Sales to Third Parties. (a) Each Management Stockholder hereby agrees that he or she shall not sell, assign, transfer, convey, pledge or otherwise dispose of (collectively, "Transfer") any Restricted Shares without the prior written consent of the Company, which consent shall have been authorized by a majority of the members of the Board and which consent may be (i) withheld in the sole discretion of the Board, or (ii) given subject to reasonable terms and conditions determined by the Board in its sole discretion. Each Management Stockholder further agrees that in connection with any Transfer consented to by the Company, the Management Stockholder shall, if requested by the Company, deliver to the Company an opinion of counsel in form and substance reasonably satisfactory to the Company and counsel for the Company, to the effect that the Transfer is not in violation of this Agreement, the Securities Act of 1933, as amended (the "Securities Act"), or the securities laws of any state. Any purported Transfer in violation of the provisions of this Section 1 shall be null and void and shall have no force or effect. (i) If a Management Stockholder (the "Offering Stockholder") shall have received a bona fide offer or offers from a third party or parties to purchase any Restricted Shares, and the Transfer shall have been approved pursuant to Section 1(a), prior to selling any Restricted Shares to the third party or parties, the Offering Stockholder shall deliver the Company a letter signed by the Offering Stockholder setting forth: (A) the name of the third party or parties; (B) the prospective purchase price per share of the Restricted Shares; (C) all material terms and conditions contained in the offer of the third party or parties; and (D) the Offering Stockholder's offer (irrevocable by its terms for 60 days following receipt) to sell to the Company all (but not less than all) of the Restricted Shares covered by the offer of the third party or parties, for a purchase price per share and on other terms and conditions not less favorable to the Company than those contained in the offer of the third party or parties (an "Offer"). (ii) If, upon the expiration of 60 days following receipt by the Company of the letter described in Section 1(b)(i), the Company shall not have accepted the Offer, the Management Stockholder may on or prior to the 90th day following the receipt of such letter sell to the third party or parties all (but not less than all) of the Restricted Shares covered by the Offer, for the purchase price and on the other terms and conditions contained in the Offer. (iii) If the Company accepts the Offer, the Company shall, in its discretion, select a closing date (not less than 60 nor more than 90 days following the date of the Management Stockholder's Offer letter but in any event subject to the receipt by the Company of all necessary governmental approvals) for the purchase of Restricted Shares by the Company (which closing shall, unless otherwise mutually agreed, be consummated at the principal offices of the Company). On such date, the Management Stockholder shall transfer the Restricted Shares subject to such Offer to the Company, free and clear of all liens and encumbrances, by delivering to the Company the certificates representing the Restricted Shares to be purchased, duly endorsed for transfer to the Company or accompanied by a stock power duly executed in blank, and the Company shall pay to the Management Stockholder the Offer price. (c) Notwithstanding the foregoing, nothing in this Section 1 shall prevent the Transfer of any Restricted Shares by any Management Stockholder to (i) the Company or Holdings LLC; (ii) any member of a Management Stockholder's immediate family or trusts for their benefit provided the Management Stockholder retains the sole and exclusive right to vote or dispose of any Restricted Shares transferred to the family member or trust; and (iii) upon a Management Stockholder's death, the Management Stockholder's executors, administrators, testamentary trustees, legatees and beneficiaries (with Transfers pursuant to clause (ii) or (iii) being referred to as a "Permitted Transfer" and the related transferee, a "Permitted Transferee"). (d) Each Management Stockholder agrees that, as a condition precedent to any Transfer described in this Section 1, each transferee described in this Section 1 (other than the Company or Holdings LLC) shall deliver to the Company a copy of this Agreement signed by such transferee.
Appears in 3 contracts
Samples: Management Stockholders Agreement (Dex Media Inc), Management Stockholders Agreement (Dex Media East LLC), Management Stockholders Agreement (Dex Media West LLC)
Sales to Third Parties. If at any time a Founder (aan “Offeror”) Each Management Stockholder hereby agrees that he or she shall not desires to sell, assign, transfer, conveyhypothecate, pledge pledge, assign or otherwise encumber or dispose of all or any part of or any interest in the Equity Securities now or hereafter owned or held by the Offeror pursuant to a bona fide offer from a third party (collectively, "Transfer"the “Proposed Transferee”) any Restricted and the Company does not exercise its Right of First Refusal to purchase the Offered Shares without (as defined below) pursuant to the prior written consent terms of the Company, which consent shall have been authorized applicable purchase agreements by a majority of the members of the Board and which consent may be (i) withheld in the sole discretion of the Board, or (ii) given subject to reasonable terms and conditions determined by the Board in its sole discretion. Each Management Stockholder further agrees that in connection with any Transfer consented to by the Company, the Management Stockholder shall, if requested by the Company, deliver to the Company an opinion of counsel in form and substance reasonably satisfactory to between the Company and counsel for the CompanyOfferor, such Offeror shall submit a written offer (the “Offer”) to sell such shares (the “Offered Shares”) to the effect Purchasers on terms and conditions, including price (the “Offered Price”), not less favorable to the Purchasers than those on which the Offeror proposes to sell such Offered Shares to the Proposed Transferee. The Offer shall disclose the identity of the Proposed Transferee, the number of Offered Shares proposed to be sold, the total number of shares owned by the Offeror, the terms and conditions, including the Offered Price and any other material facts relating to the proposed sale and shall include a copy of any written proposal, term sheet or other agreement relating to the proposed transfer. The Offer shall further state that the Transfer is not Purchasers may acquire, in violation accordance with the provisions of this Agreement, the Securities Act of 1933Offered Shares for the Offered Price and upon the other terms and conditions, as amended including deferred payment (the "Securities Act"if applicable), or the securities laws of any stateset forth therein. Any purported Transfer sale, assignment, transfer, pledge, hypothecation or other encumbrance or disposition of Equity Securities not made in violation of the provisions of conformance with this Section 1 Agreement shall be null and void void, shall not be recorded on the books of the Company and shall have no force or effect.
(i) If a Management Stockholder (the "Offering Stockholder") shall have received a bona fide offer or offers from a third party or parties to purchase any Restricted Shares, and the Transfer shall have been approved pursuant to Section 1(a), prior to selling any Restricted Shares to the third party or parties, the Offering Stockholder shall deliver the Company a letter signed not be recognized by the Offering Stockholder setting forth: (A) the name of the third party or parties; (B) the prospective purchase price per share of the Restricted Shares; (C) all material terms and conditions contained in the offer of the third party or parties; and (D) the Offering Stockholder's offer (irrevocable by its terms for 60 days following receipt) to sell to the Company all (but not less than all) of the Restricted Shares covered by the offer of the third party or parties, for a purchase price per share and on other terms and conditions not less favorable to the Company than those contained in the offer of the third party or parties (an "Offer")Company.
(ii) If, upon the expiration of 60 days following receipt by the Company of the letter described in Section 1(b)(i), the Company shall not have accepted the Offer, the Management Stockholder may on or prior to the 90th day following the receipt of such letter sell to the third party or parties all (but not less than all) of the Restricted Shares covered by the Offer, for the purchase price and on the other terms and conditions contained in the Offer.
(iii) If the Company accepts the Offer, the Company shall, in its discretion, select a closing date (not less than 60 nor more than 90 days following the date of the Management Stockholder's Offer letter but in any event subject to the receipt by the Company of all necessary governmental approvals) for the purchase of Restricted Shares by the Company (which closing shall, unless otherwise mutually agreed, be consummated at the principal offices of the Company). On such date, the Management Stockholder shall transfer the Restricted Shares subject to such Offer to the Company, free and clear of all liens and encumbrances, by delivering to the Company the certificates representing the Restricted Shares to be purchased, duly endorsed for transfer to the Company or accompanied by a stock power duly executed in blank, and the Company shall pay to the Management Stockholder the Offer price.
(c) Notwithstanding the foregoing, nothing in this Section 1 shall prevent the Transfer of any Restricted Shares by any Management Stockholder to (i) the Company or Holdings LLC; (ii) any member of a Management Stockholder's immediate family or trusts for their benefit provided the Management Stockholder retains the sole and exclusive right to vote or dispose of any Restricted Shares transferred to the family member or trust; and (iii) upon a Management Stockholder's death, the Management Stockholder's executors, administrators, testamentary trustees, legatees and beneficiaries (with Transfers pursuant to clause (ii) or (iii) being referred to as a "Permitted Transfer" and the related transferee, a "Permitted Transferee").
(d) Each Management Stockholder agrees that, as a condition precedent to any Transfer described in this Section 1, each transferee described in this Section 1 (other than the Company or Holdings LLC) shall deliver to the Company a copy of this Agreement signed by such transferee.
Appears in 2 contracts
Samples: Investor Rights Agreement, Investor Rights Agreement (Vocera Communications, Inc.)
Sales to Third Parties. (a) Each Management Stockholder hereby agrees that he or she shall not sell, assign, transfer, convey, pledge or otherwise dispose of (collectively, "“Transfer"”) any Restricted Shares without the prior written consent of the Company, which consent shall have been authorized by a majority of the members of the Board and which consent may be (i) withheld in the sole discretion of the Board, or (ii) given subject to reasonable terms and conditions determined by the Board in its sole discretion; provided, that the Company agrees to definitively respond to a written request with respect to a Transfer not more than 45 days after receipt of such request so long as such request includes all of the information to be included in an Offer Notice (as defined pursuant to Section 1(b)(i)). Each Management Stockholder further agrees that in connection with any Transfer consented to by the Company, the Management Stockholder shall, if requested by the Company, deliver to the Company an opinion of counsel in form and substance reasonably satisfactory to the Company and counsel for the Company, to the effect that the Transfer is not in violation of this Agreement, the Securities Act of 1933, as amended (the "“Securities Act"”), or the securities laws of any state. Any purported Transfer in violation of the provisions of this Section 1 shall be null and void and shall have no force or effect.
(i) If a Management Stockholder (the "“Offering Stockholder"”) shall have received a bona fide offer or offers from a third party or parties to purchase any Restricted SharesShares which such Offering Stockholder desires to accept, and the Transfer shall have been approved pursuant to Section 1(a), prior to selling any Restricted Shares to the third party or parties, the Offering Stockholder shall deliver deliver, within 30 days following such approval of the Transfer pursuant to Section 1(a), to the Company and Frio a letter (the “Offer Notice”) signed by the Offering Stockholder setting forth: (A) the name of the third party or parties; (B) the prospective purchase price per share of the Restricted Shares; (C) all material terms and conditions contained in the offer of the third party or parties; and (D) the Offering Stockholder's ’s offer (irrevocable by its terms for 60 45 days following receiptthe later of (x) the date of the delivery of such Offer Notice or (y) the six month anniversary of the date such Restricted Shares were first purchased by the Management Stockholder (such 45-day period, the “Offer Period”)) to sell to the Company and Frio all (but not less than all) of the Restricted Shares covered by the offer of the third party or parties, for a purchase price per share and on other terms and conditions not less favorable to the Company and Frio than those contained in the offer of the third party or parties (an "“Offer"”).
(ii) If, upon the expiration Upon receipt of 60 days following receipt by the Company of the letter described in Section 1(b)(i)such Offer Notice, the Company shall have an option to purchase any or all of the Restricted Shares described in the Offer Notice at the purchase price and upon the terms and conditions specified in the Offer. If the Company desires to exercise the option set forth in the preceding sentence, it shall deliver a notice (an “Election Notice”) to the Offering Stockholder and Frio at any time during the first 30 days of the Offer Period (such 30-day period, the “Election Period”), which Election Notice shall specify the number of Restricted Shares subject to the Offer to be acquired. In the event that the Company delivers an Election Notice for less than all of the Restricted Shares subject to the Offer, such Election Notice shall not be effective unless and until Frio delivers an Election Notice to purchase the remaining Restricted Shares subject to the Offer pursuant to Section 1(b)(iii) below.
(iii) In the event the Company does not deliver an Election Notice before the end of the Election Period or any Election Notice so delivered does not relate to the purchase of all the Restricted Shares described in the Offer Notice, then Frio (or, in its discretion, any other Principal Stockholder(s) designated by Frio) shall have accepted the option to purchase no less than all of the remaining Restricted Shares subject to the Offer at the purchase price and upon the terms and conditions specified in the Offer by delivering an Election Notice to the Offering Stockholder and the Company within 15 days after the first to occur of (A) the expiration of the Election Period or (B) receipt of an Election Notice from the Company which relates to less than all of the Restricted Shares described in the Offer Notice. In the event Election Notices are delivered by both the Company and Frio (or any other applicable Principal Stockholder), and, as a result of miscalculation or similar error, the aggregate number of Restricted Shares described in such Election Notices exceeds the aggregate number of Restricted Shares specified in the Offer, the Management number of Restricted Shares to be purchased by Frio (or any other applicable Principal Stockholder) shall be reduced accordingly.
(iv) If either the Company or Frio (or any other applicable Principal Stockholder) delivers an Election Notice, then it shall be obligated to purchase, and the Offering Stockholder may shall be obligated to sell, the Restricted Shares described in such Election Notice at the purchase price per share and on other terms and conditions indicated in the Offer, except that the closing of such purchase and sale shall occur on a closing date selected by the Company or prior Frio (or any other applicable Principal Stockholder), as applicable; provided, however, that, (A) in the case of a sale to the Company, such closing date shall be not less than 30 days nor more than 90 days following the date of the Offer Notice and (B) in the case of a sale to Frio (or any other applicable Principal Stockholder), such closing date shall be not less than 45 days nor more than 90 days following the date of the Offer Notice. Unless otherwise mutually agreed, the closing shall be consummated at the principal offices of the Company.
(v) If neither the Company nor Frio (or any other applicable Principal Stockholder) delivers an Election Notice to the Offering Stockholder within the time periods described in Section 1(b)(ii) and 1(b)(iii), as applicable, or the Election Notices delivered in the aggregate relate to less than all of the Restricted Shares subject to the Offer, then the Offering Stockholder may, during the period beginning on the 46th day following the receipt of the Offer Notice by the Company and Frio and ending on the 90th day following the receipt of such letter the Offer Notice by the Company and Frio, sell to the third party or parties all (but not less than all) of the Restricted Shares covered by the Offer, for the purchase price and on the other terms and conditions contained in the Offer.
(iii) If the Company accepts the Offer, the Company shall, in its discretion, select a closing date (not less than 60 nor more than 90 days following the date of the Management Stockholder's Offer letter but in any event subject to the receipt by the Company of all necessary governmental approvals) for the purchase of Restricted Shares by the Company (which closing shall, unless otherwise mutually agreed, be consummated at the principal offices of the Company). On such date, the Management Stockholder shall transfer the Restricted Shares subject to such Offer to the Company, free and clear of all liens and encumbrances, by delivering to the Company the certificates representing the Restricted Shares to be purchased, duly endorsed for transfer to the Company or accompanied by a stock power duly executed in blank, and the Company shall pay to the Management Stockholder the Offer price.
(c) Notwithstanding the foregoingforegoing but subject to Section 1(d) below, nothing in this Section 1 shall prevent the Transfer of any Restricted Shares by any Management Stockholder to (i) the Company Company, any Principal Stockholder or, with the prior written consent of the Board (or Holdings LLCits delegate), another Management Stockholder; or (ii) (A) a spouse, sibling or lineal descendant (including through adoption) of any member of a Management Stockholder's immediate family or trusts for their benefit provided the Management Stockholder retains (the sole and exclusive right to vote “Permitted Family Members”), (B) trusts or dispose family limited liability companies or partnerships maintained for the benefit of any Restricted Shares transferred to the family member or trust; Permitted Family Members, and (iiiC) upon a Management Stockholder's ’s death, the Management Stockholder's ’s executors, administrators, testamentary trustees, legatees and beneficiaries (with Transfers pursuant to each such person and entity described in clause (ii) or (iii) being referred to as a "Permitted Transfer" and the related transferee, a "“Permitted Transferee"” and collectively, the “Permitted Transferees”).
(d) Each In addition to the restrictions set forth elsewhere in this Agreement, any Transfer of Restricted Shares by a Management Stockholder agrees that, as to a condition precedent transferee shall be permitted only if the transferee shall agree in writing to any Transfer described in this Section 1, each transferee described in this Section 1 (other than be bound by the Company or Holdings LLC) shall deliver to the Company a copy terms and conditions of this Agreement signed pursuant to an instrument of assumption reasonably satisfactory in form and substance to the Board. Upon the execution of the instrument of assumption by such transferee, such transferee shall be deemed to be a Management Stockholder for all purposes of this Agreement except that, (A) in the case of a Transfer to a Permitted Transferee, all provisions that relate to termination of employment of a Management Stockholder and the effects thereof shall continue to apply to such Management Stockholder transferor and not to such Permitted Transferee and (B) in the case of a Transfer to a Person other than a Permitted Transferee, Sections 2 and 3 of this Agreement shall cease to apply following such Transfer.
Appears in 2 contracts
Samples: Management Stockholders Agreement, Management Stockholders Agreement (Quietflex Holding CO)
Sales to Third Parties. (a) Each The Management Stockholder hereby agrees that he or she shall not directly or indirectly, assign, gift, offer, convey, pledge, transfer, sell, assign, transferpledge, conveyhypothecate, pledge encumber or otherwise dispose of (collectively, "“Transfer"”) at any time during the period commencing on the date hereof and ending on the earlier of (i) the third anniversary of the Closing Date and (ii) the occurrence of a Change in Control:
(i) any Restricted Shares shares of Option Stock, without the prior written consent of SAC CBI, which consent may be (i) withheld in the sole discretion of SAC CBI, or (ii) given subject to reasonable terms and conditions determined by SAC CBI in its sole discretion; or
(ii) any shares of Common Stock (other than Option Stock), without the prior written consent of the Company, which consent shall have been authorized by a majority of the members of the Board and which consent may be (i) withheld in the sole discretion of the Board, or (ii) given subject to reasonable terms and conditions determined by the Board in its sole discretion. Each The Management Stockholder further agrees that in connection with any Transfer consented to by the Companypursuant to this Section 2(a), the Management Stockholder shall, if requested by the Company, deliver to the Company an opinion of counsel in form and substance reasonably satisfactory to the Company and counsel for the Company, to the effect that the Transfer is not in violation of this AgreementAgreement or the Act. In addition, the Securities Act Company shall be satisfied that the Transfer is not in violation of 1933, as amended (the "Securities Act"), or the securities laws of any statestate applicable to such Transfer. Any purported Transfer in violation of the provisions of this Section 1 2 shall be null and void ab initio and shall have no force or effect.
(i) If a Management Stockholder (the "Offering Stockholder") shall have received a bona fide offer or offers from a third party or parties to purchase any Restricted Shares, and the Transfer shall have been approved pursuant to Section 1(a), prior to selling any Restricted Shares to the third party or parties, the Offering Stockholder shall deliver the Company a letter signed by the Offering Stockholder setting forth: (A) the name of the third party or parties; (B) the prospective purchase price per share of the Restricted Shares; (C) all material terms and conditions contained in the offer of the third party or parties; and (D) the Offering Stockholder's offer (irrevocable by its terms for 60 days following receipt) to sell to the Company all (but not less than all) of the Restricted Shares covered by the offer of the third party or parties, for a purchase price per share and on other terms and conditions not less favorable to the Company than those contained in the offer of the third party or parties (an "Offer").
(ii) If, upon the expiration of 60 days following receipt by the Company of the letter described in Section 1(b)(i), the Company shall not have accepted the Offer, the Management Stockholder may on or prior to the 90th day following the receipt of such letter sell to the third party or parties all (but not less than all) of the Restricted Shares covered by the Offer, for the purchase price and on the other terms and conditions contained in the Offer.
(iii) If the Company accepts the Offer, the Company shall, in its discretion, select a closing date (not less than 60 nor more than 90 days following the date of the Management Stockholder's Offer letter but in any event subject to the receipt by the Company of all necessary governmental approvals) for the purchase of Restricted Shares by the Company (which closing shall, unless otherwise mutually agreed, be consummated at the principal offices of the Company). On such date, the Management Stockholder shall transfer the Restricted Shares subject to such Offer to the Company, free and clear of all liens and encumbrances, by delivering to the Company the certificates representing the Restricted Shares to be purchased, duly endorsed for transfer to the Company or accompanied by a stock power duly executed in blank, and the Company shall pay to the Management Stockholder the Offer price.
(cb) Notwithstanding the foregoing, nothing in this Section 1 2 shall prevent the Transfer of any Restricted Shares shares of Common Stock by any the Management Stockholder pursuant to Sections 3 and 4 of this Agreement and to (i) the Company Company; or Holdings LLC; (ii) (A) any member of a the Management Stockholder's ’s immediate family or (the “Permitted Family Members”), (B) trusts for their the benefit of the Permitted Family Members, and (C) upon the Management Stockholder’s death, the Management Stockholder’s executors, administrators, testamentary trustees, legatees and beneficiaries; provided that, in the case of subclause (A) and (B), the transferee agrees in writing that the Management Stockholder retains the sole and exclusive right to vote or dispose of any Restricted Shares shares of Common Stock transferred to the family member or trust; Permitted Family Member (each such person and (iii) upon a Management Stockholder's death, the Management Stockholder's executors, administrators, testamentary trustees, legatees and beneficiaries (with Transfers pursuant to entity described in clause (ii) or (iii) being referred to as a "Permitted Transfer" and the related transferee, a "“Permitted Transferee"” and collectively, the “Permitted Transferees”).
(d) Each Management Stockholder ; provided, further that the Permitted Transferee agrees that, as a condition precedent in writing to any Transfer described in this Section 1, each transferee described in this Section 1 (other than be bound by the Company or Holdings LLC) shall deliver to the Company a copy terms and conditions of this Agreement signed by such transfereepursuant to an instrument of assumption reasonably satisfactory in form and substance to the Board.
Appears in 2 contracts
Samples: Management Stockholder’s Agreement (CBaySystems Holdings LTD), Management Stockholder’s Agreement (CBaySystems Holdings LTD)
Sales to Third Parties. (a) Each of the Other Stockholders and the Management Stockholder (and their respective Permitted Transferees) hereby agrees that he or she that, until the fifth anniversary of the date of this Agreement, it shall not sell, assign, transfer, convey, pledge or otherwise dispose of (collectively, "“Transfer"”) any Restricted Shares without the prior written consent of the Company, which consent shall have been authorized by a majority of the members of the Board and which consent may be (i) withheld in the sole discretion of the Board, Board or (ii) given subject to reasonable terms and conditions determined by the Board in its sole discretion. Any Transfer of Restricted Shares after the fifth anniversary of the date of this Agreement shall be subject to the provisions of Section 1(b). Each of the Other Stockholders and the Management Stockholder further agrees that in connection with any Transfer consented to by the CompanyTransfer, the Other Stockholders or the Management Stockholder Stockholder, as the case may be, shall, if requested by the Company, deliver to the Company an opinion of counsel in form and substance reasonably satisfactory to the Company and counsel for the Company, to the effect that the Transfer is not in violation of this Agreement, Agreement or the Securities Act of 1933, as amended (the "“Securities Act"”). In addition, or the Company shall be satisfied that the Transfer is not in violation of the securities laws of any statestate applicable to such Transfer. Any purported Transfer in violation of the provisions of this Section 1 shall be null and void and shall have no force or effect.
(i) If a at any time after the fifth anniversary of the date of this Agreement, any of the Other Stockholders, the Management Stockholder or any of their respective successors and assigns through Transfers permitted hereunder or otherwise (the "Offering Stockholder"“Selling Stockholders”) shall have received a bona fide offer or offers from a third party or parties to purchase any Restricted Shares, and the Transfer shall have been approved pursuant Shares which such Selling Stockholders desire to Section 1(a)accept, prior to selling any Restricted Shares to the third party or parties, the Offering Stockholder Selling Stockholders shall deliver the Company a letter to Iron (the “Offer Notice”) signed by the Offering Stockholder such Selling Stockholders, setting forth: (A) the name of the third party or parties; (B) the prospective purchase price per share of the Restricted Shares; (C) all material terms and conditions contained in the offer of the third party or parties; and (D) the Offering Stockholder's such Selling Stockholders’ offer (irrevocable by its terms for 60 days following receiptthe date of the delivery of such Offer Notice (such 60-day period, the “Offer Period”)) to sell to the Company Iron all (but not less than all) of the Restricted Shares covered by the offer of the third party or parties, for a purchase price per share and on other terms and conditions not less favorable to the Company Iron than those contained in the offer of the third party or parties (an "“Offer"”).
(ii) IfUpon receipt of such Offer Notice, Iron shall have an option to purchase any or all of the Restricted Shares described in the Offer Notice at the purchase price and upon the expiration terms and conditions specified in the Offer. If Iron desires to exercise the option set forth in the preceding sentence, it shall deliver a notice (an “Election Notice”) to the Selling Stockholders, at any time during the Offer Period, which Election Notice shall specify the number of 60 days following receipt by Restricted Shares subject to the Company of Offer to be acquired.
(iii) If Iron delivers an Election Notice, then Iron shall be obligated to purchase, and, subject to Section 1(b)(iv) below, the letter Selling Stockholders shall be obligated to sell to Iron, the Restricted Shares described in Section 1(b)(i), such Election Notice at the Company shall not have accepted purchase price per share and on other terms and conditions indicated in the Offer, except that the Management Stockholder may closing of such purchase and sale shall occur on a closing date selected by Iron; provided, however, that, such closing date shall be not less than 5 days nor more than 90 days following the date of the Election Notice.
(iv) If Iron does not deliver an Election Notice to the Selling Stockholders within the Offer Period or prior the Election Notices delivered in the aggregate relate to less than all of the Restricted Shares subject to the Offer, then the Selling Stockholders may, during the period beginning on the 61st day following the receipt of the Offer Notice by Iron and ending on the 90th day following the receipt of such letter the Offer Notice by Iron, sell to the third party or parties all (but not less than all) of the Restricted Shares covered by the Offer, for the purchase price and on the other terms and conditions contained in the Offer.
(iiiv) If Iron shall be permitted to assign its rights (in whole or in part) to purchase any or all of the Restricted Shares in the Offer Notice to (A) the Company accepts and/or any one or more Principal Stockholders and (B) the NY Life Investors and their Permitted Transferees or the Mezzanine Investors and their Permitted Transferees pursuant to Section 1(b)(vi).
(vi) In the event that Iron exercises its right to purchase Restricted Shares described in the Offer Notice or has assigned such right to one or more Principal Stockholders (but not in the event of an assignment of such right to the Company), Iron shall offer the NY Life Investors, each of their respective Permitted Transferees, the Mezzanine Investors and each of their respective Permitted Transferees (each, a “Secondary Offeree”), provided that such Secondary Offeree is not a Selling Stockholder pursuant to such Offer, the Company shall, in its discretion, select a closing date right (not less than 60 nor more than 90 days following on the date of same terms and conditions and utilizing the Management Stockholder's Offer letter but in any event subject same procedures as apply to the receipt by the Company of all necessary governmental approvalsIron’s rights under this Section 1(b) for the as if such provisions had been incorporated mutis mutandis herein) to purchase that portion of Restricted Shares specified in the Election Notice which equals the proportion that the number of Restricted Shares then held by such Secondary Offeree bears to the total number of Restricted Shares then held by the Company (which closing shall, unless otherwise mutually agreed, be consummated at the principal offices of the Company). On such date, the Management Stockholder shall transfer the Restricted Shares subject to such Offer to the Company, free and clear of all liens and encumbrances, by delivering to the Company the certificates representing the Restricted Shares to be purchased, duly endorsed for transfer to the Company or accompanied by a stock power duly executed in blank, Secondary Offerees and the Company shall pay to Principal Stockholders in the Management Stockholder the Offer priceaggregate.
(c) Notwithstanding the foregoingforegoing but subject to Section 1(d) below, nothing in this Section 1 shall prevent the Transfer of any Restricted Shares by any Management Stockholder to (i) the Company or Holdings LLC; (ii) a Permitted Transferee. In addition, the provisions of this Section 1 shall not apply to any member Transfer of a Management Stockholder's immediate family or trusts for their benefit provided the Management Stockholder retains the sole and exclusive right to vote or dispose of any Restricted Shares transferred to the family member or trust; and (iii) upon a Management Stockholder's death, the Management Stockholder's executors, administrators, testamentary trustees, legatees and beneficiaries (with Transfers pursuant to clause (ii) or (iii) being referred to as a "Permitted Transfer" and the related transferee, a "Permitted Transferee")Piggyback Registration Right.
(d) Each Management Stockholder agrees thatIn addition to the restrictions set forth elsewhere in this Agreement, as a condition precedent to any Transfer described in this Section 1, each of Restricted Shares by a Stockholder to a transferee described in this Section 1 (other than the Company or Holdings LLCincluding a Permitted Transferee) shall deliver be permitted only if the transferee shall agree in writing to be bound by the Company a copy terms and conditions of this Agreement signed by executing a signature page in the form attached as Exhibit A hereto. Upon the execution of the signature page in the form attached as Exhibit A hereto, such transferee shall be deemed to be a Stockholder for all purposes of this Agreement having the same rights and obligations as were applicable to the Transferor, except as otherwise provided herein and except that, (A) in the case of a Transfer by the Management Stockholder to a Permitted Transferee, all provisions that relate to termination of employment of the Management Stockholder and the effects thereof shall continue to apply to the Management Stockholder with respect to any Restricted Shares not transferred by the Management Stockholder, (B) in the case of a Transfer in compliance with this Agreement by the Management Stockholder to a Person other than a Permitted Family Member or a trust for the benefit of Permitted Family Members, Sections 2 and 3 of this Agreement shall cease to apply to the Restricted Shares so transferred following such Transfer, but shall continue to apply to the Management Stockholder with respect to any Restricted Shares not transferred by the Management Stockholder, (C) in the case of a Transfer of Restricted Shares by Iron made in compliance with this Agreement, such transferees shall be considered Principal Stockholders (and not Iron) for purposes of this Agreement, provided, however, that if Iron so designates or if the transferee acquires all of the remaining Restricted Shares held by Iron, in each such case, such transferee or transferees shall be considered Iron for purposes of this Agreement and shall have the rights and obligations of Iron under this Agreement and (D) the rights to cause the Company to register Restricted Securities pursuant to a Demand Registration in accordance with Section 6 shall not be automatically transferred or assigned in connection with a Transfer of Restricted Shares, unless (i) such registration rights are expressly assigned (but only with all related obligations) by a Stockholder to a transferee, (ii) the Company is, within a reasonable time after such Transfer, notified of the amount of Restricted Securities with respect to which such registration rights are being assigned and (iii) the aggregate number of Demand Registrations entitled to be requested by Iron, New York Life and the Management Stockholder, as applicable, pursuant to Section 6(a)(i) shall not be increased as a result of such Transfer.
Appears in 2 contracts
Samples: Stockholders Agreement (Neff Corp), Stockholders Agreement (Neff Rental LLC)
Sales to Third Parties. (a) Each Except as otherwise provided herein, each Management Stockholder hereby agrees that he or she shall not sell, assign, transfer, convey, pledge or otherwise dispose of (collectively, "“Transfer"”) any Restricted Shares without the prior written consent of the Company, which consent shall have been authorized by a majority each of the members of the Board and Principal Stockholders, which consent may be (iA) withheld in the sole discretion of each of the BoardPrincipal Stockholders, or (iiB) given subject to reasonable terms and conditions determined by the Board Principal Stockholders in its their sole discretion. Each Management Stockholder further agrees that in connection with any Transfer consented to by the CompanyPrincipal Stockholders, the Management Stockholder shall, if requested by the Company, deliver to the Company an opinion of counsel in form and substance reasonably satisfactory to the Company and counsel for the Company, to the effect that the Transfer is not in violation of this Agreement, the Securities Act of 1933, as amended (the "“Securities Act"”), or the securities laws of any state. Any purported Transfer in violation of the provisions of this Section 1 shall be null and void and shall have no force or effect.
(i) If a Management Stockholder (the "Offering Stockholder") shall have received a bona fide offer or offers from a third party or parties to purchase any Restricted Shares, and the Transfer shall have been approved pursuant to Section 1(a), prior to selling any Restricted Shares to the third party or parties, the Offering Stockholder shall deliver the Company a letter signed by the Offering Stockholder setting forth: (A) the name of the third party or parties; (B) the prospective purchase price per share of the Restricted Shares; (C) all material terms and conditions contained in the offer of the third party or parties; and (D) the Offering Stockholder's offer (irrevocable by its terms for 60 days following receipt) to sell to the Company all (but not less than all) of the Restricted Shares covered by the offer of the third party or parties, for a purchase price per share and on other terms and conditions not less favorable to the Company than those contained in the offer of the third party or parties (an "Offer").
(ii) If, upon the expiration of 60 days following receipt by the Company of the letter described in Section 1(b)(i), the Company shall not have accepted the Offer, the Management Stockholder may on or prior to the 90th day following the receipt of such letter sell to the third party or parties all (but not less than all) of the Restricted Shares covered by the Offer, for the purchase price and on the other terms and conditions contained in the Offer.
(iii) If the Company accepts the Offer, the Company shall, in its discretion, select a closing date (not less than 60 nor more than 90 days following the date of the Management Stockholder's Offer letter but in any event subject to the receipt by the Company of all necessary governmental approvals) for the purchase of Restricted Shares by the Company (which closing shall, unless otherwise mutually agreed, be consummated at the principal offices of the Company). On such date, the Management Stockholder shall transfer the Restricted Shares subject to such Offer to the Company, free and clear of all liens and encumbrances, by delivering to the Company the certificates representing the Restricted Shares to be purchased, duly endorsed for transfer to the Company or accompanied by a stock power duly executed in blank, and the Company shall pay to the Management Stockholder the Offer price.
(cb) Notwithstanding the foregoing, nothing in this Section 1 shall prevent the Transfer of any Restricted Shares by any Management Stockholder to (i) a wholly-owned affiliate (as defined in Rule 405 of the Securities Act) of such Management Stockholder; (ii) in the case of a Transfer contemplated by Section 2, the Company or Holdings LLCthe Principal Stockholders; (iiiii) any member of a Management Stockholder's ’s immediate family or trusts or other entity for their the benefit of such immediate family member; provided that the Management Stockholder retains the sole and exclusive right to vote or dispose of any Restricted Shares transferred to the family member or trusttrust or other entity; and (iiiiv) upon a Management Stockholder's ’s death, the Management Stockholder's ’s executors, administrators, testamentary trustees, legatees and beneficiaries (with Transfers the transferee of Restricted Shares transferred pursuant to clause (iii), (iii) or (iiiiv) being referred to as a "Permitted Transfer" and the related transferee, a "“Permitted Transferee"”).
(c) If the Company proposes to register Registrable Securities under the Securities Act pursuant to an initial Underwritten Offering (an “Initial Public Offering”), each of the Management Stockholders agrees not to sell or otherwise Transfer or dispose of any Registrable Securities held by such Management Stockholder, if requested by the Company and any representative of the underwriters (the “Managing Underwriter”), for a period not longer than the one hundred and eighty (180) day period following the consummation of such Initial Public Offering; provided that the Management Stockholders shall only be bound by such restrictions to the extent that the Principal Stockholders are so bound. If requested by the Managing Underwriter, the Managing Stockholders shall execute a separate agreement to the foregoing effect. The Company may impose stop-transfer instructions with respect to the shares (or securities) subject to the foregoing restriction until the end of said period.
(d) Each Management Stockholder agrees that, as a condition precedent to any Transfer described in this Section 1, each transferee described in this Section 1 (other than the Company or Holdings LLCthe Principal Stockholders) shall deliver to the Company a copy of this Agreement signed by such transfereetransferee and acknowledging that such transferee agrees to be bound by the terms and conditions hereof as if such transferee was a Management Stockholder for all purposes of this Agreement, including the Drag-Along Rights set forth in Section 3.
Appears in 2 contracts
Samples: Management Stockholders Agreement (BJ's Wholesale Club Holdings, Inc.), Management Stockholders Agreement (BJ's Wholesale Club Holdings, Inc.)
Sales to Third Parties. (a) Each Management Syndicate Stockholder hereby agrees that he or she it shall not sell, assign, transfer, convey, pledge or otherwise dispose of (collectively, "“Transfer"”) any Restricted Shares without the prior written consent of the Company, which consent shall have been authorized by a majority of the members of the Board and of Directors of the Company (the “Board”), which consent may be (i) withheld in the sole discretion of the Board, or (ii) given subject to reasonable terms and conditions determined by the Board in its sole discretion; provided, that the Company agrees to definitively respond to a written request with respect to a Transfer not more than 45 days after receipt of such request so long as such request includes all of the information to be included in an Offer Notice (as defined pursuant to Section 1(b)(i)). Each Management Syndicate Stockholder further agrees that in connection with any Transfer consented to by the Company, the Management such Syndicate Stockholder shall, if requested by the Company, deliver to the Company an opinion of counsel in form and substance reasonably satisfactory to the Company and counsel for the Company, to the effect that the Transfer is not in violation of this Agreement, the Securities Act of 1933, as amended (the "“Securities Act"”), or the securities laws of any state. Any purported Transfer in violation of the provisions of this Section 1 shall be null and void and shall have no force or effect.
(i) If a Management Syndicate Stockholder (the "“Offering Stockholder"”) shall have received a bona fide offer or offers from a third party or parties to purchase any Restricted SharesShares which such Offering Stockholder desires to accept, and the Transfer shall have been approved pursuant to Section 1(a), prior to selling any Restricted Shares to the third party or parties, the Offering Stockholder shall deliver deliver, within 30 days following such approval of the Transfer pursuant to Section 1(a), to the Company and FHL a letter (the “Offer Notice”) signed by the Offering Stockholder setting forth: (A) the name of the third party or parties; (B) the prospective purchase price per share of the Restricted Shares; (C) all material terms and conditions contained in the offer of the third party or parties; and (D) the Offering Stockholder's ’s offer (irrevocable by its terms for 60 45 days following receiptthe later of (x) the date of the delivery of such Offer Notice or (y) the six month anniversary of the date such Restricted Shares were first purchased by the Syndicate Stockholder (such 45-day period, the “Offer Period”)) to sell to the Company and FHL all (but not less than all) of the Restricted Shares covered by the offer of the third party or parties, for a purchase price per share and on other terms and conditions not less favorable to the Company and FHL than those contained in the offer of the third party or parties (an "“Offer"”).
(ii) If, upon the expiration Upon receipt of 60 days following receipt by the Company of the letter described in Section 1(b)(i)such Offer Notice, the Company shall have an option to purchase any or all of the Restricted Shares described in the Offer Notice at the purchase price and upon the terms and conditions specified in the Offer. If the Company desires to exercise the option set forth in the preceding sentence, it shall deliver a notice (an “Election Notice”) to the Offering Stockholder and FHL at any time during the first 45 days of the Offer Period (such 45-day period, the “Election Period”), which Election Notice shall specify the number of Restricted Shares subject to the Offer to be acquired. In the event that the Company delivers an Election Notice for less than all of the Restricted Shares subject to the Offer, such Election Notice shall not be effective unless and until FHL delivers an Election Notice to purchase the remaining Restricted Shares subject to the Offer pursuant to Section 1(b)(iii) below.
(iii) In the event the Company does not deliver an Election Notice before the end of the Election Period or any Election Notice so delivered does not relate to the purchase of all the Restricted Shares described in the Offer Notice, then FHL (or, in its discretion, any other Principal Stockholder(s) designated by FHL) shall have accepted the option to purchase no less than all of the remaining Restricted Shares subject to the Offer at the purchase price and upon the terms and conditions specified in the Offer by delivering an Election Notice to the Offering Stockholder and the Company within 15 days after the first to occur of (A) the expiration of the Election Period or (B) receipt of an Election Notice from the Company which relates to less than all of the Restricted Shares described in the Offer Notice. In the event Election Notices are delivered by both the Company and FHL (or any other applicable Principal Stockholder), and, as a result of miscalculation or similar error, the aggregate number of Restricted Shares described in such Election Notices exceeds the aggregate number of Restricted Shares specified in the Offer, the Management number of Restricted Shares to be purchased by FHL (or any other applicable Principal Stockholder) shall be reduced accordingly.
(iv) If the Company and/or FHL (or any other applicable Principal Stockholder) delivers an Election Notice, then it shall be obligated to purchase, and the Offering Stockholder may shall be obligated to sell, the Restricted Shares described in such Election Notice at the purchase price per share and on other terms and conditions indicated in the Offer, except that the closing of such purchase and sale shall occur on a closing date selected by the Company or prior FHL (or any other applicable Principal Stockholder), as applicable; provided, however, that such closing date shall be not less than 45 days nor more than 90 days following the date of the Offer Notice. Unless otherwise mutually agreed, the closing shall be consummated at the principal offices of the Company.
(v) If neither the Company nor FHL (or any other applicable Principal Stockholder) delivers an Election Notice to the Offering Stockholder within the time periods described in Section 1(b)(ii) and 1(b)(iii), as applicable, or the Election Notices delivered in the aggregate relate to less than all of the Restricted Shares subject to the Offer, then the Offering Stockholder may, during the period beginning on the 46th day following the receipt of the Offer Notice by the Company and FHL and ending on the 90th day following the receipt of such letter the Offer Notice by the Company and FHL, sell to the third party or parties all (but not less than all) of the Restricted Shares covered by the Offer, for the purchase price and on the other terms and conditions contained in the Offer.
(iiic) If Notwithstanding the Company accepts the Offer, the Company shall, in its discretion, select a closing date (not less than 60 nor more than 90 days following the date of the Management Stockholder's Offer letter foregoing but in any event subject to Section 1(d) below, nothing in this Section 1 shall prevent the receipt by the Company Transfer of all necessary governmental approvals) for the purchase of any Restricted Shares by the Company any Syndicate Stockholder to (which closing shall, unless otherwise mutually agreed, be consummated at the principal offices of the Company). On such date, the Management Stockholder shall transfer the Restricted Shares subject to such Offer to i) the Company, free and clear (ii) any Principal Stockholder, or (iii) an Affiliate of all liens and encumbrances, by delivering to the Company the certificates representing the Restricted Shares to be purchased, duly endorsed for transfer to the Company or accompanied by a stock power duly executed in blank, and the Company shall pay to the Management Stockholder the Offer price.
(c) such Syndicate Stockholder. Notwithstanding the foregoing, nothing in this Section 1 shall prevent the Transfer of any Restricted Shares by any Management Syndicate Stockholder pursuant to (i) the Company exercise by the FHL Stockholders of their Bring-Along Right (as defined below) in accordance with Section 2 below, or Holdings LLC; (ii) any member the exercise by a Syndicate Stockholder of a Management Stockholder's immediate family or trusts for their benefit provided the Management Stockholder retains the sole and exclusive right to vote or dispose of any Restricted Shares transferred to the family member or trust; and its Syndicate Tag-Along Right (iiias defined below) upon a Management Stockholder's death, the Management Stockholder's executors, administrators, testamentary trustees, legatees and beneficiaries (in accordance with Transfers pursuant to clause (ii) or (iii) being referred to as a "Permitted Transfer" and the related transferee, a "Permitted Transferee")Section 3 below.
(d) Each Management Stockholder agrees thatIn addition to the restrictions set forth elsewhere in this Agreement, as a condition precedent to any Transfer described of Restricted Shares by a Syndicate Stockholder to a transferee shall be permitted only if the transferee shall agree in this Section 1, each transferee described in this Section 1 (other than writing to be bound by the Company or Holdings LLC) shall deliver to the Company a copy terms and conditions of this Agreement signed pursuant to an instrument of assumption reasonably satisfactory in form and substance to FHL. Upon the execution of the instrument of assumption by such transferee, such transferee shall be deemed to be a Syndicate Stockholder for all purposes of this Agreement.
Appears in 1 contract
Samples: Syndicate Investors Stockholders Agreement (Quietflex Holding CO)
Sales to Third Parties. (a) Each Management Stockholder hereby agrees that he or she shall not sell, assign, transfer, convey, pledge or otherwise dispose of (collectively, "Transfer") any Restricted Shares without During the prior written consent of the Company, which consent shall have been authorized by a majority of the members of the Board and which consent may be (i) withheld in the sole discretion of the Board, or (ii) given subject to reasonable terms and conditions determined by the Board in its sole discretion. Each Management Stockholder further agrees that in connection with any Transfer consented to by the Company, the Management Stockholder shallRestriction Period, if requested by the Company, deliver to the Company an opinion of counsel in form and substance reasonably satisfactory to the Company and counsel for the Company, to the effect that the Transfer is not in violation of this Agreement, the Securities Act of 1933, as amended (the "Securities Act"), or the securities laws of any state. Any purported Transfer in violation of the provisions of this Section 1 shall be null and void and shall have no force or effect.
(i) If a Management Stockholder (the "“Offering Stockholder"”) shall have received a bona fide offer or offers from a third party or parties to purchase any Restricted SharesShare Equivalents which such Offering Stockholder desires to accept, and the Transfer shall have been approved by the Company pursuant to Section 1(a)(iii) (to the extent such approval is required pursuant to Section 1(a) hereof), prior to selling any Restricted Shares Share Equivalents to the third party or partiesparties other than a Permitted Transferee, the Offering Stockholder shall deliver deliver, within thirty (30) days following such approval of the Transfer pursuant to Section 1(a)(iii), to the Company and the H&F Investors a letter (the “Offer Notice”) signed by the Offering Stockholder setting forth: (A) the name of the third party or parties; (B) the prospective purchase price per share of the Restricted SharesShare Equivalents; (C) all material terms and conditions contained in the offer of the third party or parties; and (D) the Offering Stockholder's ’s offer (irrevocable by its terms for 60 sixty (60) days following receiptthe later of (x) the date of the delivery of such Offer Notice or (y) the six (6) month anniversary of the date all or a portion of such Share Equivalents were first received or purchased (including upon exercise of Options) by the Management Stockholder (such 60-day period, the “Offer Period”)) to sell to the Company and the H&F Investors all (but not less than all) of the Restricted Shares Share Equivalents covered by the offer of the third party or parties, for a purchase price per share and on other terms and conditions not less favorable to the Company and the H&F Investors than those contained in the offer of the third party or parties (an "“Offer"”).
(iib) Upon receipt of such Offer Notice, the Company (or its designee) shall have an option to purchase any or all of the Share Equivalents described in the Offer Notice at the purchase price and upon the terms and conditions specified in the Offer. If the Company desires to exercise the option set forth in the preceding sentence, it shall deliver a notice (an “Election Notice”) to the Offering Stockholder and the H&F Investors at any time during the first thirty (30) days of the Offer Period (such 30-day period, the “Company Election Period”), specifying the number of Share Equivalents subject to the Offer to be acquired. In the event that the
(c) Company delivers an Election Notice for less than all of the Share Equivalents subject to the Offer, such Election Notice shall not be effective unless and until the H&F Investors deliver an Election Notice to purchase the remaining Share Equivalents subject to the Offer pursuant to Section 2(c). The Share Equivalents shall be purchased by the H&F Investors pro rata based upon their relative interests in the Company, or as such H&F Investors may otherwise agree.
(d) If, at any time during the Company Election Period, the Company shall determine not to exercise its right to purchase all of the Share Equivalents described in the Offer Notice, then the Company shall promptly notify the H&F Investors of such determination. In the event the Company does not deliver an Election Notice before the end of the Company Election Period or any Election Notice so delivered does not relate to the purchase of all the Share Equivalents described in the Offer Notice, then the H&F Investors shall have the option to purchase no less than all of the remaining Share Equivalents subject to the Offer at the purchase price and upon the terms and conditions specified in the Offer by delivering an Election Notice to the Offering Stockholder and the Company prior to the expiration of 60 the Offer Period. In the event Election Notices are delivered by both the Company and the H&F Investors and, as a result of miscalculation or similar error, the aggregate number of Share Equivalents described in such Election Notices exceeds the aggregate number of Share Equivalents specified in the Offer, the number of Share Equivalents to be purchased by the H&F Investors shall be reduced accordingly. Share Equivalents to be purchased by the H&F Investors pursuant to this Section 2(c) will be allocated among the H&F Investors pro rata based upon their relative interests in the Company, or as such H&F Investors may otherwise agree.
(e) If either the Company or the H&F Investors delivers an Election Notice, then such Person or Persons shall be obligated to purchase, and the Offering Stockholder shall be obligated to sell, the Share Equivalents described in such Election Notice at the purchase price per share and on other terms and conditions indicated in the Offer, except that the closing of such purchase and sale shall occur on a closing date selected by the Company or the H&F Investors, as applicable but in no event following the later of (i) ninety (90) days following the date of the Offer Notice or (ii) fifteen (15) days following the receipt by the Company or the H&F Investors, as applicable of all necessary governmental approvals (which governmental approvals the Company or the H&F Investors, as applicable, and the Offering Stockholder shall use reasonable efforts to obtain promptly). Unless otherwise mutually agreed, the closing shall be consummated at the principal offices of the letter described in Company.
(f) If neither the Company nor the H&F Investors delivers an Election Notice to the Offering Stockholder within the time periods required by Section 1(b)(i2(b) and Section 2(c), as applicable, or the Company shall not have accepted Election Notices delivered in the aggregate relate to less than all of the Share Equivalents subject to the Offer, then the Management Offering Stockholder may may, during the period beginning on or prior to the 90th day immediately following the receipt termination of such letter the Offer Period and ending sixty (60) days thereafter, sell to the third party or parties all (but not less than all) of the Restricted Shares Share Equivalents covered by the Offer, for the purchase price and on the other terms and conditions contained in the Offer.
(iii) If the Company accepts the Offer, the Company shall, in its discretion, select a closing date (not less than 60 nor more than 90 days following the date of the Management Stockholder's Offer letter but in any event subject to the receipt by the Company of all necessary governmental approvals) for the purchase of Restricted Shares by the Company (which closing shall, unless otherwise mutually agreed, be consummated at the principal offices of the Company). On such date, the Management Stockholder shall transfer the Restricted Shares subject to such Offer to the Company, free and clear of all liens and encumbrances, by delivering to the Company the certificates representing the Restricted Shares to be purchased, duly endorsed for transfer to the Company or accompanied by a stock power duly executed in blank, and the Company shall pay to the Management Stockholder the Offer price.
(c) Notwithstanding the foregoing, nothing in this Section 1 shall prevent the Transfer of any Restricted Shares by any Management Stockholder to (i) the Company or Holdings LLC; (ii) any member of a Management Stockholder's immediate family or trusts for their benefit provided the Management Stockholder retains the sole and exclusive right to vote or dispose of any Restricted Shares transferred to the family member or trust; and (iii) upon a Management Stockholder's death, the Management Stockholder's executors, administrators, testamentary trustees, legatees and beneficiaries (with Transfers pursuant to clause (ii) or (iii) being referred to as a "Permitted Transfer" and the related transferee, a "Permitted Transferee").
(d) Each Management Stockholder agrees that, as a condition precedent to any Transfer described in this Section 1, each transferee described in this Section 1 (other than the Company or Holdings LLC) shall deliver to the Company a copy of this Agreement signed by such transferee.
Appears in 1 contract
Samples: Management Stockholders Agreement (Goodman Global Group, Inc.)
Sales to Third Parties. (a) Each Management Stockholder hereby agrees that he or she shall not sell, assign, transfer, convey, pledge or otherwise dispose i. Except for transfers of (collectively, "Transfer") any Restricted Shares without the prior written consent of the Company, which consent shall have been authorized by a majority of the members of the Board and which consent may be (i) withheld in the sole discretion of the Board, or (ii) given subject Membership Interest to reasonable terms and conditions determined by the Board in its sole discretion. Each Management Stockholder further agrees that in connection with any Transfer consented to by the Company, the Management Stockholder shall, if requested by the Company, deliver to the Company an opinion of counsel in form and substance reasonably satisfactory to the Company and counsel for the Company, to the effect that the Transfer is not in violation of this Agreement, the Securities Act of 1933, as amended (the "Securities Act"), or the securities laws of any state. Any purported Transfer in violation of the provisions of this Section 1 shall be null and void and shall have no force or effect.
(i) If a Management Stockholder (the "Offering Stockholder") shall have received a bona fide offer or offers from a third party or parties to purchase any Restricted Shares, and the Transfer shall have been approved Affiliate pursuant to Section 1(a6.7.3(b), prior if at any time either GDLS or FPI or any transferee of a Membership Interest pursuant to selling any Restricted Shares Section 6.7.3(b) (the “Initiating Party”) intends to the third party or parties, the Offering Stockholder shall deliver the Company a letter signed by the Offering Stockholder setting forth: (A) the name dispose of the third party or parties; (B) the prospective purchase price per share of the Restricted Shares; (C) all material terms and conditions contained in the offer of the third party or parties; and (D) the Offering Stockholder's offer (irrevocable by its terms for 60 days following receipt) to sell to the Company all (but not less than all) of is Membership Interest whether alone or as part of a larger transaction (the Restricted Shares covered by “Offered Interest”) then the offer Initiating Party shall give a notice (“the Offer Notice”) to the other Member (the “Non-Initiating Party”), offering to sell the Offered Interest to the Non-Initiating Party, which notice shall set forth the proposed price (which shall be payable all in cash), the name and identity of the third party or partiesproposed purchaser, for a and all material terms and conditions. The Non-Initiating Party shall then have 90 days in which to notify the Initiating Party that it (i) desires to purchase the Offered Interest at the price per share set forth in the Offer Notice and on other terms and conditions the same as those set forth in the Offer Notice (an “Acceptance Notice”), or (ii) does not less favorable desire to purchase the Offered Interest (a “Refusal Notice”) and whether or not consent to the Company than those contained transfer is given or provided in the offer of the third party or parties (an "Offer"Section 6.7.3(a).
ii. If the Non-Initiating Party gives an Acceptance Notice in accordance with subparagraph (iii) Ifabove, on the 180th day after the Offer Notice or on such other date as the Parties agree upon the expiration of 60 days following receipt by Non-Initiating Party shall purchase from the Company of Initiating Party and the letter described in Section 1(b)(i), the Company Initiating Party shall not have accepted the Offer, the Management Stockholder may on or prior to the 90th day following the receipt of such letter sell to the third party Non-Initiating Party at the price and on the terms and conditions set forth in the Offer Notice the Offered Interest. The Non-Initiating Party may designate one or parties more Affiliates to purchase all or any part of the Offered Interest, provided that each such designee shall comply with the applicable terms of this Section 6.7.3 with respect to such purchase and that the entire Membership Interest to be sold must be purchased by the Non-Initiating Party or its designees.
iii. If the Non-Initiating Party delivers a Refusal Notice, or fails to deliver an Acceptance Notice or Refusal Notice, in accordance with subparagraph (i) above, the Initiating Party may sell all, but not less than all, of its Membership Interest to a third person if: (w) such sales is on the terms and conditions, including the price, at least as favorable to the Initiating Party as those set forth in the Offer Notice; (x) an agreement of sale is executed and delivered and the sale closed within 180 days after the later of the Restricted Shares covered by receipt of the Offer, for Refusal Notice and the purchase price and on end of the other 90 day period referred to in subparagraph (i) above; (y) the purchaser agrees in writing to be subject to the terms and conditions contained in the Offer.
(iii) If of this Agreement and such transfer is permissible under any contract awarded to the Company accepts in respect of the OfferProgram; and (z) the Initiating Party and proposed purchaser comply with subparagraph (d) below, and if not, the Company shall, in its discretion, select a closing date (not less than 60 nor more than 90 days following Membership Interest shall again the date of the Management Stockholder's Offer letter but in any event subject to the receipt by right of first offer.
iv. If either Member becomes obligated to sell its Membership Interest pursuant to the Company provisions of all necessary governmental approvalssubparagraph (ii) for the purchase of Restricted Shares by the Company this Section 6.7.3(c) (which a “Seller”), such Membership Interest shall be sold as set forth in this subparagraph (iv). The closing shall, unless otherwise mutually agreed, of this sale shall be consummated held at the principal offices Company’s headquarters (or such other place as to which the Parties may agree) on the date provided by subparagraph (ii) of the Companythis Section 6.7.3(c). On At such dateclosing, the Management Stockholder Seller shall transfer the Restricted Shares subject to such Offer convey and assign to the Companypurchaser or purchasers, free and clear of all liens liens, claims and encumbrances, by delivering the Membership Interest to be sold and shall execute and deliver to the Company the certificates representing the Restricted Shares purchaser or purchasers all documents which may be required to be purchased, duly endorsed for transfer give effect to the Company or accompanied by a stock power duly executed in blankdisposition and acquisition of such interest, and the Company purchaser or purchasers shall pay to the Management Stockholder Seller, in immediately available funds, the purchase price determined as provided by subparagraph (ii) for the interest being sold. The obligation of the Seller to sell and the obligation of the purchaser or purchasers to purchase at such closing such interest shall be subject to the following conditions: No preliminary or permanent injunctions or other order, decree or ruling issued by a court of competent jurisdiction or by a governmental regulatory or administrative agency or commission shall be in effect which would prohibit such conveyance (provided that the Parties shall use good faith efforts to avoid the issuance of, and, if issued, to cause the lifting of, any such order, decree or ruling); any applicable waiting period under the Xxxx-Xxxxx-Xxxxxx Act or any other applicable law shall have expired and any other applicable law shall have expired and any other applicable governmental approvals and clearances necessary to permit such sales shall have been obtained; each purchaser shall have received a representation and warranty in form and substance reasonably satisfactory to it that the Seller has good and marketable title to the interest being conveyed, free and clear of all liens, claims and encumbrances, and has full right, power and authority to effect such conveyance; and there shall have been no materials adverse change (or changes which in the aggregate are materially adverse) in the Company’s business, assets or liabilities occurring after the date the Offer priceNotice was given, as the ease may be (provided that the purchaser(s) may waive either of the last two conditions).
v. Upon the closing of a sale to the Non-Initiating Party hereunder, the Initiating Party and its Affiliates shall covenant not to (cx) solicit any employees of the Company, or (y) take any action that can reasonably be expected to interfere with the Company’s or the Members’ relationships with its customers, for a five year period after the completion of the transaction. Notwithstanding the foregoing, nothing Section 6.7.3(c)(v)(x) above shall not prohibit the Initiating Party or its Affiliates from (x) acquiring a business or group of businesses in this Section 1 shall prevent a transaction where such competitive business or group of businesses is not the Transfer primary purpose of such acquisition and constitutes less than 10% of the annual sales volume of the acquired business or group of businesses as a whole based on the preceding fiscal year, or (y) acquiring shares of stock, partnership or other equity interests in any entity as investments in such Initiating Party’s or its Affiliates’ pension funds or funds of any Restricted Shares by any Management Stockholder to (i) the Company or Holdings LLC; (ii) any member of a Management Stockholder's immediate family or trusts other employee benefit plan, provided that such interests are acquired and held for their benefit provided the Management Stockholder retains the sole and exclusive right to vote or dispose of any Restricted Shares transferred to the family member or trust; and (iii) upon a Management Stockholder's death, the Management Stockholder's executors, administrators, testamentary trustees, legatees and beneficiaries (with Transfers pursuant to clause (ii) or (iii) being referred to as a "Permitted Transfer" and the related transferee, a "Permitted Transferee")investment purposes only.
(d) Each Management Stockholder agrees that, as a condition precedent to any Transfer described in this Section 1, each transferee described in this Section 1 (other than the Company or Holdings LLC) shall deliver to the Company a copy of this Agreement signed by such transferee.
Appears in 1 contract
Sales to Third Parties. (a) Each Management Stockholder hereby agrees that he or she shall not sell, assign, transfer, convey, pledge or otherwise dispose of (collectively, "“Transfer"”) any Restricted Shares without the prior written consent of the Company, which consent shall have been authorized by a majority of the members of the Board and which consent may be (i) withheld in the sole discretion of the Board, or (ii) given subject to reasonable terms and conditions determined by the Board in its sole discretion. Each Management Stockholder further agrees that in connection with any Transfer consented to by the Company, the Management Stockholder shall, if requested by the Company, deliver to the Company an opinion of counsel in form and substance reasonably satisfactory to the Company and counsel for the Company, to the effect that the Transfer is not in violation of this Agreement, the Securities Act of 1933, as amended (the "“Securities Act"”), or the securities laws of any state. Any purported Transfer in violation of the provisions of this Section 1 shall be null and void and shall have no force or effect.
(i) If a Management Stockholder (the "“Offering Stockholder"”) shall have received a bona fide offer or offers from a third party or parties to purchase any Restricted Shares, and the Transfer shall have been approved pursuant to Section 1(a), prior to selling any Restricted Shares to the third party or parties, the Offering Stockholder shall deliver to the Company and Iron a letter (the “Offer Notice”) signed by the Offering Stockholder setting forth: (A) the name of the third party or parties; (B) the prospective purchase price per share of the Restricted Shares; (C) all material terms and conditions contained in the offer of the third party or parties; and (D) the Offering Stockholder's ’s offer (irrevocable by its terms for 60 days following receiptthe later of (x) the date of the receipt of such offer or (y) the six month anniversary of the date such Restricted Shares were first purchased by the Management Stockholder (such 60-day period, the “Offer Period”)) to sell to the Company and Iron all (but not less than all) of the Restricted Shares covered by the offer of the third party or parties, for a purchase price per share and on other terms and conditions not less favorable to the Company and Iron than those contained in the offer of the third party or parties (an "“Offer"”).
(ii) If, upon the expiration Upon receipt of 60 days following receipt by the Company of the letter described in Section 1(b)(i)such Offer Notice, the Company shall have an option to purchase any or all of the Restricted Shares described in the Offer Notice at the purchase price and upon the terms and conditions specified in the Offer. If the Company desires to exercise the option set forth in the preceding sentence, it shall deliver a notice (an “Election Notice”) to the Offering Stockholder and Iron at any time during the first 45 days of the Offer Period (such 45-day period, the “Election Period”), which Election Notice shall specify the number of Restricted Shares subject to the Offer to be acquired. In the event that the Company delivers an Election Notice for less than all of the Restricted Shares subject to the Offer, such Election Notice shall not be effective unless and until Iron delivers an Election Notice to purchase the remaining Restricted Shares subject to the Offer pursuant to Section 1(b)(iii) below.
(iii) In the event the Company does not deliver an Election Notice before the end of the Election Period or any Election Notice so delivered does not relate to the purchase of all the Restricted Shares described in the Offer Notice, then Iron (or, in its discretion, any other Principal Stockholder(s) designated by Iron) shall have accepted the option to purchase no less than all of the remaining Restricted Shares subject to the Offer at the purchase price and upon the terms and conditions specified in the Offer by delivering an Election Notice to the Offering Stockholder and the Company within 15 days after the first to occur of (A) the expiration of the Election Period or (B) receipt of an Election Notice from the Company which relates to less than all of the Restricted Shares described in the Offer Notice. In the event Election Notices are delivered by both the Company and Iron (or any other applicable Principal Stockholder), and, as a result of miscalculation or similar error, the aggregate number of Restricted Shares described in such Election Notices exceeds the aggregate number of Restricted Shares specified in the Offer, the Management number of Restricted Shares to be purchased by Iron (or any other applicable Principal Stockholder) shall be reduced accordingly.
(iv) If either the Company or Iron (or any other applicable Principal Stockholder) delivers an Election Notice, then it shall be obligated to purchase, and the Offering Stockholder may shall be obligated to sell, the Restricted Shares described in such Election Notice at the purchase price per share and on other terms and conditions indicated in the Offer, except that the closing of such purchase and sale shall occur on a closing date selected by the Company or prior Iron (or any other applicable Principal Stockholder), as applicable; provided, however, that, (A) in the case of a sale to the Company, such closing date shall be not less than 45 days nor more than 90 days following the date of the Offer Notice and (B) in the case of a sale to Iron (or any other applicable Principal Stockholder), such closing date shall be not less than 60 days nor more than 90 days following the date of the Offer Notice. Unless otherwise mutually agreed, the closing shall be consummated at the principal offices of the Company.
(v) If neither the Company nor Iron (or any other applicable Principal Stockholder) delivers an Election Notice to the Offering Stockholder within the time periods described in Section 1(b)(ii) and 1(b)(iii), as applicable, or the Election Notices delivered in the aggregate relate to less than all of the Restricted Shares subject to the Offer, then the Offering Stockholder may, during the period beginning on the 61st day following the receipt of the Offer Notice by the Company and Iron and ending on the 90th day following the receipt of such letter the Offer Notice by the Company and Iron, sell to the third party or parties all (but not less than all) of the Restricted Shares covered by the Offer, for the purchase price and on the other terms and conditions contained in the Offer.
(iii) If the Company accepts the Offer, the Company shall, in its discretion, select a closing date (not less than 60 nor more than 90 days following the date of the Management Stockholder's Offer letter but in any event subject to the receipt by the Company of all necessary governmental approvals) for the purchase of Restricted Shares by the Company (which closing shall, unless otherwise mutually agreed, be consummated at the principal offices of the Company). On such date, the Management Stockholder shall transfer the Restricted Shares subject to such Offer to the Company, free and clear of all liens and encumbrances, by delivering to the Company the certificates representing the Restricted Shares to be purchased, duly endorsed for transfer to the Company or accompanied by a stock power duly executed in blank, and the Company shall pay to the Management Stockholder the Offer price.
(c) Notwithstanding the foregoingforegoing but subject to Section 1(d) below, nothing in this Section 1 shall prevent the Transfer of any Restricted Shares by any Management Stockholder to (i) the Company or Holdings LLCany Principal Stockholder; or (ii) (A) any member of a Management Stockholder's ’s immediate family or (the “Permitted Family Members”), (B) trusts for their the benefit of Permitted Family Members, and (C) upon a Management Stockholder’s death, the Management Stockholder’s executors, administrators, testamentary trustees, legatees and beneficiaries; provided that, in the case of subclause (A) and (B), the Management Stockholder retains the sole and exclusive right to vote or dispose of any Restricted Shares transferred to the family member or trust; Permitted Family Member (each such person and (iii) upon a Management Stockholder's death, the Management Stockholder's executors, administrators, testamentary trustees, legatees and beneficiaries (with Transfers pursuant to entity described in clause (ii) or (iii) being referred to as a "Permitted Transfer" and the related transferee, a "“Permitted Transferee"” and collectively, the “Permitted Transferees”).
(d) Each In addition to the restrictions set forth elsewhere in this Agreement, any Transfer of Restricted Shares by a Management Stockholder agrees that, as to a condition precedent transferee shall be permitted only if the transferee shall agree in writing to any Transfer described in this Section 1, each transferee described in this Section 1 (other than be bound by the Company or Holdings LLC) shall deliver to the Company a copy terms and conditions of this Agreement signed pursuant to an instrument of assumption reasonably satisfactory in form and substance to the Board. Upon the execution of the instrument of assumption by such transferee, such transferee shall be deemed to be a Management Stockholder for all purposes of this Agreement except that, (A) in the case of a Transfer to a Permitted Transferee, all provisions that relate to termination of employment of a Management Stockholder and the effects thereof shall continue to apply to such Management Stockholder transferor and not to such Permitted Transferee and (B) in the case of a Transfer to a Person other than a Permitted Transferee made in compliance with this Agreement, Sections 2 and 3 of this Agreement shall cease to apply following such Transfer.
Appears in 1 contract
Samples: Management Stockholders Agreement (Neff Rental LLC)
Sales to Third Parties. If at any time during the term of this Agreement a Founder desires to transfer (aa “Selling Stockholder”) Each Management Stockholder hereby agrees that he all or she shall not sellany part of the shares of capital stock of the Company (or any rights, assignoptions, transfer, convey, pledge warrants or otherwise dispose other securities convertible into or exchangeable for shares of (collectively, "Transfer") any Restricted Shares without the prior written consent capital stock of the Company, which consent shall have been authorized ) beneficially owned by a majority of the members of the Board and which consent may be (i) withheld in the sole discretion of the Board, or (ii) given subject to reasonable terms and conditions determined by the Board in its sole discretion. Each Management Stockholder further agrees that in connection with any Transfer consented to by the Company, the Management Stockholder shall, if requested by the Company, deliver to the Company an opinion of counsel in form and substance reasonably satisfactory to the Company and counsel for the Company, to the effect that the Transfer is not in violation of this Agreement, the Securities Act of 1933, as amended him (the "Securities Act"), or the securities laws of any state. Any purported Transfer “Shares”) in violation of the provisions of this Section 1 shall be null and void and shall have no force or effect.
(i) If a Management Stockholder (the "Offering Stockholder") shall have received privately-negotiated transaction pursuant to a bona fide offer or offers proposed offer (the “Proposed Offer Sale”) from a third party or parties a proposed offer to purchase any Restricted Shares, and a third party (the Transfer shall have been approved pursuant to Section 1(a“Proposed Transferee”), prior to selling any Restricted Shares to the third party or parties, the Offering Selling Stockholder shall deliver the Company first submit a letter signed by the Offering Stockholder setting forth: (A) the name of the third party or parties; (B) the prospective purchase price per share of the Restricted Shares; (C) all material terms and conditions contained in the offer of the third party or parties; and (D) the Offering Stockholder's written offer (irrevocable by its terms for 60 days following receiptthe “Offer”) to sell such Shares (the “Offered Shares”) first to the Company all Company, and second to the Investors (but not less than allif applicable) of the Restricted Shares covered by the offer of the third party or parties, for a purchase price per share and on other terms and conditions conditions, including, without limitation, price, not less favorable to the Company and the Investor than those contained on which the Selling Stockholder proposes to sell such Offered Shares to the Proposed Transferee or otherwise pursuant to the Proposed Offer Sale in accordance with the offer provisions of this Section 2. The Offer shall disclose the identity of and, if available, information about the Proposed Transferee, and the terms of the third party or parties (an "Offer").
(ii) IfProposed Offer Sale, upon the expiration number of 60 days following receipt Offered Shares proposed to be sold, the total number of Shares owned by the Company Selling Stockholder, the terms and conditions, including, without limitation, price, of the letter described in Section 1(b)(i)proposed sale, and any other material terms and facts relating to the proposed sale which may be requested by the Investors and the Company, as the case may be. The Offer shall further state that the Company shall not have accepted and the OfferInvestors may acquire, in accordance with the Management Stockholder may on or prior to provisions of this Section 2, all of the 90th day following the receipt of such letter sell to the third party or parties all Offered Shares (but not less than all) all of the Restricted Shares covered by the Offer, Offered Shares) for the purchase price indicated in the Offer and on upon the other terms and conditions contained in conditions, including deferred or installment payment (if applicable), set forth therein. In the Offer.
(iii) If event the Company accepts terms of the OfferProposed Offer Sale contemplate the payment to the Selling Stockholder of consideration other than cash, the Company shallvalue of such non-cash consideration shall be determined in good faith by the Board of Directors of the Company; provided that, in its discretionif the Proposed Transferee offers the Selling Stockholder (i) securities that are traded on a nationally recognized stock exchange or quoted on the NASDAQ National Market, select a then the value of such consideration shall be the average closing date sale prices for the ten (not less than 60 nor more than 90 10) consecutive trading days following preceding the date of the Management Stockholder's Offer letter but in any event subject to Offer, or (ii) securities that are traded on the receipt by NASDAQ over-the-counter market or Small-Cap market, the Company value of all necessary governmental approvals) such consideration shall be the average of the closing bid and closing asked prices for the purchase of Restricted Shares by twenty (20) consecutive trading days preceding the Company (which closing shall, unless otherwise mutually agreed, be consummated at the principal offices date of the Company)Offer as reported in the Wall Street Journal or by any market-maker. On such date, In the Management event of any dispute between the Selling Stockholder shall transfer the Restricted Shares subject to such Offer to the Company, free and clear of all liens and encumbrances, by delivering to the Company the certificates representing the Restricted Shares to be purchased, duly endorsed for transfer to the Company or accompanied by a stock power duly executed in blank, and the Company shall pay to regarding the Management Stockholder determination of the Offer price.
(c) Notwithstanding fair market value of non-cash consideration will be settled by a reasonable process determined by the foregoing, nothing in this Section 1 shall prevent the Transfer Outside Director. All costs of any Restricted Shares appraisal shall be borne by any Management Stockholder to (i) the Company or Holdings LLC; (ii) any member of a Management Stockholder's immediate family or trusts for their benefit provided the Management Stockholder retains the sole and exclusive right to vote or dispose of any Restricted Shares transferred to the family member or trust; and (iii) upon a Management Stockholder's death, the Management Stockholder's executors, administrators, testamentary trustees, legatees and beneficiaries (with Transfers pursuant to clause (ii) or (iii) being referred to as a "Permitted Transfer" and the related transferee, a "Permitted Transferee")Company.
(d) Each Management Stockholder agrees that, as a condition precedent to any Transfer described in this Section 1, each transferee described in this Section 1 (other than the Company or Holdings LLC) shall deliver to the Company a copy of this Agreement signed by such transferee.
Appears in 1 contract
Sales to Third Parties. If at any time after the eighteen (a18) Each Management Stockholder hereby agrees month anniversary of the date of this Agreement, a Warrantholder or the holder of shares received upon the exercise of the Warrant or any other shares of capital stock into which the shares of Common Stock may be converted (each, a "SECURITIES HOLDER") desires to transfer all or any part of the Warrant or the shares of capital stock of the Company beneficially owned by him (the "SECURITIES") in a privately-negotiated transaction pursuant to a bona fide offer (the "Proposed Sale") from a third party to the Securities Holder or by the Securities Holder to a third party (the "PROPOSED TRANSFEREE"), such Securities Holder shall first submit a written offer (the "OFFER") to sell such Securities (the "OFFERED SECURITIES") to Hexal Pharmaceuticals, Inc. or its assignee ("HEXAL") on terms and conditions, including without limitation, price, not less favorable to Hexal than those on which the offering Securities Holder proposes to sell such Offered Securities to the Proposed Transferee or otherwise pursuant to the Proposed Sale; provided, however, that he or she the requirements set forth in this Section 12(a)(i) shall not sellapply to any Proposed Sale if the Proposed Transferee in such Proposed Sale is an Affiliate or stockholder of the offering Securities Holder, assignany general or limited partner or retired partner, transferor any stockholder, conveyofficer, pledge director or otherwise dispose employee thereof, or any Affiliate of any such person, including, without limitation, members of the immediate family, irrevocable trusts for estate planning purposes and personal representatives thereof who shall agree in writing with the Company to be bound by the terms of Section 11 and this Section 12. The Offer shall disclose the identity of the Proposed Transferee, and the terms of the Proposed Sale, the number of Offered Securities proposed to be sold, the total number of Securities owned by the offering Securities Holder, the terms and conditions, including without limitation, price, of the Proposed Sale, and any other material facts relating to the Proposed Sale which may be requested by Hexal. The offer shall further state that Hexal or its assignees may acquire, in accordance with the provisions of this Agreement, all or any portion of the Offered Securities for the price indicated in the Offer and upon the other terms and conditions, including, without limitation, deferred or installment payment (collectivelyif applicable), "Transfer") set forth therein. Additionally, each Securities Holder agrees not to make any Restricted Shares Proposed Sale to any competitor of the Company or any of its Affiliates without the prior written consent of the Company, which consent shall have been authorized by a majority of the members of the Board and which consent may be (i) withheld in the sole discretion of the Board, or (ii) given subject to reasonable terms and conditions determined by the Board in its sole discretion. Each Management Stockholder further agrees that in connection with any Transfer consented to by the Company, the Management Stockholder shall, if requested by the Company, deliver to the Company an opinion of counsel in form and substance reasonably satisfactory to the Company and counsel for the Company, to the effect that the Transfer is not in violation of this Agreement, the Securities Act of 1933, as amended (the "Securities Act"), or the securities laws of any state. Any purported Transfer in violation of the provisions of this Section 1 shall be null and void and shall have no force or effectHexal.
(i) If a Management Stockholder (the "Offering Stockholder") shall have received a bona fide offer or offers from a third party or parties to purchase any Restricted Shares, and the Transfer shall have been approved pursuant to Section 1(a), prior to selling any Restricted Shares to the third party or parties, the Offering Stockholder shall deliver the Company a letter signed by the Offering Stockholder setting forth: (A) the name of the third party or parties; (B) the prospective purchase price per share of the Restricted Shares; (C) all material terms and conditions contained in the offer of the third party or parties; and (D) the Offering Stockholder's offer (irrevocable by its terms for 60 days following receipt) to sell to the Company all (but not less than all) of the Restricted Shares covered by the offer of the third party or parties, for a purchase price per share and on other terms and conditions not less favorable to the Company than those contained in the offer of the third party or parties (an "Offer").
(ii) If, upon the expiration of 60 days following receipt by the Company of the letter described in Section 1(b)(i), the Company shall not have accepted the Offer, the Management Stockholder may on or prior to the 90th day following the receipt of such letter sell to the third party or parties all (but not less than all) of the Restricted Shares covered by the Offer, for the purchase price and on the other terms and conditions contained in the Offer.
(iii) If the Company accepts the Offer, the Company shall, in its discretion, select a closing date (not less than 60 nor more than 90 days following the date of the Management Stockholder's Offer letter but in any event subject to the receipt by the Company of all necessary governmental approvals) for the purchase of Restricted Shares by the Company (which closing shall, unless otherwise mutually agreed, be consummated at the principal offices of the Company). On such date, the Management Stockholder shall transfer the Restricted Shares subject to such Offer to the Company, free and clear of all liens and encumbrances, by delivering to the Company the certificates representing the Restricted Shares to be purchased, duly endorsed for transfer to the Company or accompanied by a stock power duly executed in blank, and the Company shall pay to the Management Stockholder the Offer price.
(c) Notwithstanding the foregoing, nothing in this Section 1 shall prevent the Transfer of any Restricted Shares by any Management Stockholder to (i) the Company or Holdings LLC; (ii) any member of a Management Stockholder's immediate family or trusts for their benefit provided the Management Stockholder retains the sole and exclusive right to vote or dispose of any Restricted Shares transferred to the family member or trust; and (iii) upon a Management Stockholder's death, the Management Stockholder's executors, administrators, testamentary trustees, legatees and beneficiaries (with Transfers pursuant to clause (ii) or (iii) being referred to as a "Permitted Transfer" and the related transferee, a "Permitted Transferee").
(d) Each Management Stockholder agrees that, as a condition precedent to any Transfer described in this Section 1, each transferee described in this Section 1 (other than the Company or Holdings LLC) shall deliver to the Company a copy of this Agreement signed by such transferee.
Appears in 1 contract
Samples: Warrant Agreement (Eon Labs Inc)
Sales to Third Parties. If a Stockholder desires to transfer (a) Each Management Stockholder hereby agrees that he or she shall not sell, assign, transfer, convey, pledge or otherwise dispose of (collectively, a "TransferSELLING STOCKHOLDER") all or any Restricted Shares without the prior written consent part of the Company, which consent shall have been authorized Shares beneficially owned by a majority of the members of the Board and which consent may be (i) withheld in the sole discretion of the Board, him or (ii) given subject to reasonable terms and conditions determined by the Board in its sole discretion. Each Management Stockholder further agrees that in connection with any Transfer consented to by the Company, the Management Stockholder shall, if requested by the Company, deliver to the Company an opinion of counsel in form and substance reasonably satisfactory to the Company and counsel for the Company, to the effect that the Transfer is not in violation of this Agreement, the Securities Act of 1933, as amended it (the "Securities Act"), or the securities laws of any state. Any purported Transfer in violation of the provisions of this Section 1 shall be null and void and shall have no force or effect.
(i) If a Management Stockholder (the "Offering StockholderOFFERED SHARES") shall have received in a privately-negotiated transaction pursuant to a bona fide offer or offers proposed offer (the "PROPOSED OFFER SALE") from a third party or parties a proposed offer to purchase any Restricted Shares, and a third party (the Transfer shall have been approved pursuant to Section 1(a"PROPOSED TRANSFEREE"), prior to selling any Restricted Shares to the third party or parties, the Offering Selling Stockholder shall deliver the Company first submit a letter signed by the Offering Stockholder setting forth: (A) the name of the third party or parties; (B) the prospective purchase price per share of the Restricted Shares; (C) all material terms and conditions contained in the offer of the third party or parties; and (D) the Offering Stockholder's written offer (irrevocable by its terms for 60 days following receiptthe "OFFER") to sell such Offered Shares first to the Company all Company, and second to the Venture Stockholders (but not less than all) of together, the Restricted Shares covered by the offer of the third party or parties"OFFEREES"), for a purchase price per share and if applicable, on other terms and conditions conditions, including without limitation price, not less favorable to the Company and the Offerees than those contained on which the Selling Stockholder proposes to sell such Offered Shares to the Proposed Transferee or otherwise pursuant to the Proposed Offer Sale in accordance with the offer provisions of this Agreement. The Offer shall disclose the identity of and, if available, information about the Proposed Transferee, and the terms of the third party or parties (an "Offer").
(ii) IfProposed Offer Sale, upon the expiration number of 60 days following receipt Offered Shares proposed to be sold, the total number of Shares owned by the Selling Stockholder, the terms and conditions, including without limitation, price, of the proposed sale, and any other material terms and facts relating to the proposed sale which may be requested by the Company and the Offerees, as the case may be. The Offer shall further state that the Company and the Offerees may acquire, in accordance with the provisions of this Agreement, all of the letter described in Section 1(b)(i), the Company shall not have accepted the Offer, the Management Stockholder may on or prior to the 90th day following the receipt of such letter sell to the third party or parties all Offered Shares (but not less than all) all of the Restricted Shares covered by the Offer, Offered Shares) for the purchase price indicated in the Offer and on upon the other terms and conditions contained in conditions, including deferred or installment payment (if applicable), set forth therein. In the Offer.
(iii) If event the Company accepts terms of the OfferProposed Offer Sale contemplate the payment to the Selling Stockholder of consideration other than cash, the Company shallvalue of such non-cash consideration shall be determined in good faith by the disinterested members of the Company's Board of Directors; provided that if the Proposed Transferee offers the Selling Stockholder (i) securities that are traded on a nationally-recognized stock exchange or quoted on the Nasdaq National Market, in its discretion, select a then the value of such consideration shall be the average closing date (not less than 60 nor more than 90 sale prices for the 10 consecutive trading days following preceding the date of the Management Stockholder's Offer letter but in any event subject to the receipt by the Company of all necessary governmental approvals) for the purchase of Restricted Shares by the Company (which closing shallOffer, unless otherwise mutually agreed, be consummated at the principal offices of the Company). On such date, the Management Stockholder shall transfer the Restricted Shares subject to such Offer to the Company, free and clear of all liens and encumbrances, by delivering to the Company the certificates representing the Restricted Shares to be purchased, duly endorsed for transfer to the Company or accompanied by a stock power duly executed in blank, and the Company shall pay to the Management Stockholder the Offer price.
(c) Notwithstanding the foregoing, nothing in this Section 1 shall prevent the Transfer of any Restricted Shares by any Management Stockholder to (i) the Company or Holdings LLC; (ii) any member of a Management Stockholder's immediate family securities that are traded on the Nasdaq over-the-counter market or trusts for their benefit provided the Management Stockholder retains the sole and exclusive right to vote or dispose of any Restricted Shares transferred to the family member or trust; and (iii) upon a Management Stockholder's deathSmall-Cap market, the Management Stockholder's executors, administrators, testamentary trustees, legatees value of such consideration shall be the average of the closing bid and beneficiaries (with Transfers pursuant to clause (ii) closing asked prices for the 20 consecutive trading days preceding the date of the Offer as reported in the Wall Street Journal or (iii) being referred to as a "Permitted Transfer" and the related transferee, a "Permitted Transferee")by any market maker.
(d) Each Management Stockholder agrees that, as a condition precedent to any Transfer described in this Section 1, each transferee described in this Section 1 (other than the Company or Holdings LLC) shall deliver to the Company a copy of this Agreement signed by such transferee.
Appears in 1 contract
Samples: Common Stock Purchase Agreement (Photogen Technologies Inc)
Sales to Third Parties. (a) Each Management Stockholder hereby agrees that he or she shall not sell, assign, transfer, convey, pledge or otherwise dispose of (collectively, "Transfer") any Restricted Shares without During the prior written consent of the Company, which consent shall have been authorized by a majority of the members of the Board and which consent may be (i) withheld in the sole discretion of the Board, or (ii) given subject to reasonable terms and conditions determined by the Board in its sole discretion. Each Management Stockholder further agrees that in connection with any Transfer consented to by the Company, the Management Stockholder shallRestriction Period, if requested by the Company, deliver to the Company an opinion of counsel in form and substance reasonably satisfactory to the Company and counsel for the Company, to the effect that the Transfer is not in violation of this Agreement, the Securities Act of 1933, as amended (the "Securities Act"), or the securities laws of any state. Any purported Transfer in violation of the provisions of this Section 1 shall be null and void and shall have no force or effect.
(i) If a Management Stockholder (the "“Offering Stockholder"”) shall have received a bona fide offer or offers from a third party or parties to purchase any Restricted SharesShare Equivalents which such Offering Stockholder desires to accept, and the Transfer shall have been approved by the Company pursuant to Section 1(a)(iii) (to the extent such approval is required pursuant to Section 1(a) hereof), prior to selling any Restricted Shares Share Equivalents to the third party or partiesparties other than a Permitted Transferee, the Offering Stockholder shall deliver deliver, within thirty (30) days following such approval of the Transfer pursuant to Section 1(a)(iii), to the Company and the H&F Investors a letter (the “Offer Notice”) signed by the Offering Stockholder setting forth: (A) the name of the third party or parties; (B) the prospective purchase price per share of the Restricted SharesShare Equivalents; (C) all material terms and conditions contained in the offer of the third party or parties; and (D) the Offering Stockholder's ’s offer (irrevocable by its terms for 60 sixty (60) days following receiptthe later of (x) the date of the delivery of such Offer Notice or (y) the six (6) month anniversary of the date all or a portion of such Share Equivalents were first received or purchased (including upon exercise of Options) by the Management Stockholder (such 60-day period, the “Offer Period”)) to sell to the Company and the H&F Investors all (but not less than all) of the Restricted Shares Share Equivalents covered by the offer of the third party or parties, for a purchase price per share and on other terms and conditions not less favorable to the Company and the H&F Investors than those contained in the offer of the third party or parties (an "“Offer"”).
(iib) Upon receipt of such Offer Notice, the Company (or its designee) shall have an option to purchase any or all of the Share Equivalents described in the Offer Notice at the purchase price and upon the terms and conditions specified in the Offer. If the Company desires to exercise the option set forth in the preceding sentence, it shall deliver a notice (an “Election Notice”) to the Offering Stockholder and the H&F Investors at any time during the first thirty (30) days of the Offer Period (such 30-day period, the “Company Election Period”), specifying the number of Share Equivalents subject to the Offer to be acquired. In the event that the Company delivers an Election Notice for less than all of the Share Equivalents subject to the Offer, such Election Notice shall not be effective unless and until the H&F Investors deliver an Election Notice to purchase the remaining Share Equivalents subject to the Offer pursuant to Section 2(c). The Share Equivalents shall be purchased by the H&F Investors pro rata based upon their relative interests in the Company, or as such H&F Investors may otherwise agree.
(c) If, at any time during the Company Election Period, the Company shall determine not to exercise its right to purchase all of the Share Equivalents described in the Offer Notice, then the Company shall promptly notify the H&F Investors of such determination. In the event the Company does not deliver an Election Notice before the end of the Company Election Period or any Election Notice so delivered does not relate to the purchase of all the Share Equivalents described in the Offer Notice, then the H&F Investors shall have the option to purchase no less than all of the remaining Share Equivalents subject to the Offer at the purchase price and upon the terms and conditions specified in the Offer by delivering an Election Notice to the Offering Stockholder and the Company prior to the expiration of 60 the Offer Period. In the event Election Notices are delivered by both the Company and the H&F Investors and, as a result of miscalculation or similar error, the aggregate number of Share Equivalents described in such Election Notices exceeds the aggregate number of Share Equivalents specified in the Offer, the number of Share Equivalents to be purchased by the H&F Investors shall be reduced accordingly. Share Equivalents to be purchased by the H&F Investors pursuant to this Section 2(c) will be allocated among the H&F Investors pro rata based upon their relative interests in the Company, or as such H&F Investors may otherwise agree.
(d) If either the Company or the H&F Investors delivers an Election Notice, then such Person or Persons shall be obligated to purchase, and the Offering Stockholder shall be obligated to sell, the Share Equivalents described in such Election Notice at the purchase price per share and on other terms and conditions indicated in the Offer, except that the closing of such purchase and sale shall occur on a closing date selected by the Company or the H&F Investors, as applicable but in no event following the later of (i) ninety (90) days following the date of the Offer Notice or (ii) fifteen (15) days following the receipt by the Company or the H&F Investors, as applicable of all necessary governmental approvals (which governmental approvals the Company or the H&F Investors, as applicable, and the Management Stockholder shall use reasonable efforts to obtain promptly). Unless otherwise mutually agreed, the closing shall be consummated at the principal offices of the letter described in Company.
(e) If neither the Company nor the H&F Investors delivers an Election Notice to the Offering Stockholder within the time periods required by Section 1(b)(i2(b) and Section 2(c), as applicable, or the Company shall not have accepted Election Notices delivered in the aggregate relate to less than all of the Share Equivalents subject to the Offer, then the Management Offering Stockholder may may, during the period beginning on or prior to the 90th day immediately following the receipt termination of such letter the Offer Period and ending sixty (60) days thereafter, sell to the third party or parties all (but not less than all) of the Restricted Shares Share Equivalents covered by the Offer, for the purchase price and on the other terms and conditions contained in the Offer.
(iii) If the Company accepts the Offer, the Company shall, in its discretion, select a closing date (not less than 60 nor more than 90 days following the date of the Management Stockholder's Offer letter but in any event subject to the receipt by the Company of all necessary governmental approvals) for the purchase of Restricted Shares by the Company (which closing shall, unless otherwise mutually agreed, be consummated at the principal offices of the Company). On such date, the Management Stockholder shall transfer the Restricted Shares subject to such Offer to the Company, free and clear of all liens and encumbrances, by delivering to the Company the certificates representing the Restricted Shares to be purchased, duly endorsed for transfer to the Company or accompanied by a stock power duly executed in blank, and the Company shall pay to the Management Stockholder the Offer price.
(c) Notwithstanding the foregoing, nothing in this Section 1 shall prevent the Transfer of any Restricted Shares by any Management Stockholder to (i) the Company or Holdings LLC; (ii) any member of a Management Stockholder's immediate family or trusts for their benefit provided the Management Stockholder retains the sole and exclusive right to vote or dispose of any Restricted Shares transferred to the family member or trust; and (iii) upon a Management Stockholder's death, the Management Stockholder's executors, administrators, testamentary trustees, legatees and beneficiaries (with Transfers pursuant to clause (ii) or (iii) being referred to as a "Permitted Transfer" and the related transferee, a "Permitted Transferee").
(d) Each Management Stockholder agrees that, as a condition precedent to any Transfer described in this Section 1, each transferee described in this Section 1 (other than the Company or Holdings LLC) shall deliver to the Company a copy of this Agreement signed by such transferee.
Appears in 1 contract
Samples: Management Stockholders Agreement (Goodman Sales CO)
