conflicts and ownership and title of Shares (including the absence of liens with respect to such Shares) and no litigation pending or threatened against or affecting such Member relating to its ownership of Shares, agree to such covenants and enter into such definitive agreements, in each case as are customary for transactions of the nature of the Sale of the Company; provided, that no Member shall be required to make any representation or warranty or agree to any covenant that is more extensive or burdensome than those made by the other Members (provided, that (A) in no event will the GM Investor or any of its Affiliates, SoftBank or any of its ~~Affiliates, Honda or any of its~~ Affiliates or ~~any Class F New Member~~ Honda or any of its Affiliates be required to enter into a non-competition agreement or be subject to any similar covenant or provision and (B) the Employee Members may be required to enter into certain covenants, including non-compete and non-solicit obligations) and (ii) be obligated to join on a several, and not joint, basis (determined in accordance with such Member’s proportionate share of the proceeds from the Sale of the Company) in any indemnification or other obligations that are part of the terms and conditions of the Sale of the Company (other than to the extent of any escrows or holdbacks established in connection with such Sale of the Company); provided, that no Member shall be obligated (A) to provide indemnification with respect to the representations, warranties, covenants or agreements of any other Member (other than to the extent of any escrows or holdbacks established in connection with such Sale of the Company), or (B) to incur liability to any Person in connection with such Sale of the Company, including under any indemnity, in excess of the consideration received by such Person in the Sale of the Company (other than for fraud or breach of a covenant). (e) Each Member will bear his, her or its proportionate share of the costs incurred in connection with a Sale of the Company to the extent such costs are incurred for the benefit of all such holders of Shares and are not otherwise paid by the Company or the acquiring party. Costs incurred by the holders of Shares on their own behalf will not be considered costs of the Sale of the Company. (f) Any contingent consideration (whether as a result of a release of an escrow or the payment of an “earn out” or otherwise) to be paid in connection with a Sale of the Company shall be allocated among the Members such that each Member receives the amount which such Member would have received if such consideration had been received by the Company and distributed as the next incremental dollars following the Distribution of any amounts previously paid under this Agreement or paid in connection with such Sale of the Company (assuming for such purposes that the Shares Transferred constitute all of the Shares). In the event any Member is liable in such Sale of the Company for amounts in excess of any escrow or holdback (other than any such obligations that relate specifically to a particular Member, such as indemnification with respect to representations and warranties given by a Member regarding such Person’s title to and ownership of Shares), such amounts shall be treated as a deduction to the consideration payable in such Sale of the Company and the aggregate consideration shall be re-allocated among the Members in accordance with Section 9.08(b). The Members agree that to the extent, as a result of such ~~re-~~re- allocation, a Member has received more than its share of the consideration pursuant to such re-allocation, such Member shall deliver such excess to the appropriate Member(s) in order for each Member to receive its appropriate share of the consideration. (g) Without limiting the generality of the other provisions of this Section 9.08 but subject to Section 5.11, the Board of Directors shall determine whether or not to pursue, consummate, postpone or abandon any Sale of the Company and, subject to the limitations expressly set forth in this Section 9.08, the terms and conditions thereof. (h) The provisions of this Section 9.08 shall not apply to any transaction pursuant to Sections 9.10 or 9.12.

Appears in 1 contract

Samples: Limited Liability Company Agreement (General Motors Co)

Sale of the Company. (a) ~~Provided that a Drag-Along Notice has not been delivered and~~ During the ~~procedures in Section 9.09 are not then currently in effect, notwithstanding anything to~~ term of this Agreement or the ~~contrary in this Agreement, the Board of Directors may~~ Severance Period (subject to Section 5.11) elect to cause a Sale of the Company at any time. The Board of Directors shall direct and control all decisions in connection with a Sale of the Company (including the hiring or termination of any investment bank or professional adviser and making all decisions regarding valuation and consideration and the percentage of the Equity Securities in the Company to be sold) and, subject to Section 9.08(b) and Section 9.08(das defined below), and without prejudice to Section 5.11, each Member shall vote for, consent to and not object to such Sale of the Company or the sale process associated therewith. If such Sale of the Company is structured as upon (1) a sale of ~~assets, merger~~ all or consolidation, then each Member shall, to the extent applicable to such transaction, vote for or consent to, and waive any dissenter’s rights, appraisal rights or similar rights in connection with, such sale, merger or consolidation. If such Sale of the Company is structured as a Transfer of Shares, and the Sale of the Company involves less than substantially all of the Shares in the Company, then each Member shall Transfer the same percentage of each class or series of Shares (or rights to acquire Shares of any class or series) that it holds. Each Member and the Company shall take all reasonable and necessary actions in connection with the consummation of such Sale of the Company as may be requested by the Board of Directors, including (i) in the case of the Company only, engaging one or more investment banks and legal counsel selected by the Board of Directors to establish procedures acceptable to the Board of Directors to effect and to otherwise assist in connection with a Sale assets of the Company, (ii2) ~~taking such commercially reasonable actions and providing such commercially reasonable cooperation and assistance as may be necessary to consummate the Sale~~ a merger of the Company ~~in an expeditious and efficient manner and~~ with another entity where the Company is not ~~taking any action~~ the surviving entity or ~~engaging in any activity designed to hinder, prevent or delay~~ where the ~~consummation of the Sale of the Company, (iii) in the case~~ stockholders of the Company ~~only, facilitating~~ immediately prior to the ~~due diligence process in respect of any such Sale~~ merger own less than fifty percent (50%) of the ~~Company, including establishing, populating and maintaining an online “data room”, (iv) in the case~~ voting stock of the Company ~~only~~following the merger, ~~providing~~ (3) a change in the membership of the Board of Directors such that individuals who, as of the date hereof, constitute the Board of Directors (the "Incumbent Board") cease for any ~~financial~~ reason to constitute at least a majority of the Board of Directors; provided, however, that any individual becoming a director subsequent to the date hereof whose election, or nomination for election by the Company's shareholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as though the individual were a member of the Incumbent Board, but excluding, for this purpose, any individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other ~~information~~ actual or ~~audit required~~ threatened solicitation of proxies or consents by ~~the proposed buyer’s financing sources and (v) the execution~~ or on behalf of ~~such agreements and such instruments and~~ a person other ~~actions reasonably necessary in connection with the Sale of~~ than the Company's Board of Directors, ~~including to provide customary representations, warranties, indemnities and escrow arrangements relating thereto, in each case in accordance with and subject~~ the Executive's options that have been granted pursuant to the ~~limitations~~ terms set forth in ~~Section 9.08(d)~~this Agreement shall vest as follows: (i) If an event of change in control as defined above occurs prior to vesting of at least half of the Executive's Company options, then a total of one half (1/2) of the Executive's options will accelerate and vest fully. (ii) If an event of change in control as defined above occurs after the Executive has vested on one half (1/2) or more of the Executive's options, then one half (1/2) of the Executive's then remaining options will accelerate and vest fully. (b) ~~The obligations~~ Notwithstanding any other provision of this Agreement or of any other agreement, contract, or understanding heretofore or hereafter entered into by the ~~Members~~ Executive with ~~respect to a Sale of the Company are subject to the satisfaction of the following conditions: (i) upon the consummation of such Sale of~~ the Company, ~~each holder~~ except an agreement, contract, or understanding hereafter entered into that expressly modifies or excludes application of ~~Shares~~this paragraph (an "Other Agreement"), and notwithstanding any formal or informal employment agreement or other arrangement for the direct or indirect provision of compensation to the Executive (including groups or classes of participants or beneficiaries of which the Executive is a member), whether or not such compensation is deferred, is in cash, or is in the form of a benefit to or for the Executive (a "Benefit Arrangement"), if the Executive is a "disqualified individual," as defined in Section 280G(c) of the Internal Revenue Code (the "Code"), any right to receive any payment or other benefit under this Agreement shall not become exercisable or vested or shall be forfeited to the extent that such ~~holder is receiving any consideration~~right to exercise, ~~shall receive~~ vesting, payment, or benefit, taking into account all other rights, payments, or benefits to or for the ~~same form(s) of consideration as each other holder of Shares receives (or the option to receive the same form of consideration)~~Executive under this Agreement, all Other Agreements, and ~~(ii) the Sale of the Company will be a Deemed Liquidation Event and the aggregate consideration payable upon consummation of such Sale of the Company to~~ all ~~holders of Shares in respect of their Shares shall be apportioned and distributed (after such aggregate consideration is adjusted for Company expenses~~Benefit Arrangements, purchase price adjustments, escrow amounts, purchase price holdbacks, indemnity obligations and other similar items) as between the classes of Shares in accordance with the relevant provisions of Section 3.02 (assuming that, if such Sale of the Company is structured as a Transfer of Shares and less than all of the Shares are being Transferred, the Shares included in the Transfer are all of the Shares outstanding). For clarity, the application of Section 3.02 may result in some Shares included in the Transfer not receiving would cause any ~~consideration with respect to such Sale of the Company. (c) If the Company,~~ payment or if the holders of any Shares, enter into any negotiation or transaction for which Rule 506 (or any similar rule then in effect) promulgated by the SEC may be available with respect to such negotiation or transaction (including a merger, consolidation, or other reorganization), each holder of Equity Securities will, at the request of the Company, appoint either a purchaser representative (as such term is defined in Rule 501) designated by the Company, in which event the Company will pay the fees of such purchaser representative, or another purchaser representative (reasonably acceptable benefit to the Company), in which event such holder will be responsible for the fees of the purchaser representative so appointed. Notwithstanding anything to the contrary, in connection with any Sale of the Company where the consideration in such Sale of the Company consists of or includes securities, if the issuance of such securities to the Member would require either a registration statement under the Securities Act, or preparation of a disclosure statement pursuant to Regulation D (or any successor regulation) under the Securities Act, or preparation of a disclosure document under a similar provision of any state securities law, and such registration statement or disclosure statement or other disclosure document is not otherwise being prepared in connection with the Sale of the Company, then, at the option of the Board of Directors, the Member may receive, in lieu of such securities, the Fair Market Value of such securities in cash. (d) In connection with any Sale of the Company, each Member shall (i) make such customary representations and warranties, including, as applicable, as to due organization and good standing, power and authority, due approval, no conflicts and ownership and title of Shares (including the absence of liens with respect to such Shares) and no litigation pending or threatened against or affecting such Member relating to its ownership of Shares, agree to such covenants and enter into such definitive agreements, in each case as are customary for transactions of the nature of the Sale of the Company; provided, that no Member shall be required to make any representation or warranty or agree to any covenant that is more extensive or burdensome than those made by the other Members (provided, that (A) in no event will the GM Investor or any of its Affiliates, SoftBank or any of its Affiliates, Honda or any of its Affiliates or any Class F New Member or any of its Affiliates be required to enter into a non-competition agreement or be subject to any similar covenant or provision and (B) the Employee Members may be required to enter into certain covenants, including non-compete and non-solicit obligations) and (ii) be obligated to join on a several, and not joint, basis (determined in accordance with such Member’s proportionate share of the proceeds from the Sale of the Company) in any indemnification or other obligations that are part of the terms and conditions of the Sale of the Company (other than to the extent of any escrows or holdbacks established in connection with such Sale of the Company); provided, that no Member shall be obligated (A) to provide indemnification with respect to the representations, warranties, covenants or agreements of any other Member (other than to the extent of any escrows or holdbacks established in connection with such Sale of the Company), or (B) to incur liability to any Person in connection with such Sale of the Company, including under any indemnity, in excess of the consideration received by such Person in the Sale of the Company (other than for fraud or breach of a covenant). (e) Each Member will bear his, her or its proportionate share of the costs incurred in connection with a Sale of the Company to the extent such costs are incurred for the benefit of all such holders of Shares and are not otherwise paid by the Company or the acquiring party. Costs incurred by the holders of Shares on their own behalf will not be considered costs of the Sale of the Company. (f) Any contingent consideration (whether as a result of a release of an escrow or the payment of an “earn out” or otherwise) to be paid in connection with a Sale of the Company shall be allocated among the Members such that each Member receives the amount which such Member would have received if such consideration had been received by the Company and distributed as the next incremental dollars following the Distribution of any amounts previously paid Executive under this Agreement ~~or paid in connection with such Sale~~ to be considered a "parachute payment" within the meaning of Section 280G(b)(2) of the ~~Company~~ Code as then in effect (~~assuming for such purposes that the Shares Transferred constitute all of the Shares~~a "Parachute Payment"). In the event ~~any Member is liable in such Sale of~~ that the ~~Company for amounts in excess~~ receipt of any ~~escrow~~ such right to exercise, vesting, payment, or ~~holdback (~~benefit under this Agreement, in conjunction with all other ~~than~~ rights, payments, or benefits to or for the Executive under any ~~such obligations~~ Other Agreement or any Benefit Arrangement would cause the Executive to be considered to have received a Parachute Payment under this Agreement, then the Executive shall have the right, in the Executive's sole discretion, to designate those rights, payments, or benefits under this Agreement, any Other Agreements, and any Benefit Arrangements that ~~relate specifically~~ should be reduced or eliminated so as to a particular Member, such as indemnification with respect to representations and warranties given by a Member regarding such Person’s title to and ownership of Shares), such amounts shall be treated as a deduction avoid having the payment or benefit to the ~~consideration payable in such Sale of the Company and the aggregate consideration shall~~ Executive under this Agreement be ~~re-allocated among the Members in accordance with Section 9.08(b). The Members agree that~~ deemed to ~~the extent, as~~ be a result of such re-allocation, a Member has received more than its share of the consideration pursuant to such re-allocation, such Member shall deliver such excess to the appropriate Member(s) in order for each Member to receive its appropriate share of the considerationParachute Payment. (g) Without limiting the generality of the other provisions of this Section 9.08 but subject to Section 5.11, the Board of Directors shall determine whether or not to pursue, consummate, postpone or abandon any Sale of the Company and, subject to the limitations expressly set forth in this Section 9.08, the terms and conditions thereof. (h) The provisions of this Section 9.08 shall not apply to any transaction pursuant to Sections 9.10 or 9.12.

Appears in 1 contract

Samples: Employment Agreement (Ratexchange Corp)

Common use of Sale of the Company Clause in Contracts