Sale of the Company. (a) In the event that the Board determines to sell all or substantially all of the Company's assets determined on a consolidated basis or sell all or substantially all of the Company's outstanding capital stock (whether by merger, recapitalization, consolidation, reorganization, combination or otherwise), each holder of Management Investor Shares will be given the opportunity to participate in such sale process (to the extent such participation does not materially interfere or impede such sale process) and to make an offer to the Board to purchase such assets or capital stock if the holders of Management Investor Shares so desire. (b) If the Board and the holders of a majority of the shares of Common Stock then outstanding approve a sale of all or substantially all of the Company's assets determined on a consolidated basis or a sale of all or substantially all of the Company's outstanding capital stock (whether by merger, recapitalization, consolidation, reorganization, combination or otherwise) to any Independent Third Party or group of Independent Third Parties (collectively an "Approved Sale"), each holder of Shareholder Shares will consent to and raise no objections against such Approved Sale. If the Approved Sale is structured as (i) a merger or consolidation, each holder of Shareholder Shares will waive any dissenters' rights, appraisal rights or similar rights in connection with such merger or consolidation or (ii) sale of stock, each holder of Shareholder Shares will agree to sell all of his Shareholder Shares and rights to acquire Shareholder Shares on the terms and conditions approved by the Board and the holders of a majority of the Shareholder Shares then outstanding. Each holder of Shareholder Shares will take all necessary or desirable actions in connection with the consummation of the Approved Sale as requested by the Company. (c) The obligations of the holders of Shareholder Shares with respect to an Approved Sale are subject to the satisfaction of the following conditions: (i) upon the consummation of the Approved Sale, each holder of Shareholder Shares will receive the same form of consideration and the same portion of the aggregate consideration that such holders of Shareholder Shares 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 Company's Certificate of Incorporation as in effect immediately prior to such Approved Sale; (ii) if any holders of a class of Shareholder Shares are given an option as to the form and amount of consideration to be received, each holder of such class of Shareholder Shares will be given the same option; and
Appears in 4 contracts
Samples: Shareholder Agreement (Happy Kids Inc), Shareholder Agreement (Hk Merger Corp), Shareholder Agreement (Happy Kids Inc)
Sale of the Company. (a) In the event that the Board determines to sell all or substantially all of the Company's assets determined on a consolidated basis or sell all or substantially all of the Company's outstanding capital stock (whether by merger, recapitalization, consolidation, reorganization, combination or otherwise), each holder of Management Investor Shares will be given the opportunity to participate in such sale process (to the extent such participation does not materially interfere or impede such sale process) and to make an offer to the Board to purchase such assets or capital stock if the holders of Management Investor Shares so desire.
(b) If the Board and the holders of Shareholders holding a majority of the shares of outstanding Common Stock then outstanding and Carlyle approve (and, in the case of any sale or other fundamental change which requires the approval of the board of directors of a Delaware corporation pursuant to the Delaware General Corporation Law, the Board shall have approved such sale or other fundamental change) a sale of all or substantially all of the Company's ’s assets determined on a consolidated basis or a sale of all or substantially all a majority of the Company's ’s outstanding capital stock (whether by merger, recapitalization, consolidation, reorganization, combination or otherwise) to any Independent Third Party or group of Independent Third Parties (collectively an "“Approved Sale"”), the Company shall deliver written notice to the Shareholders setting forth in reasonable detail the terms and conditions of the Approved Sale (including, to the extent then determined, the consideration to be paid with respect to each class of the Company’s capital stock), provided however that on any date that Carlyle and its Affiliates do not own, in the aggregate, either (i) seven and one-half percent (7.5%) (or more) of the issued and outstanding Shareholder Shares or (ii) shares of the Company Stock with a Fair Market Value of seventy-five million dollars ($75,000,000) (or more), Carlyle shall not have an independent right to approve an Approved Sale. Each holder of Shareholder Shares will consent to and raise no objections against such Approved Sale. If the Approved Sale is structured as (i) a merger or consolidation, each holder of Shareholder Shares will waive any dissenters' dissenter’s rights, appraisal rights or similar rights in connection with such merger or consolidation or (ii) sale of stockstock (including by recapitalization, consolidation, reorganization, combination or otherwise), each holder of Shareholder Shares will agree to sell all of his its Shareholder Shares and rights to acquire Shareholder Shares on the terms and conditions approved by the Board and such Shareholders. Each holder of Shareholder Shares shall be obligated to join, severally and not jointly, on a pro rata basis (based on the holders number of a majority shares of the applicable class or series of Company Stock to be sold, and, in the case of an asset sale, based upon the number of shares of Company Stock (and the relative liquidation preferences of each class of Company Stock) owned beneficially on a Fully Diluted Basis) in any indemnification or other obligations that the sellers of Shareholder Shares then outstandingare required to provide in connection with the Approved Sale (other than any such obligations that relate solely to a particular Shareholder, such as indemnification with respect to representations and warranties given by a Shareholder regarding such Shareholder’s title to and ownership of Shareholder Shares being sold, in respect of which only such Shareholder shall be liable); provided, that no holder shall be obligated in connection with such indemnification or other obligations with respect to any amount in excess of the consideration received by such holder in connection with such transfer. Each holder of Shareholder Shares will take all necessary or desirable required actions in connection with the consummation of the Approved Sale as requested reasonably requested. Notwithstanding the provisions of this paragraph 5, neither Carlyle nor its Affiliates shall have any obligation under this paragraph 5 to the extent that Carlyle has an independent right to approve an Approved Sale under this paragraph 5 and Carlyle has not approved such Approved Sale. Notwithstanding the provisions of this paragraph 5, neither Carlyle nor its Affiliates shall be required to provide any indemnification other than on a several basis with the indemnification obligation of Carlyle and its Affiliates limited to the pro rata share of the aggregate purchase price received by all Shareholders at the Companyclosing of the Approved Sale.
(cb) The obligations of the holders of Shareholder Shares Company Stock with respect to an Approved Sale are subject to the satisfaction of the following conditions: conditions in addition to the conditions described in paragraph 5(a): (i) upon the consummation of the Approved Sale, each holder of Shareholder Shares Company Stock will receive the same form of consideration and the same portion of the aggregate consideration that such holders of Shareholder Shares Company Stock 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 Company's ’s Certificate of Incorporation as in effect immediately prior to such Approved Sale; (ii) if any holders of a class of Shareholder Shares Company Stock are given an option as to the form and amount of consideration to be received, each holder of such class of Shareholder Shares Company Stock will be given the same option; andand (iii) each holder of then currently exercisable rights to acquire shares of a class of Company Stock will be given an opportunity to (A) exercise such rights prior to the consummation of the Approved Sale and participate in such sale as holders of such class of Company Stock or (B) make a direct transfer of such rights.
(c) If the Company or the holders of the Company’s securities enter into any negotiation or transaction for which Rule 506 (or any similar rule then in effect) promulgated by the Securities and Exchange Commission may be available with respect to such negotiation or transaction (including a merger, consolidation or other reorganization), the holders of Shareholder Shares that do not qualify as “accredited investors” (as such term is defined in Rule 501 (or any similar rule then in effect) promulgated by the Securities And Exchange Commission) will, at the request of the Company, appoint a “purchaser representative” (as such term is defined in Rule 501 promulgated by the Securities and Exchange Commission) reasonably acceptable to the Company. If any holder of Shareholder Shares appoints a purchaser representative designated by the Company, the Company will pay the fees of such purchaser representative, but if any holder of Shareholder Shares declines to appoint the purchaser representative designated by the Company, such holder will appoint another purchaser representative, and such holder will be responsible for the fees of the purchaser representative so appointed.
(d) Each holder of Shareholder Shares will bear its pro-rata share (based upon the number of shares sold by such holder of Company Stock in relation to the number of shares sold by all holders in such Approved Sale of Company Stock) of the out-of-pocket costs of any sale of Shareholder Shares pursuant to an Approved Sale which are borne by either Investor Shareholder to the extent such costs are incurred for the benefit of all holders of Shareholder Shares and are not otherwise paid by the Company or the acquiring party. Costs incurred by holders of Shareholder Shares on their own behalf will not be considered costs of the transaction hereunder.
(e) In connection with an Approved Sale, each holder of Shareholder Shares (other than Carlyle and its Affiliates) hereby appoints Apollo as its true and lawful proxy and attorney-in-fact, with full power of substitution, to transfer such Shareholder Shares pursuant to the terms of such Approved Sale and to execute any purchase agreement or other documentation required to consummate such Approved Sale to the extent consistent with paragraph 5(a). Each Shareholder agrees to execute and deliver any other documentation reasonably required to consummate the Approved Sale to the extent consistent with paragraph 5(a). The powers granted in this clause (e) shall be deemed to be coupled with an interest, shall be irrevocable and shall survive death, incompetency or dissolution of any such holder of Shareholder Shares.
(f) The provisions of this paragraph 5 will terminate upon the earlier to occur of (i) the consummation of an Approved Sale and (ii) completion of a Public Offering.
Appears in 4 contracts
Samples: Capital Contribution Agreement (Apollo Group Inc), Joint Venture Agreement (Apollo Group Inc), Shareholders’ Agreement (Apollo Group Inc)
Sale of the Company. (a) In For a period of three years following the event that Closing, so long as the Company has not consummated a Public Offering, 399 Venture and its Permitted Transferees (other than any Permitted Transferees pursuant to Section 4.5(d)(iii)) will not vote in favor of (at a duly called and duly held meeting of stockholders or the Board determines of Directors, as the case may be, of the Company) or consent in writing to sell the merger, consolidation or sale (by any means) of all or substantially all of the assets of the Company or any similar transaction, in any one transaction or series of related transactions, without the prior written consent of Xxxxxxx.
(b) Subject to Section 5.7(a), so long as the Company has not consummated a Public Offering, if holders of at least a majority of the Common Stock (including voting and non-voting shares voting as a single class) then outstanding and the Board of Directors vote in favor of (at a duly called and duly held meeting of stockholders or the Board of Directors, as the case may be, of the Company's assets determined on a consolidated basis ) or sell consent in writing to the merger or consolidation of the Company or the sale of all or substantially all of its assets or sale of all of the Company's outstanding capital stock or any other similar transaction (whether provided such holders include Xxxxxxx if Xxxxxxx and his Family Members collectively own at least 50% of the outstanding Common Stock held by mergerthem as of the Closing) (any of the foregoing, recapitalization, consolidation, reorganization, combination or otherwisean "Approved Sale"), (i) each holder Restricted Investor will consent to, vote for, and raise no objections against, and waive dissenters and appraisal rights (if any) with respect to, the Approved Sale, and (ii) if the Approved Sale includes a sale of Management Securities, each Restricted Investor Shares will agree to sell and will be given permitted to sell all of such Restricted Investor's Securities on the opportunity same terms and conditions as are offered to participate in such sale process (to the extent such participation does not materially interfere or impede such sale process) and to make an offer to the Board to purchase such assets or capital stock if the holders of Management Investor Shares so desire.
(b) If the Board and approved by the holders of a majority of the shares of Common Stock then outstanding approve a sale of all or substantially all of the Company's assets determined on a consolidated basis or a sale of all or substantially all of the Company's outstanding capital stock (whether by merger, recapitalization, consolidation, reorganization, combination or otherwise) to any Independent Third Party or group of Independent Third Parties (collectively an "Approved Sale"), each holder of Shareholder Shares will consent to and raise no objections against such Approved Sale. If the Approved Sale is structured as (i) a merger or consolidation, each holder of Shareholder Shares will waive any dissenters' rights, appraisal rights or similar rights in connection with such merger or consolidation or (ii) sale of stock, each holder of Shareholder Shares will agree to sell all of his Shareholder Shares and rights to acquire Shareholder Shares on the terms and conditions approved by the Board and the holders of a majority of the Shareholder Shares then outstanding. Each holder of Shareholder Shares Restricted Investor will take all necessary or and desirable actions in connection with the consummation of an Approved Sale, including, without limitation, the Approved Sale as requested by the Companyexecution of any stock purchase, escrow or other similar agreement which may be required.
(c) The obligations of each of the holders of Shareholder Shares Investors with respect to an Approved Sale are subject to the satisfaction of the following conditions: (i) conditions that upon the consummation of the Approved Sale, each holder Sale all of Shareholder Shares the Investors and Permitted Transferees will receive the same form and amount of consideration and the same portion per share of the aggregate consideration that such holders of Shareholder Shares 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 Company's Certificate of Incorporation as in effect immediately prior to such Approved Sale; (ii) Common Stock, or if any holders holder of a class of Shareholder Shares are Common Stock is given an option as to the form and amount of consideration to be received, each holder of such class of Shareholder Shares all Investors and Permitted Transferees will be given the same option; and.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Royster-Clark Nitrogen Realty LLC), Securities Purchase Agreement (Royster-Clark Nitrogen Realty LLC)
Sale of the Company. (a) In the event that the Board determines to sell all or substantially all of the Company's assets determined on a consolidated basis or sell all or substantially all of the Company's outstanding capital stock (whether by merger, recapitalization, consolidation, reorganization, combination or otherwise), each holder of Management Investor Shares will be given the opportunity to participate in such sale process (to the extent such participation does not materially interfere or impede such sale process) and to make an offer to the Board to purchase such assets or capital stock if If the holders of Management Investor at least a majority of the Xxxx Shares so desire.
(b) If the Board and the holders of at least a majority of the shares SXI Shares (the "Requisite Holders") approve (and, in the case of Common Stock then outstanding approve any sale or other fundamental change or extraordinary transaction which requires the approval of the board of directors of a California corporation pursuant to the California Corporations Code, the Board shall have approved such sale) a sale of all or substantially all (as defined in the Revised Model Business Corporation Act) of the Company's assets determined on a consolidated basis or a sale of all or substantially all of the Company's outstanding capital stock (whether by merger, recapitalization, consolidation, reorganization, combination or otherwise) to any Independent Third Party or group of Independent Third Parties Parties, and the Board shall have received a written opinion of an internationally recognized investment banking firm (which firm shall have been selected by the Board), acting as an independent financial advisor to the Board, to the effect that the consideration to be received by the Company or its shareholders (as the case may be) in such transaction is fair to the Company or its shareholders (as the case may be), from a financial point of view (collectively an "Approved Sale"), each holder of Shareholder Shares will consent to and raise no objections against such Approved Sale. If the Approved Sale is structured as (i) a merger or consolidation, each holder of Shareholder Shares will waive any dissenters' dissenter's rights, appraisal rights or similar rights in connection with such merger or consolidation or (ii) a sale of stock, each holder of Shareholder Shares will agree to sell all of his its Shareholder Shares and rights to acquire Shareholder Shares on the terms and conditions approved by the Board and the holders of a majority Requisite Holders; it being understood and agreed that in the event one of the Shareholder Shares then outstandingterms of such sale provides for joint and several liability for post-closing indemnification obligations, the Xxxx Group and the SXI Group shall enter into a contribution agreement with Intel and the members of the Hyundai Group which provides that each party to such contribution agreement shall bear any such indemnification obligations pro rata according to each such party's percentage interest in the proceeds of such Approved Sale. Each holder of Shareholder Shares will take all necessary or desirable actions in connection with the consummation of the Approved Sale as requested by the Requisite Holders and the Company.
(cb) The obligations of the holders of Shareholder Shares Capital Stock with respect to an Approved Sale are subject to the satisfaction of the following conditions: (i) upon the consummation of the Approved Sale, each holder of Shareholder Shares Capital Stock will receive the same form of consideration and the same portion of the aggregate consideration that such holders of Shareholder Shares Capital Stock 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 Company's Certificate Articles of Incorporation as in effect immediately prior to such Approved Sale; , (ii) if any holders holder of a class of Shareholder Shares are Capital Stock is given an option as to the form and amount of consideration to be received, each holder of such class of Shareholder Shares Capital Stock will be given the same option; and;
Appears in 1 contract
Samples: Shareholders Agreement (Chippac LTD)
Sale of the Company. (a) In If the event that Spectrum Holders approve (and, in the case of any sale or other fundamental change which requires the approval of the board of directors of a Delaware corporation pursuant to the Delaware General Corporation Law, the Board determines to sell all or substantially all of the Company's assets determined on a consolidated basis or sell all or substantially all of the Company's outstanding capital stock (whether by merger, recapitalization, consolidation, reorganization, combination or otherwise), each holder of Management Investor Shares will be given the opportunity to participate in shall have approved such sale process (to the extent such participation does not materially interfere or impede such sale processsale) and to make an offer to the Board to purchase such assets or capital stock if the holders of Management Investor Shares so desire.
(b) If the Board and the holders of a majority of the shares of Common Stock then outstanding approve a sale of all or substantially all of the Company's ’s assets determined on a consolidated basis or a sale of all or substantially all a majority of the Company's ’s outstanding capital stock (whether by merger, recapitalization, consolidation, reorganization, combination or otherwise) to any Independent Third Party or group of Independent Third Parties (collectively an "“Approved Sale"”), the Company shall deliver written notice to the Stockholders setting forth in reasonable detail the terms and conditions of the Approved Sale (including, to the extent then determined, the consideration to be paid with respect to each class of the Company’s capital stock). Each holder of Shareholder Stockholder Shares will consent to and raise no objections against such Approved Sale. If the Approved Sale is structured as (i) a merger or consolidation, each holder of Shareholder Stockholder Shares will waive any dissenters' dissenter’s rights, appraisal rights or similar rights in connection with such merger or consolidation or (ii) sale of stockstock (including by recapitalization, consolidation, reorganization, combination or otherwise), each holder of Shareholder Stockholder Shares will agree to sell all of his Shareholder its Stockholder Shares and rights to acquire Shareholder Stockholder Shares on the terms and conditions approved by the Board and the holders of a majority of the Shareholder Shares then outstandingsuch Spectrum Holders. Each holder of Shareholder Stockholder Shares shall he obligated to join, severally and not jointly, on a pro rata basis (based on the number of shares of the applicable class or series of Company Stock to be sold) in any indemnification or other obligations that the sellers of Stockholder Shares are required to provide in connection with the Approved Sale (other than any such obligations that relate solely to a particular Stockholder, such as indemnification with respect to representations and warranties given by a Stockholder regarding such Stockholder’s title to and ownership of Stockholder Shares being sold, in respect of which only such Stockholder shall be liable); provided that no holder shall be obligated in connection with such indemnification or other obligations with respect to any amount in excess of the consideration received directly or indirectly by such holder in connection with such transfer (including a pro rata portion of any indebtedness of the Company discharged at the closing of such Approved Sale). Each holder of Stockholder Shares will take all necessary requested or desirable actions in connection with the consummation of the Approved Sale as requested by the CompanySpectrum Group Stockholders.
(cb) The obligations of the holders of Shareholder Shares Company Stock with respect to an Approved Sale are subject to the satisfaction of the following conditions: (i) upon the consummation of the Approved Sale, each holder of Shareholder Shares Company Stock will receive the same form of consideration and the same portion of the aggregate consideration that such holders of Shareholder Shares Company Stock 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 Company's ’s Certificate of Incorporation as in effect immediately prior to such Approved Sale; (ii) if any holders of a class of Shareholder Shares Company Stock are given an option as to the form and amount of consideration to be received, each holder of such class of Shareholder Shares Company Stock will be given the same option; andoption and (iii) each holder of then currently exercisable rights to acquire shares of a class of Company Stock will be given an opportunity to exercise such rights prior to the consummation of the Approved Sale and participate in such sale as holders of such class of Company Stock.
(c) If the Company or the holders of the Company’s securities enter into any negotiation or transaction for which Rule 506 (or any similar rule then in effect) promulgated by the Securities and Exchange Commission may be available with respect to such negotiation or transaction (including a merger, consolidation or other reorganization), the holders of Stockholder Shares will, at the request of the Company, appoint a purchaser representative (as such term is defined in Rule 501 promulgated by the Securities and Exchange Commission) reasonably acceptable to the Company. If any holder of Stockholder Shares appoints a purchaser representative designated by the Company, the Company will pay the fees of such purchaser representative, but if any holder of Stockholder Shares declines to appoint the purchaser representative designated by the Company, such holder will appoint another purchaser representative, and such holder will be responsible for the fees of the purchaser representative so appointed.
(d) Each holder of Stockholder Shares will bear its pro-rata share (based upon the number of shares sold by such holder of each class of Company Stock in relation to the number of shares sold by all holders in such Approved Sale of such class of Company Stock (with each class to bear such expenses based upon the relative distribution priorities and preferences of each such class in relation to the other)) of the out-of-pocket costs of any sale of Stockholder Shares pursuant to an Approved Sale which are borne by the Spectrum Group Stockholders to the extent such costs are incurred for the benefit of all holders of Stockholder Shares and are not otherwise paid by the Company or the acquiring party. Costs incurred by holders of Stockholder Shares on their own behalf will not be considered costs of the transaction hereunder.
(e) In connection with an Approved Sale, each holder of Stockholder Shares (other than CIT Lending Services Corporation) hereby appoints Spectrum Equity Investors as its true and lawful proxy and attorney-in-fact, with full power of substitution, to transfer such Stockholder Shares pursuant to the terms of such Approved Sale and to execute any purchase agreement or other documentation required to consummate such Approved Sale. The powers granted herein shall be deemed to be coupled with an interest, shall be irrevocable and shall survive death, incompetency or dissolution of any such holder of Stockholder Shares.
(f) The provisions of this Section will terminate upon the earlier to occur of (i) the consummation of an Approved Sale and (ii) completion of a Public Offering.
Appears in 1 contract
Sale of the Company. (a) In If the event that the Parent Board determines to sell all or substantially all approves a Sale of the Company's assets determined on a consolidated basis or sell all or substantially all of the Company's outstanding capital stock Company (whether by merger, recapitalization, consolidation, reorganization, combination or otherwise), each holder of Management Investor Shares will be given the opportunity to participate in such sale process (to the extent such participation does not materially interfere or impede such sale process) and to make an offer to the Board to purchase such assets or capital stock if the holders of Management Investor Shares so desire.
(b) If the Board and the holders of a majority of the shares of Common Stock then outstanding approve a sale of all or substantially all of the Company's assets determined on a consolidated basis or a sale of all or substantially all of the Company's outstanding capital stock (whether by merger, recapitalization, consolidation, reorganization, combination or otherwise) to any Independent Third Party or group of Independent Third Parties (collectively an "Approved -------- Company Sale"), then each holder of Shareholder Shares Class A Member will consent to and raise no objections ------------ against such the Approved Company Sale. If the Approved Company Sale is structured as (i) a merger or consolidationconsolidation involving the Company, then each holder of Shareholder Shares will Class A Member shall waive any dissenters' dissenters rights, appraisal rights or similar rights in connection with such merger or consolidation consolidation. If the Approved Company Sale is structured as a Transfer of Securities (with or (iiwithout a Transfer of other Ownership Interests), then subject to the following sentence and Sections 4(b) sale of stockand 4(c), each holder of Shareholder Shares will Class A Member shall agree to sell include in such Transfer either: (x) if at the time of the Approved Company Sale there is any Unpaid Yield or Unreturned Capital Value with respect to the Class A Units, all of his Shareholder Shares its Class A Units and rights to acquire Shareholder Shares Class A Units; or (y) if at the time of the Approved Company Sale there is not any Unpaid Yield or Unreturned Capital Value with respect to the Class A Units, a proportionate quantity of its Class A Units and rights to acquire Class A Units, in each case on the terms and conditions approved by the Board and the holders of a majority of the Shareholder Shares then outstandingBoard. Each holder of Shareholder Shares will Class A Member shall take all necessary or desirable actions in connection with the consummation of the an Approved Company Sale as requested by the Parent Board, including, without limitation, executing a sale contract pursuant to which each Class A Member will severally (but not jointly) with the other Transferring Person(s) agree to indemnify the acquiring Person(s) in respect of breaches of representations, warranties and indemnities regarding the Company, its Subsidiaries and their respective assets, liabilities and business (collectively, the "Company Reps"), and will make and provide ------------ indemnity in respect of breaches of such representations and warranties concerning such Class A Member and the Class A Units to be Transferred by it or him (as may be reasonably acceptable to such Class A Member), as may be set forth in any agreement approved by the Parent Board; provided, that: (i) if any -------- Transferring Person pays any amount in connection with any claim under the Company Reps by the purchaser or purchasers in such Approved Company Sale (a "Company Loss"), then each other Transferring Person will simultaneously ------------ contribute to such first Person an amount equal to such contributing holder's portion of such Company Loss, determined in accordance with the following clause (ii) of this proviso; (ii) each Class A Member's "portion of such Company Loss" shall be the amount required to be contributed by such Member so that subsequent to such Member's contribution, the net portion of the aggregate consideration received by such Member is equal to the amount that such Member would have received if the aggregate consideration received by all Members or the Company in such Approved Company Sale (net of costs reimbursed pursuant to Section 4(c)), adjusted to account for the Company Loss, had been distributed as described in Section 4(c)(ii); and (iii) a Class A Member shall be required to provide indemnification in respect of Company Reps only if the sale contract which such Class A Member is required to sign provides that such Member's maximum liability for any breach of the Company Reps shall be the consideration received by such Member for such Member's Class A Units.
(cb) The obligations of the holders of Shareholder Shares Class A Members with respect to an the Approved Company Sale are subject to the satisfaction of the following conditions: (i) upon the consummation of the Approved Company Sale, each holder Class A Member shall receive the portion of Shareholder Shares will the aggregate consideration described in Section 4(c) (and in accordance with the LLC Agreement, if applicable); (ii) each Transferring Person shall receive the same form of consideration and the same portion of the aggregate consideration that such holders of Shareholder Shares 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 Company's Certificate of Incorporation as in effect immediately prior to such Approved Sale; (ii) except that, if any holders of a class of Shareholder Shares are Avalon Party is given an option as to the form and amount of consideration to be received, each holder of such class of Shareholder Shares will Class A Member shall be given the same option); andand (iii) the consideration to be received by the Class A Members must be cash, cash equivalents, shares of capital stock of a class that is publicly traded or some combination thereof.
(c) In connection with an Approved Company Sale, the reasonable out- of-pocket expenses of the Proposed Transferor and each Class A Member and its Affiliates incurred in connection therewith will be paid out of the consideration received and the remainder of the consideration will be shared such that the portion of the aggregate consideration to be paid to a Class A Member is as follows:
(i) if the Approved Company Sale is structured as a sale of assets of the Company or any of its Subsidiaries, then each Class A Member shall be entitled to the amount that such Class A Member would receive from the Company in respect of the Class A Units owned by such Class A Member if an amount equal to such remainder of the aggregate consideration paid in such Approved Company Sale were distributed by the Company in accordance with Section 7.1 of the LLC Agreement (without giving effect to Section 7.1(a) thereof or the sentences of Section 7.1 of the LLC Agreement that follow Section 7.1(d) thereof). Notwithstanding the foregoing, for purposes of calculating the amount under this Section that would be distributed by the Company in accordance with Section 7.1 of the LLC Agreement, distributions shall be made pursuant to Sections 7.1(b), (c) and (d) thereof only to the extent of each Unitholder's Pro Forma Positive Capital Account Balance, after taking into account any previous distributions pursuant to such Section 7.1;
(ii) if the Approved Company Sale is structured as a Transfer of Equity Securities of the Company, then each Class A Member shall be entitled to the amount that such Class A Member would receive from the Company in respect of the Class A Units Transferred in such Approved Company Sale by such Class A Member if: (A) an amount equal to such remainder of the aggregate consideration paid in such Approved Company Sale were distributed by the Company in accordance with Section 7.1 of the LLC Agreement (without giving effect to Section 7.1(a) thereof or the sentences of Section 7.1 of the LLC Agreement that follow Section 7.1(d) thereof). Notwithstanding the foregoing, for purposes of calculating the amount under this Section that would be distributed by the Company in accordance with Section 7.1 of the LLC Agreement, distributions shall be made pursuant to Sections 7.1(b), (c) and (d) thereof only to the extent of each Unitholder's Pro Forma Positive Capital Account Balance, after taking into account any previous distributions pursuant to such Section 7.1; and (B) at the time of such distribution, the only Equity Securities of the Company outstanding were the classes and quantities of Securities actually Transferred in such Approved Company Sale; or
(iii) if the Approved Company Sale is structured as a sale of both Equity Securities of the Company and other Ownership Interests, then each Class A Member shall be entitled to the amount that such Class A Member would receive from the Company in respect of the Class A Units Transferred in such Approved Company Sale by such Class A Member if: (A) an amount equal to such remainder of the aggregate consideration paid in such Approved Company Sale was distributed by the Company in accordance with Section 7.1 of the LLC Agreement (without giving effect to Section 7.1(a) thereof or the sentences of Section 7.1 of the LLC Agreement that follow Section 7.1(d) thereof). Notwithstanding the foregoing, for purposes of calculating the amount under this Section that would be distributed by the Company in accordance with Section 7.1 of the LLC Agreement, distributions shall be made pursuant to Sections 7.1(b), (c) and (d) thereof only to the extent of each Unitholder's Pro Forma Positive Capital Account Balance, after taking into account any previous distributions pursuant to such Section 7.1; and (B) at the time of such distribution, the only Equity Securities of the Company outstanding were: (x) the classes and quantities of Securities actually Transferred in such Approved Company Sale by the Members; and (y) without duplication, the Pro-Rata Portion of Equity Securities of the Company owned indirectly by the Parent, if the Approved Company Sale included a Transfer by the Parent or ABRY of Ownership Interests of Michigan Inc., Avalon Cable Michigan, Avalon Cable N.E. or the Parent. For purposes of this Section 4.1(c), the "Pro-Rata Portion" shall be determined in accordance with Section 1(b) as if the Transfer in question is actually the Approved Company Sale. Notwithstanding anything to the contrary contained in this Agreement, if and to the extent required by the Financing Agreements, the owners of Ownership Interests subject to this Agreement hereby agree to return to the Company any proceeds received in connection with an Approved Company Sale; provided, that: -------- (i) such proceeds shall be used only to reduce Indebtedness under the Financing Agreements or as otherwise required or permitted thereunder; and (ii) the provisions of Section 7.4(b) of the LLC Agreement shall apply to the return of proceeds pursuant to this paragraph.
Appears in 1 contract
Sale of the Company. (a) In the event that the Board determines to sell all or substantially all of the Company's assets determined on a consolidated basis or sell all or substantially all of the Company's outstanding capital stock (whether by merger, recapitalization, consolidation, reorganization, combination or otherwise), each holder of Management Investor Shares will be given the opportunity to participate in such sale process (to the extent such participation does not materially interfere or impede such sale process) and to make an offer to the Board to purchase such assets or capital stock if the holders of Management Investor Shares so desire.
(b) If the Board and the holders of a majority of the shares of Common Stock then outstanding the Company’s common stock held by the Seller approve (and, in the case of any sale or other fundamental change which requires the approval of the board of directors of a Michigan corporation pursuant to the Michigan Business Corporation Act, the Company’s board of directors shall have approved such
(i) a sale of all or substantially all of the Company's ’s assets determined on a consolidated basis or a sale of all or substantially all a majority of the Company's ’s outstanding capital stock (whether by merger, recapitalization, consolidation, reorganization, combination or otherwise) to any an Independent Third Party or group of Independent Third Parties or (ii) a Transfer of any shares of Common Stock in connection with a Strategic Transaction (collectively an "“Approved Sale"”), each holder of Shareholder Shares Executive Stock and Warrants will vote for, consent to and raise no objections against such Approved Sale. If the Approved Sale is structured as (i) a merger or consolidation, each holder of Shareholder Shares Executive Stock or Warrants will waive any dissenters' dissenter’s rights, appraisal rights or similar rights in connection with such merger or consolidation or (ii) sale of stockstock (including by recapitalization, consolidation, reorganization, combination or otherwise), each holder of Shareholder Shares Executive Stock or Warrants will agree to sell all of his Shareholder Shares shares of Executive Stock or Warrants and rights to acquire Shareholder Shares shares of Executive Stock or Warrants on the terms and conditions approved by the Board Company’s board of directors and the holders of a majority of the Shareholder Shares Company’s common stock then outstanding. Each holder of Shareholder Shares Executive Stock or Warrants will take all necessary or desirable actions in connection with the consummation of the Approved Sale as reasonably requested by the Company.
(cb) The obligations of the holders of Shareholder Shares Executive Stock or Warrants with respect to an the Approved Sale of the Company are subject to the satisfaction of the following conditions: (i) upon the consummation of the Approved Sale, each holder of Shareholder Shares Executive Stock or Warrants will receive the same form of consideration and the same portion of the aggregate consideration that such holders of Shareholder Shares Executive Stock or Warrants 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 Company's Certificate ’s Articles of Incorporation as in effect immediately prior to such Approved Sale; (ii) if any holders of a class of Shareholder Common Shares are given an option as to the form and amount of consideration to be received, each holder of such class of Shareholder Common Shares will be given the same option; andand (iii) each holder of then currently exercisable rights to acquire shares of a class of Common Shares will be given an opportunity to exercise such rights prior to the consummation of the Approved Sale and participate in such sale as holders of such class of Common Shares.
(c) If the Company or the holders of the Company’s securities enter into any negotiation or transaction for which Rule 506 (or any similar rule then in effect) promulgated by the Securities Exchange Commission may be available with respect to such negotiation or transaction (including a merger, consolidation or other reorganization), the holders of Executive Stock and Warrants will, at the request of the Company, appoint a purchaser representative (as such term is defined in Rule 501) reasonably acceptable to the Company. If any holder of Executive Stock or Warrants appoints a purchaser representative designated by the Company, the Company will pay the fees of such purchaser representative, but if any holder of Executive Stock or Warrants declines to appoint the purchaser representative designated by the Company, such holder will appoint another purchaser representative, and such holder will be responsible for the fees of the purchaser representative so appointed.
(d) Executive and the other holders of Executive Stock (if any) and Warrants will bear their pro-rata share (based upon the number of shares sold) of the costs of any sale of Executive Stock or Warrants pursuant to an Approved Sale to the extent such costs are incurred for the benefit of all holders of Common Shares and are not otherwise paid by the Company or the acquiring party. Costs incurred by Executive and the other holders of Executive Stock or Warrants on their own behalf will not be considered costs of the transaction hereunder.
(e) The provisions of this paragraph 7 will terminate upon the closing of a Public Offering (as defined below).
Appears in 1 contract
Samples: Executive Stock Purchase Agreement (TSM Acquisition Co)
Sale of the Company. (a) In Subject to the event that terms of this Section 12.2, if the Common Members holding a majority of the Common Units (such majority referred to herein as the “Requisite Members”) and the Board determines to sell all or substantially all approve a Sale of the Company's assets determined on a consolidated basis or sell all or substantially all of Company (the Company's outstanding capital stock (whether by merger, recapitalization, consolidation, reorganization, combination or otherwise“Approved Sale”), each holder invoke the provisions of Management Investor Shares will be given this Section 12.2 by written notice to the opportunity to participate in such sale process Members, then the Members shall vote for (to the extent such participation does not materially interfere or impede such sale process) and permitted to make an offer to the Board to purchase such assets or capital stock if the holders of Management Investor Shares so desire.
(b) If the Board and the holders of a majority of the shares of Common Stock then outstanding approve a sale of all or substantially all of the Company's assets determined on a consolidated basis or a sale of all or substantially all of the Company's outstanding capital stock (whether by merger, recapitalization, consolidation, reorganization, combination or otherwise) to any Independent Third Party or group of Independent Third Parties (collectively an "Approved Sale"vote thereon), each holder of Shareholder Shares will consent to and raise no objections against such Approved SaleSale or the process by which such transaction was arranged. If the Approved Sale is structured as a (i) a merger or consolidation, each holder of Shareholder Shares will waive Member hereby waives any dissenters' ’ rights, appraisal rights or similar rights rights, if applicable, in connection with such merger or consolidation or (ii) sale of stockUnits or other equity securities or interests, each holder Member shall sell and surrender all or any applicable portion of Shareholder Shares will agree to sell all of his Shareholder Shares such Member’s Units or other equity securities or interests and rights to acquire Shareholder Shares Units or other equity securities or interests on the terms and conditions approved by the Board Requisite Members and the holders of a majority of the Shareholder Shares then outstandingBoard. Each holder of Shareholder Shares will The Members shall take all necessary or desirable actions in connection with the consummation of the Approved Sale Sale, including, without limitation: (A) executing a termination of all or any portion of this Agreement; (B) executing a sale contract provided each Member will in any event only be obligated to (1) severally (but not jointly), on a pro rata basis (based on the total consideration received by such Member in connection with such Approved Sale), give the same indemnities as the Requisite Members for representations and warranties regarding the Company and its assets, liabilities and business and for covenants of the Company (collectively, the “Company Indemnities”), and (2) solely on behalf of such Member make such representations and warranties and give such indemnities solely concerning such Member and the Units or other equity securities or interests (if any) to be sold by such Member as may be also applicable to all other Members and the Units to be sold by such other parties set forth in any agreement approved by the Requisite Members; (C) subject to the foregoing clause (B), executing such joinders, indemnification support (on a several, but not joint basis), contribution or guarantee agreements, instruments of transfer and other documents or instruments as may be necessary to consummate such transaction applicable to all other Members and as requested by the Company.
Requisite Members; (cD) The subject to the foregoing clause (B), entering into non-competition and non-solicitation covenants; and (E) entering into holdback and escrow obligations of the holders of Shareholder Shares on a pro rata basis with respect to an such transaction. To the extent that a Member fails to comply with any of the provisions of this Section 12.2(a) (a “Breaching Member”), the Company or its successor shall be entitled to withhold, in a designated escrow account, the proceeds to which such Breaching Member is entitled in connection with such Approved Sale are subject transaction until the date on which such Breaching Member shall have complied in full with the provisions of this Section 12.2(a). Notwithstanding anything to the satisfaction of the following conditions: (i) upon the consummation of the contrary contained herein, no Member shall be required to agree to be liable for any amounts payable in connection with such Approved Sale, each holder of Shareholder Shares will receive the same form of consideration and the same portion of Sale transaction in an amount in the aggregate greater than the total consideration that received by such holders of Shareholder Shares would have received if such aggregate consideration had been distributed by the Company Member in complete liquidation pursuant to the rights and preferences set forth in the Company's Certificate of Incorporation as in effect immediately prior to connection with such Approved Sale; (ii) if any holders of a class of Shareholder Shares are given an option as to the form and amount of consideration to be received, each holder of such class of Shareholder Shares will be given the same option; and.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Priority Technology Holdings, Inc.)
Sale of the Company. (a) In the event that the Board determines to sell all or substantially all If a Sale of the Company's assets determined on Company is structured as a consolidated basis or sell all or substantially all direct sale of the Company's outstanding capital stock Units (whether by merger, recapitalization, consolidation, reorganization, combination or otherwise), each holder of Management Investor Shares will be given the opportunity to participate in such sale process (to the extent such participation does not materially interfere or impede such sale process) and to make an offer to the Board to purchase such assets or capital stock if the holders of Management Investor Shares so desire.
(b) If the Board and the holders of a majority of the shares of Common Stock then outstanding approve a sale of all or substantially all of the Company's assets determined on a consolidated basis or a sale of all or substantially all of the Company's outstanding capital stock (whether by merger, recapitalization, consolidation, reorganization, combination reorganization or otherwise) to any Independent Third Party or group of Independent Third Parties (collectively an "Approved Sale")and is approved by the Board, each holder of Shareholder Shares will Member or other Person owning Units shall consent to and raise no objections against such Approved Sale(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 Approved Sale of the Company is structured as (i) a merger or consolidation, each holder Member or other Person owning Units shall (and shall cause each of Shareholder Shares will its Affiliates to) waive any dissenters' dissenter’s rights, appraisal rights or similar rights in connection with such merger or consolidation consolidation. If the Sale of the Company is structured as a direct or (ii) indirect sale of stockUnits (whether by merger, consolidation, reorganization or otherwise), each holder Member or other Person owning Units shall waive (and shall cause each of Shareholder Shares will agree 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 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 Shareholder Shares or its Units and rights to acquire Shareholder Shares Units and all equity securities of any Subsidiary of the Company held by such Member or other Person on the terms and conditions approved by the Board and the holders of Members holding a majority of the Shareholder Shares then outstandingCommon Units. Each holder of Shareholder Shares will take all necessary or desirable actions Member participating in connection with the consummation such Sale of the Approved Sale as requested by Company (regardless of whether selling Units or interests in the Company.
(cMember) The obligations of the holders of Shareholder Shares with respect to an Approved Sale are subject to the satisfaction of the following conditions: (i) upon the consummation of the Approved Sale, each holder of Shareholder Shares will shall receive the same form of consideration and the same portion of the aggregate net consideration that as such holders of Shareholder Shares holder would have received if the Company sold all of its assets, paid all of its liabilities and such aggregate net consideration had been were distributed by the Company in complete liquidation to the Members pursuant to the rights and preferences set forth in the Company's Certificate of Incorporation Section 10.1(b), without regard to any tax consequences to any Member as in effect immediately prior to such Approved Sale; 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, and (B) will take (and shall cause each of its Affiliates to take) all actions necessary to cause a liquidation of the Company and each of its Subsidiaries following the consummation of such Sale of the Company.
(b) In addition to and without limiting the generality of the foregoing, in connection with a Sale of the Company, each Member or other Person owning Units will take all other necessary and desirable actions as directed by the Board in connection with the consummation of any Sale of the Company, including:
(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 documents governing such sale on a basis consistent with the percentage and type of security or interest being sold.
(c) In connection with any Sale of the Company, each Member or other Person owning Units and receiving consideration in such Sale of the Company shall pay its pro rata share (based on the proportion of the total consideration received in such Sale of the Company by all Persons participating in such sale) of all expenses incurred by the Company in connection with such Sale of the Company and if any holders escrow arrangement is required in connection with such Sale of a class of Shareholder Shares are given an option as to the form and amount of consideration to be receivedCompany, each holder Member or other Person shall fund its pro rata share (based on the proportion of the total consideration received in such Sale of the Company by all Persons participating in such sale of such class escrow).
(d) If the Company enters into any negotiation or transaction for which Rule 506 promulgated by the SEC (or any similar rule then in effect) may be available with respect to such negotiation or transaction (including a merger, consolidation or other reorganization), each Member or other Person owning Units that is not an “accredited investor” (within the meaning of Shareholder Shares Rule 501(a) promulgated by the SEC) will, at the request of the Board appoint a purchaser representative (as such term is defined in Rule 501 promulgated by the SEC) approved by the Board (as the case may be), and such Member or other Person will be given responsible for the same option; andfees of the purchaser representative so appointed.
Appears in 1 contract
Samples: Master Transaction Agreement (SRAM International Corp)
Sale of the Company. (a) In Subject to the event that terms of this Section 11, if the Institutional Investors (so long as the Institutional Investors collectively continue to hold at least 51% of the outstanding Class A Common Units) (the “Approving Holders”) approve a Sale of the Company (and, in the case of any sale or other company transaction which requires the approval of the managers of a Delaware manager-managed limited liability company pursuant to applicable Delaware law, the Board determines to sell all or substantially all shall have approved such Sale of the Company's assets determined on a consolidated basis or sell all or substantially all of ) (the Company's outstanding capital stock (whether by merger, recapitalization, consolidation, reorganization, combination or otherwise“Approved Sale”), each holder and the Institutional Investors invoke the provisions of Management Investor Shares will be given this Section 11 by written notice to the opportunity to participate in such sale process holders of Class A Common Units, the holders of Class A Common Units shall vote for (to the extent such participation does not materially interfere or impede such sale process) and permitted to make an offer to the Board to purchase such assets or capital stock if the holders of Management Investor Shares so desire.
(b) If the Board and the holders of a majority of the shares of Common Stock then outstanding approve a sale of all or substantially all of the Company's assets determined on a consolidated basis or a sale of all or substantially all of the Company's outstanding capital stock (whether by merger, recapitalization, consolidation, reorganization, combination or otherwise) to any Independent Third Party or group of Independent Third Parties (collectively an "Approved Sale"vote thereon), each holder of Shareholder Shares will consent to and raise no objections against such Approved SaleSale of the Company or the process by which such transaction was arranged. If the Approved Sale of the Company is structured as a (i) a merger or consolidation, each holder of Shareholder Shares will Class A Common Units or other equity securities or interests shall waive any dissenters' ’ rights, appraisal rights or similar rights in connection with such merger or consolidation or (ii) sale of stockCompany Units or other equity securities or interests, each holder of Shareholder Shares will agree to Class A Common Units or other equity securities or interests shall sell and surrender all of his Shareholder Shares such holder’s Class A Common Units or other equity securities or interests and rights to acquire Shareholder Shares Class A Common Units or other equity securities or interests on the terms and conditions approved by the Board Approving Holders and the holders of a majority of Board (to the Shareholder Shares then outstandingextent such approval is required by applicable Delaware law). Each holder of Shareholder Shares will Class A Common Units or other equity securities or interests shall take all necessary or desirable actions in connection with the consummation of the Approved Sale of the Company, including without limitation, executing a sale contract pursuant to which each holder of Company Units will: (i) severally (but not jointly), on a pro rata basis as requested determined in accordance with Section 11(d) below, give the same indemnities as the Approving Holders for representations and warranties regarding the Company and its assets, liabilities and business and for covenants of the Company (collectively, the “Company Indemnities”) and (ii) solely on behalf of such holder, make such representations, warranties, covenants and give such indemnities concerning such holder and the Company Units or other equity securities or interests (if any) to be sold by such holder (collectively, the “Unitholder Obligations”) as may be also applicable to all other holders of Company Units and the Company Units to be sold by such other parties set forth in any agreement approved by the Institutional Investors and the Board (to the extent required by applicable Delaware law); provided that: (A) the pro rata share of a holder of Company Units for any amounts payable in connection with any claim under the Company Indemnities by the purchaser(s) in such Sale of the Company transaction (any such amount payable, an “Indemnity Loss”) shall be determined in accordance with Section 11(d) below, and (B) if any holder of Company Units pays for more than such holder’s pro rata share (as determined in accordance with Section 11(d) below) of an Indemnity Loss (such amount, the “Loss Overpayment”), then each other holder of Company Units shall simultaneously contribute to such holder an amount equal to such other holder’s allocable share (based upon such holder’s pro rata share, as determined in accordance with Section 11(d) below, of the Indemnity Loss) of such Loss Overpayment. Notwithstanding anything to the contrary contained herein, no holder of Company Units shall be required to agree to be liable for Indemnity Losses in an amount in the aggregate greater than the total consideration received by such holder in connection with such Sale of the Company.
(b) In the event that a Sale of the Company involves a sale of less than all of the Company Units, each holder of Company Units shall be required to sell his, her or its Company Units in such Sale of the Company, subject to complying with the terms and conditions set forth in this Section 11. The number of Company Units which shall be sold by each holder of Company Units participating in such Sale of the Company shall be equal to the product of (i) the aggregate number of Company Units owned by such holder multiplied by (ii) a fraction, the numerator of which is the aggregate number of Company Units being sold by the Institutional Investors in such sale and the denominator of which is the aggregate number of Company Units owned by the Institutional Investors at the time of such sale.
(c) The obligations Investor’s obligation to participate in a Sale of the holders of Shareholder Shares with respect to an Approved Sale are Company is subject to the satisfaction of the following conditions: (i) upon the consummation of the Approved SaleSale of the Company, each holder of Shareholder Shares will Investor shall receive the same form proceeds from such sale in accordance with the terms of consideration Section 11(d) below, and if the same portion of the aggregate consideration that such holders of Shareholder Shares 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 Company's Certificate of Incorporation as in effect immediately prior to such Approved Sale; (ii) if any holders of a class of Shareholder Shares Company Units are given an option as to the form and amount of consideration to be received, all holders of each holder of such class of Shareholder Shares will Company Units shall be given the same optionoption subject to Section 11(d) below; provided that the condition that each holder is provided with the same option to receive the same form of consideration as set forth above shall be deemed satisfied even if certain holders elect to receive, to the exclusion of others, securities of the acquiring Person or any of its Affiliates or a mix of such securities and cash, so long as each holder of the same class of Company Units receives the same amount of value per Company Unit of each class, whether in cash or such securities, as the Board shall determine in good faith after review of all facts and circumstances it deems relevant, as of the closing of such Sale of the Company.
(d) In the event a Sale of the Company occurs (whether under this Section 11 or otherwise), each holder of Company Units shall receive in exchange for the Company Units held by such holder an amount equal to such amount that such holder would have received in respect of such holder’s Company Units if the aggregate consideration (after satisfaction or assumption of all debts and liabilities) from such Sale of the Company had been distributed by the Company in a complete liquidation of the Company in accordance with (including, without limitation, in the order of priority as set forth in) the terms of the LLC Agreement (and, if less than all of the Company Units of the Company are included in such transaction, then the allocation of such aggregate net consideration shall be determined as if the Company Units included in such transaction were all of the Company Units of the Company then outstanding and the Company distributed the aggregate consideration in a complete liquidation on that basis, and, for purposes of this Section 11(d), the terms of the LLC Agreement shall be interpreted consistently with this assumption) (such amount is referred to herein as the “Sale Proceeds Amount”). The allocable share of each holder of Class A Common Units of any Indemnity Loss shall be an amount equal to the amount by which such holder’s Sale Proceeds Amount would have been reduced had the aggregate consideration from such Sale of the Company been distributed by the Company in accordance with the sentence immediately foregoing after deducting from such aggregate consideration the aggregate amount of such Indemnity Loss. Subject to the conditions set forth in this Section 11 with respect to the Unitholder Obligations, each holder of Company Units shall take all necessary or desirable actions in connection with the distribution of the aggregate consideration from such Sale of the Company as requested by the Board.
(e) Each holder of Class A Common Units shall bear such holder’s pro rata share (based upon the aggregate consideration received by each holder of Company Units in such sale) of the expenses incurred in connection with a Sale of the Company (whether under this Section 11 or otherwise) to the extent such expenses are incurred for the benefit of all holders of Company Units and are not otherwise paid by the Company or the acquiring party. For purposes of this Section 11(e), expenses incurred in exercising reasonable efforts to take all necessary actions in connection with the consummation of the Sale of the Company shall be deemed to be for the benefit of all holders of Company Units. Expenses incurred by any holder of Company Units on such holder of Company Units’ own behalf shall not be considered expenses of the transaction and shall be the responsibility of such holder of Company Units.
(f) The provisions of this Section 11 shall terminate upon the consummation of an IPO.
Appears in 1 contract
Samples: Class a Common Unit Purchase and Exchange Agreement (CDW Finance Corp)
Sale of the Company. (a) In the event that the Board determines to sell all or substantially all of the Company's assets determined on a consolidated basis or sell all or substantially all of the Company's outstanding capital stock (whether by merger, recapitalization, consolidation, reorganization, combination or otherwise), each holder of Management Investor Shares will be given the opportunity to participate in such sale process (to the extent such participation does not materially interfere or impede such sale process) and to make an offer to the Board to purchase such assets or capital stock if the holders of Management Investor Shares so desire.
(b) If the Board and the holders of a majority of the shares of Common Stock then outstanding the Company’s common stock held by the Sellers approve (and, in the case of any sale or other fundamental change which requires the approval of the board of directors of a Michigan corporation pursuant to the Michigan Business Corporation Act, the Company’s board of directors shall have approved such sale) (i) a sale of all or substantially all of the Company's ’s assets determined on a consolidated basis or a sale of all or substantially all a majority of the Company's ’s outstanding capital stock (whether by merger, recapitalization, consolidation, reorganization, combination or otherwise) to any an Independent Third Party or group of Independent Third Parties or (ii) a Transfer of any shares of Common Stock in connection with a Strategic Transaction (collectively an "“Approved Sale"”), each holder of Shareholder Shares Executive Stock and Warrants will vote for, consent to and raise no objections against such Approved Sale. If the Approved Sale is structured as (i) a merger or consolidation, each holder of Shareholder Shares Executive Stock or Warrants will waive any dissenters' dissenter’s rights, appraisal rights or similar rights in connection with such merger or consolidation or (ii) sale of stockstock (including by recapitalization, consolidation, reorganization, combination or otherwise), each holder of Shareholder Shares Executive Stock or Warrants will agree to sell all of his Shareholder Shares shares of Executive Stock or Warrants and rights to acquire Shareholder Shares shares of Executive Stock or Warrants on the terms and conditions approved by the Board Company’s board of directors and the holders of a majority of the Shareholder Shares Company’s common stock then outstanding. Each holder of Shareholder Shares Executive Stock or Warrants will take all necessary or desirable actions in connection with the consummation of the Approved Sale as reasonably requested by the Company.
(cb) The obligations of the holders of Shareholder Shares Executive Stock or Warrants with respect to an the Approved Sale of the Company are subject to the satisfaction of the following conditions: (i) upon the consummation of the Approved Sale, each holder of Shareholder Shares Executive Stock or Warrants will receive the same form of consideration and the same portion of the aggregate consideration that such holders of Shareholder Shares Executive Stock or Warrants 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 Company's Certificate ’s Articles of Incorporation as in effect immediately prior to such Approved Sale; (ii) if any holders of a class of Shareholder Common Shares are given an option as to the form and amount of consideration to be received, each holder of such class of Shareholder Common Shares will be given the same option; andand (iii) each holder of then currently exercisable rights to acquire shares of a class of Common Shares will be given an opportunity to exercise such rights prior to the consummation of the Approved Sale and participate in such sale as holders of such class of Common Shares.
(c) If the Company or the holders of the Company’s securities enter into any negotiation or transaction for which Rule 506 (or any similar rule then in effect) promulgated by the Securities Exchange Commission may be available with respect to such negotiation or transaction (including a merger, consolidation or other reorganization), the holders of Executive Stock and Warrants will, at the request of the Company, appoint a purchaser representative (as such term is defined in Rule 501) reasonably acceptable to the Company. If any holder of Executive Stock or Warrants appoints a purchaser representative designated by the Company, the Company will pay the fees of such purchaser representative, but if any holder of Executive Stock or Warrants declines to appoint the purchaser representative designated by the Company, such holder will appoint another purchaser representative, and such holder will be responsible for the fees of the purchaser representative so appointed.
(d) Executive and the other holders of Executive Stock (if any) and Warrants will bear their pro-rata share (based upon the number of shares sold) of the costs of any sale of Executive Stock or Warrants pursuant to an Approved Sale to the extent such costs are incurred for the benefit of all holders of Common Shares and are not otherwise paid by the Company or the acquiring party. Costs incurred by Executive and the other holders of Executive Stock or Warrants on their own behalf will not be considered costs of the transaction hereunder.
(e) The provisions of this paragraph 7 will terminate upon the closing of a Public Offering (as defined below).
Appears in 1 contract
Samples: Executive Stock Purchase Agreement (TSM Acquisition Co)
Sale of the Company. (a) In the event that the Board determines to sell all or substantially all of the Company's assets determined on a consolidated basis or sell all or substantially all of the Company's outstanding capital stock (whether by merger, recapitalization, consolidation, reorganization, combination or otherwise), each holder of Management Investor Shares will be given the opportunity to participate in such sale process (to the extent such participation does not materially interfere or impede such sale process) and to make an offer to the Board to purchase such assets or capital stock if the holders of Management Investor Shares so desire.
(b) If the Board and the holders of a majority of the shares of Common Stock then outstanding approve a sale of all or substantially all of the Company's assets determined on a consolidated basis or a sale of all or substantially all of the Company's outstanding capital stock (whether by merger, recapitalization, consolidation, reorganization, combination or otherwise) to any an Independent Third Party (as defined below) or group of Independent Third Parties (collectively an "Approved Sale"), each holder of Shareholder Executive Stock or Option ------------- Shares will vote for, consent to and raise no objections against such Approved Sale. If the Approved Sale is structured as (i) a merger or consolidation, each holder of Shareholder Executive Stock or Options Shares will waive any dissenters' dissenters rights, appraisal rights or similar rights in connection with such merger or consolidation or (ii) sale of stock, each holder of Shareholder Executive Stock or Option Shares will agree to sell all of his Shareholder shares of Executive Stock or Options Shares and rights to acquire Shareholder shares of Executive Stock or Option Shares on the terms and conditions approved by the Board and the holders of a majority of the Shareholder Executive Stock or Option Shares then outstanding. Each holder of Shareholder Executive Stock or Option Shares will take all necessary or desirable actions in connection with the consummation of the Approved Sale as requested by the Company.
(c) The obligations of the holders of Shareholder Shares with respect to an Approved Sale are subject . "Independent Third Party" means any person or entity who, immediately ----------------------- prior to the satisfaction contemplated transaction, does not own in excess of the following conditions: (i) upon the consummation 10% of the Approved Sale, each holder of Shareholder Shares will receive the same form of consideration and the same portion of the aggregate consideration that such holders of Shareholder Shares 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 Company's Certificate Common Shares on a fully-diluted basis (a "10% Owner"), who is not --------- controlling, controlled by or under common control with any such 10% Owner and who is not the spouse or descendent (by birth or adoption) of Incorporation as in effect immediately prior to any such Approved Sale; (ii) if any holders of 10% Owner or a class of Shareholder Shares are given an option as to trust for the form and amount of consideration to be received, each holder benefit of such class of Shareholder Shares will be given the same option; and10% Owner and/or such other persons or entities.
Appears in 1 contract
Samples: Management Agreement (Cambridge Industries Inc /De)